Unknown. Correcting amendment
116,025 words·~527 min read·
/register/2008/06/18/08-1366A 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-2008-06-18.xml --- 73 118 Wednesday, June 18, 2008 Contents Agriculture Agriculture Department See Animal and Plant Health Inspection Service See Food and Nutrition Service See Natural Resources Conservation Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 34698 E8-13738 Animal Animal and Plant Health Inspection Service NOTICES Environmental Assessment; Availability, etc.:
Cotton Genetically Engineered for Glyphosate Herbicide Tolerance; Bayer CropScience, 34698-34700 E8-13736 Interstate Movement of Municipal Solid Waste from Hawaii, 34700-34701 E8-13735 Antitrust Antitrust Division NOTICES Pursuant to the National Cooperative Research and Production Act (1993): Joint Industry Project for Fluid Properties Meter Development and Support, 34790 E8-13659 The National Cooperative Research and Production Act: Cooperative Research Group on Clean Diesel V;
Correction, 34837 Z8-12529 Centers Centers for Disease Control and Prevention NOTICES Meetings: Disease, Disability, and Injury Prevention and Control Special Emphasis Panel, 34751 E8-13664 E8-13702 National Center for Injury Prevention and Control/Initial Review Group, 34752 E8-13729 Modification of NIOSH Standard for a Chemical, Biological, Radiological, and Nuclear Full Facepiece Air-Purifying Respirator, 34752-34753 E8-13721 Children Children and Families Administration NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 34753-34756 E8-13428 E8-13429 E8-13432 E8-13658 E8-13661 Coast Guard Coast Guard NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 34777-34778 E8-13692 Commerce Commerce Department See International Trade Administration See National Oceanic and Atmospheric Administration See Patent and Trademark Office Commodity Commodity Futures Trading Commission NOTICES Renewal of the Global Markets Advisory Committee, 34715 E8-13743 Defense Defense Department PROPOSED RULES Federal Acquisition Regulation;
FAR Case 2007018, Organizational Conflicts of Interest, 34686 E8-13724 Drug Drug Enforcement Administration NOTICES Revocation of Registration: Harriston Lee Bass, Jr., M.D., 34790-34791 E8-13741 Education Education Department NOTICES Advanced Placement Incentive Program; Overview Information: Inviting Applications for New Awards for Fiscal Year (FY 2008); Correction, 34837 Z8-10106 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 34715-34716 E8-13731 E8-13732 Applications for New Awards (Fiscal Year 2008):
Underground Railroad Educational and Cultural Program, 34837 Z8-10106 Applications for new awards for Fiscal Year (FY 2008): Teachers for a Competitive Tomorrow: Programs for Master's Degrees in Science, et al., 34837 Z8-10106 Applications for new awards for fiscal year FY 2008: Training and Advisory Services Program—Equity Assistance Centers (formerly Desegregation Assistance Centers), 34837 Z8-10106 College Cost Reduction and Access Act Hispanic-Serving Institutions Program:
Applications for New Awards (FY 2008), 34837 Z8-10106 Inviting Applications for New Award (FY 2008); National Institute on Disability and Rehabilitation Research; Projects, etc., 34837 Z8-10106 New Awards for Fiscal Year (2008): Asian American and Native American Pacific Islander-Serving Institutions; Native American-Serving Nontribal Institutions Programs, 34837 Z8-10106 Predominantly Black Institutions Program; Applications for Awards (FY 2008), 34837 Z8-10106 Rehabilitation Continuing Education Program Regional Technical Assistance and Continuing Education Centers, 34837 Z8-10106 Teachers for a Competitive Tomorrow:
Programs for Baccalaureate Degrees in Science, Technology, Engineering, Mathematics, or Critical Foreign Languages, with Concurrent Teacher Certification, 34717 08-1366 Programs for Master's Degrees in Science, Technology, Engineering, Mathematics or Critical Foreign Language Education, 34717 08-1367 Technical Assistance and Dissemination to Improve Services and Results for Children With Disabilities; Technical Assistance Coordination Center, 34837 Z8-10106 Technology and Media Services for Individuals with Disabilities;
Family Center on Technology and Disability, 34837 Z8-10106 Election Election Assistance Commission NOTICES Meetings; Sunshine Act, 34717-34718 E8-13657 Energy Energy Department See Federal Energy Regulatory Commission NOTICES Meetings: Environmental Management Site-Specific Advisory Board, Paducah, 34718 E8-13753 EPA Environmental Protection Agency RULES Protection of Stratospheric Ozone; Revision of Refrigerant Recovery Only Equipment Standards, 34644-34649 E8-13749 PROPOSED RULES Pesticide Tolerance Nomenclature Changes;
Proposed Technical Amendments, 34678-34686 E8-13368 Protection of Stratospheric Ozone: Revision of Refrigerant Recovery Only Equipment Standards, 34676-34678 E8-13754 NOTICES Adequacy Status of Motor Vehicle Budgets in Submitted South Coast 8-hour Ozone and PM2.5 Attainment, etc.: California; Correction, 34837 Z8-10901 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 34725-34734 E8-13748 E8-13750 E8-13765 E8-13771 E8-13829 E8-13841 Filing: Pesticide Petitions for Residues of Pesticide Chemicals in or on Various Commodities, 34734-34736 E8-13625 Meetings:
Board of Scientific Counselors, National Center for Environmental Research Standing Subcommittee, 34736 E8-13825 FIFRA Scientific Advisory Panel, 34736-34739 E8-13773 Science Advisory Board; Clean Air Scientific Advisory Committee, 34739-34740 E8-13843 The Science Advisory Board Teleconferences, 34740-34741 E8-13833 Primacy Application for National Primary Drinking Water Regulations for the State of Missouri, 34741 E8-13842 Product Registration Cancellation Order: Fenamiphos, 34741-34743 E8-13623 Receipt and Status Information:
Certain New Chemicals, 34743-34746 E8-13777 State Program Requirements: Application to Administer the National Pollutant Discharge Elimination System Program; Alaska, 34746-34748 E8-13831 Executive Executive Office for Immigration Review PROPOSED RULES Board of Immigration Appeals: Affirmance Without Opinion, Referral for Panel Review and Publication of Decisions as Precedents, 34654-34663 E8-13435 FAA Federal Aviation Administration RULES Airworthiness Directives: Dassault Model Falcon 2000EX Airplanes, 34613-34615 E8-13320 Dassault Model Falcon 2000EX Airplanes and Model Falcon 900EX Airplanes, 34608-34611 E8-13275 Dassault Model Falcon 2000EX and 900EX Airplanes, 34624-34626 E8-13315 GENERAL AVIA Costruzioni Aeronatiche Models F22B, F22C, and F22R Airplanes, 34620-34622 E8-13108 Lindstrand Balloons Ltd.
Models 42A, 56A, 60A, 69A, 77A, 90A, 105A, 120A, 150A, 180A, 210A, 240A, 260A, and 310A Balloons, 34622-34624 E8-13674 Lockheed Model L 1011 Series Airplanes, 34605-34608 E8-13277 M7 Aerospace LP SA226 and SA227 Series Airplanes, 34615-34618 E8-13180 Viking Air Limited Model DHC 2 Series Airplanes, 34611-34613 E8-13478 Viking Air Limited Models DHC-2 Mk. I, DHC-2 Mk. II, and DHC-3 Airplanes, 34618-34620 E8-13112 PROPOSED RULES Airworthiness Directives: Boeing Model 747-400, 747-400D, and 747-400F Series Airplanes, 34663-34665 E8-13714 NOTICES Passenger Facility Charge Approvals and Disapprovals, 34825-34828 E8-13212 Federal Energy Federal Energy Regulatory Commission NOTICES Applications:
SourceGas Storage LLC, 34718-34719 E8-13682 Environmental Impact Statements; Availability, etc.: Upper Peninsula Power Co., 34719 E8-13685 Initial Market-Based Rate Filing: Evergreen Community Power, LLC, 34719-34720 E8-13684 Intent to Prepare an Environmental Assessment: EcoElectrica, L.P., 34720-34721 E8-13683 Meetings: Columbia Gulf Transmission Co.; Technical Conference, 34721-34722 E8-13680 Meetings; Sunshine Act, 34722-34723 E8-13687 Request Under Blanket Authorization:
Equitrans, L.P., 34724 E8-13681 E8-13686 FMC Federal Maritime Commission NOTICES Agreement Filed: Port of NY/NJ Sustainable Services, 34748 E8-13774 Ocean Transportation Intermediary License Applicants, 34749 E8-13783 Federal Motor Federal Motor Carrier Safety Administration NOTICES Exemption Applications: Commercial Driver's License
(CDL)Standards; Volvo Trucks North America, Inc., 34828-34829 E8-13804 Federal Railroad Federal Railroad Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 34829-34831 E8-13690 Federal Reserve Federal Reserve System NOTICES Meetings; Sunshine Act, 34749-34750 08-1369 FTC Federal Trade Commission RULES Guides for Select Leather and Imitation Leather Products, 34626-34630 E8-13656 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 34750-34751 E8-13660 Federal Transit Federal Transit Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 34831 E8-13790 Fish Fish and Wildlife Service PROPOSED RULES Endangered and Threatened Wildlife and Plants: Long-tailed Duck (Clangula hyemalis), 34686-34692 E8-13840 Meetings: Migratory Game Bird Hunting Regulations for the 2008-09 Hunting Season, 34692-34697 E8-13737 Food Food and Nutrition Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 34701-34703 E8-13739 E8-13742 GSA General Services Administration PROPOSED RULES Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council, 34686 E8-13724 Health Health and Human Services Department See Centers for Disease Control and Prevention See Children and Families Administration See National Institutes of Health Homeland Homeland Security Department See Coast Guard NOTICES Exercise of Authority of the Immigration and Nationality Act, 34770-34775 E8-13638 E8-13640 E8-13643 E8-13644 E8-13655 E8-13666 E8-13673 Exercise of Authority under Section 212(d)(3)(B)(i) of the Immigration and Nationality Act, 34772-34773, 34776-34777 E8-13642 E8-13651 E8-13652 Housing Housing and Urban Development Department PROPOSED RULES Standards for Mortgagor's Investment in Mortgaged Property; Additional Public Comment Period, 33941-33955 [ **Editorial Note:** The page numbers for this document were missing from the printed version of the **Federal Register** Table of Contents of June 16, 2008.] NOTICES Capacity Building for Community Development and Affordable Housing Grants; Amendment, 34778-34779 E8-13691 Funding Awards for the Community Development Technical Assistance Programs 2007 Fiscal Year, 34779-34780 E8-13696 Privacy Act of 1974; Computer Matching Program, 34780-34782 E8-13876 Indian Indian Affairs Bureau NOTICES Guidiville Band of Pomo Indians of the Guidiville Indian Rancheria Liquor Control Ordinance, 34782-34783 E8-13725 Interior Interior Department See Fish and Wildlife Service See Indian Affairs Bureau See Land Management Bureau See Minerals Management Service See National Indian Gaming Commission See Surface Mining Reclamation and Enforcement Office IRS Internal Revenue Service PROPOSED RULES Accrual Rules for Defined Benefit Plans, 34665-34670 E8-13788 Guidance Under Sections 642 and 643 (Income Ordering Rules), 34670-34672 E8-13611 International International Trade Administration NOTICES Applications for Duty-Free Entry of Scientific Instruments, 34704 E8-13393 International International Trade Commission NOTICES Investigations: Brake Rotors from China, 34790 E8-13678 Justice Justice Department See Antitrust Division See Drug Enforcement Administration See Executive Office for Immigration Review Labor Labor Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 34791-34793 E8-13648 E8-13653 Central America - Dominican Republic - United States Free Trade Agreement; Determination Regarding Review of Submission, 34793-34794 E8-13676 Delegation of Authority and Assignment of Responsibilities for Compliance Assistance Activities, 34840-34841 E8-13751 Land Land Management Bureau NOTICES Alaska Native Claims Selection, 34783-34785 E8-13718 E8-13722 E8-13723 Meetings: Resource Advisory Council to the Boise District, 34785 E8-13693 Realty Action: Proposed Direct Sale of Public Lands in Sweetwater County, WY, 34785-34786 E8-13713 Recreation and Public Purposes Classification Amendment; Calaveras County, CA, 34786 E8-13720 Maritime Maritime Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 34831-34832 E8-13785 Requested Administrative Waiver of the Coastwise Trade Laws, 34832-34835 E8-13746 E8-13776 E8-13779 E8-13780 E8-13781 E8-13792 Minerals Minerals Management Service RULES Outer Continental Shelf Lands Act: Open and Nondiscriminatory Movement of Oil and Gas, 34630-34643 E8-13654 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 34787-34789 E8-13663 NASA National Aeronautics and Space Administration PROPOSED RULES Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council, 34686 E8-13724 National Indian National Indian Gaming Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 34794-34797 E8-13679 NIH National Institutes of Health NOTICES Government-Owned Inventions; Availability for Licensing, 34756-34765 E8-13669 E8-13672 Meetings: Center for Scientific Review, 34765-34766 E8-13389 National Center for Complementary and Alternative Medicine, 34766 E8-13688 National Heart, Lung, and Blood Institute, 34766-34767 E8-13667 National Institute of Allergy and Infectious Diseases, 34768 E8-13662 National Institute of Arthritis and Musculoskeletal and Skin Diseases, 34767 E8-13390 National Institute of Child Health and Human Development, 34769 E8-13670 National Institute of Dental and Craniofacial Research, 34768 E8-13665 National Institute of Diabetes and Digestive and Kidney Diseases, 34770 E8-13701 National Institute of General Medical Sciences, 34769 E8-13689 National Institute of Mental Health, 34767-34768 E8-13392 National Institute on Aging, 34767 E8-13391 National Institute on Drug Abuse, 34768-34769 E8-13668 Prospective Grant of Exclusive License: Geldanamycin Derivative and Method of Treating Viral Infections, 34770 E8-13671 NOAA National Oceanic and Atmospheric Administration NOTICES Evaluation of State Coastal Management Programs and National Estuarine Research Reserves, 34704-34705 E8-13747 Incidental Takes of Marine Mammals During Specified Activities: Rat Population Eradication at Rat Island, AK., 34705-34713 E8-13786 Meetings: National Sea Grant Review Panel, 34713 E8-13745 Pacific Fishery Management Council, 34713-34714 E8-13695 Pacific Fishery Management Council; Halibut Managers Workgroup, 34714 E8-13717 Science Advisory Board, 34714 E8-13793 NRCS Natural Resources Conservation Service NOTICES Agricultural Air Quality Task Force; Nominations, 34703-34704 E8-13675 Nuclear Nuclear Regulatory Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 34797-34798 E8-13726 Indirect Change of Control with Respect to Materials License: Rio Algom Mining LLC, 34798-34800 E8-13727 Patent Patent and Trademark Office PROPOSED RULES Fiscal Year 2009 Changes to Patent Cooperation Treaty Transmittal and Search Fees, 34672-34676 E8-13730 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 34715 E8-13719 Personnel Personnel Management Office RULES Human Resources Management in Agencies; Correcting Amendment, 34605 E8-13734 NOTICES Proposed Personnel Demonstration Project: Performance Based Pay Adjustments in the Department of Veterans Affairs, 34800-34808 E8-13733 SEC Securities and Exchange Commission NOTICES Filing and Order Approving an Extension of Temporary Registration as a Clearing Agency: Fixed Income Clearing Corp., 34808-34809 E8-13704 Self-Regulatory Organizations; Proposed Rule Changes: American Stock Exchange LLC, 34809-34811 E8-13708 Chicago Board Options Exchange, Inc., 34811-34814 E8-13703 International Securities Exchange, LLC, 34814-34815 E8-13707 NYSE Arca, Inc., 34815-34822 E8-13705 E8-13709 E8-13710 Philadelphia Stock Exchange, Inc., 34822-34823 E8-13706 State State Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 34823-34824 E8-13782 Culturally Significant Objects Imported for Exhibition Determinations: Landscapes Clear and Radiant; The Art of Wang Hui (1632-1717), 34824 E8-13775 Roy Lichtenstein's Girl with Tear III, 34824-34825 E8-13770 Exercise of Authority of the Immigration and Nationality Act, 34770-34775 E8-13638 E8-13640 E8-13643 E8-13644 E8-13651 E8-13655 E8-13666 E8-13673 Exercise of Authority under Section 212(d)(3)(B)(i) of the Immigration and Nationality Act, 34776-34777 E8-13642 E8-13652 Surface Surface Mining Reclamation and Enforcement Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 34789-34790 E8-13711 Surface Surface Transportation Board RULES Regulations Governing Fees for Services Performed in Connection with Licensing and Related Services: 2008 Update, 34649-34653 E8-13554 NOTICES Discontinuance of Service Exemption: Norfolk Southern Railway Co.; St. Joseph and LaPorte Counties, IN, 34835 E8-13312 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 Surface Transportation Board NOTICES Applications for Certificates of Pubic Convenience and Necessity and Foreign Air Carrier Permits Filed Under Subpart B (formerly Subpart Q): Week Ending April 11, 2008, 34825 E8-13766 Applications for Certificates of Public Convenience and Necessity: Foreign Air Carrier Permits Filed Under Subpart B (formerly Subpart Q), 34825 E8-13772 Treasury Treasury Department See Internal Revenue Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 34835-34836 E8-13716 Separate Parts In This Issue Part II Labor Department, 34840-34841 E8-13751 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. 73 118 Wednesday, June 18, 2008 Rules and Regulations OFFICE OF PERSONNEL MANAGEMENT 5 CFR Part 250 RIN 3206-AJ92 Human Resources Management in Agencies AGENCY: Office of Personnel Management. ACTION: Correcting amendment. SUMMARY: The Office of Personnel Management
(OPM)is correcting a final rule to implement certain provisions of the Chief Human Capital Officers Act of 2002, which set forth new OPM and agency responsibilities and requirements to enhance and improve the strategic management of the Federal Government's civilian workforce, as well as the planning and evaluation of agency efforts in that regard. This technical correction makes sure that the authority citation for 5 CFR part 250 is revised for subparts A, B, and C. DATES: *Effective Date:* June 18, 2008. FOR FURTHER INFORMATION CONTACT: Charles D. Grimes by phone at 202-418-3163, by FAX at 202-606-2838, or by e-mail at *pay-performance-policy@opm.gov* . You may contact Mr. Grimes by TTY on 202-418-3134. SUPPLEMENTARY INFORMATION: The Office of Personnel Management
(OPM)published a document in the **Federal Register** of April 28, 2008, (73 FR 23012) which issued final regulations to change 5 CFR part 250, to read “Human Resources Management in Agencies” to reflect current usage, to make a plain language revision in subpart A, and to add regulations on strategic human resources management as new subpart B. On May 6, 2008, OPM published a correcting amendment in the **Federal Register** (73 FR 24851) to ensure that subpart C of part 250 remained unaffected by the changes of the new final rule. OPM was later notified that the correcting amendment, as it stands, results in two authority citations for 5 CFR part 250. This correction consolidates these two authority citations into a single citation. List of Subjects in 5 CFR Part 250 Authority delegations (Government agencies), Government employees. Office of Personnel Management. Charles D. Grimes III, Deputy Associate Director, Center for Performance and Pay Systems. Accordingly, 5 CFR part 250 is corrected by making the following correcting amendment: PART 250—HUMAN RESOURCES MANAGEMENT IN AGENCIES 1. The authority citation for part 250 is revised to read as follows: Authority: 5 U.S.C. 1101 note, 1103(a)(5), 1103(c), 1104, 1302, 3301, 3302; E.O. 10577, 12 FR 1259, 3 CFR, 1954-1958 Comp., p. 218; E.O. 13197, 66 FR 7853, 3 CFR 748 (2002). Subpart B also issued under 5 U.S.C. 1401, 1401 note, 1402. [FR Doc. E8-13734 Filed 6-17-08; 8:45 am] BILLING CODE 6325-39-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0637; Directorate Identifier 2008-NM-078-AD; Amendment 39-15561; AD 2008-12-17] RIN 2120-AA64 Airworthiness Directives; Lockheed Model L-1011 Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: The FAA is superseding an existing airworthiness directive (AD), which applies to all Lockheed Model L-1011 series airplanes. That AD currently requires an inspection of the fuel level control switch, the fuel level control switch wiring harness, and the wiring harness conduit for damage, wear or chafing, broken or missing O-rings, or indications of electrical arcing. That AD also requires replacement of a certain conduit in the fuel level control switch wiring harness, installation of electrical sleeving over the fuel level control switch wiring harness, and installation of the fuel level control switch that has been so modified. This new AD requires an inspection of the fuel level control switch, wiring harnesses, and harness conduit for any visible damage, wear or chafing, broken or missing O-rings, or indications of electrical arcing; an inspection to determine the part number of the wiring harness conduit; and corrective actions if necessary. This new AD also requires replacing certain sleeving with new, improved sleeving over the wiring harness of the fuel level control switch. This AD results from a design review of the fuel tank systems. We are issuing this AD to prevent chafing of the fuel level control switch wiring harness, which could cause arcing and result in a fire in the fuel tank. DATES: This AD becomes effective July 23, 2008. The Director of the Federal Register approved the incorporation by reference of a certain other publication listed in the AD as of July 23, 2008. On June 1, 2001 (66 FR 21072, April 27, 2001), the Director of the Federal Register approved the incorporation by reference of a certain service bulletin. ADDRESSES: For service information identified in this AD, contact Lockheed Continued Airworthiness Project Office, Attention: Airworthiness, 86 South Cobb Drive, Marietta, Georgia 30063-0567. 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 AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (telephone 800-647-5527) is the Document Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. FOR FURTHER INFORMATION CONTACT: Robert A. Bosak, Aerospace Engineer, Propulsion and Services Branch, ACE-118A, FAA, Atlanta Aircraft Certification Office, One Crown Center, 1895 Phoenix Boulevard, Suite 450, Atlanta, Georgia 30349; telephone
(770)703-6094; fax
(770)703-6097. SUPPLEMENTARY INFORMATION: Discussion On April 18, 2001, we issued AD 2001-08-21, amendment 39-12198 (66 FR 21072, April 27, 2001), for all Lockheed Model L-1011 series airplanes. That AD requires a general visual inspection of the fuel level control switch, the fuel level control switch wiring harness, and the wiring harness conduit for damage, wear or chafing, broken or missing O-rings, or indications of electrical arcing. That AD also requires replacement of a certain conduit in the fuel level control switch wiring harness, installation of electrical sleeving over the fuel level control switch wiring harness, and installation of the fuel level control switch that has been so modified. That AD resulted from a design review of the fuel tank systems. We issued that AD to prevent chafing of the fuel level control switch wiring harness, which could cause arcing and result in a fire in the fuel tank. That AD refers to the original issue of Lockheed Service Bulletin 093-28-094, dated March 3, 2000, as the appropriate source of service information for accomplishing the actions required by that AD. Actions Since Existing AD Was Issued Since we issued AD 2001-08-21, we issued a notice of proposed rulemaking
(NPRM)to amend 14 CFR part 39 to include an airworthiness directive
(AD)that would apply to all Lockheed Model L-1011 series airplanes. That NPRM, Docket No. FAA-2008-0181, was published in the **Federal Register** on February 20, 2008 (73 FR 9235). That NPRM proposed to require revising the FAA-approved maintenance program by incorporating new airworthiness limitations for fuel tank systems to satisfy Special Federal Aviation Regulation No. 88 (“SFAR 88”) requirements. That NPRM also proposed to require the accomplishment of certain fuel system modifications, the initial inspections of certain repetitive fuel system limitations
(FSLs)to phase in those inspections, and repair if necessary. One of those FSLs involved accomplishing the actions specified in Lockheed Service Bulletin 093-28-094, Revision 1, dated June 23, 2006. We gave the public the opportunity to participate in developing that NPRM, and we received a comment from ATA Airlines requesting that we revise the NPRM by removing the proposed requirement to accomplish the FSL specified in Revision 1 of Lockheed Service Bulletin 093-28-094. The commenter further requested that we instead issue a separate rulemaking action to supersede AD 2001-08-21 to require the accomplishment of Revision 1 of the service bulletin. As stated in the NPRM, AD 2001-08-21 requires the accomplishment of the original issue of the service bulletin, but more work is necessary for Revision 1 of the service bulletin. The additional work includes replacing any wiring harness conduit having part number (P/N) 741652-105 with new conduit having P/N 741652-121, removing any braided fiberglass sleeving installed in accordance with the original issue of the service bulletin, and installing PVC electrical sleeving having P/N PVC-105-2 over the wiring harness of the fuel level control switch. We agree that it is more appropriate to supersede AD 2001-08-21 to require the additional work specified in Revision 1 of the service bulletin. Therefore, we are issuing this new action to amend 14 CFR part 39 to include an AD that supersedes AD 2001-08-21. Further, we also removed the proposed requirement to accomplish the FSL specified in Revision 1 of the service bulletin from the NPRM, and we issued AD 2008-11-02, amendment 39-15524 (73 FR 29410, May 21, 2008), on May 8, 2008, to require all other actions proposed by the NPRM. Relevant Service Information We have reviewed Revision 1 of Lockheed Service Bulletin 093-28-094. That service bulletin describes the following procedures: • Inspecting the fuel level control switch, wiring harness, and wiring harness conduit for any visible damage, wear or chafing, broken or missing O-rings, or indications of electrical arcing. • Verifying the part number of the wiring harness conduit. • Removing any braided fiberglass sleeving installed in accordance with the original issue of the service bulletin, and installing PVC electrical sleeving having P/N PVC-105-2 over the wiring harness of the fuel level control switch. • Doing corrective actions if necessary. The corrective actions include replacing the fuel level control switch with a new part if any visible damage, wear or chafing, broken or missing O-ring, or indication of electrical arcing is found; and replacing any wiring harness conduit having P/N 741652-103 or -105 with new conduit having P/N 741652-121. The service bulletin also describes procedures for notifying Lockheed of any discrepancies found during the inspection, and revising the airplane records and maintenance planning documents to repeat the inspection at intervals not to exceed 120 months. FAA's Determination and Requirements of the AD We have evaluated all pertinent information and identified an unsafe condition that is likely to develop on other airplanes of the same type design. For this reason, we are issuing this AD, which would supersede AD 2001-08-21 and would retain the requirements of the existing AD. This AD would also require the following actions: • A general visual inspection of the fuel level control switch, wiring harness, and wiring harness conduit for any visible damage, wear or chafing, broken or missing O-rings, or indications of electrical arcing, and corrective action as applicable. • An inspection to determine the part number of the wiring harness conduit, and corrective action as applicable. • Replacement of any braided fiberglass sleeving with PVC electrical sleeving over the wiring harness of the fuel level control switch. • A revision to the FAA-approved maintenance program to incorporate repetitive general visual inspections of the fuel level control switch, wiring harness, and wiring harness conduit for any visible damage, wear or chafing, broken or missing O-rings, or indications of electrical arcing. This AD allows accomplishing the revision to the FAA-approved maintenance program in accordance with later revisions of Lockheed Service Bulletin 093-28-094 as an acceptable method of compliance if they are approved by the Manager, Atlanta Aircraft Certification Office, FAA. Difference Between This AD and Service Bulletin Although Lockheed Service Bulletin 093-28-094, Revision 1, describes procedures for notifying Lockheed of any discrepancies found during the inspection, this AD does not require that action. Clarification of Inspection Terminology The “inspection” specified in Lockheed Service Bulletin 093-28-094, Revision 1, is referred to as a “general visual inspection” in this AD. We have included the definition for a general visual inspection in a note in this AD. Change to Existing AD This AD retains all requirements of AD 2001-08-21. Since AD 2001-08-21 was issued, the AD format has been revised, and certain paragraphs have been rearranged. As a result, the corresponding paragraph identifiers have changed in this AD, as listed in the following table: Revised Paragraph Identifiers Requirement in AD 2001-08-21 Corresponding requirement in this AD paragraph
(a)paragraph (f). paragraph
(b)paragraph (g). Costs of Compliance There are about 108 airplanes of the affected design in the worldwide fleet. 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 AD. Estimated Costs Action Work hours Parts Cost per airplane Number of U.S.-registered airplanes Fleet cost Inspection of fuel level control switch and installation of braided fiberglass sleeving (required by AD 2001-08-21) 19 $200 $1,720 63 $108,360 Inspection of fuel level control switch and installation of PVC sleeving (new action) 3 41,785 42,025 63 2,647,575 Maintenance program revision to incorporate repetitive inspection (new action) 1 None 80 63 5,040 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 have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that this AD:
(1)Is not a “significant regulatory action” under Executive Order 12866;
(2)Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
(3)Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration
(FAA)amends § 39.13 by removing amendment 39-12198 (66 FR 21072, April 27, 2001) and by adding the following new airworthiness directive (AD): **2008-12-17 Lockheed:** Amendment 39-15561. Docket No. FAA-2008-0637; Directorate Identifier 2008-NM-078-AD. Effective Date
(a)This AD becomes effective July 23, 2008. Affected ADs
(b)This AD supersedes AD 2001-08-21. Applicability
(c)This AD applies to all Lockheed Model L-1011 series airplanes, certificated in any category. Note 1: This AD requires revisions to certain operator maintenance documents to include new inspections. Compliance with these inspections is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by these inspections, the operator may not be able to accomplish the inspections described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance
(AMOC)according to paragraph
(l)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 a design review of the fuel tank systems. We are issuing this AD to prevent chafing of the fuel level control switch wiring harness, which could cause arcing and result in a fire in the fuel tank. Compliance
(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Restatement of Requirements of AD 2001-08-21 Inspection, Replacement, and Installation
(f)Within 18 months after June 1, 2001 (the effective date of AD 2001-08-21): Verify the part number (P/N) of the wiring harness conduit and perform a general visual inspection of the fuel level control switch, the fuel level control switch wiring harness, and the wiring harness conduit to detect any visible damage, any wear or chafing, broken or missing O-rings, or indications of electrical arcing, in accordance with the Accomplishment Instructions in Lockheed Service Bulletin 093-28-094, dated March 3, 2000; or Revision 1, dated June 23, 2006. Note 2: For the purposes of this AD, a general visual inspection is defined as: “A visual examination of an interior or exterior area, installation, or assembly to detect obvious damage, failure, or irregularity. This level of inspection is made under normally available lighting conditions such as daylight, hangar lighting, flashlight, or drop-light, and may require removal or opening of access panels or doors. Stands, ladders, or platforms may be required to gain proximity to the area being checked.”
(g)Prior to further flight after accomplishment of the requirements in paragraph
(f)of this AD, accomplish the actions specified in paragraphs (g)(1) and (g)(2), as applicable, in accordance with the Accomplishment Instructions in Lockheed Service Bulletin 093-28-094, dated March 3, 2000; or Revision 1, dated June 23, 2006.
(1)Install sleeving over each fuel level control switch wiring harness and install the modified fuel level control switch.
(2)If a conduit with P/N 97590-103 is installed, replace the conduit with one having P/N 97590-121, install sleeving over each fuel level control switch wiring harness, and install the modified fuel level control switch. New Requirements of This AD New Inspections, Replacement, and Corrective Actions
(h)Within 60 months after the effective date of this AD: Do a general visual inspection of the fuel level control switch, wiring harness, and wiring harness conduit for any visible damage, wear or chafing, broken or missing O-rings, or indications of electrical arcing; do an inspection to determine the part number of the wiring harness conduit; replace any braided fiberglass sleeving with PVC electrical sleeving over the wiring harness of the fuel level control switch; and do all applicable corrective actions; by accomplishing all of the applicable actions specified in the Accomplishment Instructions of Lockheed Service Bulletin 093-28-094, Revision 1, dated June 23, 2006. The corrective actions must be done before further flight after doing the inspections. Maintenance Program Revision
(i)Concurrently with accomplishing the actions specified in paragraph
(h)of this AD: Revise the FAA-approved maintenance program to incorporate the information specified in Table 1 of this AD. Table 1.—Fuel System Limitation for Fuel Level Control Switch Task Repetitive Interval Applicability Description Airworthiness limitation instruction
(ALI)120 months All airplanes modified in accordance with Lockheed Service Bulletin 093-28-094, Revision 1, dated June 23, 2006 General visual inspection of the fuel level control switch, wiring harness, and wiring harness conduit for any visible damage, wear or chafing, broken or missing O-rings, or indications of electrical arcing, in accordance with Lockheed Service Bulletin 093-28-094, Revision 1, dated June 23, 2006. No Alternative Inspections or Inspection Intervals
(j)After accomplishing the action specified in paragraph
(i)of this AD, no alternative inspections or inspection intervals may be used unless the inspections or intervals are part of a later revision of Lockheed Service Bulletin 093-28-094, Revision 1, dated June 23, 2006, that is approved by the Manager, Atlanta Aircraft Certification Office (ACO), FAA; or unless the inspections or intervals are approved as an AMOC in accordance with the procedures specified in paragraph
(l)of this AD. No Reporting Requirement
(k)Although Lockheed Service Bulletin 093-28-094, Revision 1, dated June 23, 2006, specifies notifying Lockheed of any discrepancies found during the inspection, this AD does not require that action. Alternative Methods of Compliance (AMOCs) (l)(1) The Manager, Atlanta ACO, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2)To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO. Material Incorporated by Reference
(m)You must use Lockheed Service Bulletin 093-28-094, dated March 3, 2000; or Lockheed Service Bulletin 093-28-094, Revision 1, dated June 23, 2006; as applicable; to perform the actions that are required by this AD, unless the AD specifies otherwise.
(1)The Director of the Federal Register approved the incorporation by reference of Lockheed Service Bulletin 093-28-094, Revision 1, dated June 23, 2006, in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.
(2)On June 1, 2001 (66 FR 21072, April 27, 2001), the Director of the Federal Register approved the incorporation by reference of Lockheed Service Bulletin 093-28-094, dated March 3, 2000.
(3)Contact Lockheed Continued Airworthiness Project Office, Attention: Airworthiness, 86 South Cobb Drive, Marietta, Georgia 30063-0567, for a copy of this service information. You may review copies at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, Washington; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal-register/cfr/ibr-locations.html* . Issued in Renton, Washington, on June 5, 2008. Michael J. Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-13277 Filed 6-17-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0364; Directorate Identifier 2006-NM-281-AD; Amendment 39-15562; AD 2008-12-18] RIN 2120-AA64 Airworthiness Directives; Dassault Model Falcon 2000EX Airplanes and Model Falcon 900EX Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: We are adopting a new airworthiness directive
(AD)for the products listed above. This AD results from mandatory continuing airworthiness information
(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: During a flight test performed on an EASy aircraft, subsequently to an air data probe failure, the crew realized that the Flight path vectors and the Vertical speeds that were displayed on pilot's and co-pilot's PDU (primary display unit) were identically wrong. A review of the EASy architecture reveals that * * * One single ADS (air data system) unflagged air data error may lead to the computation and display on both pilot's and co-pilot's display units of unnoticed and misleading flight information. At take-off or during go-around this situation might considerably reduce flight safety. We are issuing this AD to require actions to correct the unsafe condition on these products. DATES: This AD becomes effective July 23, 2008. The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of July 23, 2008. ADDRESSES: You may examine the AD docket on the Internet at *http://www.regulations.gov* or in person at the U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC. FOR FURTHER INFORMATION CONTACT: Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-1137; fax
(425)227-1149. SUPPLEMENTARY INFORMATION: Discussion We issued a notice of proposed rulemaking
(NPRM)to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the **Federal Register** on March 31, 2008 (73 FR 16787). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states: During a flight test performed on an EASy aircraft, subsequently to an air data probe failure, the crew realized that the Flight path vectors and the Vertical speeds that were displayed on pilot's and co-pilot's PDU (primary display unit) were identically wrong. A review of the EASy architecture reveals that the current wiring of Air Data System
(ADS)and IRS (inertial reference system) units is not compliant with the certified safety objectives. All IRS primary inputs are wired to the same General Purpose
(GP)Bus and thus basic requirements for ADS segregation are not met. One single ADS unflagged air data error may lead to the computation and display on both pilot's and co-pilot's display units of unnoticed and misleading flight information. At take-off or during go-around this situation might considerably reduce flight safety. This AD mandates a wiring modification of IRS [no.] 2 and a test of General Purpose bus IRS entry per application of SB-F2000EX-89 on Falcon 2000EX EASy and per application of SB-F900EX-274 on Falcon 900EX EASy. Furthermore in order to maintain ADS parameter segregation against possible failures, this AD also requires F2000EX EASy and F900EX EASy operators to comply with the modifications made to the respective Chapter 5.40 of the Aircraft Maintenance Manuals that contain an additional periodic functional test of the IRS GP Bus I/O (input/output). Dispatch conditions under MMEL (master minimum equipment list) in case of an IRS2 failure are modified after implementation of the wiring change. The corrective actions involve checking the integrity of the GP bus and IRS2, and repairing them as applicable. You may obtain further information by examining the MCAI in the AD docket. Comments We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public. Conclusion We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have required different actions in this AD from those in the MCAI in order to follow our FAA policies. Any such differences are highlighted in a NOTE within the AD. Costs of Compliance We estimate that this AD will affect about 62 products of U.S. registry. We also estimate that it will take about 3 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $80 per work-hour. Required parts will cost a negligible amount 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 parts. 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 this AD to the U.S. operators to be $14,880, or $240 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this AD: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov;* or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone
(800)647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **2008-12-18 Dassault Aviation:** Amendment 39-15562. Docket No. FAA-2008-0364; Directorate Identifier 2006-NM-281-AD. Effective Date
(a)This airworthiness directive
(AD)becomes effective July 23, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to Dassault Model Falcon 2000EX airplanes, serial number (S/N) 6, and S/N 28 and subsequent; and Model Falcon 900EX airplanes, S/N 97, and S/N 120 and subsequent; certificated in any category. Subject
(d)Air Transport Association
(ATA)of America Code 34: Navigation. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: During a flight test performed on an EASy aircraft, subsequently to an air data probe failure, the crew realized that the Flight path vectors and the Vertical speeds that were displayed on pilot's and co-pilot's PDU (primary display unit) were identically wrong. A review of the EASy architecture reveals that the current wiring of Air Data System
(ADS)and IRS (inertial reference system) units is not compliant with the certified safety objectives. All IRS primary inputs are wired to the same General Purpose
(GP)Bus and thus basic requirements for ADS segregation are not met. One single ADS unflagged air data error may lead to the computation and display on both pilot's and co-pilot's display units of unnoticed and misleading flight information. At take-off or during go-around this situation might considerably reduce flight safety. This AD mandates a wiring modification of IRS [no.] 2 and a test of General Purpose bus IRS entry per application of SB-F2000EX-89 on Falcon 2000EX EASy and per application of SB-F900EX-274 on Falcon 900EX EASy. Furthermore in order to maintain ADS parameter segregation against possible failures, this AD also requires F2000EX EASy and F900EX EASy operators to comply with the modifications made to the respective Chapter 5.40 of the Aircraft Maintenance Manuals that contain an additional periodic functional test of the IRS GP Bus I/O (input/output). Dispatch conditions under MMEL (master minimum equipment list) in case of an IRS2 failure are modified after implementation of the wiring change. The corrective actions involve checking the integrity of the GP bus and IRS2, and repairing them as applicable. Actions and Compliance
(f)Unless already done, do the following actions.
(1)For Model Falcon 2000EX airplanes without Dassault Modification M2758 and Model Falcon 900EX airplanes without Dassault Modification M5143 in the applicability range: Within 3 months after the effective date of this AD, do the IRS2 wiring modification and test the GP (general purpose) bus IRS entry. Do all actions in accordance with the Accomplishment Instructions of Dassault Service Bulletin F2000EX-89, dated March 17, 2006; or Dassault Service Bulletin F900EX-274, dated March 17, 2006; as applicable. Repeat the test at intervals not to exceed 5,000 flight hours. If the GP bus IRS entry fails any test, before further flight, do all applicable corrective actions in accordance with the procedures in Section 34-209, dated March 2007, of the Dassault Falcon 900EX EASy/900DX Maintenance Manual; or Section 34-209, dated May 2007, of the Dassault Falcon 2000EX EASy Maintenance Manual; as applicable.
(2)For Model Falcon 2000EX airplanes with Dassault Modification M2758 and Model Falcon 900EX airplanes with Dassault Modification M5143 in the applicability range: Within 5,000 flight hours after the date of issuance of the original French standard airworthiness certificate or the date of issuance of the original French export certificate of airworthiness, or within 3 months after the effective date of this AD, whichever occurs later, do a test of the GP bus IRS entry in accordance with the Accomplishment Instructions of Dassault Service Bulletin F2000EX-89, dated March 17, 2006; or Dassault Service Bulletin F900EX-274, dated March 17, 2006; as applicable. Repeat the test at intervals not to exceed 5,000 flight hours. If the GP bus IRS entry fails any test, before further flight, do the corrective actions in accordance with the procedures in Section 34-209, dated March 2007, of the Dassault Falcon 900EX EASy/900DX Maintenance Manual; or Section 34-209, dated May 2007, of the Dassault Falcon 2000EX EASy Maintenance Manual; as applicable. FAA AD Differences Note: This AD differs from the MCAI and/ or service information as follows:
(1)Where the MCAI specifies to do a test of the GP bus IRS entry in accordance with Chapter 5.40 of the applicable Dassault Maintenance Manual and does not specify a corrective action, we require those corrective actions to be done in accordance with Section 34-209, dated March 2007, of the Dassault Falcon 900EX EASy/900DX Maintenance Manual; or Section 34-209, dated May 2007, of the Dassault Falcon 2000EX EASy Maintenance Manual; as applicable.
(2)The MCAI specified to revise the applicable Dassault MMEL by incorporating Dassault Temporary Change 4, dated June 15, 2006, to the Dassault Falcon 2000EX EASy MMEL (for Model F2000EX EASy airplanes); and Dassault Temporary Change 3, dated June 15, 2006, to the Dassault Falcon 900EX EASy MMEL (for Model F900EX EASy airplanes); as applicable. However, the FAA-approved MMEL (which is required to be used by operators) has been revised to include the information specified in the Dassault temporary changes. Therefore, we have not included a requirement for this revision in this AD. Other FAA AD Provisions
(g)The following provisions also apply to this AD:
(1)*Alternative Methods of Compliance (AMOCs)* : The Manager, International Branch, ANM-116, FAA, Transport Airplane Directorate, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-1137; 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 European Aviation Safety Agency
(EASA)Airworthiness Directive 2006-0157, dated June 7, 2006; Section 34-209, dated March 2007, of the Dassault Falcon 900EX EASY/900DX Maintenance Manual; Section 34-209, dated May 2007, of the Dassault Falcon 2000EX EASy Maintenance Manual; and Dassault Service Bulletins F2000EX-89 and F900EX-274, both dated March 17, 2006; for related information. Material Incorporated by Reference
(i)You must use the service information specified in Table 1 of this AD to do the actions required by this AD, as applicable, unless the AD specifies otherwise.
(1)The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.
(2)For service information identified in this AD, contact Dassault Falcon Jet, P.O. Box 2000, South Hackensack, New Jersey 07606.
(3)You may review copies at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call
(202)741-6030, or go to: *http://www.archives.gov/federal-register/cfr/ibr-locations.html* . Table 1.—Material Incorporated by Reference Service information Date Dassault Falcon 2000EX EASy Maintenance Manual, Section 34-209 May 2007. Dassault Falcon 900EX EASY/900DX Maintenance Manual, Section 34-209 March 2007. Dassault Service Bulletin F2000EX-89 March 17, 2006. Dassault Service Bulletin F900EX-274 March 17, 2006. Issued in Renton, Washington, on June 5, 2008. Michael J. Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-13275 Filed 6-17-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0393 Directorate Identifier 2008-CE-011-AD; Amendment 39-15533; AD 2008-11-11] RIN 2120-AA64 Airworthiness Directives; Viking Air Limited Model DHC-2 Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: We are superseding an existing airworthiness directive
(AD)for the products listed above. This AD results from mandatory continuing airworthiness information
(MCAI)issued by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: Cracks have been reported in the front spar center web of the tailplane at the pick-up bracket and at lightening holes. If not detected early and repaired, these cracks may lead to failure of the tailplane. We are issuing this AD to require actions to correct the unsafe condition on these products. DATES: This AD becomes effective July 23, 2008. On July 23, 2008, the Director of the Federal Register approved the incorporation by reference of Viking DHC-2 Beaver Service Bulletin 2/47, Revision E, dated January 23, 2007, listed in this AD. As of December 15, 1992 (57 FR 53254, November 9, 1992), the Director of the Federal Register approved the incorporation by reference of deHavilland Technical News Sheet B55, dated August 1, 1952; and Bombardier de Havilland DHC-2 (Beaver) Service Bulletin 2/47 Revision C, revised September 4, 1992, listed in this AD. ADDRESSES: You may examine the AD docket on the Internet at *http://www.regulations.gov* or in person at the Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. FOR FURTHER INFORMATION CONTACT: Pong Lee, Aerospace Engineer, FAA, New York Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone:
(516)228-7324; fax:
(516)794-5531. SUPPLEMENTARY INFORMATION: Discussion We issued a notice of proposed rulemaking
(NPRM)to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the **Federal Register** on April 2, 2008 (73 FR 17937), and proposed to supersede AD 92-24-02, Amendment 39-8407 (57 FR 53254, November 9, 1992). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states: Cracks have been reported in the front spar center web of the tailplane at the pick-up bracket and at lightening holes. If not detected early and repaired, these cracks may lead to failure of the tailplane. This revision is issued to reflect the new requirement to inspect the tailplane front spar web behind the pick-up brackets using fluorescent penetrant inspection
(FPI)instead of the visual inspection method used previously. Comments We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public. Conclusion We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have required different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the AD. Costs of Compliance Based on the service information, we estimate that this AD will affect 396 products of U.S. registry. We also estimate that it will take about 10 work-hours per product to comply with basic requirements of this AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $316,800 or $800 per product. In addition, we estimate that any necessary follow-on actions would take about 48 work-hours and require parts costing $1,854, for a cost of $5,694 per product. We have no way of determining the number of products that may need these actions. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this AD:
(1)Is not a “significant regulatory action” under Executive Order 12866;
(2)Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
(3)Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD Docket. Examining the AD Docket You may examine the AD docket on the Internet at * http://www.regulations.gov* ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone
(800)647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by removing Amendment 39-8407 (57 FR 53254, November 9, 1992), and adding the following new AD: **2008-11-11 Viking Air Limited:** Amendment 39-15533; Docket No. FAA-2008-0393; Directorate Identifier 2008-CE-011-AD. Effective Date
(a)This airworthiness directive
(AD)becomes effective July 23, 2008. Affected ADs
(b)This AD supersedes AD 92-24-02, Amendment 39-8407. Applicability
(c)This AD applies to Models DHC-2 Mk. I, DHC-2 Mk. II, and DHC-2 Mk. III airplanes, all serial numbers, certificated in any category. Subject
(d)Air Transport Association of America
(ATA)Code 55: Stabilizers. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: Cracks have been reported in the front spar center web of the tailplane at the pick-up bracket and at lightening holes. If not detected early and repaired, these cracks may lead to failure of the tailplane. This revision is issued to reflect the new requirement to inspect the tailplane front spar web behind the pick-up brackets using fluorescent penetrant inspection
(FPI)instead of the visual inspection method used previously. Actions and Compliance
(f)Unless already done, do the following:
(1)*For airplanes with cracks that have been previously repaired with stop-drilled holes:* Within the next 12 calendar months after December 15, 1992 (the compliance date retained from AD 92-24-02), replace the tailplane front spar following Bombardier de Havilland DHC-2 (Beaver) Service Bulletin 2/47 Revision C, revised September 4, 1992.
(2)*For airplanes with lightening holes (without modification 2/466):* Within the next 200 hours time-in-service
(TIS)after December 15, 1992 (the compliance date retained from AD 92-24-02), visually inspect the front spar web in the area of the lightening holes for cracks between the pickup brackets.
(i)If cracks are found, before further flight, incorporate Modification 2/466: installation of tailplane front spar without lightening holes, following Bombardier de Havilland DHC-2 (Beaver) Service Bulletin 2/47 Revision C, revised September 4, 1992; or Viking DHC-2 Beaver Service Bulletin 2/47, Revision E, dated January 23, 2007.
(ii)If cracks are not found, within the next 24 calendar months after December 15, 1992 (the compliance date retained from AD 92-24-02), incorporate Modification 2/466: installation of tailplane front spar without lightening holes, following Bombardier de Havilland DHC-2 (Beaver) Service Bulletin 2/47 Revision C, revised September 4, 1992; or Viking DHC-2 Beaver Service Bulletin 2/47, Revision E, dated January 23, 2007. Note 1: Modification 2/466, installation of tailplane front spar without lightening holes, is referenced in AD 92-24-02 and Bombardier de Havilland DHC-2 (Beaver) Service Bulletin 2/47 Revision C, revised September 4, 1992; and Viking DHC-2 Beaver Service Bulletin 2/47, Revision E, dated January 23, 2007. Accomplishment of AD 92-24-02 or this AD incorporates modification 2/466.
(3)*For the following airplanes:* Within the next 24 calendar months after December 15, 1992 (the compliance date retained from AD 92-24-02), do the following:
(i)*For airplanes having serial numbers (S/Ns) 1 through 100:* Install longer pick-up brackets (modification 2/436) following deHavilland Technical News Sheet B55, dated August 1, 1952. Note 2: Modification 2/436 was incorporated at manufacture on airplanes beginning with S/N 101. Other airplanes may have incorporated this modification in the field.
(ii)*For airplanes having S/N 1 through 317:* Install a gusset plate on the rear face at each of the pick-up brackets (modification 2/758) following deHavilland Technical News Sheet B55, dated August 1, 1952. Note 3: Modification 2/758 was incorporated at manufacture on airplanes beginning with S/N 318. Other airplanes may have incorporated this modification in the field.
(4)*For all airplanes:* Within 200 hours time-in-service
(TIS)after July 23, 2008 (the effective date of this AD) and repetitively thereafter at intervals not to exceed every 24 months, remove the tailplane front spar pick-up brackets and do a fluorescent penetrant inspection of the tailplane front spar web for cracks in the area of the pick-up brackets following Appendix A of Viking DHC-2 Beaver Service Bulletin 2/47, Revision E, dated January 23, 2007.
(5)*For all airplanes:* If during any of the inspections required in paragraph (f)(4) of this AD cracks are found, before further flight, replace the tailplane front spar following Viking DHC-2 Beaver Service Bulletin 2/47, Revision E, dated January 23, 2007. The 24-month repetitive fluorescent penetrant inspection is still required. Note 4: The replacement and modifications required by this AD do not terminate the 24-month repetitive fluorescent penetrant inspection required by paragraph (f)(4) of this AD.
(6)*For all airplanes:* If any cracks are found as a result of the inspections required by this AD, use the following contact information to report your results: Viking Air Limited, Technical Support, 9574 Hampden road, Sidney, British-Columbia, Canada, V8L 5V5; telephone: regional 250-656-7227, North America 1-800-0663-8444, or international 1-800-6727-6727; fax: 250-656-0673; e-mail: *technical.support@vikingair.com.* FAA AD Differences Note 5: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions
(g)The following provisions also apply to this AD:
(1)*Alternative Methods of Compliance (AMOCs):* The Manager, New York Aircraft Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Pong Lee, Aerospace Engineer, FAA, New York Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone:
(516)228-7324; 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 (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 Transport Canada AD CF-1991-42R1, dated March 13, 2007; and Viking DHC-2 Beaver Service Bulletin No. 2/47, Revision E, dated January 23, 2007, for related information. Material Incorporated by Reference
(i)You must use Bombardier de Havilland DHC-2 (Beaver) Service Bulletin 2/47 Revision C, revised September 4, 1992; deHavilland Technical News Sheet B55, dated August 1, 1952; and Viking DHC-2 Beaver Service Bulletin 2/47, Revision E, dated January 23, 2007, to do the actions required by this AD, unless the AD specifies otherwise.
(1)The Director of the Federal Register approved the incorporation by reference of Viking DHC-2 Beaver Service Bulletin 2/47, Revision E, dated January 23, 2007, under 5 U.S.C. 552(a) and 1 CFR part 51.
(2)On December 15, 1992 (57 FR 53254, November 9, 1992), the Director of the Federal Register previously approved the incorporation by reference of deHavilland Technical News Sheet B55, dated August 1, 1952; and Bombardier de Havilland DHC-2 (Beaver) Service Bulletin 2/47 Revision C, revised September 4, 1992.
(3)For service information identified in this AD, contact Viking Air Limited, 9574 Hampden Road, Sidney, B.C., Canada V8L 5V5 or R.W. Martin, Inc., 37552 Winchester Road, Hangar 20, Murrieta, California 92563.
(4)You may review copies at the FAA, Central Region, Office of the Regional Counsel, 901 Locust, Room 506, Kansas City, Missouri 64106; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal-register/cfr/ibr-locations.html* . Issued in Kansas City, Missouri, on June 10, 2008. Kim Smith, Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-13478 Filed 6-17-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0294; Directorate Identifier 2007-NM-288-AD; Amendment 39-15558; AD 2008-12-14] RIN 2120-AA64 Airworthiness Directives; Dassault Model Falcon 2000EX Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: We are adopting a new airworthiness directive
(AD)for the products listed above. This AD results from mandatory continuing airworthiness information
(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: Analyses of in-service reports revealed that in case of failure of the wings' anti-ice valve, indications of untimely anti-icing with the wings' anti-ice selector on “OFF” or of insufficient anti-icing with the wings' anti-ice selector on “AUTO” might not be properly displayed to the flight crew. It may result, on ground, in potential structural damages due to a leading edge overheat, or in-flight, in an insufficient anti-ice power. We are issuing this AD to require actions to correct the unsafe condition on these products. DATES: This AD becomes effective July 23, 2008. The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of July 23, 2008. ADDRESSES: You may examine the AD docket on the Internet at *http://www.regulations.gov* or in person at the U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC. FOR FURTHER INFORMATION CONTACT: Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-1137; fax
(425)227-1149. SUPPLEMENTARY INFORMATION: Discussion We issued a notice of proposed rulemaking
(NPRM)to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the **Federal Register** on March 13, 2008 (73 FR 13488). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states: Analyses of in-service reports revealed that in case of failure of the wings' anti-ice valve, indications of untimely anti-icing with the wings' anti-ice selector on “OFF” or of insufficient anti-icing with the wings' anti-ice selector on “AUTO” might not be properly displayed to the flight crew. It may result, on ground, in potential structural damages due to a leading edge overheat, or in-flight, in an insufficient anti-ice power. This Airworthiness Directive
(AD)mandates an upgrade of the wings' anti-ice monitoring circuitry per implementation of modifications M2814 (Service Bulletin
(SB)F2000EX-116) and M2949 (SB F2000EX-140) to cover the whole monitoring logic of the wings' anti-ice system. The modifications include adding a relay between the bleed air computer and the wing anti-ice valve; modifying the aircraft wiring; and rerouting an existing wire between the right- and left-hand electrical cabinets. You may obtain further information by examining the MCAI in the AD docket. Comments We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public. Conclusion We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have required different actions in this AD from those in the MCAI in order to follow our FAA policies. Any such differences are highlighted in a NOTE within the AD. Costs of Compliance We estimate that this AD will affect about 13 products of U.S. registry. We also estimate that it will take about 46 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $80 per work-hour. Required parts will cost about $1,344 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 parts. 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 this AD to the U.S. operators to be $65,312, or $5,024 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this AD: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone
(800)647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **2008-12-14 Dassault Aviation:** Amendment 39-15558. Docket No. FAA-2008-0294; Directorate Identifier 2007-NM-288-AD. Effective Date
(a)This airworthiness directive
(AD)becomes effective July 23, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to Dassault Model Falcon 2000EX airplanes; certificated in any category; having serial numbers 1 through 5 and 7 through 27 inclusive. Subject
(d)Air Transport Association
(ATA)of America Code 30: Ice and Rain Protection. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: Analyses of in-service reports revealed that in case of failure of the wings' anti-ice valve, indications of untimely anti-icing with the wings' anti-ice selector on “OFF” or of insufficient anti-icing with the wings' anti-ice selector on “AUTO” might not be properly displayed to the flight crew. It may result, on ground, in potential structural damages due to a leading edge overheat, or in-flight, in an insufficient anti-ice power. This Airworthiness Directive
(AD)mandates an upgrade of the wings' anti-ice monitoring circuitry per implementation of modifications M2814 (Service Bulletin
(SB)F2000EX-116) and M2949 (SB F2000EX-140) to cover the whole monitoring logic of the wings' anti-ice system. The modifications include adding a relay between the bleed air computer and the wing anti-ice valve; modifying the aircraft wiring; and rerouting an existing wire between the right- and left-hand electrical cabinets. Actions and Compliance
(f)Within 6 months after the effective date of this AD, unless already done, modify the electrical wiring of the wings' anti-ice system, in accordance with the Accomplishment Instructions of Dassault Service Bulletin F2000EX-116, dated May 31, 2006; and Service Bulletin F2000EX-140, dated February 28, 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: Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-1137; 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 European Aviation Safety Agency
(EASA)Airworthiness Directive 2007-0137, dated May 16, 2007; Dassault Service Bulletin F2000EX-116, dated May 31, 2006; and Dassault Service Bulletin F2000EX-140, dated February 28, 2007 for related information. Material Incorporated by Reference
(i)You must use Dassault Service Bulletin F2000EX-116, dated May 31, 2006 and Dassault Service Bulletin F2000EX-140, dated February 28, 2007, as applicable, to do the actions required by this AD, unless the AD specifies otherwise. Dassault Service Bulletin F2000EX-140, dated February 28, 2007, contains the following effective pages: Page No. Shown on page 1-4, 6-8 February 28, 2007. 5 June 14, 2007.
(1)The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.
(2)For service information identified in this AD, contact Dassault Falcon Jet, P.O. Box 2000, South Hackensack, New Jersey 07606.
(3)You may review copies at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call
(202)741-6030, or go to: *http://www.archives.gov/federal-register/cfr/ibr-locations.html.* Issued in Renton, Washington, on June 3, 2008. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-13320 Filed 6-17-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0313; Directorate Identifier 2007-CE-095-AD; Amendment 39-15560; AD 2008-12-16] RIN 2120-AA64 Airworthiness Directives; M7 Aerospace LP SA226 and SA227 Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: We are adopting a new airworthiness directive
(AD)for certain M7 Aerospace LP SA226 and SA227 series airplanes. This AD requires you to inspect electrical wires/components, hydraulic and bleed air tube assemblies at left-hand
(LH)and right-hand
(RH)inboard wing leading edge/battery box areas, LH/RH wing stations 51.167 to 81.174, and at all feed-through locations into the LH/RH inboard keelson. If chafing/arcing is found, this AD requires you to reposition, repair, and/or replace all chafed electrical wires, components, and hydraulic and bleed air tube assemblies, as required. This AD also requires you to reposition the battery lead cables, cover four-gauge wires leaving the battery box with firesleeving and secure with clamps, and protect the battery power cable. This AD results from five reports of chafing between the bleed air tube and the electrical starter cables with one incident resulting in a fire. We are issuing this AD to detect and correct chafing/arcing of electrical wires, components, and bleed air lines. This condition could result in arcing of the exposed wires and burn a hole in the bleed air line or the nearby hydraulic line, and lead to a possible hydraulic fluid leak and fire in the engine nacelle compartment. DATES: This AD becomes effective on July 23, 2008. On July 23, 2008, the Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD. ADDRESSES: For service information identified in this AD, contact M7 Aerospace Repair Station, P.O. Box 790490, San Antonio, Texas 78279-0490; telephone:
(210)824-9421; fax:
(210)804-7789. To view the AD docket, go to U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, or on the Internet at *http://www.regulations.gov.* The docket number is FAA-2008-0313; Directorate Identifier 2007-CE-095-AD. FOR FURTHER INFORMATION CONTACT: Werner Koch, Aerospace Engineer, FAA, Airplane Certification Office, 2601 Meacham Blvd., Fort Worth, Texas 76137; telephone:
(817)222-5133; fax:
(817)222-5960. SUPPLEMENTARY INFORMATION: Discussion On March 7, 2008, we issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to certain M7 Aerospace LP SA226 and SA227 series airplanes. This proposal was published in the **Federal Register** as a notice of proposed rulemaking
(NPRM)on March 14, 2008 (73 FR 13806). The NPRM proposed to require you to inspect electrical wires/components, hydraulic and bleed air tube assemblies at LH and RH inboard wing leading edge/battery box areas, LH/RH wing stations 51.167 to 81.174, and at all feed-through locations into the LH/RH inboard keelson. If chafing/arcing is found, this proposed AD would require you to reposition, repair, and/or replace all chafed electrical wires, components, and hydraulic and bleed air tube assemblies, as required. This proposed AD would also require you to reposition the battery lead cables, cover four-gauge wires leaving the battery box with firesleeving and secure with clamps, and protect the battery power cable. Comments We provided the public the opportunity to participate in developing this AD. We received no comments on the proposal or on the determination of the cost to the public. Conclusion We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed except for minor editorial corrections. We have determined that these minor corrections: • Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and • Do not add any additional burden upon the public than was already proposed in the NPRM. Costs of Compliance We estimate that this AD affects 330 airplanes in the U.S. registry. We estimate the following costs for all Models SA226, SA227, SA227-CC, and SA227-DC airplanes to do the inspection following SA226 Series Service Bulletin No. 226-24-036, SA227 Series Service Bulletin No. 227-24-019, or SA227 Series Commuter Category Service Bulletin No. CC7-24-010: Labor cost Parts cost Total cost per airplane Total cost on U.S. operators 4 work-hours × $80 per hour = $320 Not Applicable $320 $105,600 We estimate the following costs for certain Models SA226-AT, SA226-T, and SA226-TC airplanes for the repositioning of battery lead cables following SA226 Series Service Bulletin No. SB 24-001: Labor cost Parts cost Total cost per airplane Number of airplanes affected Total cost on U.S. operators 4 work-hours × $80 per hour = $320 $6.80 $326.80 2 $653.60 We estimate the following costs for certain Models SA226-AT, SA226-T, SA226-TC, SA227-AC, and SA227-AT airplanes following SA226 Series Service Bulletin No. SB24-019 or SA227 Series Service Bulletin No. SB24-001, for the covering of four-gauge wires leaving battery box with firesleeving and securing with clamp: Labor cost Parts cost Total cost per airplane Number of airplanes affected Total cost on U.S. operators 13 work-hours × $80 per hour = $1,040 $6.80 $1,046.80 70 $73,276 We estimate the following costs for certain Models SA226-AT, SA226-TC, SA227-AC, and SA227-AT airplanes following SA226 Series Service Bulletin No. SB24-020 or SA227 Series Service Bulletin No. SB24-002, for the protection of the battery power cable: Labor cost Parts cost Total cost per airplane Number of airplanes affected Total cost on U.S. operators 50 work-hours × $80 per hour = $4,000 $3,000 $7,000 60 $420,000 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 AD. Regulatory Findings We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that this AD: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a summary of the costs to comply with this AD (and other information as included in the Regulatory Evaluation) and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES . Include “Docket No. FAA-2008-0313; Directorate Identifier 2007-CE-095-AD” in your request. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the Federal Aviation Administration amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. FAA amends § 39.13 by adding the following new AD: **2008-12-16-M7 Aerospace LP:** Amendment 39-15560; Docket No. FAA-2008-0313; Directorate Identifier 2007-CE-095-AD. Effective Date
(a)This AD becomes effective on July 23, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to the following airplane models and serial numbers (S/N) that are certificated in any category:
(1)Group 1: Model SA226-AT Airplanes, All S/N.
(2)Group 2: Model SA226-T Airplanes, All S/N.
(3)Group 3: Model SA226-TC Airplanes, All S/N.
(4)Group 4: Model SA227-AC Airplanes, All S/N.
(5)Group 5: Model SA227-AT Airplanes, All S/N.
(6)Group 6: Model SA227-CC Airplanes, All S/N.
(7)Group 7: Model SA227-DC Airplanes, All S/N. Unsafe Condition
(d)This AD results from five reports of chafing between the bleed air tube and the electrical starter cables with one incident resulting in a fire. We are adopting this AD to detect and correct chafing/arcing of electrical wires, components, and bleed air lines. This condition could result in arcing of the exposed wires and burn a hole in the bleed air line or the nearby hydraulic line, and lead to a possible hydraulic fluid leak and fire in the engine nacelle compartment. Compliance
(e)To address this problem, you must do the following, unless already done: Table 1.—Actions, Compliance, and Procedures Actions Compliance Procedures
(1)For Group 1, Group 2, and Group 3 Airplanes:
(i)Inspect electrical wires/components, hydraulic and bleed air tube assemblies at left-hand (LH)/right-hand
(RH)inboard wing leading edge/battery box areas, LH/RH wing stations 51.167 to 81.174, and at all feed-through locations into the LH/RH inboard keelson for any evidence of chafing/arcing. Clear, repair, and/or replace all chafed electrical wires and components, hydraulic, and bleed air tube assemblies, and all feed-through locations, as required.
(ii)Reposition battery lead cables, protect the battery power cable, and cover four-gauge wires leaving battery box with firesleeving and secure with clamp. Within 250 hours time-in-service
(TIS)after July 23, 2008 (the effective date of this AD). Repetitively thereafter inspect (paragraph (e)(1)(i) of this AD) at intervals not to exceed 12 months. Follow M7 Aerospace SA226 Series Service Bulletin No. 226-24-036, issued: September 19, 2007; Swearingen Aviation Corporation SA226 Series Service Bulletin No. SB 24-001, issued: May 18, 1971; revised: September 16, 1975; Fairchild Aircraft Corporation SA226 Series Service Bulletin No. SB 24-019, issued: June 2, 1982; revised: May 17, 1983; and Fairchild Aircraft Corporation SA226 Series Service Bulletin No. SB 24-020, issued: January 18, 1983; revised: February 15, 1984.
(2)For Group 4 and Group 5 Airplanes:
(i)Inspect electrical wires/components, hydraulic and bleed air tube assemblies at LH/RH inboard wing leading edge/battery box areas, LH/RH wing stations 51.167 to 81.174, and at all feed-through locations into the LH/RH inboard keelson for any evidence of chafing/arcing. Clear, repair, and/or replace all chafed electrical wires and components, hydraulic, and bleed air tube assemblies, and all feed-through locations, as required.
(ii)Protect the battery power cable and cover four-gauge wires leaving battery box with firesleeving and secure with clamp. Within 250 hours TIS after July 23, 2008 (the effective date of this AD). Repetitively thereafter inspect (paragraph (e)(2)(i) of this AD) at intervals not to exceed 12 months. Follow M7 Aerospace SA227 Series Service Bulletin No. 227-24-019, issued: September 19, 2007; Fairchild Aircraft Corporation SA227 Series Service Bulletin No. SB24-001, issued: June 2, 1982; revised: May 17, 1983; and Fairchild Aircraft Corporation SA227 Series Service Bulletin No. SB24-002, issued: January 18, 1983; revised: February 15, 1984.
(3)For Group 6 and Group 7 Airplanes: Inspect electrical wires/components, hydraulic and bleed air tube assemblies at LH/RH inboard wing leading edge/battery box areas, LH/RH wing stations 51.167 to 81.174, and at all feed-through locations into the LH/RH inboard keelson for any evidence of chafing/arcing. Clear, repair, and/or replace all chafed electrical wires and components, hydraulic, and bleed air tube assemblies, and all feed-through locations, as required Within 250 hours TIS after July 23, 2008 (the effective date of this AD). Repetitively thereafter inspect at intervals not to exceed 12 months. Follow M7 Aerospace SA227 Series Commuter Category Service Bulletin No. CC7-24-010, issued: September 19, 2007. Note: Although not a requirement of this AD, you may incorporate Swearingen Aviation Corporation SA226 Series Service Bulletin No. 57-010, Revised: December 5, 1975, on those airplanes that have not installed the access panel. Installation of the access panel will simplify the incorporation of the service bulletins referenced in this AD and future inspections of the areas of concern. Alternative Methods of Compliance (AMOCs)
(f)The Manager, Fort Worth Airplane Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Werner Koch, Aerospace Engineer, 2601 Meacham Blvd., Fort Worth, Texas 76137; telephone:
(817)222-5133; fax:
(817)222-5960. 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. Material Incorporated by Reference
(g)You must use the service information specified in TABLE 2— *Material Incorporated by Reference* of this AD to do the actions required by this AD, unless the AD specifies otherwise.
(1)The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.
(2)For service information identified in this AD, contact M7 Aerospace Repair Station, P.O. Box 790490, San Antonio, Texas 78279-0490; telephone:
(210)824-9421; fax:
(210)804-7789.
(3)You may review copies at the FAA, Central Region, Office of the Regional Counsel, 901 Locust, Kansas City, Missouri 64106; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal-register/cfr/ibr-locations.html* . Table 2.—Material Incorporated by Reference Service Bulletin No. Date
(i)M7 Aerospace SA226 Series Service Bulletin No. 226-24-036 Issued: September 19, 2007.
(ii)Swearingen Aviation Corporation SA226 Series Service Bulletin No. SB 24-001 Issued: May 18, 1971, Revised: September 16, 1975.
(iii)Fairchild Aircraft Corporation SA226 Series Service Bulletin No. SB 24-019 Issued: June 2, 1982, Revised: May 17, 1983.
(iv)Fairchild Aircraft Corporation SA226 Series Service Bulletin No. SB 24-020 Issued: January 18, 1983, Revised: February 15, 1984.
(v)M7 Aerospace SA227 Series Service Bulletin No. 227-24-019 Issued: September 19, 2007.
(vi)Fairchild Aircraft Corporation SA227 Series Service Bulletin No. SB24-001 Issued: June 2, 1982, Revised: May 17, 1983.
(vii)Fairchild Aircraft Corporation SA227 Series Service Bulletin No. SB24-002 Issued: January 18, 1983, Revised: February 15, 1984.
(viii)M7 Aerospace SA227 Series Commuter Category Service Bulletin No. CC7-24-010 Issued: September 19, 2007. Issued in Kansas City, Missouri, on June 4, 2008. David R. Showers, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-13180 Filed 6-17-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0444; Directorate Identifier 2008-CE-024-AD; Amendment 39-15555; AD 2008-12-12] RIN 2120-AA64 Airworthiness Directives; Viking Air Limited Models DHC-2 Mk. I, DHC-2 Mk. II, and DHC-3 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: We are superseding an existing airworthiness directive
(AD)for the products listed above. This AD results from mandatory continuing airworthiness information
(MCAI)issued by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: A complete loss of both ignition systems occurred on a DHC-3 Otter when the lock wire hole in the ignition connector plug on the firewall broke out, allowing the plug to vibrate loose. A maintenance safety feature grounds out both magneto systems through a spring-loaded safety pin incorporated into the Cannon plug. The DHC-2 system is similar in design. Subsequent to the issuance of AD CF-2001-36 a complete loss of both ignition systems occurred on a DHC-2 Beaver resulting in engine failure and subsequent forced approach and landing. Investigation by the Transportation Safety Board determined the internal failure of the magneto firewall connector resulted in both magneto “P” leads shorting to ground. A maintenance “safety” feature through a spring-loaded safety pin incorporated in the firewall connector on many DHC-2 aircraft grounds out both magneto systems when the connector is disconnected. This connector type is readily identified when disconnected by the existence of three internal pins on the firewall and magneto harness side, one of which is shorted directly to ground. We are issuing this AD to require actions to correct the unsafe condition on these products. DATES: This AD becomes effective July 23, 2008. On July 23, 2008, the Director of the Federal Register approved the incorporation by reference of Viking DHC-2 Beaver Service Bulletin Number V2/0001, dated June 27, 2007; and Viking DHC-3 Otter Service Bulletin Number V3/0001, dated June 27, 2007, listed in this AD. As of December 6, 2004 (69 FR 61758, October 21, 2004), the Director of the Federal Register approved the incorporation by reference of deHavilland Beaver Alert Service Bulletin Number A2/53, Revision B, dated May 28, 2004; and deHavilland Otter Alert Service Bulletin Number A3/53, Revision B, dated May 28, 2004, listed in this AD. ADDRESSES: You may examine the AD docket on the Internet at *http://www.regulations.gov* or in person at the Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. FOR FURTHER INFORMATION CONTACT: Fabio Buttitta, Aerospace Engineer, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone:
(516)228-7303; fax:
(516)794-5531. SUPPLEMENTARY INFORMATION: Discussion We issued a notice of proposed rulemaking
(NPRM)to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the **Federal Register** on April 18, 2008 (73 FR 21074), and proposed to supersede AD 2004-21-06, Amendment 39-13827 (69 FR 61758, October 21, 2004). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states that: A complete loss of both ignition systems occurred on a DHC-3 Otter when the lock wire hole in the ignition connector plug on the firewall broke out, allowing the plug to vibrate loose. A maintenance safety feature grounds out both magneto systems through a spring-loaded safety pin incorporated into the Cannon plug. The DHC-2 system is similar in design. Subsequent to the issuance of AD CF-2001-36 a complete loss of both ignition systems occurred on a DHC-2 Beaver resulting in engine failure and subsequent forced approach and landing. Investigation by the Transportation Safety Board determined the internal failure of the magneto firewall connector resulted in both magneto “P” leads shorting to ground. A maintenance “safety” feature through a spring-loaded safety pin incorporated in the firewall connector on many DHC-2 aircraft ground out both magneto systems when the connector is disconnected. This connector type is readily identified when disconnected by the existence of three internal pins on the firewall and magneto harness side, one of which is shorted directly to ground. These connectors are no longer in production. Since no effective Instructions for Continued Airworthiness exist to ensure the safety feature of these connectors will operate correctly when disconnected, or will ensure the internal integrity of the connector while in service, this directive is revised to mandate replacement of connectors with a different design. Viking Air Limited has developed SB V2/0001 to provide for the installation of a replacement connector, similar in design to magneto systems in service today. This modification incorporates a “straight through” type connector, ensuring magneto circuit integrity should the connection open. Comments We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public. Conclusion We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have required different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the AD. Costs of Compliance We estimate that this AD will affect 159 products of U.S. registry. We also estimate that it will take about 10 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $80 per work-hour. Required parts will cost about $881 per product. Based on these figures, we estimate the cost of the AD on U.S. operators to be $267,279, or $1,681 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this AD:
(1)Is not a “significant regulatory action” under Executive Order 12866;
(2)Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
(3)Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD Docket. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone
(800)647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by removing Amendment 39-13827 (69 FR 61758; October 21, 2004), and adding the following new AD: **2008-12-12 Viking Air Limited:** Amendment 39-15555; Docket No. FAA-2008-0444; Directorate Identifier 2008-CE-024-AD. Effective Date
(a)This airworthiness directive
(AD)becomes effective July 23, 2008. Affected ADs
(b)This AD supersedes AD 2004-21-06, Amendment 39-13827. Applicability
(c)This AD applies to the following model and serial number airplanes certificated in any category: Model Serial No. DHC-2 Mk. I All. DHC-2 Mk. II All. DHC-3 All serial numbers with piston engines. Subject
(d)Air Transport Association of America
(ATA)Code 74: Engine Ignition. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: A complete loss of both ignition systems occurred on a DHC-3 Otter when the lock wire hole in the ignition connector plug on the firewall broke out, allowing the plug to vibrate loose. A maintenance safety feature grounds out both magneto systems through a spring-loaded safety pin incorporated into the Cannon plug. The DHC-2 system is similar in design. Subsequent to the issuance of AD CF-2001-36 a complete loss of both ignition systems occurred on a DHC-2 Beaver resulting in engine failure and subsequent forced approach and landing. Investigation by the Transportation Safety Board determined the internal failure of the magneto firewall connector resulted in both magneto “P” leads shorting to ground. A maintenance “safety” feature through a spring-loaded safety pin incorporated in the firewall connector on many DHC-2 aircraft ground out both magneto systems when the connector is disconnected. This connector type is readily identified when disconnected by the existence of three internal pins on the firewall and magneto harness side, one of which is shorted directly to ground. These connectors are no longer in production. Since no effective Instructions for Continued Airworthiness exist to ensure the safety feature of these connectors will operate correctly when disconnected, or will ensure the internal integrity of the connector while in service, this directive is revised to mandate replacement of connectors with a different design. Viking Air Limited has developed SB V2/0001 to provide for the installation of a replacement connector, similar in design to magneto systems in service today. This modification incorporates a “straight through” type connector, ensuring magneto circuit integrity should the connection open. Actions and Compliance
(f)Inspect the connector plugs on the fore side of the firewall for security and the connector plug lockwire to assure it is intact and the holes in the plugs are not broken out or cracked. Initially inspect within the next 100 hours time-in-service
(TIS)after December 6, 2004 (the compliance date retained from AD 2004-21-06). Repetitively inspect thereafter at intervals not to exceed 100 hours TIS until the modification required in paragraph
(h)of this AD is done. Do the inspections following deHavilland Beaver Alert Service Bulletin Number A2/53, Revision B, dated May 28, 2004; and deHavilland Otter Alert Service Bulletin Number A3/53, Revision B, dated May 28, 2004, as applicable.
(g)During any inspection required in paragraph
(f)of this AD, if the lockwire holes or the lockwire is found damaged, install Modification Kit Number C2VMK0001-1 or Modification Kit Number C3VMK0001-1, as applicable. Install the modification kit before further flight following the Accomplishment Instructions in Viking DHC-2 Beaver Service Bulletin Number V2/0001, dated June 27, 2007; and Viking DHC-3 Otter Service Bulletin Number V3/0001, dated June 27, 2007, as applicable. Installing the modification kit terminates the repetitive inspections required in paragraph
(f)of this AD.
(h)Unless already done, replace the magneto firewall connector by installing Modification Kit Number C2VMK0001-1 or Modification Kit Number C3VMK0001-1, as applicable. Install the modification kit within the next 6 months after July 23, 2008 (the effective date of this AD) following the Accomplishment Instructions in Viking DHC-2 Beaver Service Bulletin Number V2/0001, dated June 27, 2007; and Viking DHC-3 Otter Service Bulletin Number V3/0001, dated June 27, 2007, as applicable. Installing the modification kit terminates the repetitive inspections required in paragraph
(f)of this AD. FAA AD Differences Note: This AD differs from the MCAI and/or service information as follows: AD 2004-21-06 required incorporating repetitive inspections of the connector plugs and the connector plug lockwire on the fore side of the firewall into the maintenance program while the MCAI required incorporating Temporary Revision No. 14, dated August 24, 2001, into the applicable maintenance manual in order to incorporate the repetitive inspections into the maintenance program. 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: Fabio Buttitta, Aerospace Engineer, FAA, New York ACO, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone:
(516)228-7303; fax:
(516)794-5531. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(2)*Airworthy Product:* For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3)*Reporting Requirements:* For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act (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
(j)Refer to MCAI Transport Canada AD No. CF-2001-36R1, dated January 21, 2008; Transport Canada AD No. CF-2001-37R, dated January 21, 2008; deHavilland Beaver Alert Service Bulletin Number A2/53, Revision B, dated May 28, 2004; deHavilland Otter Alert Service Bulletin Number A3/53, Revision B, dated May 28, 2004; Viking DHC-2 Beaver Service Bulletin Number V2/0001, dated June 27, 2007; and Viking DHC-3 Otter Service Bulletin Number V3/0001, dated June 27, 2007, for related information. Material Incorporated by Reference
(k)You must use deHavilland Beaver Alert Service Bulletin Number A2/53, Revision B, dated May 28, 2004; deHavilland Otter Alert Service Bulletin Number A3/53, Revision B, dated May 28, 2004; Viking DHC-2 Beaver Service Bulletin Number V2/0001, dated June 27, 2007; and Viking DHC-3 Otter Service Bulletin Number V3/0001, dated June 27, 2007, to do the actions required by this AD, unless the AD specifies otherwise.
(1)The Director of the Federal Register approved the incorporation by reference of Viking DHC-2 Beaver Service Bulletin Number V2/0001, dated June 27, 2007; and Viking DHC-3 Otter Service Bulletin Number V3/0001, dated June 27, 2007, under 5 U.S.C. 552(a) and 1 CFR part 51.
(2)On December 6, 2004 (69 FR 61758, October 21, 2004), the Director of the Federal Register previously approved the incorporation by reference of deHavilland Beaver Alert Service Bulletin Number A2/53, Revision B, dated May 28, 2004; and deHavilland Otter Alert Service Bulletin Number A3/53, Revision B, dated May 28, 2004.
(3)For service information identified in this AD, contact Viking, 9574 Hampden Road, Sidney, British Columbia, Canada V8L 5V5.
(4)You may review copies at the FAA, Central Region, Office of the Regional Counsel, 901 Locust, Room 506, Kansas City, Missouri 64106; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal-register/cfr/ibr-locations.html* . Issued in Kansas City, Missouri, on June 5, 2008. David R. Showers, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-13112 Filed 6-17-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0423 Directorate Identifier 2008-CE-010-AD; Amendment 39-15556; AD 2008-12-13] RIN 2120-AA64 Airworthiness Directives; GENERAL AVIA Costruzioni Aeronatiche Models F22B, F22C, and F22R Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: We are adopting a new airworthiness directive
(AD)for the products listed above. This AD results from mandatory continuing airworthiness information
(MCAI)issued by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: ENAC Italy AD 2004-376 was issued in response to two separate reports of cracks found in the Firewall-to-Engine mounting attachments. Detachment of the engine mounts from the structure is the possible consequence. Although the actual cause has not been finally determined, some repairs have been approved to address and correct the unsafe condition. This new AD, which supersedes ENAC Italy AD 2004-376, retains the initial inspection requirement, adds repetitive inspections and clarifies the conditions under which aircraft that have been repaired by an approved method can be allowed to return to service. We are issuing this AD to require actions to correct the unsafe condition on these products. DATES: This AD becomes effective July 23, 2008. On July 23, 2008, the Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD. ADDRESSES: You may examine the AD docket on the Internet at *http://www.regulations.gov* or in person at Document Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. FOR FURTHER INFORMATION CONTACT: Sarjapur Nagarajan, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:
(816)329-4145; fax:
(816)329-4090. SUPPLEMENTARY INFORMATION: Discussion We issued a notice of proposed rulemaking
(NPRM)to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the **Federal Register** on April 11, 2008 (73 FR 19775). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states: ENAC Italy AD 2004-376 was issued in response to two separate reports of cracks found in the Firewall-to-Engine mounting attachments. Detachment of the engine mounts from the structure is the possible consequence. Although the actual cause has not been finally determined, some repairs have been approved to address and correct the unsafe condition. This new AD, which supersedes ENAC Italy AD 2004-376, retains the initial inspection requirement, adds repetitive inspections and clarifies the conditions under which aircraft that have been repaired by an approved method can be allowed to return to service. Comments We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public. Conclusion We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have required different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the AD. Costs of Compliance Based on the service information, we estimate that this AD will affect no products of U.S. registry. We also estimate that it will take about 100 work-hours per product to comply with basic requirements of this AD. The average labor rate is $80 per work-hour. Required parts will cost about $740 per product. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $0 or $8,740 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this AD:
(1)Is not a “significant regulatory action” under Executive Order 12866;
(2)Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
(3)Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD Docket. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone
(800)647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **2008-12-13 GENERAL AVIA Costruzioni Aeronatiche:** Amendment 39-15556; Docket No. FAA-2008-0423; Directorate Identifier 2008-CE-010-AD. Effective Date
(a)This airworthiness directive
(AD)becomes effective July 23, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to Models F22B, F22C, and F22R airplanes, all serial numbers, certificated in any category. Subject
(d)Air Transport Association of America
(ATA)Code 71: Power Plant-General. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: ENAC Italy AD 2004-376 was issued in response to two separate reports of cracks found in the Firewall-to-Engine mounting attachments. Detachment of the engine mounts from the structure is the possible consequence. Although the actual cause has not been finally determined, some repairs have been approved to address and correct the unsafe condition. This new AD, which supersedes ENAC Italy AD 2004-376, retains the initial inspection requirement, adds repetitive inspections and clarifies the conditions under which aircraft that have been repaired by an approved method can be allowed to return to service. The MCAI requires you to repetitively inspect the structure surrounding the heads of the four bolts of the engine mount attachment bracket for cracks or damages and repair any cracks or damages found as a result of the inspection. Actions and Compliance
(f)Do the following actions:
(1)Unless already done within the last 100 hours time-in-service
(TIS)before July 23, 2008 (the effective date of this AD), before further flight and repetitively thereafter at intervals not to exceed 100 hours TIS, inspect the structure surrounding the heads of the four bolts of the engine mount attachment bracket, approaching from the cabin of the aircraft in the zone below the instrument panel. In case the indicated area (in particular for the upper bolts) is not visible due to equipment presence (relay, cooling fan, and so forth), remove all of the upper right-hand panel and part of the left-hand panel of the fireproof bulkhead to approach the area to be inspected through the engine compartment. In this case the use of a small mirror is necessary.
(2)If as a result of any inspection required by paragraphs (f)(1) of this AD you find any discrepancies (for example, cracked or broken parts), do one of the following actions before further flight:
(i)Repair the aircraft following Gomolzig Flugzeug-und Maschinenbau GmbH General Avia F22 Modification 15328 Repair Instructions, dated September 10, 2007; or
(ii)Repair the aircraft following a repair method approved by the FAA for this AD.
(3)If you repair the aircraft as specified in paragraph (f)(2)(i) of this AD, repetitively thereafter inspect the aircraft at intervals not to exceed 500 hours TIS following the instructions in paragraph (f)(1) of this AD. If as a result of these repetitive inspections you find any discrepancies, prior to further flight, repair the aircraft following Gomolzig Flugzeug-und Maschinenbau GmbH General Avia F22 Modification 15328 Repair Instructions, dated September 10, 2007.
(4)If you repair the aircraft as specified in paragraph (f)(2)(ii) of this AD, repetitively thereafter inspect the aircraft using the repetitive inspection interval established by the FAA-approved repair method used. Follow the inspection instruction in paragraph (f)(1) of this AD. If as a result of the inspection you find any discrepancies, repair before further flight following a repair method approved by the FAA for this AD. 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, 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: Sarjapur Nagarajan, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:
(816)329-4145; 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. 2008-0015, dated January 18, 2008; and Gomolzig Flugzeug-und Maschinenbau GmbH General Avia F22 Modification 15328 Repair Instructions, dated September 10, 2007, for related information. Material Incorporated by Reference
(i)You must use Gomolzig Flugzeug-und Maschinenbau GmbH General Avia F22 Modification 15328 Repair Instructions, dated September 10, 2007, to do the actions required by this AD, unless the AD specifies otherwise.
(1)The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.
(2)For service information identified in this AD, contact Gomolzig Flugzeug-und Maschinenbau GmbH, Eisenwerkstrasse 9; D-58332 Schwelm, Federal Republic of Germany; telephone: +49 (0)2336 490 332; fax: +49 (0)2336 490 339; e-mail: *info@Gomolzig.de* .
(3)You may review copies at the FAA, Central Region, Office of the Regional Counsel, 901 Locust, Room 506, Kansas City, Missouri 64106; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal-register/cfr/ibr-locations.html* . Issued in Kansas City, Missouri, on June 5, 2008. David R. Showers, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-13108 Filed 6-17-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0446; Directorate Identifier 2008-CE-021-AD; Amendment 39-15568; AD 2008-13-05] RIN 2120-AA64 Airworthiness Directives; Lindstrand Balloons Ltd. Models 42A, 56A, 60A, 69A, 77A, 90A, 105A, 120A, 150A, 180A, 210A, 240A, 260A, and 310A Balloons AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: We are superseding an existing airworthiness directive
(AD)for the products listed above. This AD results from mandatory continuing airworthiness information
(MCAI)issued by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: Defective burner hoses have been identified which might develop a leak. A significant leak, if it was ignited, could hazard the balloon and occupants. Since the issue of AD G-2003-0010 there have been occurrences of hose failure in batches not identified in the earlier bulletins. LHAB Service Bulletin
(SB)No 11 supersedes the earlier SBs and revises the applicability as required. We are issuing this AD to require actions to correct the unsafe condition on these products. DATES: This AD becomes effective July 23, 2008. As of April 1, 2008 (73 FR 13113, March 12, 2008), the Director of the Federal Register approved the incorporation by reference of Lindstrand Hot Air Balloons Ltd. Service Bulletin No. 11, Issue 1, dated September 24, 2007, listed in this AD. ADDRESSES: You may examine the AD docket on the Internet at *http://www.regulations.gov* or in person at the Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. FOR FURTHER INFORMATION CONTACT: Taylor Martin, Aerospace Engineer, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:
(816)329-4138; fax:
(816)329-4090. SUPPLEMENTARY INFORMATION: Discussion We issued a notice of proposed rulemaking
(NPRM)to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the **Federal Register** on April 18, 2008 (73 FR 21072), and proposed to supersede AD 2008-06-15, Amendment 39-15427 (73 FR 13113, March 12, 2008). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states that: Defective burner hoses have been identified which might develop a leak. A significant leak, if it was ignited, could hazard the balloon and occupants. Since the issue of AD G-2003-0010 there have been occurrences of hose failure in batches not identified in the earlier bulletins. LHAB Service Bulletin
(SB)No 11 supersedes the earlier SBs and revises the applicability as required. The MCAI requires you inspect the hose to identify whether the hose is from the affected batch of hoses and to inspect for defective hoses and end fittings, immediately replace any defective hose and end fittings, and eventually replace any of the hoses and end fittings from the affected batch that are not defective. Comments We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public. Conclusion We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have required different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the AD. Costs of Compliance We estimate that this AD will affect 422 products of U.S. registry. We also estimate that it will take about 1 work-hour per product to comply with basic requirements of this AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $33,760 or $80 per product. In addition, we estimate that any necessary follow-on actions would take about 1 work-hour and require parts costing $200, for a cost of $280 per product. We have no way of determining the number of products that may need these actions. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this AD:
(1)Is not a “significant regulatory action” under Executive Order 12866;
(2)Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
(3)Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD Docket. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone
(800)647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by removing Amendment 39-15427 (73 FR 13113, March 12, 2008) and adding the following new AD: **2008-13-05 Lindstrand Balloons Ltd.:** Amendment 39-15568; Docket No. FAA-2008-0446; Directorate Identifier 2008-CE-021-AD. Effective Date
(a)This airworthiness directive
(AD)becomes effective July 23, 2008. Affected ADs
(b)This AD supersedes AD 2008-06-15, Amendment 39-15427. Applicability
(c)This AD applies to Models 42A, 56A, 60A, 69A, 77A, 90A, 105A, 120A, 150A, 180A, 210A, 240A, 260A, and 310A balloons that are:
(i)certificated in any category; and
(ii)equipped with burners with serial numbers BU502 through BU792, except BU507, BU511, BU512, BU614, BU643, BU655, BU656, BU719, BU723, BU746, BU749, BU752, BU754, BU762, BU779, BU781, BU785, BU787, and BU789. Subject
(d)Air Transport Association of America
(ATA)Code 28: Fuel. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: Defective burner hoses have been identified which might develop a leak. A significant leak, if it was ignited, could hazard the balloon and occupants. Since the issue of AD G-2003-0010 there have been occurrences of hose failure in batches not identified in the earlier bulletins. LHAB Service Bulletin
(SB)No. 11 supersedes the earlier SBs and revises the applicability as required. The MCAI requires you inspect the hose to identify whether the hose is from the affected batch of hoses and to inspect for defective hoses and end fittings, immediately replace any defective hose and end fittings, and eventually replace any of the hoses and end fittings from the affected batch that are not defective. Actions and Compliance
(f)Do the following unless already done:
(1)Before further flight after April 1, 2008 (the compliance date retained from AD 2008-06-15), inspect the balloon burner to determine whether it has a hose from the affected batch of hoses following Lindstrand Hot Air Balloons Ltd. Service Bulletin No. 11, Issue 1, dated September 24, 2007.
(2)If as a result of the inspection required by (f)(1) of this AD you find a hose from the affected batch, before further flight, inspect for leaks and conduct a pressure test following Lindstrand Hot Air Balloons Ltd. Service Bulletin No. 11, Issue 1, dated September 24, 2007, and repetitively thereafter inspect and conduct a pressure test at intervals not to exceed 10 hours time-in-service.
(3)If as a result of any inspection or test required by (f)(2) of this AD you find a defective hose, before further flight, replace it and the end fitting with a new hose and new end fitting following FAA-approved instructions. The Lindstrand Balloons Ltd. maintenance manual contains FAA-approved instructions. This action terminates the repetitive requirement in (f)(2) of this AD.
(4)Unless already done, within 12 months after July 23, 2008 (the effective date of this AD), replace any hose from the affected batch with a new hose and end fitting following FAA-approved instructions. The Lindstrand Balloons Ltd. maintenance manual contains FAA-approved instructions. After doing this replacement, no further action is required by this AD. Note 1: At any time after July 23, 2008 (the effective date of this AD), you may replace the hose and end fitting to terminate the repetitive inspection and testing requirements 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
(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: Taylor Martin, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:
(816)329-4138; 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 United Kingdom Civil Aviation Authority Emergency Airworthiness Directive AD No. G-2008-0001, dated January 9, 2008; and Lindstrand Hot Air Balloons Ltd. Service Bulletin No. 11, Issue 1, dated September 24, 2007, for related information. Material Incorporated by Reference
(i)You must use Lindstrand Hot Air Balloons Ltd. Service Bulletin No. 11, Issue 1, dated September 24, 2007, to do the actions required by this AD, unless the AD specifies otherwise.
(1)On April 1, 2008 (73 FR 13113, March 12, 2008), the Director of the Federal Register previously approved the incorporation by reference of Lindstrand Hot Air Balloons Ltd. Service Bulletin No. 11, Issue 1, dated September 24, 2007.
(2)For service information identified in this AD, contact Lindstrand Balloons Ltd., Maesbury Road, OSWESTRY, Shropshire SY10 8ZZ, England, Telephone +44
(0)1691-671717; FAX +4
(0)1691-671122.
(3)You may review copies at the FAA, Central Region, Office of the Regional Counsel, 901 Locust, Room 506, Kansas City, Missouri 64106; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html* . Issued in Kansas City, Missouri, on June 10, 2008. Kim Smith, Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-13674 Filed 6-17-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0301; Directorate Identifier 2007-NM-284-AD; Amendment 39-15559; AD 2008-12-15] RIN 2120-AA64 Airworthiness Directives; Dassault Model Falcon 2000EX and 900EX Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: We are adopting a new airworthiness directive
(AD)for the products listed above. This AD results from mandatory continuing airworthiness information
(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: On early FALCON airplanes featuring the EASy cockpit, a new oxygen controller has been installed. An internal review has determined that the passenger oxygen mask boxes do not fit this new controller. In OVERRIDE mode, that is to say, when the internal pressure reducer is by-passed, oxygen (O <sup>2</sup> ) flow is nominal, while in NORMAL mode O <sup>2</sup> flow is reduced by half compared to what it should be. Consequently, in NORMAL mode the minimum mass flow of supplemental O <sup>2</sup> for each passenger, as required by Certification Specifications, is no longer met. This could lead to passenger incommodation due to insufficient body oxygenation. The unsafe condition is incorrectly fitted passenger oxygen mask boxes for the new controllers, which could result in incapacitation of passengers due to insufficient oxygen in the event of rapid depressurization of the airplane when the controller is in NORMAL mode. We are issuing this AD to require actions to correct the unsafe condition on these products. DATES: This AD becomes effective July 23, 2008. The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of July 23, 2008. ADDRESSES: You may examine the AD docket on the Internet at *http://www.regulations.gov* or in person at the U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC. FOR FURTHER INFORMATION CONTACT: Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-1137; fax
(425)227-1149. SUPPLEMENTARY INFORMATION: Discussion We issued a notice of proposed rulemaking
(NPRM)to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the **Federal Register** on March 18, 2008 (73 FR 14403). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states: On early FALCON airplanes featuring the EASy cockpit, a new oxygen controller has been installed. An internal review has determined that the passenger oxygen mask boxes do not fit this new controller. In OVERRIDE mode, that is to say, when the internal pressure reducer is by-passed, oxygen (O <sup>2</sup> ) flow is nominal, while in NORMAL mode O <sup>2</sup> flow is reduced by half compared to what it should be. Consequently, in NORMAL mode the minimum mass flow of supplemental O <sup>2</sup> for each passenger, as required by Certification Specifications, is no longer met. This could lead to passenger incommodation due to insufficient body oxygenation. The purpose of this Airworthiness Directive
(AD)is to mandate the replacement of the passenger oxygen mask boxes by new-design ones [boxes] adapted to the controller. The unsafe condition is incorrectly fitted passenger oxygen mask boxes for the new controllers, which could result in incapacitation of passengers due to insufficient oxygen in the event of rapid depressurization of the airplane when the controller is in NORMAL mode. You may obtain further information by examining the MCAI in the AD docket. Comments We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public. Conclusion We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have required different actions in this AD from those in the MCAI in order to follow our FAA policies. Any such differences are highlighted in a NOTE within the AD. Costs of Compliance We estimate that this AD will affect about 27 products of U.S. registry. We also estimate that it will take about 16 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $80 per work-hour. Required parts will 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 parts. 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 this AD to the U.S. operators to be $34,560, or $1,280 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this AD: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone
(800)647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **2008-12-15 Dassault Aviation:** Amendment 39-15559. Docket No. FAA-2008-0301; Directorate Identifier 2007-NM-284-AD. Effective Date
(a)This airworthiness directive
(AD)becomes effective July 23, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to Dassault Model Falcon 2000EX and 900EX airplanes, certificated in any category, as identified in paragraphs (c)(1) and (c)(2) of this AD.
(1)Falcon 900EX airplanes, serial number (S/N) 120 through 146 inclusive, on which Dassault Service Bulletin F900EX-257 has not been implemented.
(2)Falcon 2000EX airplanes, S/N 28 through 55 inclusive, on which Dassault Service Bulletin F2000EX-61 has not been implemented. Subject
(d)Air Transport Association
(ATA)of America Code 35: Oxygen. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: On early FALCON airplanes featuring the EASy cockpit, a new oxygen controller has been installed. An internal review has determined that the passenger oxygen mask boxes do not fit this new controller. In OVERRIDE mode, that is to say, when the internal pressure reducer is by-passed, oxygen
(O2)flow is nominal, while in NORMAL mode O2 flow is reduced by half compared to what it should be. Consequently, in NORMAL mode the minimum mass flow of supplemental O2 for each passenger, as required by Certification Specifications, is no longer met. This could lead to passenger incommodation due to insufficient body oxygenation. The purpose of this Airworthiness Directive
(AD)is to mandate the replacement of the passenger oxygen mask boxes by new-designed ones [boxes] adapted to the controller. The unsafe condition is incorrectly fitted passenger oxygen mask boxes for the new controllers, which could result in incapacitation of passengers due to insufficient oxygen in the event of rapid depressurization of the airplane when the controller is in NORMAL mode. Actions and Compliance
(f)Unless already done do the following actions:
(1)Within 15 months after the effective date of this AD, replace the passenger oxygen mask boxes in accordance with Dassault Service Bulletins F900EX-257 or F2000EX-61, both Revision 1, both dated March 22, 2007, as applicable.
(2)Actions done before the effective date of this AD in accordance with Dassault Service Bulletins F900EX-257, dated March 15, 2006; and F2000EX-61, dated March 22, 2006; are acceptable for compliance with the corresponding actions of this AD. 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: Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-1137; 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 European Aviation Safety Agency Airworthiness Directive 2007-0073, dated March 22, 2007; and Dassault Service Bulletins F900EX-257 and F2000EX-61, both Revision 1, both dated March 22, 2007; for related information. Material Incorporated by Reference
(i)You must use Dassault Service Bulletin F900EX-257, Revision 1, dated March 22, 2007; or Dassault Service Bulletin F2000EX-61, Revision 1, dated March 22, 2007; as applicable; to do the actions required by this AD, unless the AD specifies otherwise.
(1)The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.
(2)For service information identified in this AD, contact Dassault Falcon Jet, P.O. Box 2000, South Hackensack, New Jersey 07606.
(3)You may review copies at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call
(202)741-6030, or go to: *http://www.archives.gov/federal-register/cfr/ibr-locations.html* . Issued in Renton, Washington, on June 3, 2008. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-13315 Filed 6-17-08; 8:45 am] BILLING CODE 4910-13-P FEDERAL TRADE COMMISSION 16 CFR Part 24 Guides for Select Leather and Imitation Leather Products AGENCY: Federal Trade Commission. ACTION: Confirmation of guides. SUMMARY: The Federal Trade Commission (“FTC” or “Commission”) has completed the regulatory review of its Guides for Select Leather and Imitation Leather Products (“Leather Guides” or “Guides”) as part of its systematic review of all current Commission regulations and guides, and has decided to retain the Guides in their current form. DATES: This action is effective as of June 18, 2008. ADDRESSES: Requests for copies of this notice should be sent to the Consumer Response Center, Room 130, Federal Trade Commission, 600 Pennsylvania Avenue, NW, Washington, DC 20580. The notice also is available on the Internet at the Commission’s Web site, *http://www.ftc.gov* . FOR FURTHER INFORMATION CONTACT: Susan E. Arthur, Attorney, Southwest Region, Federal Trade Commission, 1999 Bryan Street, Suite 2150, Dallas, Texas 75201. E-mail: *sarthur@ftc.gov* , telephone:
(214)979-9370. SUPPLEMENTARY INFORMATION: I. Introduction The Commission has determined, as part of its oversight responsibilities, to review all Commission rules and guides periodically. These reviews seek information about the costs and benefits of the Commission’s rules and guides and their regulatory and economic impact. The information obtained during the reviews assists the Commission in determining whether rules and guides should be confirmed, amended, or rescinded. II. Background The Commission’s Leather Guides address misrepresentations regarding the composition and characteristics of specific leather and imitation leather products. 1 The Guides apply to the manufacture, sale, distribution, marketing, or advertising of leather or simulated leather purses, luggage, wallets, footwear, and other similar products. Importantly, the Guides state that disclosure of non-leather content should be made for material which has the appearance of leather but is not leather. 1 The Leather Guides “are administrative interpretations of laws administered by the Commission for the guidance of the public in conducting its affairs in conformity with legal requirements. They provide the basis for voluntary and simultaneous abandonment of unlawful practices by members of industry.” 16 C.F.R. 1.5. Conduct inconsistent with the Guides may result in corrective action by the Commission under applicable statutory provisions. The Commission adopted the Leather Guides in 1996, as part of its periodic review of its rules and guides. 2 The Leather Guides consolidated portions of the Guides for the Luggage and Related Products Industry (“Luggage Guides”), the Guides for Shoe Content Labeling and Advertising (“Shoe Guides”), and the Guides for the Ladies’ Handbag Industry (“Handbag Guides”). 3 The Leather Guides also include provisions previously contained in the Commission’s Trade Regulation Rule Concerning Misbranding and Deception as to Leather Content of Waist Belts (“Waist Belt Rule”). 4 2 61 Fed. Reg. 51577 (October 3, 1996). 3 The Luggage Guides, the Shoe Guides, and the Handbag Guides were repealed in 1995. 60 Fed. Reg. 48027 (September 18, 1995). On the same day, the Commission requested public comment regarding proposed Leather Guides. 60 Fed. Reg. 48056 (September 18, 1995). 4 The Commission repealed the Waist Belt Rule earlier in 1996. 61 Fed. Reg. 25560 (May 22, 1996). The language of the Luggage Guides, the Shoe Guides, the Handbag Guides, and the Waist Belt Rule was updated and clarified in the Leather Guides, and unnecessary provisions were deleted. Further, the Leather Guides modified a number of provisions from the older guides and rule. Among these modifications were an expansion of the scope of the Guides to include misrepresentations in marketing and advertising, the removal of the limitation that only top grain leather should be called “leather” without qualification, and the addition of a provision regarding the disclosure of the percentage of non-leather and leather material contained in bonded leather. On May 23, 2007, the Commission published a **Federal Register** notice (“FRN”) seeking public comment on the Leather Guides. 5 The FRN sought comment concerning the continuing need for the Leather Guides; industry adoption of the Guides; costs and benefits of the Guides; effects of the modifications to the provisions previously contained in the Luggage Guides, the Shoe Guides, the Handbag Guides, and the Waist Belt Rule; any changes that should be made to the Guides; conflicts or overlap between the Guides and other laws or regulations; changes in consumer perceptions and preferences; and the effect that changes in technology, economic conditions, or environmental conditions have had on the Guides. 5 72 Fed. Reg. 28906 (May 23, 2007). III. Regulatory Review Comments The Commission received four comments in response to the FRN. 6 The comments were submitted by the Footwear Distributors and Retailers of America (“FDRA”), an association of retailers, distributors, importers, and manufacturers of footwear; the Leather Industries of America (“LIA”), which represents a number of companies engaged in the tanning and/or marketing of leather and related companies; the Sponge and Chamois Institute (“SCI”), an organization comprised of producers and distributors of sponges and chamois products in the United States; and Design Resources, Inc. (“DRI”), a company engaged in the leather products business. 6 The comments are cited in this notice by the name of the commenter. All comments are on the public record and available for public inspection in the Consumer Response Center, Room 130, Federal Trade Commission, 600 Pennsylvania Avenue, NW, Washington, DC 20580, from 9 a.m. to 5 p.m., Monday through Friday, except Federal holidays. The comments are also available on the Internet at the Commission’s Web site, *http://www.ftc.gov* . A. Comments Concerning the Usefulness of the Guides Three of the comments support continuing the Guides, and the other commenter asks that its products be removed from the coverage of the Guides. LIA comments that the FTC should retain the Guides and expand them in a number of respects. 7 DRI also supports continuation of the Guides. 8 SCI’s request that the Guides be expanded to include chamois indicates support for continuation of the Guides. 9 FDRA requests that the Commission abandon the Guides as they relate to footwear, but does not comment on the general need for the Guides in other industries. 10 7 LIA at 5. 8 DRI at 1, 2, 6, and 11. 9 SCI at 1 and 5. 10 FDRA at 1-2. In addressing industry adoption of the Guides, LIA comments that it is frequently asked to help members apply the Guides to consumer products. 11 DRI says that the industry follows and embraces the Guides and their current labeling disclosure requirements, 12 and that companies “rely on the Guides and factor them into their investment and critical business decisions regarding product development.” 13 11 LIA at 5. 12 DRI at 2. 13 *Id.* at 11. Two comments address the Guides’ benefits to consumers. DRI states that the Guides have a theme of avoiding deception. 14 In LIA’s comment, the association says the Guides have “fundamental importance” as a reference point for consumers. 15 14 *Id.* at 10. 15 LIA at 5. In response to the FRN questions regarding costs and benefits of the Guides for businesses, LIA comments that “the Guides provide a framework for communicating truthful and non-misleading messages to consumers” concerning industry products, 16 inhibit advertisers from making deceptive claims, promote honest business practices, and have “fundamental importance” as a reference point for U.S. businesses. 17 LIA states that several specific provisions are helpful to industry because they encourage companies to communicate information that consumers may not be able to determine on their own prior to purchase. 18 DRI also addressed this issue, saying that the Guides provide voluntary guidelines for the marketing and sale of leather and imitation leather products to members of the leather industry that are promoting truthful, non-misleading advertising to consumers. 19 Additionally, DRI explains that leather businesses look to the Guides to understand their disclosure obligations for labels, tags, and advertising, and to ensure that they accurately represent their products to consumers. 20 With regard to bonded leather and composition disclosures, DRI’s comment says that the Guides help businesses understand their disclosure obligations and avoid consumer deception and confusion. 21 According to DRI, with regard to bonded leather, the Guides “have worked well for the past ten years and continue to do so.” 22 16 *Id.* at 2. 17 *Id.* at 5. 18 *Id.* at 5-6. 19 DRI at 1. 20 *Id.* at 11. 21 *Id.* at 1. 22 *Id.* at 11. B. Suggested Changes to the Guides LIA suggests that the Commission make numerous changes to the Guides. LIA says that the Guides “require expansion to make them more comprehensive and consistent with global industry practice.” 23 LIA comments that the absence of the information incorporated in its suggested modifications will facilitate “an escalating trend of deceptive practice” within the United States. 24 SCI’s sole recommendation is that the Commission add one definition to the Guides. 25 The comment from DRI primarily relates to one of the changes proposed by LIA and urges the Commission to refuse to make that requested change. 26 FDRA asks that the Guides be abandoned as they related to footwear. 27 23 LIA at 6. 24 *Id.* at 6-7. 25 SCI at 1 and 5. 26 DRI at 1-12. 27 FDRA at 1-2. 1. Suggested Definitions and Disclosures LIA proposes adding definitions for the following terms to the Guides:
(1)top grain or full grain leather,
(2)corrected grain leather,
(3)semi-aniline leather,
(4)leather,
(5)coated leather,
(6)laminated leather,
(7)split leather,
(8)leatherette,
(9)bonded leather, and
(10)chamois. 28 SCI asks that the Commission add a definition of the term “chamois.” 29 DRI’s comment primarily concerns its opposition to LIA’s proposed definition of the term “bonded leather,” 30 but DRI also states that LIA is asking the FTC to make the Guides “even more complex by adopting a number of complicated definitions that are shrouded in industry jargon and terminology.” 31 28 LIA at 3-4 and 7-21. 29 SCI at 1. 30 DRI at 1. 31 *Id.* at 7. The definitions that LIA suggests for the terms “top grain” or “full grain” leather, “corrected grain” leather, “split leather,” and “semi-aniline” leather are based on the presence or absence of grain surface and the finishes used on the material. These definitions are not needed, as the Guides apply to all types of leather, as well as non-leather material with the appearance of leather. Further, the record contains no evidence regarding consumer understanding of these terms, several of which may be unfamiliar to many consumers. Absent evidence as to how consumers would understand these suggested terms, it is difficult to determine whether adoption of the definitions would assist or hinder consumers. For these reasons, the Commission is not adding these suggested definitions. However, if industry members desire to label their products with these terms, they may do so provided that the terms used are truthful and non-deceptive. LIA also recommends that the Commission modify the Guides to include a lengthy definition of the term “leather.” 32 Like the proposed definitions discussed above, there are portions of this definition that are not needed because of the Guides’ broad coverage of all types of leather, as well as non-leather material with the appearance of leather. A portion of the suggested definition dealing with disintegrated hide or skin is not needed because Section 24.2(f) of the Guides already provides guidance relating to ground leather and similar materials. 32 LIA at 3 and 12. Also included within LIA’s proposed definition of the term “leather” is a provision that would allow use of the term without qualification for leather with a finish if the thickness of the finish is 0.15 mm or less. According to LIA, a “finish comprising a pigmented polyurethane, acrylic resin, or other polymer-based paint protects the grain surface of most types of leather.” 33 LIA further explains that the thickness of the finish depends upon the desired aesthetics and intended use of the leather. The comment describes the differences in performance and quality of material with various thicknesses of coatings, cites the British Standards Institution as support for LIA’s position, and states that the threshold is commonly understood by most leather producers. 34 However, the record developed during this review contains no information regarding whether, or to what extent, consumers expect that coatings have been applied to products labeled as “leather” without qualification. Without such information, it is difficult to determine whether adoption of the proposed definition would result in consumer deception or confusion. Therefore, the Commission is not adopting the provision proposed by LIA. For similar reasons, the Commission is not adding LIA’s proposed definitions of “coated leather” and “laminated leather” to the Guides, nor are those terms being added as examples of appropriate disclosures in Section 24.2(e) of the Guides (dealing with misrepresentations that a product is wholly of a particular composition) as recommended by LIA. 33 *Id.* at 10. 34 *Id.* at 10-12. LIA also recommends that the Commission add a definition of the term “leatherette” to refer to material made of paper, cloth, or synthetic material and finished to simulate the appearance of leather. 35 Further, LIA asks that the Commission add the term “leatherette (not leather)” to Section 24.2(a) of the Guides, which provides examples of terms that may be used to describe non-leather material with the appearance of leather. LIA claims that the definition and disclosure are needed because the term “leatherette” is misleading and potentially deceptive to consumers. 36 LIA provides no evidence concerning consumer understanding of the term “leatherette.” It should be noted that when the word “leather” is included within the name or description of a non-leather material or product in a manner that indicates that the material or product is made of leather or contains leather, there is a strong possibility that use of the word may cause consumer deception. Section 24.2(d) of the Guides states that a word, term, depiction, or device should not be used if it misrepresents, directly or by implication, that an industry product is made in whole or in part from animal skin or hide, or that material in an industry product is leather or other material. Although the Commission agrees with LIA that the term “leatherette” may be deceptive, the suggested change is not being made because the Guides in their current form address non-leather material with the appearance of leather. There is no need for the specific definition endorsed by LIA. The type of material that LIA seeks to define as “leatherette” is not leather, so Section 24.2(a) provides guidance for content disclosure. Further, it should be noted that the list of examples of appropriate disclosure contained in Section 24.2(a) is not an exhaustive list, so there is no need to add additional terms. 35 *Id.* at 4, 12, and 13. 36 *Id.* at 12. LIA’s next suggestion is that the Guides more specifically define the term “bonded leather.” 37 In support of its suggestion, LIA says that it has analyzed material that it claims is erroneously labeled as bonded leather because the material is 80 percent synthetic material with an insubstantial coating of leather fibers on the underside. 38 LIA argues that this material is not bonded leather because the leather fibers are not bonded to each other to form an independent, continuous layer, but are merely glued to the underside of an entirely different, synthetic product. LIA asserts that leather fibers in this material offer no utility or aesthetic value, and that manufacturers would likely include minor amounts of leather fibers to give the appearance of leather when inspected from the underside, thereby deceiving purchasers. To address these concerns, LIA suggests a definition of bonded leather that states that the product is made by forming leather fragments and fibers into a single homogenous sheet or roll with the aid of adhesives, resins, or similar bonding agents. 39 37 *Id.* at 4 and 13-15. 38 *Id.* at 14. 39 *Id.* at 15. In its comment, LIA cites the definition used by the International Union of Leather Technologists and Chemists Societies (“IULTCS”) to describe “reconstituted leather.” IULTCS’s definition is “Made by forming leather fragments and fibres into sheet material with the aid of adhesives, resins, etc.” LIA asks that the Commission further refine the IULTCS definition by adopting LIA’s proposal. With regard to LIA’s proposed definition of bonded leather, DRI states that consumers have not been harmed or deceived in the absence of this definition because “the Guides already require disclosure of the percentage of leather and non-leather substances found in bonded leather used in consumer products.” 40 DRI maintains that LIA’s proposed definition would drive up costs to bonded leather manufacturers and businesses without any benefit to consumers, would be confusing both to businesses and consumers, and would have significant anti-competitive impacts on the bonded leather goods industry and marketplace. DRI asks that the FTC retain the Guides and their current labeling disclosure requirements. 40 DRI at 2. The current Guides do not set a minimum leather fiber content for bonded leather material. Instead, Section 24.2(f) of the Guides states that if a term such as “bonded leather” is used, either a disclosure that the material is not leather or a disclosure of the percentage of leather fibers and the percentage of non-leather substances contained in the material should be made. An example of a proper disclosure provided in the Guides is “Bonded Leather Containing 60% Leather Fibers and 40% Non-leather Substances.” Such a disclosure effectively prevents deception which could be caused by the term “bonded leather.” Use of the term “bonded leather” without a truthful content disclosure is not in compliance with the Guides, regardless of the percentage of leather fiber content in the material so described. If a product is labeled in compliance with Section 24.2(f), consumers are made aware of the true composition of the product and are not deceived. The Guides’ provision relating to bonded leather and similar material focuses on disclosure of the percentage of leather fibers and non-leather substances contained in the material, rather than on the method used to place leather fibers into the material as urged by LIA. There is insufficient information in the record to justify a distinction based upon the method by which leather fibers are placed into the material. Truthful content information, as outlined in the Guides, gives consumers the facts they need to make an informed decision regarding bonded leather and similar materials. For these reasons, the Commission is not adopting LIA’s proposed definition of “bonded leather.” The last of LIA’s suggested definitions is for the word “chamois.” 41 SCI also requests a “chamois” definition. 42 The LIA and SCI comments refer to an FTC advisory opinion issued in 1964 that addressed the use of the word “chamois,” stating that it was deceptive to use the word “chamois” for a product not made from
(a)the skin of the Alpine antelope or
(b)sheepskin fleshers which have been oil-tanned after removal of the grain layer. 43 The comments also discuss in detail the need for a definition, as well as the history and properties of chamois, 44 but do not provide specific evidence regarding current consumer understanding of the term “chamois.” The most common use of chamois as described in these comments is for drying polished surfaces, glass, and car bodywork. Such drying products are outside of the scope of these Guides. There may be instances in which chamois is used in industry products covered by the Guides, but, as discussed above, there is no need to more specifically define different types of leather because the Guides apply to all types of leather. There are already provisions in the Guides to address misrepresentations and deceptive omissions. Under Section 24.1 of the current Guides, it is unfair or deceptive to misrepresent any material aspect of an industry product. As discussed above, Section 24.2(a) provides guidance about disclosures to be made for synthetic products with the appearance of leather. Also, under Section 24.2(b) of the Guides, a disclosure should be made of the type of leather in a product that is made of leather which has been processed to simulate the appearance of a different kind of leather. The requested definition has not been added to the Guides. 41 LIA at 4, 15, and 21. 42 SCI at 1. 43 FTC Advisory Opinion No. 1, 66 F.T.C. 1593 (1964). A portion of this opinion relating to proper use of the term “chamois” was published in the Code of Federal Regulations (“C.F.R.”) until 1989, when the Commission deleted Part 15 of Title 16 of the C.F.R. that contained the text of advisory opinions issued from November 1965 until June 1974. At the time that the provisions were deleted, the Commission noted that it was not required to publish the materials in the C.F.R. and that more complete versions of the materials were available elsewhere. The Commission concluded that there was little, if any, public benefit to justify the costs of publication. 50 Fed. Reg. 26187 (June 22, 1989). 44 LIA at 15-21; SCI at 1-5. In summary, the Commission has decided that it will not add the suggested definitions to the Guides. However, the Commission would encourage industry efforts to inform consumers of the meaning of many of the proposed definitions, provided that the definitions are not misleading to consumers. 2. Scope of the Guides LIA suggests that the scope of the Guides be enlarged to include automotive and furniture upholstery products, stating that these products “represent a significant portion of the leather industry, and the clear majority of finished leather produced in the United States.” 45 LIA argues that enlarging the Guides to cover these products would reduce potential deception and confusion regarding these products. 46 In addressing LIA’s suggestion, the Commission notes that when the Leather Guides were adopted in 1996, it considered expansion of the Guides to cover additional products and decided that the record developed during that review did not warrant expansion of the Guides. As in the earlier review, the current record leaves unanswered questions regarding the extent of misrepresentations in other industries, consumer interpretation of the appearance of leather for products in other industries, and any special considerations for other industries. For these reasons, the Commission is not enlarging the scope of the Guides in the manner suggested by LIA. However, all members of the leather and imitation leather products industries can obtain useful guidance from the Guides. The Guides are interpretive of laws enforced by the Commission, which may take action against companies engaged in deception regardless of whether they fall within the scope of the Guides. 45 *Id.* at 7. 46 *Id.* FDRA asks that the Guides be abandoned as they relate to footwear, arguing that there is no consumer preference for leather in the current footwear market and that consumer choice is instead based upon functionality and value. 47 FDRA reasons that “the Guides are based on the assumption that consumers believe all parts of shoes with an ‘appearance’ of leather, are made of leather, regardless of what the distributor says or does not say in labeling or advertising about leather content.” 48 FDRA argues that “appearance” is not defined, and that 47 FDRA at 1-2. 48 *Id.* at 2. the Guides’ emphasis on the assumed preference for leather is so great that the effect is that any shoe which does not disclose its contents “appears” to be leather. In essence, the Guides convert silence about shoe content into a claim of leather content and then require disclosure to cure the “misrepresentation” created only by the Guides themselves. *Id.* FDRA urges the Commission to reconsider this approach, which it claims is flawed. In its comment, FDRA touts the enormous strides made in the development of synthetic materials, which it claims have replaced leather in many facets of footwear construction. 49 Further, the association states that synthetic materials, which in some instances are more expensive than leather, have been developed to be light in weight and provide strength and durability which is superior to leather. In describing today’s footwear styles, FDRA explains that such products “are typically made from a variety of materials fitted together with leather and man-made overlays, interspersed with light, breathable textile materials, combined to create the comfort, fit, and ‘breathability’ preferred by consumers.” 50 Additionally, FDRA states that low priced synthetic shoes are widely accepted by consumers because they have many of the same comfort and performance characteristics as leather footwear at a fraction of the price. 51 49 *Id.* 50 *Id.* at 1. 51 *Id.* at 2. FDRA claims that, because of the low price, consumers have no expectation that these items are made of leather. However, as discussed above, FDRA indicates that synthetic materials are more expensive than leather in some instances. Therefore, consumers cannot rely upon price to determine the true composition of a product. The basic premise of the Guides is the Commission’s long-standing position that when a product has the appearance of leather, its appearance makes an implied representation that the product is made of leather. Clearly, a deceptive omission can arise from the physical appearance of a product, and the Guides’ disclosure provisions are designed to correct such an omission. Despite FDRA’s claims to the contrary, a product does not “appear” to be leather solely because of the absence of a content disclosure for the product. A synthetic product must first appear to be leather before the Guides’ disclosure provisions would become applicable to the product. Thus, the Guides’ disclosure provisions are limited to situations where consumers are likely to be misled as to a product’s composition. While FDRA cites statistics regarding the percentages of leather and non-leather footwear for the U.S. footwear market and the types of footwear sold in the market, 52 it does not provide evidence regarding consumer expectations regarding footwear with the appearance of leather. Whether or not there have been tremendous advances in synthetic materials, the record does not support a reversal of the Commission’s long-standing position related to synthetic material with the appearance of leather. 52 *Id.* at 1. FDRA asks that, if the Guides remain applicable to footwear, the Commission make clear that the look or mere appearance of the shoe does not constitute a representation that the shoe is leather, either in whole or in part, and to make the Guides applicable only to misrepresentations of leather content. 53 As discussed above, the implied representation made by the appearance of leather is a fundamental premise of the Guides. FDRA’s suggested changes would thwart the primary goals of the Guides. Therefore, the Commission is not making the changes suggested by FDRA. 53 *Id.* at 2. IV. Conclusion Based upon the review discussed above, the Commission concludes that there is a continuing need for the Leather Guides, which are beneficial to consumers and industry members, and has decided to retain the Guides in their current form. List of Subjects in 16 CFR Part 24 Advertising, Belts, Distribution, Footwear, Imitation leather products, Labeling, Ladies’ handbags, Leather and leather products industry, Luggage and related products, Shoes, Trade practices, Waist belts. Authority: 15 U.S.C. 41-58. By direction of the Commission. Donald S. Clark Secretary [FR Doc. E8-13656 Filed 6-17-08: 8:45 am] BILLING CODE 6750-01-S DEPARTMENT OF THE INTERIOR Minerals Management Service 30 CFR Part 291 [Docket ID: MMS-2008-PMI-0024] RIN 1010-AD17 Open and Nondiscriminatory Movement of Oil and Gas as Required by the Outer Continental Shelf Lands Act AGENCY: Minerals Management Service (MMS), Interior. ACTION: Final rule. SUMMARY: The Minerals Management Service
(MMS)is promulgating new regulations that establish a process for a shipper transporting oil or gas production from Federal leases on the Outer Continental Shelf
(OCS)to follow if it believes it has been denied open and nondiscriminatory access to pipelines on the OCS. The rule provides MMS with tools to ensure that pipeline companies provide open and nondiscriminatory access to their pipelines. EFFECTIVE DATE: August 18, 2008. FOR FURTHER INFORMATION CONTACT: Scott Ellis, Policy and Appeals Division, at
(303)231-3652, FAX:
(303)233-2225, or e-mail at *Scott.Ellis@mms.gov* . The principal authors of this rule are Alex Alvarado and Robert Mense of Offshore Minerals Management (OMM); and Scott Ellis of Policy and Management Improvement (PMI), MMS, Interior. SUPPLEMENTARY INFORMATION: I. Background Section 5(e) of the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. 1334(e), provides that “[r]ights-of-way through the submerged lands of the outer Continental Shelf, whether or not such lands are included in a mineral lease maintained or issued pursuant to this subchapter, may be granted by the Secretary for pipeline purposes for the transportation of oil, natural gas, sulphur, or other minerals or under such regulations and upon such conditions as may be prescribed by the Secretary. * * * upon the express condition that oil or gas pipelines shall transport or purchase, without discrimination, oil or natural gas produced from submerged lands or outer Continental Shelf lands. * * *” 43 U.S.C. 1334(e). Section 5(f) of the OCSLA mandates that every permit, license, easement, or right-of-way granted to a pipeline for transportation of oil or gas on or across the OCS must require that the pipeline “provide open and nondiscriminatory access to both owner and nonowner shippers.” 43 U.S.C. 1334(f). The Federal Energy Regulatory Commission (FERC), exercising authority it claimed under the OCSLA, issued regulations requiring companies providing natural gas transportation service to periodically file information with FERC concerning their pricing and service structures. *See* Order No. 639, FERC Stats. & Regs.
(CCH)¶ 31,097 at 31,514 (April 10, 2000); Order No. 639-A, FERC Stats. & Regs.
(CCH)¶ 31,103 (July 26, 2000). FERC believed that the resulting transparency would enhance competitive and open access to gas transportation. *Id.* Several of the subject companies sought judicial relief from the orders, alleging that FERC did not have authority under OCSLA to issue the regulations. On October 10, 2003, the U.S. Court of Appeals for the District of Columbia Circuit, in *Williams Cos.* v. *FERC* , 345 F.3d 910 (DC Cir. 2003), found that sections 5(e) and
(f)of the OCSLA, 43 U.S.C. 1334(e) and (f), grant FERC only limited authority to enforce open access rules on the OCS. The court found that enforcement of the requirement to provide open and nondiscriminatory access “would be at the hands of the obligee of the conditions, the Secretary of the Interior (or possibly other persons that the conditions might specify).” *Id.* at 913-914. Specifically, the Court of Appeals concluded that FERC's role under 43 U.S.C. 1334(e) is essentially limited to what are commonly known as “ratable take” orders and capacity expansion orders. According to the court's decision, FERC's authority does not include the regulatory oversight described in FERC Orders 639 and 639-A. As a result, the FERC regulations issued under 18 CFR part 330 are *ultra vires* , and therefore not enforceable. MMS believes the court's decision means that the OCSLA provides the Secretary of the Interior the authority to issue and enforce rules to assure open and nondiscriminatory access to pipelines. 43 U.S.C. 1334(e) and (f)(1)(A). To determine whether a need exists for regulations to assure open and nondiscriminatory access, MMS issued an Advance Notice of Proposed Rulemaking (ANPRM). *See* 69 FR 19137 (April 12, 2004). Subsequently, MMS held public meetings in Houston, Washington, DC, and New Orleans to hear oral comments. MMS received written comments from 17 respondents. After considering all comments and making some minor changes necessitated by the Energy Policy Act of 2005 (EPAct, Pub. L. 109-58, 119 Stat. 594), MMS proceeded by issuing a Proposed Rule in the **Federal Register** . *See* 72 FR 17047 (April 6, 2007). The Proposed Rule addressed many of the comments in response to the ANPRM and requested further discussion and comments on several topics. MMS received written comments to the Proposed Rule from a total of 13 industry respondents. In addition, MMS received comments from FERC, but those comments were of a technical nature (citation corrections) and did not address the substantive regulations of the Proposed Rule. As with the ANPRM, the Proposed Rule commenters generally fell into two groups—shippers/producers
(4)and pipelines/service providers (9). While these commenter groups generally submitted opposing views, the support of the proposed informal complaint resolution process was nearly unanimous (one commenter indicating the process appeared lawful and another stating the process was consistent with other OMM leasing actions). Specific topics regarding the issues raised in the Proposed Rule comments are addressed below in the applicable sections of this final rulemaking. II. Comments on the Proposed Rule The MMS received comments on the Proposed Rule from four producers/shippers and nine pipelines/service providers. These comments are analyzed and discussed below: A. General Comments 1. The formal complaint process, proposed at 30 CFR 291.104-291.115, conflicts with OCSLA “citizen suit” adjudication process. *Public Comments:* Two pipeline commenters objected to any form of formal complaint process. One pipeline commenter proposed that MMS reconsider the formal administrative complaint process as unnecessary due to the existing option of taking the issue to Federal court, and because Congress did not mandate an administrative process. The other pipeline commenter argues that MMS's formal complaint process exceeds statutory authority and conflicts with the Congressionally-conferred adjudication process, the “citizen suit” provisions of OCSLA. *MMS Response:* Concerning the comments that MMS must completely reject the formal administrative process, MMS disagrees with the commenters' position regarding OCSLA authority. The OCSLA specifically grants the Secretary of the Interior the authority to “prescribe such rules and regulations as may be necessary to carry out the provisions of [the OCSLA].” *43 U.S.C. 1334(a).* Nothing in section 1349 or section 1350 limits that rulemaking authority. Nor is there anything in section 1334(e) or
(f)that exempts those provisions from the general grant of rulemaking authority. The two pipeline commenters interpret OCSLA in such a narrow manner that when open and nondiscriminatory pipeline access disputes occur that are associated with OCSLA section 5 permits, licenses, easements, rights-of-way, or other grants of authority, the only administrative enforcement that the Secretary could employ is (maybe) informal dispute resolution. The commenters base their interpretation on the premise that Congress failed to grant the Secretary the authority to create, by regulation, a formal administrative process to resolve pipeline access disputes. Instead, when a pipeline access dispute occurs, commenters believe that the dispute may only be resolved by the judiciary. That result would appear to contradict *Williams* where the DC Circuit held that “[w]ithout some explicit provision to the contrary (as exists for quantification of the ratable take duty), Congress presumably intended that enforcement would be at the hands of the obligee of the conditions, the Secretary of the Interior (or possibly other persons that the conditions might specify).” *Williams,* 345 F.3d at 913-14. MMS believes that the best way to ensure open and nondiscriminatory access to pipelines on the OCS is through a formal administrative process in conjunction with an informal Hotline and alternative dispute resolution
(ADR)processes. Otherwise, MMS's attempts at “enforcement” of open access conditions would be more difficult whenever the parties eschewed the informal means of resolution. Consequently, MMS believes that the commenters' interpretation would circumvent the entire executive process. The commenters would have disputes over pipeline access effectively removed from the administrative process, making them subject solely to the judicial process. The MMS believes that neither section 5 nor section 23 (citizen suit provision) of OCSLA may be interpreted so narrowly. Again, MMS rejects the recommendations to eliminate all formal open and nondiscriminatory access dispute resolution procedures. 2. MMS royalty-in-kind
(RIK)conflict of interest. *Public Comments:* One pipeline commenter questions whether MMS, as a shipper of RIK production, can fairly decide other shipper's appeals alleging violations of the open and nondiscriminatory access provisions of OCSLA. The commenter believes that an inherent conflict of interest prevents MMS from objectively deciding open access complaints because MMS's incentives are the same as shippers that submit complaints. The commenter also believes that MMS's decisions would not only be subject to potential conflicts of interest where MMS is a shipper, but for all complaints. The commenter does not believe that the complaint process equates to MMS's appeal process for MRM orders because Congress has not mandated that an administrative process be established for open and nondiscriminatory access complaints as it has for royalty disputes. *MMS Response:* The MMS previously explained in the Proposed Rule that appellants' allegations of lack of due process or of conflict of interest under the parallel MRM appeal process have never been upheld. *See,* *e.g.* , *Santa Fe Pacific Railroad Co.,* 90 IBLA 200, 220 (1986); *Davis Exploration,* 112 IBLA 254, 260 (1989); *Transco Exploration Co. & TXP Operating Co.,* 110 IBLA 282, 311-12 (1989); *W&T Offshore, Inc.,* 148 IBLA 323, 355-59 (1999). The RIK division operates within the MRM program of MMS and separately from PMI. Consequently, any complaints peripheral to RIK activities are similar to appeals of orders issued by MRM and decided by PMI. In both situations, MMS programs have an interest in the outcome of the appeal or complaint, but other parties' interests are further protected by Interior Board of Land Appeals
(IBLA)review, and the availability of judicial review of those IBLA decisions. With both royalty appeals and open access complaints, PMI has no underlying operational responsibility. Rather, MRM is responsible for issuing royalty-related orders and for managing the RIK program, while OMM issues pipeline rights-of-way. PMI functions as an independent program that assists in the Director's oversight of MMS's operating programs. PMI helps to fulfill the Director's responsibility by issuing final MMS appeal and complaint decisions under the authority that the MMS Director has delegated to PMI. Under section 5(a) of OCSLA, Congress granted the Secretary broad authority to administer OCSLA, including the power to “prescribe such rules and regulations as may be necessary to carry out” its provisions. In addition, the Circuit Court in *Williams* found that enforcement of the obligation to provide open and nondiscriminatory access “would be at the hands of the obligee of the conditions, the Secretary of the Interior (or possibly other persons that the conditions might specify).” *Williams,* 345 F.3d at 913-14. The pipeline right-of-way conditions currently include the regulations in 30 CFR part 250, subpart J. *See* 30 CFR 250.1010. The new regulations in Part 291 serve to complement the subpart J regulations and to encompass a broader range of grants of authority as part of MMS's overall administrative duties under OCSLA, as modified by the EPAct. Under these rules at §§ 291.112 through 291.115, parties may avail themselves of the same kind of administrative review as lessees/operators experience under current MRM appeals. Because the process in this rulemaking is similar to the appeals process which has been upheld repeatedly by the IBLA, the MMS believes that the complaint process will properly protect parties' rights. B. 30 CFR Part 291—Open and Nondiscriminatory Access to Oil and Gas Pipelines Under the Outer Continental Shelf Lands Act 1. 30 CFR 291.101. What definitions apply to this part? a. Undefined Terms *Public Comments:* One shipper commenter proposes that MMS provide guidance on behavior that constitutes discrimination. Another shipper commenter recommends that MMS clarify that denial of open access is not confined to physical access and that MMS adopt FERC-based “reasonableness” and “similarly situated” standards. *MMS Response:* MMS prefers to approach disputes over pipeline access by using a broad “reasonableness” standard that provides more flexibility rather than numerous rigid parameters that have only limited application. To assist in these kinds of concerns, however, MMS envisioned that shippers using the Hotline would inquire as to whether a particular situation or behavior may constitute a violation of pipeline access requirements and whether those circumstances may support further investigation. The MMS refrained from specifically adopting FERC-based discrimination standards because the mandates and authorizing statutes for FERC and MMS (Interior) differ. While MMS recognizes that both the FERC “reasonableness” and “similarly situated” standards may be useful in resolving pipeline access disputes at issue under MMS's purview, the application of those standards may necessarily differ from FERC's processes under its differing statutory authorities. Thus, MMS continues to decline to adopt specific standards clarifying what constitutes discriminatory behavior or whether denial of open access has occurred. b. Definitions of “OCSLA Pipeline” and “Transportation” *Public Comments:* One pipeline commenter cautioned against MMS adopting a prescriptive approach to gathering systems, while another proposes that MMS explicitly state whether “contract carriage” may meet pipeline access requirements. One shipper commenter believes that the “transportation” definition is overly broad, and recommends that MMS exempt producers' lateral or small diameter feeder lines that do not ship others' production. Another shipper commenter indicated support for exempting deep water port facilities from these rules and for limiting the rules to encompass only those facilities that transport and not to those that produce. However, that same commenter proposed that MMS affirmatively request FERC to exempt feeder lines from application of these rules under section 5(f)(2) of OCSLA, that MMS specifically exempt FERC's “in connection with” gathering lines, and that MMS exempt “lease” facilities and lines since the rights enjoyed under the lease and granted under section 8 of OCSLA, are exclusive as opposed to the non-exclusive rights obtained under other grants of authority under section 5 of OCSLA. *MMS Response:* Lateral, feeder, and lease pipelines and associated facilities that do not transport oil and gas do not require a specific exemption from these rules. The plain language of section 5(e) and
(f)of OCSLA clearly states that open and nondiscriminatory access requirements apply only to pipelines that transport oil and gas. Section 5(e) addresses only transportation of oil and gas on right-of-way pipelines. If the function of laterals, feeders and gathering lines is for production purposes prior to transportation, these rules do not apply to those facilities. *See* 72 FR at 17049. However, simply because MMS, FERC, or some other entity defines a pipeline or associated facility as a lateral, a feeder, a gathering line, or otherwise production-related does not mean that such a pipeline or associated facility is used to transport oil and gas within the meaning of OCSLA. MMS does not believe that exempting FERC “in connection with” gathering lines is necessary. FERC has determined that “in connection with” pipelines fall within its jurisdiction under the Natural Gas Act (NGA), 15 U.S.C. 717-717z. Therefore, by the definition in § 291.101, FERC pipelines include “in connection with” pipelines. By FERC's definitions, gathering pipelines do not fall under NGA jurisdiction unless FERC determines that they are “in connection with” jurisdictional interstate pipelines. 15 U.S.C. 717(b). Consequently, MMS presumes that FERC will adequately address any discriminatory behavior for any pipeline access dispute that may arise for an “in connection with” gathering line since pipeline companies are prohibited by law from such discrimination. *Id.* at 717c(b). MMS declines to implement the proposal to affirmatively request a blanket exemption from FERC for “lateral” or “feeder lines,” because such a request is outside the scope of this rulemaking. Although MMS views these pipelines as potentially being subject to the open and nondiscriminatory pipeline access rules, MMS elected to accept FERC's oversight on an undue discrimination basis in lieu of applying these rules to transporters' gas pipelines and associated facilities under FERC's NGA jurisdiction, and to transporters' oil pipelines and associated facilities under Department of Energy Organization Act, 49 U.S.C. 60502 (transferring jurisdiction for duties under the Interstate Commerce Act (ICA), 42 U.S.C. 7172(a) and (b)) jurisdiction. MMS believes that requiring oil and gas transporters to comply with MMS's open and nondiscrimination rules under OCSLA in addition to complying with FERC's undue discrimination standards for interstate transport under either NGA or ICA is both duplicative and unnecessary. MMS also declines to implement the suggestion to explicitly note that “contract carriage” may meet the open and nondiscriminatory pipeline access requirements because MMS believes that such a broad declaration would not serve to clarify the scope or function of these rules. A suggestion that contract carriage may satisfy the open and nondiscriminatory pipeline access requirements and may create a “safe harbor” would not further MMS's stated objective of analyzing each case based on its factual merits. Whether a particular pipeline or related facility may be subject to the open and nondiscriminatory pipeline access rules is fact-driven, and MMS declines to categorically address every meaning and context of each transportation-related term used in the oil and gas industry and implicated in this rulemaking. Rather, MMS reaffirms its prior position that production-related pipelines and associated facilities are not subject to the open and nondiscriminatory pipeline access rules. c. Definition of “Serve” The following comments respond to MMS's specific question in the Proposed Rule of whether MMS should consider other methods of delivery assurance other than personal delivery, U.S. mail, or private delivery service, *e.g.* , electronic transmission, to satisfy parties' complaint and answer notification requirements: *Public Comments:* MMS received four comments on this specific question. One pipeline commenter supported the Proposed Rule as written, while one shipper commenter indicated that typical methods (not including electronic transmission) were sufficient means of notification. One pipeline commenter suggested that MMS should consider allowing electronic transmission in addition to the typical methods, and one pipeline commenter proposed allowing electronic transmission as a form of acceptable notification. *MMS Response:* MMS believes that the typical forms of service notification provided for in the Proposed Rule are sufficient for the purposes of these rules. The commenters' limited interest in supporting electronic transmission as well as the low volume of complaints anticipated, suggest that the rule as proposed is adequate. Once a rule is finalized, MMS's practice is to systematically revisit its regulations to determine if circumstances indicate a change is necessary or desirable. 2. 30 CFR 291.102. May I call the MMS Hotline to informally resolve an allegation that open and nondiscriminatory access was denied? *Public Comments:* One pipeline commenter observed that the informal complaint resolution process appeared lawful, and another recommended that the Hotline be available to all market participants as a resource to obtain informal advice and guidance as is FERC's Enforcement Hotline. *MMS Response:* The MMS purpose for establishing the Hotline under this section is to receive allegations of denial of open and nondiscriminatory access, and to allow shippers and transporters to request ADR in § 291.103. MMS initially requested that the discussion in the ANPRM concern the usefulness of a Hotline to informally attempt to resolve shippers' and service providers' concerns regarding perceived instances of open and nondiscriminatory access violations. Based on the ANPRM responses to MMS's request, shippers and service providers generally endorsed the concept of a Hotline as an informal mechanism for dispute identification and possible resolution. MMS's purpose for establishing a Hotline is to informally resolve concerns of shippers of possible pipeline access violations, not to offer all market participants a resource to obtain informational advice. The MMS encourages any communication that may assist in averting problems related to open and nondiscriminatory access to pipelines. Users of the Hotline will be informed that information or informational advice about such access violations provided through the Hotline is not binding on MMS or the Department of the Interior (Department). MMS expects that certain calls into the Hotline will not be made by shippers calling about pipeline access violations and such calls will need to be redirected. Regardless, MMS does not intend to strictly control incoming Hotline calls in an effort to avoid either calls from non-shippers or errant inquiries. 3. 30 CFR 291.103. May I use alternative dispute resolution to informally resolve an allegation that open and nondiscriminatory access was denied? *Public Comments:* A shipper commenter indicated that the allocation of costs for an MMS-provided facilitator in ADR was not well defined and suggested that the costs be equally divided between the parties in the dispute. *MMS Response:* MMS proposed to require participants in an ADR process to pay their respective shares of all costs and fees associated with any contracted or Departmental ADR provider. MMS is not considered a party for the purposes of this section. *See infra* , 30 CFR 291.103(b). By specifying that allocation of costs be the parties' respective shares, MMS intends that the costs for MMS facilitation be equally shared unless the parties agree to some other division. 4. 30 CFR 291.104. Who may file a complaint? a. The following comments respond to MMS's specific question of whether MMS's proposed treatment of OCSLA pipelines over which FERC exercises its Natural Gas Act or Interstate Commerce Act jurisdiction is adequate: *Public Comments:* MMS received ten comments on this specific question. One shipper commenter believes that deferring to FERC does not create any inconsistencies with other agencies' actions. Another shipper commenter concurs in MMS's deference to FERC's jurisdiction, but stated that MMS must clarify that “in connection with” pipelines are exempt from these rules. Seven pipeline commenters supported MMS's deference to FERC jurisdiction for NGA and ICA pipelines and one pipeline commenter believes MMS's deference to FERC cannot be legally sustained. *MMS Response:* MMS addresses the recommendation to clarify the status of “in connection with” pipelines in its response above to the definitions' comments under § 291.101. The reason for the commenter's belief that MMS's deference to FERC cannot be legally sustained is based on the *Williams* court's finding that FERC has an extremely limited role under OCSLA. However, the decision to defer to FERC to ensure open and nondiscriminatory access to OCS pipelines is made pursuant to MMS's authority under OCSLA not FERC's authority. MMS recognizes that FERC possesses a parallel authority to prevent undue discrimination access to OCS pipelines subject to the NGA and ICA. MMS believes that its authority under OCSLA and FERC's parallel authorities to prevent undue discrimination access to pipelines subject to NGA and ICA essentially duplicate each other and permit MMS to exercise discretion not to duplicate FERC compliance efforts. MMS believes FERC's anti-discriminatory compliance oversight under the NGA and ICA will ensure open and nondiscriminatory access to pipelines under the OCSLA for those pipelines subject to the NGA and ICA b. The following comments also relate to complaint filing under § 291.104: *Public Comments:* One shipper commenter recommended that MMS allow interested non-parties to intervene in filed complaints, while another shipper commenter proposed that any interested party be allowed to intervene as the commenter believes is contemplated by 5 U.S.C. 555(b) of the Administrative Procedure Act
(APA)and in a manner similar to FERC's Rules of Practice and Procedure at 18 CFR 385.206 and 385.214. The commenter believes that where its interests may be affected by precedents established by adjudication of complaints under this rule, then the rule should provide for interested party intervention. *MMS Response:* As explained above in subsection A, General Comments, regarding MMS as a shipper of RIK production and the perceived conflict of interest, MMS believes that its administrative form of dispute resolution (the so-called paper hearing) is very successful. It is important to avoid any modification of that process that would lead to a more extensive and more complicated formal complaint process. There has been no evidence presented to indicate that a more extensive complaint process is necessary. MMS does not agree that intervention by right would serve the interest of efficient complaint resolution. However, the rule permits a potentially affected person to submit a brief in the proceeding setting forth the submitter's interest in the matter, recommendations, and reasons for such recommendations. It would be within MMS's discretion whether to address the brief formally and to include the submitter as a party to the proceeding. 5. 30 CFR 291.105. What must a complaint contain? a. The following comments respond to MMS's specific question of whether MMS should use a formal complaint resolution method other than that proposed: *Public Comments:* MMS received seven comments on this specific question. One shipper commenter did not provide a formal dispute alternative to MMS's proposal, but indicated that it preferred the light-handed resolution approach using the MMS Hotline and ADR. Six pipeline commenters expressed general support for the proposed formal dispute resolution process, but two of them qualified their support. The two qualifications to MMS's formal resolution procedure are:
(1)that MMS remain flexible where circumstances suggest a need for additional or different procedures; and
(2)that MMS avoid ratemaking or cost-based examinations. *MMS Response:* In regard to the flexibility of MMS's dispute resolution procedures, MMS does not believe that additional flexibility is needed beyond the Hotline, ADR, and formal complaint resolution procedures. After the public meetings following the issuance of the ANPRM, MMS concluded that the industry has been able to resolve all but a very few of the types of complaints which the Proposed Rule would address. Thus, MMS believes that the three proposed means of dispute resolution are adequate for the anticipated need. Concerning the suggestion to avoid ratemaking, MMS does not include rate setting as a possible remedy in these rules, although cost-based examinations may provide the basis for open access determinations. b. The following comments also relate to complaint elements under § 291.105: *Public Comments:* One shipper commenter proposed allowing discovery consistent with the Federal Rules of Civil Procedure (FRCP, similar to the process that FERC employs) or that MMS allow the sharing of its discovery and that it issue protective orders as a means of ensuring the confidentiality of information. Also, where genuine issues of material fact exist, the commenter proposed that MMS provide for evidentiary hearings. Another shipper commenter proposed that MMS first establish the informal mechanisms before the formal procedures are put into place. One pipeline commenter suggested that MMS not cause any unnecessary discovery burdens. Another pipeline commenter expressed support for the complaint process particularly with respect to the case-by-case basis rather than by prescriptive regulation. Finally, a pipeline commenter suggested that MMS consider issuing a policy statement of its understanding of what the commenter characterizes as the pro-competitive form of regulation called for under OCSLA versus the pervasive command and control common-carrier regulation found in the NGA, ICA and MLA. *MMS Response:* The MMS carefully considered whether it should adopt a formal complaint procedure similar to that of FERC. MMS determined that it would adopt as a model the appeal process for royalty disputes at 30 CFR Part 290, subpart B, because of the number of disputes anticipated (based on FERC's prior experience), the costs, and the labor involved. MMS believes that this process is more cost-effective and less intrusive, and thus lessens the chilling effect that a more extensive formal process would have on prospective complainants. MMS concluded that adopting a FERC-type of formal process that included discovery, evidentiary hearings, protective orders, etc., would hamper MMS's efforts to encourage resolution of these issues. With respect to the comment about initiating the informal process before establishing formal processes, MMS previously addressed the need to issue the informal and formal dispute resolution processes concurrently. MMS believes that without the potential of some consequences, there is no reason for a pipeline owner to participate in a voluntary or an administrative process. MMS does not want prospective complainants to be forced into court as the sole means of resolving open access disputes. MMS declines to implement the suggestion that MMS issue a policy statement expressing its understanding that OCSLA may be characterized as a pro-competitive form of regulation rather than the pervasive command and control form of common carrier regulation found in the NGA, ICA and MLA. This particular policy statement supports the commenter's position that MMS refrain from adopting any formal complaint resolution procedures. MMS declined to adopt that suggestion for the reasons explained above, that an informal process, absent a formal process, would be insufficient to secure compliance. The new Part 291 represents MMS's policy regarding its mandate to ensure open and nondiscriminatory access to OCS pipelines. 6. 30 CFR 291.106. How do I file a complaint? The following comments respond to MMS's specific question of whether MMS should impose a time limit on the filing of complaints: *Public Comments:* MMS received eight comments on this specific question. The commenters all provided suggested time limits for complaint filing. The suggested time limits were 60-90 days (1 respondent), 90 days (1 respondent), 6 months (1 respondent), 1 year (1 respondent), and 2 years (4 respondents with two mentioning ICA complaint limitations standards). The suggestions varied between both shipper and pipeline commenters. Most of the comments suggested that the time period begin from the time of the alleged denial, alleged discrimination, or cause of action. However, one commenter suggested the time period commence from the time the complainant knew or should have known of the violation. Another commenter believes that an additional time limit should be created and imposed on those seeking informal complaint resolution. *MMS Response:* The MMS agrees with the reasoning of the majority of the commenters responding to this question. The commenters were primarily concerned with the availability of relevant documentary evidence before it becomes stale or unavailable and with the need to provide certainty and ensure finality of transactions for activities undertaken on the OCS. The commenters also expressed concern:
(1)That parties should not be indefinitely exposed to potential claims and uncertainties arising from past actions;
(2)that limitations should be imposed out of a sense of fairness and administrative efficiency; and
(3)that a potential exists for shippers to use a complaint threat as leverage against pipeline companies or otherwise achieve an unfair advantage. The MMS believes that a 2-year limitation period from the alleged denial for initiating a formal complaint is appropriate and addresses the commenters' concerns, and has adopted this recommendation in the final rule. 7. 30 CFR 291.107. How do I answer a complaint? a. The following comments respond to MMS's specific question of whether an answer in response to a complaint should include specific information other than that required by the Proposed Rule: *Public Comments:* MMS received five comments on this specific question. Four of the commenters indicated support for the rule as proposed. One pipeline commenter suggested that answers should include specific information in addition to that required if the additional information would expedite resolution of the dispute. *MMS Response:* MMS agrees that any information that may expedite the resolution process should be required under this rule and MMS sought comments on what other information might be needed in the Proposed Rule. Had the commenters identified such information, MMS would have considered including it as part of this regulation. However, due to the absence of suggestions on this matter from commenters, no further information requirements have been adopted. MMS has the authority to require submittal of additional information in the course of resolving open and nondiscriminatory pipeline access disputes whenever it determines that the additional information is necessary to resolve the dispute. *See infra* 30 CFR 291.110. b. The following comments also relate to submitting answers in response to complaints under § 291.107: *Public Comments:* One shipper commenter recommends streamlining the complaint process by shortening the time to answer a complaint by 30 days from the proposed 60 days. The commenter indicates that a 30-day response period is consistent with FERC's complaint procedures allowing only 20 days to respond (30 days for confidential treatment) and with the FRCP, which also requires answers to be filed within 20 days of the service of complaint. *MMS Response:* The MMS declines to implement the recommendation to shorten the required response time to answer complaints. The MMS believes that the 60-day period is necessary to prepare an answer that is sufficiently researched and documented. 8. 30 CFR 291.108. How do I pay the processing fee? a. The following comments respond to MMS's specific questions of whether the amount of processing fee is fair; whether the payment by electronic funds transfer is feasible; and what form of identification should be used to submit fees to MMS: *Public Comments:* MMS received three comments on these specific questions. A pipeline commenter expressed support for the rule as proposed. However, two shipper commenters expressed opposing views. One shipper commenter proposed eliminating the complaint filing fee altogether, while the other shipper commenter suggested imposing an additional fee of $15,000 per complaint in order to discourage frivolous filings. *MMS Response:* The commenter proposing that the filing fee be eliminated argues that the fee is not justified under the Independent Offices Appropriation Act. MMS does not agree with the commenter's rationale and opts to retain the filing fee as proposed. As stated in the Proposed Rule, the party seeking compliance under this rule is not the regulated entity. However, MMS believes that there is no question that the complaining party receives a “special benefit” from the services performed by MMS in processing the formal complaint. This “special benefit” standard triggers mandated cost-recovery compliance. Since publication of the Proposed Rule, MMS re-estimated the total actual costs to process a formal complaint to be $12,627 (the cost for government personnel was reduced from $80/hour to $74/hour), but the reasons stated in the cost recovery analysis in the preamble to the Proposed Rule neither support increasing the filing fee above the proposed $7,500, nor would they support a $15,000 supplemental fee. MMS believes the $7,500 filing fee is both reasonable and protects against frivolous filings. In the Proposed Rule, MMS provided alternative means of processing fee payment in addition to electronic funds transfer. However, the acceptance of checks and other alternative payment means was subject to MMS's sole discretion. MMS received no comments about the alternative payment proposal, and MMS received no comments on the specific question regarding the feasibility of electronic funds transfer. Upon further review, MMS has determined that it will prohibit any alternative means of payment in this section. Payment by check and other means for complaint processing costs is inefficient and creates unnecessary administrative burdens. b. The following comments respond to MMS's specific questions of whether the proposed processing fee will materially affect the filing of complaints, and whether the value of using the complaint process to complainants, transporters, and others is fairly presented: *Public Comments:* MMS received three comments on these specific questions. All three commenters responding to these questions indicated that the impact of the processing fee appears immaterial since cost is not an impediment for OCS shippers. Although related to MMS's specific question below, a pipeline commenter included in its response a proposal to eliminate the regulation providing for fee waivers and reductions. *MMS Response:* The comment regarding elimination of the fee waiver and reduction regulation is addressed below in response to comments on § 291.109. 9. 30 CFR 291.109. Can I ask for a fee waiver or a reduced processing fee? The following comments respond to MMS's specific question of whether processing fee waiver and reduction provisions should be retained: *Public Comments:* In addition to the response from the prior question, MMS received three other comments on this specific question. One commenter deferred to MMS on this question, and three commenters recommended eliminating this section as inappropriate and unnecessary. *MMS Response:* MMS declines to eliminate this section as unnecessary. The proposal to reduce or waive filing fees was included in the Proposed Rule to avoid undue hardship on small independent oil and gas producers/shippers and thus impede their access to the complaint process. The commenters point out that entities who engage in producing, shipping or other oil and gas business activities on the OCS (those entities that have a basis to claim denial of pipeline access) are large sophisticated entities for whom a $7,500 filing fee would not prove to be an impediment. However, MMS declines to exclude the ability to respond to circumstances that would warrant granting of relief. 10. 30 CFR 291.110. Who may MMS require to produce information? a. The following comments respond to MMS's specific question of whether MMS should obtain information from persons who are not parties to a complaint: *Public Comments:* MMS received five comments on this specific question. Three pipeline commenters indicated support for MMS gathering information from non-parties, but all three qualified their support. One commenter cautioned that confidentiality should be maintained for outside information providers. Another commenter believes that the need to subpoena information is best left on a case-by-case basis, and the third commenter suggested possibly adding a threshold measure of proof before accepting a complaint. One pipeline and one shipper commenter recommended not allowing non-party information because it could not be validated or disputed without due diligence by all parties. *MMS Response:* Regardless of the source, MMS believes it is necessary to treat all submitted information under part 291 as confidential to the extent allowed by law. The need to collect information from non-parties will not become routine and will only occur when there is additional information that MMS believes is necessary to make a decision on whether open access or nondiscriminatory access was denied. MMS believes that requiring certain non-parties to provide information upon request is less burdensome than requiring the routine submittal of information from all transporters and service providers. Also, MMS does not believe that a threshold level of proof is necessary before a complaint can be filed. The regulation at § 291.105 requires that the allegations include all documents that support the facts in your complaint including, but not limited to, contracts and any affidavits that may be necessary to support particular factual allegations. As with MMS appeals, unsupported assertions will not initiate complaint fact-finding efforts by MMS and will not move the complaint forward. However, MMS agrees that non-party information must be made available to the parties in dispute to afford them the opportunity to challenge that information. To the extent that the information would not be made available under 30 CFR 291.111, it is likely that MMS would not rely on it in resolving a complaint. Under MMS's appeals process, whenever MMS obtains supplemental information to process an appeal, that information, if it is not confidential, is provided to the other parties with an opportunity for the parties to supplement their pleadings. MMS conducts this information exchange in the absence of any formal procedure or regulatory provision. Similarly, MMS intends to follow that information exchange practice for non-party information obtained by MMS in resolving open and nondiscriminatory pipeline access complaints. In other words, MMS's long-standing practice in resolving royalty disputes is to send any relevant information it obtains to all parties. MMS would continue this practice in actions filed under this part. b. The following comments also relate to reporting information under § 291.110: i. Routine information reporting. *Public Comments:* Eight commenters submitted comments on the general subject of information reporting requirements. A cross-section of six commenters supported the Proposed Rule's absence of routine reporting requirements, but one other commenter believes that no authority under OCSLA exists to require routine reporting. A shipper commenter suggested that a reporting scheme was essential because shippers do not have access to pipeline companies' rates and terms of service. The commenter's extensive reporting proposal recommended including the following: Oil and gas production handling services, public reporting, rate and material economic terms, quarterly updates, and penalties for inaccurate reporting. However, the proposal exempted NGA and ICA pipelines from the reporting requirements. As an alternative to required reporting, the commenter suggested that MMS publish all of its RIK terms of service. *MMS Response:* The routine submittal of information by service providers and pipeline companies that are not involved in complaint proceedings is not “essential” to MMS's mandate of assuring open and nondiscriminatory pipeline access on the OCS. MMS believes that it can satisfy its mandate by utilizing the information requirements specified in Part 291. Further, entities responding to this Proposed Rule did not provide any of the specifics of the number and type of instances of violations of the open and nondiscriminatory access requirements to support requiring a more vigorous information collection. Thus, as stated in the preamble to the Proposed Rule, MMS does not believe that there is sufficient reason to require the routine submittal of information. MMS believes that publishing the terms of service for all its RIK transportation contracts would serve little or no purpose. When negotiating with service providers on the OCS (and elsewhere), MMS is uniquely positioned for those negotiations. To the extent that no other shipper may be able to duplicate that position, other shippers must view MMS's negotiation results in that context. Whether that perception may be helpful to other shippers is a matter of conjecture. Thus, MMS declines to make the terms of service information available. However, the rates that MMS pays on NGA and ICA-regulated pipelines are already available to the public. ii. Challenging information requests. *Public Comments:* One of the six pipeline commenters identified above as a supporter of MMS's information collection proposal, suggested allowing parties to challenge requests for information on the grounds that the information sought is irrelevant, privileged, commercially sensitive, or overly burdensome to produce (to assist in satisfying due process requirements). The commenter specifically suggested that MMS add the following provisions: “(1) The MMS may only request information from parties to a complaint proceeding;
(2)parties that are requested to produce additional information may object to the request; and
(3)in ruling on objections to requests for the production of information, the MMS will balance the need for the information to resolve the then-pending dispute against the burden on production and the commercial risk of disclosure of proprietary, commercially sensitive or privileged information.” *MMS Response:* The MMS also declines to adopt the suggested amendments allowing parties to object to information requests. First, MMS believes that limiting information collection only to parties inhibits its ability to assure the open and nondiscriminatory access to OCS pipelines. As stated above, MMS will require information from non-parties only when MMS believes it is necessary. Second, the rule does not preclude any party from objecting to an MMS request for information. Because the rule does not specifically address such objections, it would be at MMS's discretion whether to consider and respond to such an objection. Third, allowing a formal process of objections, denials, and appeals, would needlessly add another layer to the process of determining whether the requirement to provide open and nondiscriminatory access has been denied. Because any concerns the submitter may have regarding keeping such information confidential are addressed at section 291.111, MMS does not consider it necessary to add any additional protections. Therefore, MMS declines to institute a FERC-type dispute resolution process by allowing for information challenges because they would needlessly complicate MMS's formal complaint adjudication process. 11. 30 CFR 291.111. How do I request that MMS treat information I provide as confidential? *Public Comments:* Two commenters submitted proposals that broadly relate to submittal of information and confidentiality in § 291.111. Both commenters proposed timely public access to complaints, answers, and decisions. They suggested that MMS publish all complaint proceedings on its Web site or in the **Federal Register** . *MMS Response:* As with its current appeals process, MMS intends to transmit its complaint decisions to the Gower Federal Service for publication. For subsequent adjudication before IBLA and the courts, results are published through their respective reporter services for external dissemination. Also, as with the appeals process, MMS responds to information requests pursuant to the requirements of the Freedom of Information Act (FOIA), 5 U.S.C. 552. 12. 30 CFR 291.113. What actions may MMS take to remedy denial of open and nondiscriminatory access? *Public Comments:* Four commenters addressed the issue of remedies in § 291.113. Two pipeline commenters recommended changes to the 60-day grace period prior to imposition of civil penalties. One commenter suggested allowing a reasonable period not less than 60 days after a decision, and the other commenter proposed that the period be revised to 10 days after diligent construction of needed facilities, but no earlier than 60 days. A shipper commenter proposed including monetary/equitable relief to make complainant whole for its losses. The commenter also suggested that MMS include expedited relief where the complainant can demonstrate imminent irreparable injury similar to FERC's provisions at 18 CFR 385.206(h). One pipeline commenter simply posed the question of what remedies will apply to a determination of excess transportation rates. *MMS Response:* If the appropriate remedy to provide open and nondiscriminatory pipeline access includes the construction of facilities such as an interconnecting pipeline, MMS agrees that in such a case, 60 days may not be adequate to comply with the MMS order. Thus, a grantee or transporter has a period of 10 days after the conclusion of diligent construction of needed facilities or 60 days after receipt of the MMS order, whichever is later, to comply and provide open and nondiscriminatory access to its OCS pipelines. Concerning equitable relief for denial of access, MMS believes that such relief is not authorized under OCSLA. The purpose of this rule is to assure open and nondiscriminatory access to OCS pipelines, not to make whole the injured party of such actions. That is an appropriate role for the courts. MMS believes the penalty provisions authorized under OCSLA provide an appropriate response to any violation of and deterrent against acts denying open and nondiscriminatory access to pipelines on the OCS. MMS also declines to include provisions for expedited relief. MMS is not aware of any instances of “irreparable” injury incurred by shippers that would require the need for expedited relief. Section 291.113 describes the available actions MMS may take to remedy instances of denial of access. Further, the same remedial provisions apply if the access denial is the result of excessive transportation rates. 13. 30 CFR 291.115. How do I exhaust administrative remedies? The following comments respond to MMS's specific question of whether MMS should automatically stay each decision pending an appeal to IBLA: *Public Comments:* MMS received five comments on this specific question. Two pipeline commenters support the rule as written. However, three shipper commenters oppose providing for an automatic stay to decisions on complaints. One urged that the question of a stay should be determined on a case-by-case basis. Another suggested that the automatic issuance of a stay defeats the fair and reasonable process. The third shipper commenter proposed that decisions be effective on issuance and subject to a stay only if granted by IBLA. This commenter believes its proposal is consistent with the regulations governing other OCS operations and with 30 CFR 290.7. *MMS Response:* The MMS declines to adopt the suggestions to eliminate automatic stays of decisions. We decline to eliminate the automatic stay because in the vast majority of cases, the appellee would not be injured by a stay. This is because we believe that the decisions will primarily deal with whether pipeline pricing should be adjusted. If the Director rules for the pipeline, status quo would be maintained and the stay question would not be an issue. On the other hand, if the Director ordered a pipeline to adjust its rates, the effective date of the rate adjustment would be established by the Director's decision. In the event the decision would be reviewed by the IBLA, any affirmation of the rate adjustment would be retroactive to the effective date established by the Director's decision. In such a case, the retroactive lowering of the pipeline's rates would put the parties in the same place they would have been on the day the Director's decision was issued. Thus, we believe that it would be a waste of time and money to require a party to file a petition requesting the IBLA to stay the decision, for the parties to brief the issue, and for the IBLA to have to issue a decision on such a petition. However, in what we believe to be the unlikely instance where the proceedings before the Director would show that a pipeline's denial of open or non-discriminatory access would likely cause dire and irreversible consequences to a producer, the rule provides for a safeguard. It states that either the MMS Director or the Assistant Secretary can make the decision effective upon issuance. 30 CFR 291.115(b). III. Procedural Matters 1. Regulatory Planning and Review (Executive Order 12866) This is not a significant rule as determined by the Office of Management and Budget and is not subject to review under Executive Order 12866. a. This rule will not have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. From the inception of Order 639, FERC received only a few formal complaints and approximately ten informal hotline complaints regarding open and nondiscriminatory access. MMS expects to receive approximately five formal complaints and fifty calls to the MMS Hotline in the first year, and fewer in subsequent years. MMS bases this estimate on the number of OCSLA open and nondiscriminatory complaints FERC received, comments MMS received at the public workshops, and in response to the Advance Notice of Proposed Rulemaking and Proposed Rule. MMS conducted an economic analysis for a five-year period to estimate the net benefits from implementing this rule. Projected costs and benefits from the proposed complaint program are incremental from a baseline which MMS established to represent the current state of shipper and pipeline transactions on the OCS. MMS decisions favorable to complainants would increase revenue received by shippers/producers, and royalty payments would also increase. The analysis shows that over that five-year period, the total gross baseline benefits to shippers/producers and the public would be within the range of $4.4 million to $27 million, with a most likely estimate of $13 million. These benefits would be offset by the cost of compliance with the rule, *e.g.* , ADR, complaint filings, litigation, etc., and a decrease in tariff revenue paid to pipeline companies. The total of these costs is almost equal to the baseline benefits. Net benefits to shippers/producers and the public could range from $0.12 million to $0.60 million, with a most likely estimate of $0.24 million. The rule will not create an adverse effect upon the ability of the United States offshore oil and gas industry to compete in the world marketplace, nor will the rule adversely affect investment or employment factors locally. As noted during the public meetings held by MMS, it appears that the industry has been able to resolve all but a very few of the types of complaints the rule addresses through the normal course of finding, developing and marketing resources on the OCS. Because of this history, MMS concludes that the economic effects of the rule will not be significant. In disputed cases, intervention by MMS could result in the shifting of costs and revenue among the parties. Business transactions could be altered in a way that ensures shippers can move production. The economy could benefit if additional reserves are recovered and sold. Regardless, MMS concludes that aggregate direct effects on the economy for the rule would not exceed the $100 million threshold in any year. b. This final rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. The rule does not change the relationships of the OCS oil and gas leasing program with other agencies. These relationships are usually encompassed in agreements and memoranda of understanding that would not change with this rule. By deferring to FERC when FERC has retained and exercised jurisdiction, MMS has structured the rule to ensure that it would not create any inconsistencies with FERC's actions. c. This rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights and obligations of their recipients. The rule simply includes requirements for the filing and processing of complaints concerning open and nondiscriminatory access on the OCS. d. This rule does not raise novel legal or policy issues. The rule merely sets out the rules for filing complaints, investigating, and adjudicating matters related to the requirements for pipeline companies to offer open and nondiscriminatory transportation of OCS production. 2. Regulatory Flexibility Act
(RFA)MMS certifies that this rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). While the rule may affect some small entities, the economic effects of the rule are not expected to be significant. The regulated community for this proposal consists of companies specializing in leasing, developing, and operating offshore oil and gas properties, and providing pipeline services. The companies that this rule will affect can be divided into two types:
(1)Companies using the services of pipeline transportation and
(2)companies providing pipeline transportation. Almost all producers that ship production on or across the OCS are represented by the Small Business Administration's North American Industry Classification System (NAICS) code 211111 (crude petroleum and natural gas extraction). For this NAICS code, a small company is one with fewer than 500 employees. Within this group, approximately 90 of 130 are small companies. Those small companies providing pipeline transportation are represented primarily by NAICS codes 486110 (crude petroleum pipelines) (For this NAICS code, a small company is one with fewer than 1,500 employees) and 486210 (natural gas transmission pipelines) (For this NAICS code, a small company is one with gross annual receipts of $5 million or less). Within this second group, approximately 180 of 220 are small companies. In total, 270 of 350 companies affected by this rule, or approximately 77%, are small entities. Therefore, MMS concludes this rule will affect a substantial number of small entities. This rule will not have a significant economic effect on these small entities. This rule is unlikely to impose a net cost on any small company shipping production, because the option to file a complaint is a discretionary act and a company is unlikely to file a complaint unless it perceives the benefits will exceed the cost. In the event a small pipeline company is found to be in violation of the open and non-discriminatory access provisions of OCSLA, the violation would presumably be resolved by some adjustment of the business relationship between the parties to the dispute. In these cases, the complaining producers would benefit financially, and the public could benefit from the production of these reserves. On the other hand, pipeline companies would be obliged to accept less profitable business arrangements. If the fraction of small to large companies providing pipeline services is applied to the number of complaints expected in the first year, MMS estimates 4-5 cases would be processed that could affect the degree of profitability of the 180 pipeline service providers fitting the small company criteria. MMS estimates there would be fewer cases in subsequent years, dropping to an estimated 1 case 5 years after the effective date of this rule, in the most likely scenario. So, it can be concluded that the MMS pipeline anti-discrimination program will not have a significant economic impact on a substantial number of small pipeline companies. Your comments are important. The Small Business and Agriculture Regulatory Enforcement Ombudsman and 10 Regional Fairness boards were established to receive comments from small businesses about Federal agency enforcement actions. The Ombudsman will annually evaluate the enforcement activities and rate each agency's responsiveness to small business. If you wish to comment on the enforcement actions of MMS, call toll-free 1-888-REG-FAIR (1-888-734-3247). You may comment to the Small Business Administration without fear of retaliation. Disciplinary action for retaliation by an MMS employee may include suspension or termination from employment with the Department of the Interior. 3. Small Business Regulatory Enforcement Fairness Act (SBREFA) This rule is not a major rule under SBREFA (5 U.S.C. 804(2)). The rule does not change significantly the cost of transporting oil or gas through pipelines on the OCS. Indeed, MMS expects the rule to decrease transportation costs overall. Based on economic analysis: a. This rule will not have an annual effect on the economy of $100 million or more. As indicated in MMS's analysis, the economic impact to industry will be minimal. The rule will have a minor economic effect on the offshore oil and gas industries. b. This rule will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. c. This rule will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises. 4. Paperwork Reduction Act of 1995
(PRA)This rulemaking contains information collection requirements, and MMS submitted an information collection package to the Office of Management and Budget
(OMB)for review and approval under section 3507(d) of the PRA. The title of the collection of information is “30 CFR Part 291, Open and Nondiscriminatory Access to Oil and Gas Pipelines.” The OMB approved the information collection for this rule and assigned OMB Control Number 1010-0172 (exp. date June 30, 2011) for 254 hours and $37,500 in nonhour burden costs. The PRA provides that an agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. Until OMB approves the collection of information and assigns a control number, you are not required to respond. There are approximately 220 potential respondents. The frequency of reporting and recordkeeping is generally on occasion. Responses are required to obtain or retain benefits. The information collection does not include questions of a sensitive nature. The MMS will protect information considered proprietary and will not disclose documents exempt from disclosure under the Freedom of Information Act (5 U.S.C. 552) and its implementing regulations (43 CFR part 2). The rule implements complaint procedures to address allegations that a shipper has been denied open and nondiscriminatory access to a pipeline as sections 5(e) and
(f)of the OCSLA require. The MMS intends to use the information collected to determine whether the shipper has been denied open and nondiscriminatory access. The complaint information will be provided to the alleged offending party. Informal resolution is provided as an option. Shippers submitting a complaint are asked to identify the alleged action or inaction, explain how the action violates 43 U.S.C. 1334(e) or
(f)and how the action affects their business interests, state the relief or remedy requested, and provide supporting documentation. The MMS estimates that the total annual reporting and recordkeeping “hour” burden for the rule is 254 hours. (See the table below for a breakdown of requirements and hour burdens.) There was one change (−1 hour burden) in the information collection requirements from the Proposed Rule to the Final Rule. The MMS determined that electronic payment of the fee is the most efficient method and therefore eliminated alternative payment methods such as checks. Citation 30 CFR 291 Reporting & recordkeeping requirement Hour burden Average No. annual responses Annual burden hours 105, 106, 108, 109, 111 Submit complaint (with fee) to MMS and affected parties. Request confidential treatment and respond to MMS decision 50 5 250 106(b), 109 Request waiver or reduction of fee 1 4 4 104(b), 107, 111 Submit response to a complaint. Request confidential treatment and respond to [MMS] decision Information required after an investigation is opened against a specific entity is exempt under the PRA (5 CFR 1320.4) 0 110 Submit required information for MMS to make a decision 114, 115(a) Submit appeal on MMS final decision Total burden 9 254 The rule (§§ 291.106(b) and 108) also states that shippers pay a nonrefundable fee of $7,500 when filing a complaint with MMS. The fee is required to recover the Federal Government's processing costs. Therefore, MMS estimates that the annual non-hour cost burden for this rulemaking is $37,500, based on five complaints per year. Section 291.103 of the rule provides for alternative dispute resolution to informally resolve an allegation that access was denied. The request has the appearance of information collection, but because there is no structure required for the request process, a burden hour is not assigned. In the Proposed Rule, MMS asked for responses to several questions about the regulatory requirements and complaint process being proposed. Although MMS received comments on the regulatory requirements and on the fee, we did not receive any comments on the actual hour burdens. Some of the relevant comments are discussed below with more detail provided in Section II.B. of the Preamble. Some commenters wanted to see a more detailed, formal discovery and reporting process, similar to what FERC employs; however, MMS determined that it would proceed to mirror MMS's appeals process for royalty disputes because of the small number of anticipated disputes
(five)and because of cost and labor efficiencies. In the Proposed Rule, MMS also sought recommendations about any specific information that it should require that would expedite the dispute resolution process. The commenters did not offer any suggestions about specific information requirements; therefore, no further information requirements were made. With regard to the processing fee, MMS received opposing comments. Some commenters wanted to eliminate the fee, while another suggested a much higher fee to avoid frivolous filings. Another commenter supported the rule as proposed. Based on the cost recovery analysis of the Proposed Rule, MMS believes the stated fee is both reasonable and protects against frivolous filings. Three commenters also recommended eliminating the provision for fee waivers or reduction, saying that the fee is immaterial for OCS shippers. The MMS believes this provision helps small businesses avoid undue hardships that could impede their access to the complaint process. One commenter proposed allowing parties to object to information requests, while another suggested that a routine reporting scheme was essential. The MMS believes that limiting information collection only to parties inhibits its ability to assure the open and nondiscriminatory access to OCS pipelines. The MMS also emphasized that the need to collect information from nonparties will only occur when MMS believes it is necessary. The ability to obtain needed information is justified in lieu of requiring the routine submission of information from all transporters and service providers, which would increase the reporting burden. The public may comment, at any time, on any aspect of the reporting and cost burden in this rule. You may submit your comments directly to the Department of the Interior, Minerals Management Service, Attn: Information Collection Clearance Officer, Policy & Appeals Division, Mail Stop 4230, 1849 C Street, NW., Washington, DC 20240. 5. Federalism (Executive Order 13132) Under the criteria in Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. This action does not limit the policymaking discretion of any State. It does not change the roles of Federal, State, or local governments. A Federalism Assessment is not required. 6. Takings (Executive Order 12630) Under the criteria in Executive Order 12630, this rule does not have significant takings implications. A takings implication assessment is not required. 7. Civil Justice Reform (Executive Order 12988) This rule complies with the requirements of Executive Order 12988. Specifically, this rule:
(a)Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and
(b)Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards. 8. Unfunded Mandates Reform Act of 1995
(UMRA)This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 *et seq.* ) is not required. 9. National Environmental Policy Act of 1969
(NEPA)This rule does not constitute a major Federal action, under 42 U.S.C. 4332(c), significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 is not required. The MMS has analyzed this Proposed Rule under the criteria of the National Environmental Policy Act and the policies of the Department of the Interior set forth in 516 Departmental Manual 15. This Proposed Rule meets the requirements of 516 Departmental Manual 2 (Appendix 1.10) for a Departmental “Categorical Exclusion” in that this Proposed Rule is “of an administrative, financial, legal, technical, or procedural nature and whose environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis. * * *” This Proposed Rule also meets the criteria set forth in 516 Departmental Manual 15.4(C)(1) for a MMS “Categorical Exclusion” in that its impacts are limited to administration, economic or technological effects. Further, the MMS has analyzed this Proposed Rule to determine if it meets any of the extraordinary circumstances that would require an environmental assessment or an environmental impact statement as set forth in 516 Departmental Manual 2.3, and Appendix 2. The MMS concluded that this rule does not meet any of the criteria for extraordinary circumstances set forth in 516 Departmental Manual 2 (Appendix 2). 10. Effects on the Nation's Energy Supply (Executive Order 13211) This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required. 11. Consultation and Coordination With Indian Tribal Governments (Executive Order 13175) Under the criteria in Executive Order 13175, we have evaluated this rule and determined that it has no potential effects on federally-recognized Indian tribes. 12. Government-to-Government Relationship With Tribes In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), we have evaluated potential effects on federally-recognized Indian tribes. This rule does not apply to Indian tribes or trust assets. 13. Data Quality Act In developing this rule we did not conduct or use a study, experiment, or survey requiring peer review under the Data Quality Act (Pub. L. 106-554). List of Subjects in 30 CFR Part 291 Administrative practice and procedures, Alternative dispute resolution, Complaints, Continental shelf, Government contracts, Hotline, Natural gas, Oil, Penalties, Petroleum, Pipelines, Public lands—mineral resources, Public lands—rights-of-way, Remedies, Reporting requirements, and Transportation. Dated: May 2, 2008. C. Stephen Allred, Assistant Secretary—Land and Minerals Management. For the reasons set out in the preamble, MMS is adding to title 30 of the Code of Federal Regulations a new Part 291 as follows: Title 30—Mineral Resources Subchapter C—Appeals and Complaints PART 291—OPEN AND NONDISCRIMINATORY ACCESS TO OIL AND GAS PIPELINES UNDER THE OUTER CONTINENTAL SHELF LANDS ACT Sec. 291.1 What is MMS's authority to collect information? 291.100 What is the purpose of this part? 291.101 What definitions apply to this part? 291.102 May I call the MMS Hotline to informally resolve an allegation that open and nondiscriminatory access was denied? 291.103 May I use alternative dispute resolution to informally resolve an allegation that open and nondiscriminatory access was denied? 291.104 Who may file a complaint or a third-party brief? 291.105 What must a complaint contain? 291.106 How do I file a complaint? 291.107 How do I answer a complaint? 291.108 How do I pay the processing fee? 291.109 Can I ask for a fee waiver or a reduced processing fee? 291.110 Who may MMS require to produce information? 291.111 How does MMS treat the confidential information that I provide? 291.112 What process will MMS follow in rendering a decision on whether a grantee or transporter has provided open and nondiscriminatory access? 291.113 What actions may MMS take to remedy denial of open and nondiscriminatory access? 291.114 How do I appeal to the IBLA? 291.115 How do I exhaust administrative remedies? Authority: 43 U.S.C. 1334, 31 U.S.C. 9701, section 342 of the Energy Policy Act of 2005. § 291.1 What is MMS's authority to collect information?
(a)The Office of Management and Budget
(OMB)has approved the information collection requirements in this part under 44 U.S.C. 3501 *et seq.* , and assigned OMB Control Number 1010-0172.
(b)An agency may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number.
(c)We use the information collected to determine whether or not the shipper has been denied open and nondiscriminatory access to Outer Continental Shelf
(OCS)pipelines as sections of 5(e) and
(f)of the OCS Lands Act (OCSLA) require.
(d)Respondents are companies that ship or transport oil and gas production across the OCS. Responses are required to obtain or retain benefits. We will protect information considered proprietary under applicable law.
(e)Send comments regarding any aspect of the collection of information under this part, including suggestions for reducing the burden, to the Information Collection Clearance Officer, Minerals Management Service, Mail Stop 4230, 1849 C Street, NW., Washington, DC 20240. § 291.100 What is the purpose of this part? This part:
(a)Explains the procedures for filing a complaint with the Director, Minerals Management Service
(MMS)alleging that a grantee or transporter has denied a shipper of production from the OCS open and nondiscriminatory access to a pipeline;
(b)Explains the procedures MMS will employ to determine whether violations of the requirements of the OCSLA have occurred, and to remedy any violations; and
(c)Provides for alternative informal means of resolving pipeline access disputes through either Hotline-assisted procedures or alternative dispute resolution (ADR). § 291.101 What definitions apply to this part? As used in this part: *Accessory* means a platform, a major subsea manifold, or similar subsea structure attached to a right-of-way
(ROW)pipeline to support pump stations, compressors, manifolds, etc. The site used for an accessory is part of the pipeline ROW grant. *Appurtenance* means equipment, device, apparatus, or other object attached to a horizontal component or riser. Examples include anodes, valves, flanges, fittings, umbilicals, subsea manifolds, templates, pipeline end modules (PLEMs), pipeline end terminals (PLETs), anode sleds, other sleds, and jumpers (other than jumpers connecting subsea wells to manifolds). *FERC pipeline* means any pipeline within the jurisdiction of the Federal Energy Regulatory Commission
(FERC)under the Natural Gas Act, 15 U.S.C. 717-717z, or the Interstate Commerce Act, 42 U.S.C. 7172(a) and (b). *Grantee* means any person to whom MMS has issued an oil or gas pipeline permit, license, easement, right-of-way, or other grant of authority for transportation on or across the OCS under 30 CFR part 250, subpart J or 43 U.S.C. 1337(p), and any person who has an assignment of a permit, license, easement, right-of-way or other grant of authority, or who has an assignment of any rights subject to any of those grants of authority under 30 CFR part 250, subpart J or 43 U.S.C. 1337(p). *IBLA* means the Interior Board of Land Appeals. *OCSLA pipeline* means any oil or gas pipeline for which MMS has issued a permit, license, easement, right-of-way, or other grant of authority. *Outer Continental Shelf* means all submerged lands lying seaward and outside of the area of lands beneath navigable waters as defined in section 2 of the Submerged Lands Act (43 U.S.C. 1301) and of which the subsoil and seabed appertain to the United States and are subject to its jurisdiction and control. *Party* means any person who files a complaint, any person who files an answer, and MMS. *Person* means an individual, corporation, government entity, partnership, association (including a trust or limited liability company), consortium, or joint venture (when established as a separate entity). *Pipeline* is the piping, risers, accessories and appurtenances installed for transportation of oil and gas. *Serve* means personally delivering a document to a person, or sending a document by U.S. mail or private delivery services that provide proof of delivery (such as return receipt requested) to a person. *Shipper* means a person who contracts or wants to contract with a grantee or transporter to transport oil or gas through the grantee's or transporter's pipeline. *Transportation* means, for purposes of this part only, the movement of oil or gas through an OCSLA pipeline. *Transporter* means, for purposes of this part only, any person who owns or operates an OCSLA oil or gas pipeline. § 291.102 May I call the MMS Hotline to informally resolve an allegation that open and nondiscriminatory access was denied? Before filing a complaint under § 291.106, you may attempt to informally resolve an allegation concerning open and nondiscriminatory access by calling the toll-free MMS Hotline at 1-888-232-1713.
(a)MMS Hotline staff will informally seek information needed to resolve the dispute. MMS Hotline staff will attempt to resolve disputes without litigation or other formal proceedings. The Hotline staff will not attempt to resolve matters that are before MMS or FERC in docketed proceedings.
(b)MMS Hotline staff may provide information to you and give informal oral advice. The advice given is not binding on MMS, the Department of the Interior (DOI), or any other person.
(c)To the extent permitted by law, the MMS Hotline staff will treat all information it obtains as non-public and confidential.
(d)You may call the MMS Hotline anonymously.
(e)If you contact the MMS Hotline, you may file a complaint under this part if discussions assisted by MMS Hotline staff are unsuccessful at resolving the matter.
(f)You may terminate use of the MMS Hotline procedure at any time. § 291.103 May I use alternative dispute resolution to informally resolve an allegation that open and nondiscriminatory access was denied? You may ask to use ADR either before or after you file a complaint. To make a request, call the MMS at 1-888-232-1713 or write to us at the following address: Associate Director, Policy and Management Improvement, Minerals Management Service, 1849 C Street, NW., Mail Stop 4230, Washington, DC 20240-0001.
(a)You may request that ADR be administered by:
(1)A contracted ADR provider agreed to by all parties;
(2)The Department's Office of Collaborative Action and Dispute Resolution (CADR); or
(3)MMS staff trained in ADR and certified by the CADR.
(b)Each party must pay its respective share of all costs and fees associated with any contracted or Departmental ADR provider. For purposes of this section, MMS is not a party in an ADR proceeding. § 291.104 Who may file a complaint or a third-party brief?
(a)You may file a complaint under this subpart if you are a shipper and you believe that you have been denied open and nondiscriminatory access to an OCSLA pipeline that is not a FERC pipeline.
(b)Any person that believes its interests may be affected by precedents established by adjudication of complaints under this rule may submit a brief to MMS. The brief must be served following the procedure set out in 30 CFR 291.107. After considering the brief, it is within MMS's discretion as to whether MMS may:
(1)Address the brief in its decision;
(2)Not address the brief in its decision; or
(3)Include the submitter of the brief in the proceeding as a party. § 291.105 What must a complaint contain? For purposes of this subpart, a complaint means a comprehensive written brief stating the legal and factual basis for the allegation that a shipper was denied open and nondiscriminatory access, together with supporting material. A complaint must:
(a)Clearly identify the action or inaction which is alleged to violate 43 U.S.C. 1334(e) or (f)(1)(A);
(b)Explain how the action or inaction violates 43 U.S.C. 1334(e) or (f)(1)(A);
(c)Explain how the action or inaction affects your interests, including practical, operational, or other non-financial impacts;
(d)Estimate any financial impact or burden;
(e)State the specific relief or remedy requested; and
(f)Include all documents that support the facts in your complaint including, but not limited to, contracts and any affidavits that may be necessary to support particular factual allegations. § 291.106 How do I file a complaint? To file a complaint under this part, you must:
(a)File your complaint with the Director, Minerals Management Service at the following address: Director, Minerals Management Service, Attention: Policy and Management Improvement, 1849 C Street, NW., Mail Stop 4230, Washington, DC 20240-0001; and
(b)Include a nonrefundable processing fee of $7,500 under § 291.108(a) or a request for reduction or waiver of the fee under § 291.109(a); and
(c)Serve your complaint on all persons named in the complaint. If you make a claim under § 291.111 for confidentiality, serve the redacted copy and proposed form of a protective agreement on all persons named in the complaint.
(d)Complaints shall not be filed later than two
(2)years from the time of the alleged access denial. If the complaint is filed later than two
(2)years from the time of the alleged access denial, the MMS Director will not consider the complaint and the case will be closed. § 291.107 How do I answer a complaint?
(a)If you have been served a complaint under § 291.106, you must file an answer within 60 days of receiving the complaint. If you miss this deadline, MMS may disregard your answer. We consider your answer to be filed when the MMS Director receives it at the following address: Director, Minerals Management Service, Attention: Policy and Management Improvement, 1849 C Street, NW., Mail Stop 4230, Washington, DC 20240-0001.
(b)For purposes of this paragraph, an answer means a comprehensive written brief stating the legal and factual basis refuting the allegations in the complaint, together with supporting material. You must:
(1)Attach to your answer a copy of the complaint or reference the assigned MMS docket number (you may obtain the docket number by calling the Policy and Management Improvement Office at
(202)208-2622);
(2)Explain in your answer why the action or inaction alleged in the complaint does not violate 43 U.S.C. 1334(e) or (f)(1)(A);
(3)Include with your answer all documents in your possession or that you can otherwise obtain that support the facts in your answer including, but not limited to, contracts and any affidavits that may be necessary to support particular factual allegations; and
(4)Provide a copy of your answer to all parties named in the complaint including the complainant. If you make a claim under § 291.111 for confidentiality, serve the redacted copy and proposed form of a protective agreement to all parties named in the complaint, including the complainant. § 291.108 How do I pay the processing fee?
(a)You must pay the processing fee electronically through *Pay.Gov* . The *Pay.Gov* Web site may be accessed through links on the MMS Offshore Web site at: *http://www.mms.gov/offshore/homepage* (on drop-down topic list) or directly through *Pay.Gov* at: *https://www.pay.gov/paygov/* .
(b)You must include with the payment:
(1)Your taxpayer identification number;
(2)Your payor identification number, if applicable; and
(3)The complaint caption, or any other applicable identification of the complaint you are filing. § 291.109 Can I ask for a fee waiver or a reduced processing fee?
(a)MMS may grant a fee waiver or fee reduction in extraordinary circumstances. You may request a waiver or reduction of your fee by:
(1)Sending a written request to the MMS Policy and Management Improvement Office when you file your complaint; and
(2)Demonstrating in your request that you are unable to pay the fee or that payment of the full fee would impose an undue hardship upon you.
(b)The MMS Policy and Management Improvement Office will send you a written decision granting or denying your request for a fee waiver or a fee reduction.
(1)If we grant your request for a fee reduction, you must pay the reduced processing fee within 30 days of the date you receive our decision.
(2)If we deny your request, you must pay the entire processing fee within 30 days of the date you receive the decision.
(3)MMS's decision granting or denying a fee waiver or reduction is final for the Department. § 291.110 Who may MMS require to produce information?
(a)MMS may require any lessee, operator of a lease or unit, shipper, grantee, or transporter to provide information that MMS believes is necessary to make a decision on whether open access or nondiscriminatory access was denied.
(b)If you are a party and fail to provide information MMS requires under paragraph
(a)of this section, MMS may:
(1)Assess civil penalties under 30 CFR part 250, subpart N;
(2)Dismiss your complaint or consider your answer incomplete; or
(3)Presume the required information is adverse to you on the factual issues to which the information is relevant.
(c)If you are not a party to a complaint and fail to provide information MMS requires under paragraph
(a)of this section, MMS may assess civil penalties under 30 CFR part 250, subpart N. § 291.111 How does MMS treat the confidential information I provide?
(a)Any person who provides documents under this part in response to a request by MMS to inform a decision on whether open access or nondiscriminatory access was denied may claim that some or all of the information contained in a particular document is confidential. If you claim confidential treatment, then when you provide the document to MMS you must:
(1)Provide a complete unredacted copy of the document and indicate on that copy that you are making a request for confidential treatment for some or all of the information in the document.
(2)Provide a statement specifying the specific statutory justification for nondisclosure of the information for which you claim confidential treatment. General claims of confidentiality are not sufficient. You must furnish sufficient information for MMS to make an informed decision on the request for confidential treatment.
(3)Provide a second copy of the document from which you have redacted the information for which you wish to claim confidential treatment. If you do not submit a second copy of the document with the confidential information redacted, MMS may assume that there is no objection to public disclosure of the document in its entirety.
(b)In making data and information you submit available to the public, MMS will not disclose documents exempt from disclosure under the Freedom of Information Act (5 U.S.C. 552) and will follow the procedures set forth in the implementing regulations at 43 CFR Part 2 to give submitters an opportunity to object to disclosure.
(c)MMS retains the right to make the determination with regard to any claim of confidentiality. MMS will notify you of its decision to deny a claim, in whole or in part, and, to the extent permitted by law, will give you an opportunity to respond at least 10 days before its public disclosure. § 291.112 What process will MMS follow in rendering a decision on whether a grantee or transporter has provided open and nondiscriminatory access? MMS will begin processing a complaint upon receipt of a processing fee or granting a waiver of the fee. The MMS Director will review the complaint, answer, and other information, and will serve all parties with a written decision that:
(a)Makes findings of fact and conclusions of law; and
(b)Renders a decision determining whether the complainant has been denied open and nondiscriminatory access. § 291.113 What actions may MMS take to remedy denial of open and nondiscriminatory access? If the MMS Director's decision under § 291.112 determines that the grantee or transporter has not provided open access or nondiscriminatory access, then the decision will describe the actions MMS will take to require the grantee or transporter to remedy the denial of open access or nondiscriminatory access. The remedies MMS would require must be consistent with MMS's statutory authority, regulations, and any limits thereon due to Congressional delegations to other agencies. Actions MMS may take include, but are not limited to:
(a)Ordering grantees and transporters to provide open and nondiscriminatory access to the complainant;
(b)Assessing civil penalties of up to $10,000 per day under 30 CFR part 250, subpart N, for failure to comply with an MMS order to provide open access or nondiscriminatory access. Penalties will begin to accrue 60 days after the grantee or transporter receives the order to provide open and nondiscriminatory access if it has not provided such access by that time. However, if MMS determines that requiring the construction of facilities would be an appropriate remedy under the OCSLA, penalties will begin to accrue 10 days after conclusion of diligent construction of needed facilities or 60 days after the grantee or transporter receives the order to provide open and nondiscriminatory access, whichever is later, if it has not provided such access by that time;
(c)Requesting the Attorney General to institute a civil action in the appropriate United States District Court under 43 U.S.C. 1350(a) for a temporary restraining order, injunction, or other appropriate remedy to enforce the open and nondiscriminatory access requirements of 43 U.S.C. 1334(e) and (f)(1)(A); or
(d)Initiating a proceeding to forfeit the right-of-way grant under 43 U.S.C. 1334(e). § 291.114 How do I appeal to the IBLA? Any party, except as provided in § 291.115(b), adversely affected by a decision of the MMS Director under this part may appeal to the Interior Board of Land Appeals
(IBLA)under the procedures in 43 CFR part 4, subpart E. § 291.115 How do I exhaust administrative remedies?
(a)If the MMS Director issues a decision under this part but does not expressly make the decision effective upon issuance, you must appeal the decision to the IBLA under 43 CFR part 4 to exhaust administrative remedies. Such decision will not be effective during the time in which a person adversely affected by the MMS Director's decision may file a notice of appeal with the IBLA, and the timely filing of a notice of appeal will suspend the effect of the decision pending the decision on appeal.
(b)This section does not apply if a decision was made effective by:
(1)The MMS Director; or
(2)The Assistant Secretary for Land and Minerals Management. [FR Doc. E8-13654 Filed 6-17-08; 8:45 am] BILLING CODE 4310-MR-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 82 [EPA-HQ-OAR-2008-0231; FRL-8582-6] RIN 2060-AP18 Protection of Stratospheric Ozone: Revision of Refrigerant Recovery Only Equipment Standards AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. SUMMARY: The Environmental Protection Agency
(EPA)is taking direct final action on motor vehicle refrigerant recovery only equipment standards. Under Clean Air Act Section 609, motor vehicle air-conditioning
(MVAC)refrigerant handling equipment must be certified by the Administrator or an independent organization approved by the Administrator and, at a minimum, must be as stringent as the standards of the Society of Automotive Engineers
(SAE)in effect as of the date of the enactment of the Clean Air Act Amendments of 1990. In 1997, EPA promulgated regulations that required the use of SAE Standard J1732, HFC-134a Refrigerant Recovery Equipment for Mobile Air Conditioning Systems for certification of MVAC refrigerant handling equipment. SAE has replaced Standard J1732 with J2810, HFC-134a Refrigerant Recovery Equipment for Mobile Air Conditioning Systems. EPA is updating its reference to the new SAE standard for MVAC refrigerant recovery equipment used for MVAC servicing and MVAC disposal. This action reflects a change in industry standard practice. DATES: This rule is effective on September 16, 2008 without further notice, unless EPA receives adverse comment by July 18, 2008. If we receive adverse comment, we will publish a timely withdrawal in the **Federal Register** informing the public that some or all of the amendments included in this direct final rule will not take effect. ADDRESSES: Submit your comments, identified by Docket ID No EPA-HQ-OAR-2008-0231, by one of the following methods: • *http://www.regulations.gov* : Follow the on-line instructions for submitting comments. • *E-mail: a-and-r-Docket@epa.gov* . • *Fax:* 202-566-1741. • *Mail:* Environmental Protection Agency, Mailcode 6102T, EPA Docket Center (EPA/DC), 1200 Pennsylvania Avenue, NW., Washington, DC 20460. • *Hand Delivery:* Public Reading Room, Room B102, EPA West Building, 1301 Constitution Avenue, NW., Washington, DC. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-HQ-OAR-2008-0231. EPA's policy is that all comments received will be included in the public docket without change and may be made available online 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 *http://www.regulations.gov* or e-mail. The *http://www.regulations.gov* Web site 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 *http://www.regulations.gov* your e-mail address will be automatically captured and included as part of the comment that is placed in the public 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. *Docket:* All documents in the docket are listed in the *http://www.regulations.gov* index. Although listed in the index, some information is not publicly available, e.g., 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 either electronically in *http://www.regulations.gov* or in hard copy at the Air 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 telephone number for the Public Reading Room is
(202)566-1744, and the telephone number for the Air Docket is
(202)566-1742. FOR FURTHER INFORMATION CONTACT: Karen Thundiyil, Stratospheric Protection Division, Office of Atmospheric Programs (MC 6205J), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number:
(202)343-9464; fax number
(202)343-2363; e-mail address: *thundiyil.karen@epa.gov* . SUPPLEMENTARY INFORMATION: EPA is publishing this rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment given this action is primarily administrative in nature. However, in the “Proposed Rules” section of today's **Federal Register** , we are publishing a separate document that will serve as the proposed rule to update EPA's reference to an obsolete SAE standard, if adverse comments are received on this direct final rule. The direct final rule will be effective on September 16, 2008 without further notice unless we receive adverse comments by July 18, 2008 or by August 4, 2008 if a hearing is requested. If we receive adverse comment, we will publish a timely notice in the **Federal Register** informing the public that the rule, or particular provisions of the rule, will not take effect. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. We will address public comments in any subsequent final rule based on the proposed rule. For further information about commenting on this rule, see the ADDRESSES section of this document. Existing regulations covering specifications for motor vehicle air conditioning
(MVAC)refrigerant recovery only equipment, reference Society of Automotive Engineers
(SAE)standards that have become outdated since the SAE issued new updated standards that replaces these outdated standards. This action will update existing regulations to reference newly updated SAE standards. This regulatory action is primarily administrative with no significant policy issues. Section 609 of the Clean Air Act as amended (the Act), requires that EPA regulations be at least as stringent as SAE J1990 standard. J1990 describes refrigerant handling equipment for CFC-12 refrigerant. Since the enactment of the 1990 Amendments to the Act and more specifically section 609, the MVAC sector has transitioned from CFC-12, an ozone depleting substance, to HFC-134a, a non-ozone depleting substance. Now HFC-134a is the predominant refrigerant used in MVACs in the United States and globally. At the beginning of the MVAC transition from CFC-12 to HFC-134a, more than 13 years ago, SAE developed standard J1732 for HFC-134a refrigerant recovery only equipment. J1732 described standards for HFC-134a refrigerant recovery only machines. EPA adopted J1732 within its regulatory framework at 40 CFR Part 82 subpart B. Now, SAE has updated the standard on HFC-134a refrigerant recovery only equipment replacing J1732 with J2810. This action updates EPA's reference to SAE's new HFC-134a refrigerant handling equipment standards (J1732 in Appendix D to Subpart B of Part 82 in the Code of Federal Regulation). I. Background A. Statutory Authority Title VI of the Act is designed to protect the stratospheric ozone layer. Section 609 of the Act requires the Administrator to promulgate regulations establishing standards and requirements regarding the servicing of MVACs. The Act requires that the Administrator establish standards for using MVAC refrigerant handling equipment that shall be at least as stringent as the applicable standards of SAE in effect as of the date of enactment (November 15, 1990). These regulations are at 40 CFR part 82 subpart B. B. EPA Section 609 Equipment Certification Program EPA requires that any person repairing or servicing MVACs shall certify to EPA that such person has acquired approved refrigerant handling equipment. An independent standards testing organization, approved by EPA, certifies equipment as meeting the MVAC refrigerant handling equipment standards. At this time, Intertek/ETL and Underwriters Laboratories Inc.
(UL)have been approved by EPA to certify MVAC refrigerant handling equipment. C. SAE Industry Standards EPA refers to the SAE J standards for technical specifications related to MVAC servicing issues. SAE's standards are developed through international participation and cooperation of MVAC experts from motor vehicle manufacturers, MVAC suppliers, chemical manufacturers, refrigerant handling equipment manufacturers and other interested industry stakeholders. SAE standards are internationally recognized, adopted and referenced by all major motor vehicle manufacturers and their suppliers. SAE periodically updates their standards to reflect changes in industry best practices and/or technology improvements. II. New Industry Practice and Updated SAE Standard Test results from the SAE Improved Mobile Air Conditioning Cooperative Research Project, an MVAC industry sponsored research project, indicated that refrigerant handling equipment did not recover refrigerant from MVAC systems as well as was previously assumed (Docket No. EPA-HQ-OAR-0231-0001). As much as 30% of refrigerant remained in an MVAC system when J1732 recovery equipment indicated all refrigerant had been recovered. In light of poor recovery performance, SAE revised their standards to include performance standards that ensure an improved standard of refrigerant recovery. SAE replaced standard J1732 with standard J2810 in October 2007. J2810 encompasses all of J1732 and adds performance standards to improve equipment refrigerant recovery performance. Specifically, J2810 requires 95% refrigerant recovery in 30 minutes or less without prior engine operation or external heating at 21 °C to 24 °C ambient temperature. With this action, EPA is updating its reference to the SAE standards at § 82.36. SAE J1732 will be superseded by J2810. In § 82.36 Approved refrigerant recycling equipment, EPA is updating the reference from J1732 to J2810, for recovery only equipment. By updating our reference to SAE's new standard J2810, the Agency avoids confusion on the part of the refrigerant handling equipment manufacturer, service technician, automobile dismantling operator or A/C service shop owner who would otherwise face a federal requirement that referenced an obsolete standard that conflicts with the new industry standard practice established with J2810. As with all recovery only equipment, under J2810, it is not acceptable that the refrigerant removed from a MVAC system with this equipment be directly returned to a MVAC system. While this action updates EPA's reference to SAE's new J2810 standard, it does not require users of recovery equipment to immediately replace previously certified MVAC recovery only equipment with new J2810 equipment. Rather, all new MVAC refrigerant handling equipment manufactured or imported after October 31, 2008 must be certified to J2810. Equipment manufactured after October 31, 2008 that is certified to J1732 will not meet regulatory requirements specified in this rule. See Section III below for a discussion on existing inventory of equipment certified to J1732. For purposes of clarity and consistency, EPA is also amending § 82.158 Standards for recycling and recovery equipment of subpart F. Subpart F establishes safe handling for the servicing of stationary and MVAC-like appliances as well as safe disposal for stationary, MVACs and MVAC-like appliances. There is a MVAC reference with regards to safe disposal that will also be amended via this action. Unlike the rest of subpart F, § 82.158(l) contains an outdated reference in Appendix A of subpart B. All other subpart F references to subpart B refrigerant equipment standards cross-reference § 82.36(a), which includes MVAC equipment standards for all MVAC refrigerants. (See § 82.158(a) and § 82.158(f).) § 82.158(l) references Appendix A in subpart B which describes CFC-12 refrigerant recovery only. Consistent with the rest of subpart F, equipment standards must address not only CFC-12 but also its replacements, therefore EPA is amending § 82.158(l) to match § 82.158(a) and § 82.158(f). III. Effective Date MVAC recovery only equipment manufactured or imported after October 31, 2008 must be certified by an EPA-approved independent standards testing organization to meet the specifications of Appendix D of 40 Code of Federal Regulations, Part 82, Subpart B. As explained above, Appendix D will now require that such equipment be certified under SAE's updated standard J2810. EPA expects that this date provides sufficient time for production facilities and distributors to transition to the new SAE standards and sell most if not all of their inventory of J1732 equipment, since SAE released the new J2810 standard in October 2007. EPA will allow sales of J1732 equipment stock manufactured before October 31, 2008. Although certification of new equipment under SAE standard J2810 becomes effective for equipment manufactured or imported after October 31, 2008, EPA suggests that equipment manufacturers transition to the new equipment standard as soon as feasible. IV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review This action is not a “significant regulatory action” under the terms of Executive Order
(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. The recordkeeping and reporting requirements included in this action are already included in an existing information collection burden. This action does not make any changes that would affect burden. However, the Office of Management and Budget
(OMB)has previously approved the information collection requirements contained in the existing regulations, 40 CFR part 82, under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq* . and has assigned OMB control number 2060-0247. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. C. Regulatory Flexibility Act The Regulatory Flexibility Act
(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 today's rule on small entities, small entity is defined as:
(1)A small business as defined by the Small Business Administration's
(SBA)regulations 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 today's rule on small entities, we certify that this action will not have a significant economic impact on a substantial number of small entities. The requirements of today's rule do not require an immediate replacement of existing equipment with equipment certified to the new SAE standard. Rather, MVAC service shop owners will purchase equipment certified to the new SAE standard to replace existing refrigerant handling equipment as it approaches the end of its life. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, 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 regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives 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. 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. Today's rule does not affect State, local, or tribal governments. The impact of this rule on the private sector will be less than $100 million per year. Thus, today's rule is not subject to the requirements of sections 202 and 205 of the UMRA. EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. These changes being made by this action are to update EPA's reference to the new SAE standards. E. Executive Order 13132: Federalism Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This changes being made by this action are to update EPA's reference to the new SAE standards. 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 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This final rule does not have tribal implications, as specified in Executive Order 13175. It does not significantly or uniquely affect the communities of Indian tribal governments, because this regulation applies directly to facilities that use these substances and not to governmental entities. Thus, Executive Order 13175 does not apply to this rule. 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 is based on technology performance and not on health or safety risks. H. Executive Order 13211: Actions 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”), Public Law No. 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. 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 explicitly references technical standards; EPA references SAE Standard J2810 which is the revised version of SAE Standard J1732. These standards can be obtained from *http://www.sae.org/technical/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 direct final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This action updates a regulatory reference to an obsolete standard to avoid confusion on the part of refrigerant handling equipment manufacturers, service technicians, automobile dismantling operators, and A/C service shop owners. 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. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A Major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective September 16, 2008. List of Subjects in 40 CFR Part 82 Environmental protection, Motor vehicle air-conditioning, Recovery equipment, Reporting and certification requirements, Stratospheric ozone layer. Dated: June 12, 2008. Stephen L. Johnson, Administrator. For the reasons set out in the preamble, 40 CFR part 82 is amended as follows: PART 82—PROTECTION OF STRATOSPHERIC OZONE 1. The authority citation for part 82 continues to read as follows: Authority: 42 U.S.C. 7414, 7601, 7671-7671q. Subpart B—Servicing of Motor Vehicle Air Conditioners 2. Section 82.36 is amended by revising the section heading and paragraph (a)(5) to read as follows: § 82.36 Approved refrigerant handling equipment.
(a)* * *
(5)Effective October 31, 2008, equipment that recovers but does not recycle HFC-134a refrigerant must meet the standards set forth in Appendix D of this subpart based upon J2810—HFC-134a (R-134a) Recovery Equipment Mobile Air-Conditioning Systems. Subpart B—Servicing of Motor Vehicle Air Conditioners 3. Appendix D to Subpart B is revised to read as follows: Appendix D to Subpart B of Part 82—SAE J2810 Standard for Recovery Only Equipment for HFC-134a Refrigerant Foreword This Appendix establishes the specific minimum equipment requirements for the recovery of HFC-134a that has been directly removed from, motor vehicle air-conditioning systems. 1. Scope The purpose of this SAE Standard is to provide minimum performance and operating feature requirements for the recovery of HFC-134a (R-134a) refrigerant to be returned to a refrigerant reclamation facility that will process it to the appropriate ARI 700 Standard or allow for recycling of the recovered refrigerant to SAE J2788 specifications by using SAE J2788-certified equipment. It is not acceptable that the refrigerant removed from a mobile air-conditioning (A/C) system with this equipment be directly returned to a mobile A/C system. This information applies to equipment used to service automobiles, light trucks, and other vehicles with similar HFC-134a (R-134a) A/C systems. 1.1 Improved refrigerant recovery equipment is required to ensure adequate refrigerant recovery to reduce emissions and provide for accurate recharging of mobile air conditioning systems. Therefore, 12 months following the publication date of this standard, it supersedes SAE J1732. 2. References 2.1 Applicable Publications The following publications form a part of the specification to the extent specified herein. Unless otherwise indicated, the latest revision of SAE publications shall apply. 2.1.1 SAE Publications Available from SAE, 400 Commonwealth Drive, Warrendale, PA 15096-0001, Tel: 877-606-7323 (inside USA and Canada) or 724-776-4970 (outside USA), *http://www.sae.org.* SAE J639 Safety Standards for Motor Vehicle Refrigerant Vapor Compressions Systems. SAE J1739 Potential Failure Mode and Effects Analysis in Design (Design FMEA) and Potential Failure Mode and Effects Analysis in Manufacturing and Assembly Processes (Process FMEA) and Effects Analysis for Machinery (Machinery FMEA). SAE J1771 Criteria for Refrigerant Identification Equipment for Use with Mobile Air-Conditioning Systems. SAE J2196 Service Hose for Automotive Air Conditioning. SAE J2296 Retest of Refrigerant Container. SAE J2788 HFC-134a (R-134a) Recovery/Recycling Equipment and Recovery/Recycling/Recharging for Mobile Air-Conditioning Systems. 2.1.2 ARI Publication Available from Air-Conditioning and Refrigeration Institute, 4100 North Fairfax Drive, Suite 200, Arlington, VA 22203, Tel: 703-524-8800, *http://www.ari.org.* ARI 700 Specifications for Fluorocarbon Refrigerants. 2.1.3 CGA Publication Available from Compressed Gas Association, 4221 Walney Road, 5th Floor, Chantilly, VA 20151-2923, Tel: 703-788-2700, *http://www.cganet.com.* CGA S-1.1 Pressure Relief Device Standard Part 1—Cylinders for Compressed Gases. 2.1.4 DOT Specification Available from the Superintendent of Documents, U.S. Government Printing Office, Mail Stop: SSOP, Washington, DC 20402-9320. CFR 49, Section 173.304 Shippers—General Requirements for Shipments and Packagings. 2.1.5 UL Publication Available from Underwriters Laboratories Inc., 333 Pfingsten Road, Northbrook, IL 60062-2096, Tel: 847-272-8800, *http://www.ul.com.* UL 1769 Cylinder Valves. 3. Specifications and General Description 3.1 The equipment must be able to recover (extract) HFC-134a (R-134a) refrigerant from a mobile A/C system per the test procedure of sections 7 and 8. 3.2 The equipment shall be suitable for use in an automotive service garage environment as defined in 6.8. 3.3 Equipment Certification The equipment shall be certified by an EPA-listed laboratory to meet this standard. SAE J2810. 3.4 Label Requirements The equipment shall have a label with bold type, minimum 3 mm high, saying “Design Certified by (certifying agent, EPA listed laboratory) to meet SAE J2810 for use only with HFC-134a (R-134a). If it is to be re-used in an A/C system, the refrigerant recovered with this equipment must be processed to the appropriate ARI 700 specifications or to specifications by using equipment certified to perform to SAE J2788.” 3.5 SAE J1739 Potential Failure Mode and Effects Analysis in Design (Design FMEA), Potential Failure Mode and Effects Analysis in Manufacturing and Assembly Processes (Process FMEA), and Potential Failure Mode and Effects Analysis for Machinery (Machinery FMEA) shall be applied to the design and development of service equipment. 4. Safety Requirements 4.1 The equipment must comply with applicable federal, state, and local requirements on equipment related to the handling of HFC-134a (R-134a) material. Safety precautions or notices, labels, related to the safe operation of the equipment shall also be prominently displayed on the equipment and should state “CAUTION—SHOULD BE OPERATED ONLY BY CERTIFIED PERSONNEL.” The safety identification shall be located on the front near the controls. 4.2 The equipment must comply with applicable safety standards for the electrical and mechanical systems. 5. Operating Instructions 5.1 The equipment manufacturer must provide operating instructions that include information required by SAE J639, necessary maintenance procedures, and source information for replacement parts and repair. 5.1.1 The instruction manual shall include the following information on the lubricant removed. Only new lubricant, as identified by the system manufacturer, should be replaced in the mobile A/C system. Removed lubricant from the system and/or the equipment shall be disposed of in accordance with the applicable federal, state, and local procedures and regulations. 5.2 The equipment must prominently display the manufacturer's name, address, the type of refrigerant it is designed to extract (R-134a), a service telephone number, and any items that require maintenance or replacement that affect the proper operation of the equipment. Operation manuals must cover information for complete maintenance of the equipment to assure proper operation. 5.3 The equipment manufacturer shall provide a warning in the instruction manual regarding the possibility of refrigerant contamination from hydrocarbons, leak sealants and refrigerants other than R-134a in the mobile A/C system being serviced. 5.4 Recovery equipment having refrigerant identification equipment shall meet the requirements of SAE J1771. 5.5 Recovery equipment not having refrigerant identification capability shall have instructions warning the technician that failure to verify that the system contains only R-134a potentially exposes him or her to danger from flammable refrigerants and health hazards from toxic refrigerants. The instructions also shall alert to possible contamination problems to the recovery equipment from sealants and refrigerants other than R-134a, and to the fact that a refrigerant other than R-134a would require special handling by someone with specific expertise and equipment. 6. Function Description 6.1 The equipment must be capable of continuous operation in ambient temperatures of 10 °C (50 °F) to 49 °C (120 °F). Continuous is defined as completing recovery operation with no more than a brief reset between servicing vehicles, and shall not include time delays for allowing a system to outgas (which shall be part of the recovery period provided by this standard). 6.1.1 The equipment shall demonstrate ability to recovery a minimum of 95.0% of the refrigerant from the test vehicle in 30.0 minutes or less, without prior engine operation (for previous eight hours minimum), external heating or use of any device (such as shields, reflectors, special lights, etc.), which could heat components of the system. The recovery procedure shall be based on a test at 21 °C to 24 °C (70 °F to 75 °F) ambient temperature. The test system for qualifying shall be a 1.4 kg (3.0 lbs) capacity orifice tube/accumulator system in a 2005-07 Chevrolet Suburban with front and rear A/C or the test option described in section 9. 6.1.2 The equipment shall demonstrate ability to recover a minimum of 85% of the refrigerant from the test vehicle or system of 6.1.1. in 30.0 minutes or less, at an ambient temperature of 10 °C to 13 °C (50 °F to 55 °F), subject to the same restrictions regarding engine operation and external heating. 6.1.3 During recovery operation, the equipment shall provide overfill protection so that the liquid fill of the storage container does not exceed 80% of the tank's rated volume at 21 °C (70 °F). This will ensure that the container meets Department of Transportation
(DOT)Standard, CFR Title 49, section 173.304 and the American Society of Mechanical Engineers. 6.1.4 Portable refillable tanks or containers used in conjunction with this equipment must be labeled “HFC-134a (R-134a) and meet applicable Department of Transportation
(DOT)or Underwriters Laboratories
(UL)Standards, and incorporate fittings per SAE J2197. 6.1.5 The cylinder valves shall comply with the standard for cylinder valves UL 1769. 6.1.6 The pressure relief device shall comply with the Pressure Relief Device Standard Part 1—Cylinders for Compressed Gasses CGA Pamphlet S-1.1. 6.1.7 The tank assembly shall be marked to indicate the first retest date, which shall be five years from the date of manufacture. The marking shall indicate that retest must be performed every subsequent five years. SAE J2296 provides an inspection procedure. The marking shall be in letters at least 6 mm (0.25 in) high. If ASME tanks, as defined in UL-1963, are used, they are exempt from the retest requirements. 6.2 If the marketer permits use of a refillable refrigerant tank, a method must be provided (including any necessary fittings) for transfer to a system that ensures proper handling (recycling or other, environmentally-legal disposal). Restricting the equipment to use of non-refillable tanks eliminates compliance with this provision. 6.3 Prior to testing under this standard, the equipment must be preconditioned with a minimum of 13.6 kg of the standard contaminated HFC-134a (R-134a) at an ambient of 21 °C before starting the test cycle. Sample amounts are not to exceed 1.13 kg with sample amounts to be repeated every 5 min. The test fixture shown in Figure 1 shall be operated at 21 °C. Contaminated HFC- 134a (R-134a) samples shall be processed at ambient temperatures of 10 °C and 49 °C (50 °F to 120 °F), without the equipment shutting down due to any safety devices employed in this equipment. 6.3.1 Contaminated HFC-134a (R-134a) sample shall be standard contaminated HFC-134a (R-134a) refrigerant, 13.6 kg sample size, consisting of liquid HFC-134a (R-134a) with 1300 ppm (by weight) moisture at 21 °C (70 °F) and 45 000 ppm (by weight) of oil (polyalkylene glycol oil with 46-160 cst viscosity at 40 °C) and 1000 ppm by weight of noncondensable gases (air). 6.3.2 Portable refillable containers used in conjunction with this equipment must meet applicable DOT Standards. The color of the container must be blue with a yellow top to indicate the container holds used HFC-134a (R-134a) refrigerant. The container must be permanently marked on the outside surface in black print at least 20 mm high, “CONTAMINATED HFC-134a (R-134a)—DO NOT USE, MUST BE REPROCESSED.” Figure 1—Test Fixture 6.3.3 The portable refillable container shall have a 1/2 in ACME thread. 6.4 Additional Storage Tank Requirements. 6.4.1 The cylinder valve shall comply with UL 1769. 6.4.2 The pressure relief device shall comply with CGA Pamphlet S-1.1. 6.5 All flexible hoses must meet SAE J2196 for service hoses. 6.6 Service hoses must have shutoff devices located at the connection points to the system being serviced to minimize introduction of noncondensable gases into the recovery equipment during connection and the release of the refrigerant during disconnection. 6.7 The equipment must be able to separate the lubricant from recovered refrigerant and accurately indicate the amount removed from the simulated automotive system during processing in 20 mL (0.7 fl oz) units. 6.7.1 The purpose of indicating the amount of lubricant removed is to ensure that a proper amount of new lubricant is returned to the mobile A/C system for compressor lubrication, if the system is to be charged with equipment meeting SAE J2788. 6.7.2 Refrigerant dissolved in this lubricant must be accounted for to prevent lubricant overcharge of the mobile A/C system. 6.8 The equipment must be capable of continuous operation in ambient temperatures of 10 °C to 49 °C (50 °F to120 °F) and comply with 6.1 to 6.4 of this standard. 6.9 For test validation, the equipment is to be operated according to the manufacturer's instructions. 7. Test Procedure A at 21 °C to 24 °C (70 °F to 75 °F). The test vehicle (2005-2007 Chevrolet Suburban with rear A/C system—1.4 kg/ 3.0 lb) or laboratory fixture per section 10.5 of SAE J2788, shall be prepared as for SAE J2788, section 10.3, following Steps 1, 2, 3, 4, and then the following: 7.1 Using a machine certified to SAE J2788 and with the machine on a platform scale with accuracy to within plus/minus 3.0 grams at the weight of the machine, charge the system to the vehicle manufacturer's recommended amount of refrigerant (1.4 kg-3.0 lb). The actual charge amount per the reading on the platform scale shall be used as the basis for the recovery efficiency of the recovery-only machine being tested to this standard. Run the engine (or operate test fixture with electric motor) for up to 15 minutes at up to 2000 rpm to circulate oil and refrigerant. The system then must rest for eight hours. 7.2 Place the recovery machine on the platform scale and record the weight with the hoses draped over the machine. Ambient temperature shall be within the range of 21 °C to 24 °C (70 °F to 75 °F) for this test, which shall be performed without the immediately prior engine operation permitted by SAE J2788, Section 10.3, Step No.1. The only permitted engine operation is as specified in 7.1. 7.3 Start the timer. Connect the service hoses to the system of the test vehicle and perform the recovery per the equipment manufacturer's instructions. The vehicle system's service valve cores must remain in the fittings for this procedure. 7.4 When recovery is completed, including from the service hoses if that is part of the recommended procedure, disconnect the hoses and drape over the machine. Stop the timer. The elapsed time shall be no more than 30 minutes. 7.5 Remove the oil reservoir, empty and reinstall. The platform scale shall indicate that a minimum of 95.0% of the refrigerant has been recovered, based on the charge amount indicated by the platform scale. If the machine has recovered the minimum of 95.0% within the 30.0 minutes, the next test shall be performed. If it fails this test, the marketer of the equipment must document changes to the equipment to upgrade performance before a retest is allowed. If it passes, the laboratory can proceed to Test Procedure B-10 °C to 13 °C (50 °F to 55 °F). 8. Test Procedure B at 10 °C to 13 °C (50 °F to 55 °F). The test vehicle (2005-2007 Chevrolet Suburban front/rear A/C system (1.4 kg/3.0 lb) or test fixture per section 10.5 of SAE J2788, shall be prepared as per 7.0 and 7.1 of this standard, and then the following: 8.1 Place the recovery machine on the platform scale and record the weight with the hoses draped over the machine. Ambient temperature at this time shall be no higher than 10 °C to13 °C (50 °F to 55 °F). 8.2 Start the timer. Connect the service hoses to the system of the test vehicle and perform the recovery per the equipment manufacturer's instructions. This also shall be performed without the immediately prior engine operation permitted by SAE J2788, section 10.4, Step No. 1. The vehicle system's service valve cores must remain in the fittings for this procedure. 8.3 When recovery is completed, including from the service hoses if that is part of the recommended procedure, disconnect the hoses and drape over the machine. Stop the timer. The elapsed time shall be no more than 30 minutes. 8.4 Remove the oil reservoir, empty and reinstall. The platform scale shall indicate that a minimum of 85.0% of the refrigerant has been recovered, based on the charge amount indicated by the platform scale. If the machine has recovered the minimum of 85.0% within the 30 minutes, it has passed the test procedure and if it meets all other requirements of this standard, it is certified. 9. Test Option As in SAE J2788, Section 10.5, as an alternative to a 2005-2007 Chevrolet Suburban with rear A/C (1.4 kg-3.0 lb) system, a laboratory test fixture may be used to certify to SAE J2810 the fixture must be composed entirely of all the original equipment parts of a single model year for the 1.4 kg (3.0 lb) capacity system. All parts must be those OE-specified for one model year system and no parts may be eliminated or bypassed from the chosen system or reproduced from a non-OE source. No parts may be added and/or relocated from the OE position in the 2005-07 Suburban. No parts may be modified in any way that could affect system performance for testing under this standard, except adding refrigerant line bends and/or loops to make the system more compact. Reducing the total length of the lines, however, is not permitted. The fixture systems for this standard shall not be powered by an electric motor during recovery, although a motor can be used, run at a speed not to exceed 2000 rpm, as part of the preparatory process, including installation of the charge. Subpart F—Recycling and Emissions Reduction 4. Section 82.158 is amended by revising paragraph
(l)to read as follows: § 82.158 Standards for recycling and recovery equipment.
(l)Equipment used to evacuate refrigerant from MVACs and MVAC-like appliances before they are disposed of must be certified in accordance with § 82.36(a). [FR Doc. E8-13749 Filed 6-17-08; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF TRANSPORTATION Surface Transportation Board 49 CFR Part 1002 [STB Ex Parte No. 542 (Sub-No. 15)] Regulations Governing Fees for Services Performed in Connection With Licensing and Related Services—2008 Update AGENCY: Surface Transportation Board, DOT. ACTION: Final rules. SUMMARY: The Board adopts its 2008 User Fee Update and revises its fee schedule to reflect increased costs associated with the January 2008 Government salary increases and the Board's overhead costs, and to reflect changes in Government fringe benefits. DATES: *Effective Date:* These rules are effective on June 18, 2008. FOR FURTHER INFORMATION CONTACT: David T. Groves,
(202)245-0327, or Anne Quinlan,
(202)245-0309. [TDD for the hearing impaired: 1-800-877-8339.] SUPPLEMENTARY INFORMATION: The Board's regulations at 49 CFR 1002.3 provide for annual updates of the Board's user fee schedule. Fees are revised based on the cost study formula set forth at 49 CFR 1002.3(d). The fee increases adopted here, which reflect increased costs, result from the mechanical application of the update formula in 49 CFR 1002.3(d). No new fees are being proposed in this proceeding. Therefore, the Board finds that notice and comment are unnecessary for this proceeding. *See Regulations Governing Fees For Services—1990 Update,* 7 I.C.C.2d 3 (1990); *Regulations Governing Fees For Services—1991 Update,* 8 I.C.C.2d 13 (1991); and *Regulations Governing Fees For Services—1993 Update,* 9 I.C.C.2d 855 (1993). The Board concludes that the fee changes adopted here will not have a significant economic impact on a substantial number of small entities because the Board's regulations provide for waiver of filing fees for those entities that can make the required showing of financial hardship. Additional information is contained in the Board's decision. To obtain a free copy of the full decision, visit the Board's Web site at *http://www.stb.dot.gov* or call the Board's Information Officer at
(202)245-0245. [Assistance for the hearing impaired is available through Federal Information Relay Services (FIRS):
(800)877-8339.] List of Subjects in 49 CFR Part 1002 Administrative practice and procedure, Common carriers, and Freedom of information. Decided: June 11, 2008. By the Board, Chairman Nottingham, Vice Chairman Mulvey and Commissioner Buttrey. Anne K. Quinlan, Acting Secretary. For the reasons set forth in the preamble, title 49, chapter X, part 1002, of the Code of Federal Regulations is amended as follows: PART 1002—FEES 1. The authority citation for part 1002 continues to read as follows: Authority: 5 U.S.C. 552(a)(4)(A) and 553; 31 U.S.C. 9701 and 49 U.S.C. 721(a). 2. Section 1002.1 is amended by revising paragraphs
(a)through (e); paragraph (f)(1); and the table in paragraph (g)(6) to read as follows: § 1002.1 Fees for record search, review, copying, certification, and related services.
(a)Certificate of the secretary, $17.00.
(b)Service involved in examination of tariffs or schedules for preparation of certified copies of tariffs or schedules or extracts therefrom at the rate of $38.00 per hour.
(c)Service involved in checking records to be certified to determine authenticity, including clerical work, etc., identical thereto, at the rate of $26.00 per hour.
(d)Photocopies of tariffs, reports, and other public documents, at the rate of $1.30 per letter or legal size exposure. A minimum charge of $6.50 will be made for this service.
(e)Fees for courier services to transport agency records to provide on-site access to agency records stored off-site will be set at the rates set forth in the Board's agreement with its courier service provider. Rate information is available on the Board's Web site ( *http://www.stb.dot.gov* ) or can be obtained from the Board's Information Officer, Room 1200, Surface Transportation Board, Washington, DC 20423-0001.
(f)* * *
(1)A fee of $66.00 per hour for professional staff time will be charged when it is required to fulfill a request for ADP data.
(g)* * *
(6)* * * Grade Rate GS-1 $11.19 GS-2 12.18 GS-3 13.73 GS-4 15.41 GS-5 17.24 GS-6 19.22 GS-7 21.36 GS-8 23.65 GS-9 26.13 GS-10 28.77 GS-11 31.61 GS-12 37.89 GS-13 45.05 GS-14 53.24 GS-15 and over 62.62 3. In § 1002.2, paragraph
(f)is revised as follows: § 1002.2 Filing fees.
(a)* * *
(f)*Schedule of filing fees* . Type of proceeding Fee PART I: Non-Rail Applications or Proceedings to Enter Upon a Particular Financial Transaction or Joint Arrangement:
(1)An application for the pooling or division of traffic $4,400. (2)(i) An application involving the purchase, lease, consolidation, merger, or acquisition of control of a motor carrier of passengers under 49 U.S.C. 14303 $2,000.
(ii)A petition for exemption under 49 U.S.C. 13541 (other than a rulemaking) filed by a non-rail carrier not otherwise covered $3,200.
(iii)A petition to revoke an exemption filed under 49 U.S.C. 13541(d) $2,600.
(3)An application for approval of a non-rail rate association agreement. 49 U.S.C. 13703 $27,700.
(4)An application for approval of an amendment to a non-rail rate association agreement:
(i)Significant amendment $4,600.
(ii)Minor amendment $100.
(5)An application for temporary authority to operate a motor carrier of passengers. 49 U.S.C. 14303(i) $500.
(6)A notice of exemption for transaction within a motor passenger corporate family that does not result in adverse changes in service levels, significant operational changes, or a change in the competitive balance with motor passenger carriers outside the corporate family $1,700. (7)-(10) [Reserved] PART II: Rail Licensing Proceedings other than Abandonment or Discontinuance Proceedings: (11)(i) An application for a certificate authorizing the extension, acquisition, or operation of lines of railroad. 49 U.S.C. 10901 $7,300.
(ii)Notice of exemption under 49 CFR 1150.31-1150.35 $1,800.
(iii)Petition for exemption under 49 U.S.C. 10502 $12,600. (12)(i) An application involving the construction of a rail line $74,900.
(ii)A notice of exemption involving construction of a rail line under 49 CFR 1150.36 $1,800.
(iii)A petition for exemption under 49 U.S.C. 10502 involving construction of a rail line $74,900.
(iv)A request for determination of a dispute involving a rail construction that crosses the line of another carrier under 49 U.S.C. 10902(d) $200.
(13)A Feeder Line Development Program application filed under 49 U.S.C. 10907(b)(1)(A)(i) or 10907(b)(1)(A)(ii) $2,600. (14)(i) An application of a class II or class III carrier to acquire an extended or additional rail line under 49 U.S.C. 10902 $6,200.
(ii)Notice of exemption under 49 CFR 1150.41-1150.45 $1,800.
(iii)Petition for exemption under 49 U.S.C. 10502 relating to an exemption from the provisions of 49 U.S.C. 10902 $6,600.
(15)A notice of a modified certificate of public convenience and necessity under 49 CFR 1150.21-1150.24 $1,700. (16)-(20) [Reserved] PART III: Rail Abandonment or Discontinuance of Transportation Services Proceedings: (21)(i) An application for authority to abandon all or a portion of a line of railroad or discontinue operation thereof filed by a railroad (except applications filed by Consolidated Rail Corporation pursuant to the Northeast Rail Service Act [Subtitle E of Title XI of Pub. L. 97-35], bankrupt railroads, or exempt abandonments) $22,200.
(ii)Notice of an exempt abandonment or discontinuance under 49 CFR 1152.50 $3,700.
(iii)A petition for exemption under 49 U.S.C. 10502 $6,300.
(22)An application for authority to abandon all or a portion of a line of a railroad or operation thereof filed by Consolidated Rail Corporation pursuant to Northeast Rail Service Act $450.
(23)Abandonments filed by bankrupt railroads $1,900.
(24)A request for waiver of filing requirements for abandonment application proceedings $1,800.
(25)An offer of financial assistance under 49 U.S.C. 10904 relating to the purchase of or subsidy for a rail line proposed for abandonment $1,500.
(26)A request to set terms and conditions for the sale of or subsidy for a rail line proposed to be abandoned $22,700. (27)(i) A request for a trail use condition in an abandonment proceeding under 16 U.S.C. 1247(d) $200.
(ii)A request to extend the period to negotiate a trail use agreement $450. (28)-(35) [Reserved] PART IV: Rail Applications to Enter Upon a Particular Financial Transaction or Joint Arrangement:
(36)An application for use of terminal facilities or other applications under 49 U.S.C. 11102 $19,000.
(37)An application for the pooling or division of traffic. 49 U.S.C. 11322 $10,200.
(38)An application for two or more carriers to consolidate or merge their properties or franchises (or a part thereof) into one corporation for ownership, management, and operation of the properties previously in separate ownership. 49 U.S.C. 11324:
(i)Major transaction $1,496,900.
(ii)Significant transaction $299,400.
(iii)Minor transaction $7,500.
(iv)Notice of an exempt transaction under 49 CFR 1180.2(d) $1,700.
(v)Responsive application $7,500.
(vi)Petition for exemption under 49 U.S.C. 10502 $9,400.
(vii)A request for waiver or clarification of regulations filed in a major financial proceeding as defined at 49 CFR 1180.2(a) $5,500.
(39)An application of a non-carrier to acquire control of two or more carriers through ownership of stock or otherwise. 49 U.S.C. 11324:
(i)Major transaction $1,496,900.
(ii)Significant transaction $299,400.
(iii)Minor transaction $7,500.
(iv)A notice of an exempt transaction under 49 CFR 1180.2(d) $1,300.
(v)Responsive application $7,500.
(vi)Petition for exemption under 49 U.S.C. 10502 $9,400.
(vii)A request for waiver or clarification of regulations filed in a major financial proceeding as defined at 49 CFR 1180.2(a) $5,500.
(40)An application to acquire trackage rights over, joint ownership in, or joint use of any railroad lines owned and operated by any other carrier and terminals incidental thereto. 49 U.S.C. 11324:
(i)Major transaction $1,496,900.
(ii)Significant transaction $299,400.
(iii)Minor transaction $7,500.
(iv)Notice of an exempt transaction under 49 CFR 1180.2(d) $1,200.
(v)Responsive application $7,500.
(vi)Petition for exemption under 49 U.S.C. 10502 $9,400.
(vii)A request for waiver or clarification of regulations filed in a major financial proceeding as defined at 49 CFR 1180.2(a) $5,500.
(41)An application of a carrier or carriers to purchase, lease, or contract to operate the properties of another, or to acquire control of another by purchase of stock or otherwise. 49 U.S.C. 11324:
(i)Major transaction $1,496,900.
(ii)Significant transaction $299,400.
(iii)Minor transaction $7,500.
(iv)Notice of an exempt transaction under 49 CFR 1180.2(d) $1,400.
(v)Responsive application $7,500.
(vi)Petition for exemption under 49 U.S.C. 10502 $6,600.
(vii)A request for waiver or clarification of regulations filed in a major financial proceeding as defined at 49 CFR 1180.2(a) $5,500.
(42)Notice of a joint project involving relocation of a rail line under 49 CFR 1180.2(d)(5) $2,400.
(43)An application for approval of a rail rate association agreement. 49 U.S.C. 10706 $70,100.
(44)An application for approval of an amendment to a rail rate association agreement. 49 U.S.C. 10706:
(i)Significant amendment $13,000.
(ii)Minor amendment $100.
(45)An application for authority to hold a position as officer or director under 49 U.S.C. 11328 $750.
(46)A petition for exemption under 49 U.S.C. 10502 (other than a rulemaking) filed by rail carrier not otherwise covered $8,000.
(47)National Railroad Passenger Corporation (Amtrak) conveyance proceeding under 45 U.S.C. 562 $200.
(48)National Railroad Passenger Corporation (Amtrak) compensation proceeding under Section 402(a) of the Rail Passenger Service Act $200. (49)-(55) [Reserved] PART V: Formal Proceedings:
(56)A formal complaint alleging unlawful rates or practices of carriers:
(i)A formal complaint filed under the coal rate guidelines (Stand-Alone Cost Methodology) alleging unlawful rates and/or practices of rail carriers under 49 U.S.C. 10704(c)(1) $350.
(ii)A formal complaint involving rail maximum rates filed under the Simplified-SAC methodology $350.
(iii)A formal complaint involving rail maximum rates filed under the Three Benchmark methodology $150.
(iv)All other formal complaints (except competitive access complaints) $20,700.
(v)Competitive access complaints $150.
(vi)A request for an order compelling a rail carrier to establish a common carrier rate $200.
(57)A complaint seeking or a petition requesting institution of an investigation seeking the prescription or division of joint rates or charges. 49 U.S.C. 10705 . $8,900.
(58)A petition for declaratory order:
(i)A petition for declaratory order involving a dispute over an existing rate or practice which is comparable to a complaint proceeding $1,000.
(ii)All other petitions for declaratory order $1,400.
(59)An application for shipper antitrust immunity. 49 U.S.C. 10706(a)(5)(A) $7,000.
(60)Labor arbitration proceedings $200. (61)(i) An appeal of a Surface Transportation Board decision on the merits or petition to revoke an exemption pursuant to 49 U.S.C. 10502(d) $200.
(ii)An appeal of a Surface Transportation Board decision on procedural matters except discovery rulings $350.
(62)Motor carrier undercharge proceedings $200. (63)(i) Expedited relief for service inadequacies: A request for expedited relief under 49 U.S.C. 11123 and 49 CFR part 1146 for service emergency $200.
(ii)Expedited relief for service inadequacies: A request for temporary relief under 49 U.S.C. 10705 and 11102, and 49 CFR part 1147 for service inadequacies $200.
(64)A request for waiver or clarification of regulations except one filed in an abandonment or discontinuance proceeding, or in a major financial proceeding as defined at 49 CFR 1180.2(a) $600. (65)-(75) [Reserved] PART VI: Informal Proceedings:
(76)An application for authority to establish released value rates or ratings for motor carriers and freight forwarders of household goods under 49 U.S.C. 14706 $1,200.
(77)An application for special permission for short notice or the waiver of other tariff publishing requirements $100.
(78)The filing of tariffs, including supplements, or contract summaries $1 per page. ($24 minimum charge.)
(79)Special docket applications from rail and water carriers:
(i)Applications involving $25,000 or less $75.
(ii)Applications involving over $25,000 $150.
(80)Informal complaint about rail rate applications $600.
(81)Tariff reconciliation petitions from motor common carriers:
(i)Petitions involving $25,000 or less $75.
(ii)Petitions involving over $25,000 $150.
(82)Request for a determination of the applicability or reasonableness of motor carrier rates under 49 U.S.C. 13710(a)(2) and
(3)$200.
(83)Filing of documents for recordation. 49 U.S.C. 11301 and 49 CFR 1177.3(c). $41 per document.
(84)Informal opinions about rate applications (all modes) $250.
(85)A railroad accounting interpretation $1,100. (86)(i) A request for an informal opinion not otherwise covered $1,400.
(ii)A proposal to use on a voting trust agreement pursuant to 49 CFR 1013 and 49 CFR 1180.4(b)(4)(iv) in connection with a major control proceeding as defined at 49 CFR 1180.2(a) $5,700.
(iii)A request for an informal opinion on a voting trust agreement pursuant to 49 CFR 1013.3(a) not otherwise covered $500.
(87)Arbitration of Certain Disputes Subject to the Statutory Jurisdiction of the Surface Transportation Board under 49 CFR 1108:
(i)Complaint $75.
(ii)Answer (per defendant), Unless Declining to Submit to Any Arbitration $75.
(iii)Third Party Complaint $75.
(iv)Third Party Answer (per defendant), Unless Declining to Submit to Any Arbitration $75.
(v)Appeals of Arbitration Decisions or Petitions to Modify or Vacate an Arbitration Award $150.
(88)Basic fee for STB adjudicatory services not otherwise covered $200. (89)-(95) [Reserved] PART VII: Services:
(96)Messenger delivery of decision to a railroad carrier's Washington, DC, agent $32 per delivery.
(97)Request for service or pleading list for proceedings $24 per list.
(98)Processing the paperwork related to a request for the Carload Waybill Sample to be used in a Surface Transportation Board or State proceeding that:
(i)Does not require a Federal Register notice:
(a)Set cost portion $150.
(b)Sliding cost portion $47 per party.
(ii)Does require a Federal Register notice:
(a)Set cost portion $400.
(b)Sliding cost portion $47 per party. (99)(i) Application fee for the Surface Transportation Board's Practitioners' Exam $150.
(ii)Practitioners' Exam Information Package $25.
(100)Carload Waybill Sample data:
(i)Requests for Public Use File for all years prior to the most current year Carload Waybill Sample data available, provided on CD-R $250 per year.
(ii)Specialized programming for Waybill requests to the Board $104 per hour. [FR Doc. E8-13554 Filed 6-17-08; 8:45 am] BILLING CODE 4915-01-P 73 118 Wednesday, June 18, 2008 Proposed Rules DEPARTMENT OF JUSTICE Executive Office for Immigration Review 8 CFR Part 1003 [EOIR Docket No. 159P; AG Order No. 2976-2008] RIN 1125-AA58 Board of Immigration Appeals: Affirmance Without Opinion, Referral for Panel Review, and Publication of Decisions as Precedents AGENCY: Executive Office for Immigration Review, Justice. ACTION: Proposed rule with request for comments. SUMMARY: This proposed rule would amend the Department of Justice (Department) regulations regarding the administrative review procedures of the Board of Immigration Appeals (Board) in three ways. First, this rule provides greater flexibility for the Board to decide, in the exercise of its discretion, whether to issue an affirmance without opinion
(AWO)or any other type of decision. This rule clarifies that the criteria the Board uses in deciding to invoke its AWO authority are solely for its own internal guidance, and that the Board's decision depends on the Board's judgment regarding its resources and is not reviewable. The revision related to AWO is needed to address divergent precedent in the United States Courts of Appeals regarding the reviewability of the Board's decision to issue an AWO. Finally, this revision clarifies that when the Board issues an AWO or a short decision adopting some or all of the immigration judge's decision, the decision is generally based on issues and claims of errors raised on appeal and is not to be construed as waiving a party's obligation to raise issues and exhaust claims of error before the Board. Second, this rule expands the authority to refer cases for three-member panel review for a small class of particularly complex cases involving complex or unusual issues of law or fact. Third, this rule amends the regulations relating to precedent decisions of the Board by authorizing publication of decisions either by a majority of the panel members or by a majority of permanent Board members and clarifying the relevant considerations for designation of precedents. These revisions implement, in part, the Memorandum for Immigration Judges and Members of the Board of Immigration Appeals issued by the Attorney General on August 9, 2006. DATES: *Comment date:* Comments may be submitted not later than August 18, 2008. ADDRESSES: You may submit comments, identified by EOIR Docket No. 159P, by one of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. • *Mail:* John Blum, Acting General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 22041. To ensure proper handling, please reference EOIR Docket No. 159P on your correspondence. This mailing address may also be used for paper, disk, or CD-ROM submissions. • *Hand Delivery/Courier:* John Blum, Acting General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 22041; telephone
(703)305-0470 (not a toll-free call). FOR FURTHER INFORMATION CONTACT: John Blum, Acting General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 22041; telephone
(703)305-0470 (not a toll-free call). SUPPLEMENTARY INFORMATION: I. Public Participation Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this rule. Comments that will provide the most assistance to the Department of Justice will reference a specific portion of the rule, explain the reason for any recommended change, and include data, information, or authority supporting the recommended change. All submissions received must include the agency name and EOIR Docket No. 159P. *Posting of Public Comments:* Please note that all comments received are considered part of the public record and made available for public inspection online at www.regulations.gov. Such information includes personal identifying information (such as your name, address, etc.) voluntarily submitted by the commenter. If you want to submit personal identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online, you must include the phrase “PERSONAL IDENTIFYING INFORMATION” in the first paragraph of your comment. You must also locate all the personal identifying information you do not want posted online in the first paragraph of your comment and identify what information you want redacted. If you want to submit confidential business information as part of your comment but do not want it to be posted online, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You must also prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted on *http://www.regulations.gov.* Personal identifying information identified and located as set forth above will be placed in the agency's public docket file, but not posted online. Confidential business information identified and located as set forth above will not be placed in the public docket file. If you wish to inspect the agency's public docket file in person by appointment, please see the “For Further Information Contact” paragraph. *Docket:* For access to the docket to read background documents or comments received, go to *http://www.regulations.gov.* Submitted comments may also be inspected at the Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 22041. To make an appointment, please contact the Executive Office for Immigration Review at
(703)305-0470 (not a toll free call). II. The Attorney General's Review On January 9, 2006, Attorney General Alberto Gonzales directed a comprehensive review of the Immigration Courts and the Board. This review was undertaken in response to concerns about the quality of decisions being issued by the immigration judges and the Board and about reports of intemperate behavior by some immigration judges. At that time, the Deputy Attorney General and the Associate Attorney General assembled a review team, which over the course of several months conducted hundreds of interviews, administered an online survey, and analyzed thousands of documents to assess the Executive Office for Immigration Review
(EOIR)adjudicative process. With regard to the Board's appellate process, the review team received much commentary about the streamlining and Board reform regulations, specifically the *Procedural Reforms To Improve Case Management Rule,* 67 FR 54878 (August 26, 2002) (“Board reform rule”). This rule provided for improved case management procedures and expanded the number of cases that could be referred to a single Board member for review. This new case management system was intended to reduce delays in the appellate review process, reduce the backlog of pending cases, and allow Board members to focus more attention on cases presenting novel or significant issues. Critics of the procedural reforms rule speculated that the revised procedures allowed Board members insufficient time to review cases thoroughly and made it more difficult for the Board to publish adequate numbers of precedential decisions. Supporters observed that the reforms brought much-needed efficiency to the appellate process, which allowed the Board to eliminate a large backlog of cases and to adjudicate cases in a timely manner. On August 9, 2006, Attorney General Gonzales announced that the review was complete, and he directed that a series of measures be taken to improve adjudications by the immigration judges and the Board. EOIR is implementing most of those initiatives through administrative and management actions, although several of the initiatives require changes to the existing regulations. This rule is one of several new regulatory actions resulting from this senior level review, and implements three initiatives relating to the Board. The Department considered the Board's current and predicted caseload, its resources, and the need to adjudicate cases thoroughly and in a timely manner and concluded that the basic principles set forth in the Board reform rule were still necessary to prevent future backlogs and delays in adjudication. Accordingly, the Department is not reopening or seeking public comment on the existing final regulations that were adopted in 2002. However, the Department has concluded that three specific adjustments to the Board reform rule are appropriate, and it is with respect to these three changes that we seek public comments. The proposed rule, accordingly, would revise the regulations governing the Board to
(1)encourage the increased use of one-member written opinions to address poor or intemperate immigration judge decisions, instead of issuing affirmances without opinion,
(2)allow for the use of three-member written opinions to provide greater legal analysis in a small class of particularly complex cases, and
(3)authorize three-member panels, by majority vote, to designate their decisions as precedent decisions. The Department has already published a separate rule increasing the number of Board members in order to carry out the Board's expanded responsibilities. 71 FR 70855 (Dec. 7, 2006). III. Affirmance Without Opinion A. Mandatory and Discretionary Affirmances Without Opinion Historically, with a few exceptions not mentioned here, the Board adjudicated all of its cases in panels of three Board members. Those three-member panels generally issued full written decisions explaining the order in each case. However, as the Board's caseload began to grow dramatically over the years, changes were necessary to help the Board manage its docket. In 1999, a regulatory amendment authorized the Board to affirm the decision of an immigration judge without issuing a separate written opinion. *See Board of Immigration Appeals; Streamlining,* 64 FR 56135 (Oct. 18, 1999). This kind of order is called an affirmance without opinion (AWO), and the decision contains only two sentences prescribed by regulation, without any additional language or explanation about the reasons for the affirmance. *See* 8 CFR 1003.1(e)(4)(ii). The Board implemented the AWO process successfully, although the process was initially utilized only in certain categories of cases pending before the Board, and all other cases were still referred to a three-member panel for decision. Despite the use of this new procedural device, however, the Board's backlog of pending cases continued to grow and the average period of time that cases remained pending on appeal to the Board lengthened considerably. More than five years ago, Attorney General John Ashcroft published the Board reform rule. *See* 67 FR 54878 (Aug. 26, 2002). That rule retained the basic AWO process as introduced in 1999, but expanded the use of affirmances without opinion by providing for the Board to issue an AWO in any case when certain regulatory criteria are met. *Compare* 8 CFR 3.1(a)(7)(ii)
(2000)(providing that a single Board member “may” affirm without opinion) *with* 8 CFR 1003.1(e)(4)(i)
(2006)(providing that, in certain circumstances, a single Board member “shall” affirm without opinion). 1 Under the current regulations, a single Board member will affirm an immigration judge's decision without opinion when he or she is satisfied that the immigration judge's decision reached the correct result, that any errors were harmless or nonmaterial, and that the issues on appeal are either
(1)squarely controlled by precedent and do not require an application of precedent to a novel factual scenario, or
(2)are not so substantial as to warrant the issuance of a written opinion in the case. *See* 8 CFR 1003.1(e)(4)(i). When a single Board member is satisfied that the regulatory criteria are met and issues an AWO, the order will state that “[t]he Board affirms, without opinion, the result of the decision below. The decision below is, therefore, the final agency determination.” 8 CFR 1003.1(e)(4)(ii). 1 In 2003, the Attorney General redesignated the previous regulations in 8 CFR part 3, relating to EOIR, as 8 CFR part 1003 in connection with the abolition of the former Immigration and Naturalization Service and the transfer of its responsibilities to the Department of Homeland Security (DHS). Under the Homeland Security Act, EOIR (including the Board and the immigration judges) remains under the authority of the Attorney General. *See* 6 U.S.C. 521; 8 U.S.C. 1103(g). When the Board member determines that an AWO is not warranted in a case, the current regulation provides that most such cases will be resolved by an opinion issued by a single Board member rather than referred to a panel of three Board members. A single Board member may issue a decision that affirms, modifies, or remands an immigration judge's decision, and may provide any explanation or address any issue he or she deems appropriate. The majority of single member decisions, in fact, are not AWOs, but are fuller orders addressing the issues raised on appeal. In fact, in fiscal year 2007, only 10% of the Board's decisions were issued as AWOs. In addition to restructuring the decisional process, the Board reform rule set specific time limits for the disposition of appeals after the record on appeal is completed and the case is ready for adjudication. *See* 8 CFR 1003.1(e)(8). With rare exceptions, a Board member must adjudicate a case within 90 days of completion of the record. If the case is referred to a three-member panel, the case must be adjudicated within 180 days of referral. With the Board reform rule, the Department provided the Board with powerful tools to address a burgeoning number of appeals and a growing backlog of cases. When he announced the Board's restructuring in February 2002, Attorney General Ashcroft cited the size of the Board's backlog and the substantial delays in reaching final decisions as the basis for the reform. At that time, 56,000 cases were pending before the Board. More than 10,000 of those cases had been pending for more than three years and another 34,000 had been pending for more than one year. Presently, approximately 27,000 cases are pending at the Board—more than a 50% decrease—even though the number of cases being filed with the Board has remained very high, with 40,000 new cases received during FY2006. Except for cases on regulatory hold, *see* 8 CFR 1003.1(e)(8)(ii), virtually none of the 27,000 current cases has been pending for more than three years. The vast majority of the pending cases were filed in FY2007 or 2008; only 10 percent were filed in FY2006. In short, the Board has essentially eliminated the backlog of pending appeals and reduced the time for processing appeals and motions in compliance with the regulatory time frames governing the completion of cases. 2 2 The regulatory time frames relate to the period beginning when the record is complete and the case is ready for adjudication. At present, the principal cause of delay in the Board's adjudications relates to the time required for preparation of transcripts of the immigration judge proceedings and other steps needed to complete the record. EOIR is already working to reduce those delays in response to another Attorney General directive. Although individuals have challenged the Board reform rule on due process and administrative law grounds, the federal courts have consistently affirmed the Attorney General's authority to adopt the rule. *See Blanco de Belbruno* v. *Ashcroft,* 362 F.3d 272 (4th Cir. 2004); *Zhang* v. *United States Dep't of Justice,* 362 F.3d 155 (2d Cir. 2004); *Yuk* v. *Ashcroft,* 355 F.3d 1222 (10th Cir. 2004); *Dia* v. *Ashcroft,* 353 F.3d 228, 238-45 (3d Cir. 2003) (en banc); *Denko* v. *INS* , 351 F.3d 717, 724-32 (6th Cir. 2003); *Falcon Carriche* v. *Ashcroft,* 350 F.3d 845 (9th Cir. 2003); *Georgis* v. *Ashcroft,* 328 F.3d 962 (7th Cir. 2003); *Mendoza* v. * U.S. Att'y Gen.,* 327 F.3d 1283 (11th Cir. 2003); *Soadjede* v. *Ashcroft,* 324 F.3d 830 (5th Cir. 2003); *Albathani* v. *INS,* 318 F.3d 365 (1st Cir. 2003); *Capital Area Immigrants' Rights Coalition* v. *U.S. Dep't of Justice,* 264 F. Supp. 2d 14 (D.D.C. 2003). The success of the reform regulation rests on both the ability of the Board to adjudicate the majority of cases by single-member review and the ability of the Board to affirm the decision of an immigration judge without issuing a full opinion. *See Guyadin* v. *Gonzales,* 449 F.3d 465, 469 (2d Cir. 2006) (highlighting the importance of the streamlining regulations to address a “crushing backlog”). The number of decisions issued by a single Board member has remained relatively constant since the effective date of the reform regulation. In contrast, the rate of AWOs has been decreasing. In fiscal year 2003, approximately 36% of the Board's decisions were AWOs. That number declined to approximately 32% in fiscal year 2004, 20% in fiscal year 2005, and 15% in fiscal year 2006. The AWO rate for fiscal year 2007 is only 10%. Despite the success of the Board's reform rule in addressing delays in decision times and in managing a very heavy caseload, some courts of appeals have levied pointed criticism in some cases where the immigration judge's conduct was intemperate or abusive, raising the concern that such conduct was not adequately addressed by the Board's decisions, particularly in cases where the Board issued an AWO. *See, e.g., Fiadjoe* v. *U.S. Att'y Gen.,* 411 F.3d 135 (3d Cir. 2005); *Cham* v. *U.S. Att'y Gen.* , 445 F.3d 683, 693-94 (3d Cir. 2006); *Huang* v. *Gonzales,* 453 F.3d 142 (2d Cir. 2006). Some courts of appeals have also criticized the quality of the immigration judge and Board decisions. *See Benslimane* v. *Gonzales,* 430 F.3d 828 (7th Cir. 2005), and cases cited therein. The criticism has been limited to a relatively small number of cases and a minority of circuit courts. Moreover, the overall rate at which the federal courts have overturned Board decisions on judicial review has remained fairly constant, averaging only 10 to 12 percent. It should also be borne in mind that only the aliens are able to petition for review in the circuit courts. DHS may not appeal adverse Board decisions to the courts of appeals; thus, the courts never see the thousands of cases in which the aliens are granted relief or protection from removal. Nevertheless, the Attorney General has concluded that some adjustments to the Board's streamlining practices are now appropriate to improve the quality of the Board's review of complex or problematic cases while retaining the fundamentals of streamlining. Attorney General Gonzales directed the Board to increase the use of single-member written opinions to address immigration judge decisions that are poor in quality and cases in which the immigration judge's conduct during the hearing was intemperate or abusive. This rule meets that objective by providing the Board with greater flexibility to issue decisions that respond to the concerns expressed by the federal circuit courts. Under this rule, single Board members will have discretion to decide whether to issue an AWO or to issue a written opinion with an explanation of the reasons for the decision. The existing regulations already provide that a single Board member is not required to issue an AWO when there is a substantial factual or legal issue in the case warranting the issuance of a written opinion, but this rule recognizes that Board members may choose to issue either an AWO or a written opinion, as a matter of discretion, in cases where the regulatory criteria in 8 CFR 1003.1(a)(4)(i) are met. In determining whether to exercise its discretion to issue an AWO or a single-member opinion, the Board may consider available resources to balance the need to complete cases efficiently while evaluating whether there is a need to provide further guidance to the immigration judge, the parties, and the federal courts through a written decision addressing the issues in a case. The Board is best positioned to assess its resources and the importance of various competing demands, because the Board sees the full expanse of issues presented in the more than 40,000 cases filed each year from decisions of the immigration judges and of DHS service centers or other adjudicating officers in those cases subject to review by the Board. The Board is thus able to see recurring problems or issues arising in the decisions under review. The Board may consider exercising its discretion to issue a written order in those cases in which the immigration judge's decision would otherwise meet the criteria for AWO, but the immigration judge exhibited inappropriate conduct at the hearing or made intemperate comments in the oral decision. Likewise, the Board may consider issuing single-member opinions in those cases in which the infirmities in the decision under review are not prejudicial, but are of such a nature and extent that the Board may find it appropriate to address the basis for the decision. Examples include where the immigration judge reaches the correct result but does not provide a complete analysis, the immigration judge's analysis includes some immaterial or technical error, or the immigration judge fails to include citations to applicable precedent or regulations. While the result may be correct and the errors harmless, the Board member may consider that, in these kinds of cases, further explanation is warranted. B. Reviewability With the greater level of flexibility afforded by this rule, the Board is better situated to address the concern expressed by some courts that AWOs allow room for confusion in the record about the basis for the Board's decision, and thus, the jurisdiction of the federal circuit courts. *See generally Lanza* v. *Ashcroft* , 389 F.3d 917 (9th Cir. 2004). The Department acknowledges the high volume of cases now pending before the courts of appeals and sees this rule as a means of addressing some of the courts' concerns and of promoting greater uniformity in the way the courts review administrative decisions. Existing regulations establish that when the Board issues an AWO, the decision of the immigration judge becomes the “final agency determination.” 8 CFR 1003.1(e)(4)(ii). Although the immigration judge's decision becomes the “final agency determination,” the Board remains the final agency decision maker exercising the authority delegated by the Attorney General. It is the Board's AWO that triggers the time period for seeking review in a circuit court. When an alien petitions for review following the Board's issuance of an AWO, the courts review the merits of the immigration judge's decision. Some circuits, however, have concluded that, in addition to reviewing the merits of the underlying immigration judge's decision, the court may also review the Board's decision to issue an AWO, as opposed to another type of order. Other circuits have reached the opposite conclusion. This inconsistency threatens the goal of the Board's procedural reforms: securing finality in immigration cases as efficiently as possible. The Eighth and Tenth Circuits have concluded that the Board's decision to issue an AWO is not reviewable. *See Ngure* v. *Ashcroft* , 367 F.3d 975, 981-88 (8th Cir. 2004); *Tsegay* v. *Ashcroft* , 386 F.3d 1347, 1355-58 (10th Cir. 2004). In particular, the Tenth Circuit found it lacked jurisdiction to review the Board's procedural decision to issue an AWO, as opposed to a single-member decision with an opinion or a three-member decision. The court noted that when the Board affirms an immigration judge's decision without opinion, the immigration judge's decision becomes the final agency decision. The Tenth Circuit concluded that because the Immigration and Nationality Act vests jurisdiction in the courts of appeals to review a “final order of removal,” the court was without jurisdiction to review the Board's AWO decision because an AWO is not in the nature of a final agency decision. *Id.* at 1353. The Tenth Circuit also concluded that because the decision to issue an AWO is committed to the Board's discretion, the Administrative Procedure Act did not confer jurisdiction on the circuit courts to review the Board's decision to issue an AWO. *Id.* at 1355. The Fourth Circuit has reached a conclusion similar in effect to the decisions of the Eighth and Tenth Circuits. The Fourth Circuit held that even if the Board's decision to issue an AWO is erroneous, the court simply reviews the merits of the underlying decision of the immigration judge. *See Blanco de Belbruno* v. *Ashcroft* , 362 F.3d 272, 281 (4th Cir. 2004) (analyzing the similar AWO provision previously found at 8 CFR 3.1(a)(7)). In sum, the Fourth, Eighth, and Tenth Circuits do not review the Board's decision to issue an AWO, but simply review the merits of the underlying decision, as prescribed by the language in the Board's AWO order. In contrast, the Third Circuit has concluded that the Board's decision to issue an AWO is reviewable, separate and apart from the question of whether the underlying merits decision is supported. *See Smriko* v. *Ashcroft* , 387 F.3d 279, 290-95 (3d Cir. 2004). The First Circuit also regards as reviewable the Board's determination of whether the AWO criteria exist in a particular case. *See Haoud* v. *Ashcroft* , 350 F.3d 201 (1st Cir. 2003). A divided panel of the Ninth Circuit reached the same conclusion in *Chen* v. *Ashcroft* , 378 F.3d 1081, 1088 (9th Cir. 2004). The court in Chen concluded that, unless the underlying issue in a case rests on a discretionary determination, it has jurisdiction to review whether the use of an AWO was appropriate. Such review causes the court to examine the propriety of the Board's decision to apply its AWO authority and summarily affirm the immigration judge's decision. This approach results in a superfluous and unnecessary layer of review about an issue—the Board's decision to affirm without opinion rather than affirm with an opinion—that does not resolve the dispositive issue, namely whether the underlying decision of the immigration judge withstands review. The Sixth and Seventh Circuits have not squarely decided the reviewability issue. However, both circuits have suggested that, although the Board's decision to issue an AWO may be separately reviewable, the review of the decision to AWO often will merge with the review of the underlying decision of the immigration judge. *See Denko* v. *INS* , 351 F.3d 717, 731-32 (6th Cir. 2003); *Georgis* v. *Ashcroft* , 328 F.3d 962, 966-67 & n.4 (7th Cir. 2003). Where those decisions essentially merge, the Seventh Circuit has stated that “it makes no practical difference whether the BIA properly or improperly streamlined review.” *Georgis* v. *Aschcroft, supra* at 967; *see also Hamdan* v. *Gonzales* , 425 F.3d 1051 (7th Cir. 2005). The inconsistency in the circuit courts has prompted the Department to propose a revision to the regulatory language. The rule clarifies that the decision to issue an AWO is discretionary and is based on an internal agency directive created for the purpose of efficient case management that does not create any substantive or procedural rights. The Board reform rule was successful in creating procedures that increased efficiency and promoted finality in immigration cases without sacrificing fairness. The additional layer of review in some circuits is not consistent with the reform rule's goal of promoting efficiency and finality in the immigration system. The efficient and fair adjudication of immigration appeals remains a priority of the Department. This revision to the AWO regulation in no way reflects a diminished commitment to timely and fair adjudications at the administrative level. In light of the strict regulatory time frames governing the adjudication of appeals and the Board's decreasing use of AWOs, the Department expects that the Board will continue to manage its docket efficiently following this revision to the AWO procedure. C. Scope of Board's Dispositions on Appeal Finally, this rule clarifies that, when the Board chooses to issue an AWO or a short order adopting all or part of the immigration judge's decision, that decision is based not only on the nature of the case and whether it fits the criteria for AWO, but also on the nature of the issues and claims of error properly raised on appeal. The Board's decision to issue an AWO or short order affirming the immigration judge's decision should not be construed as waiving a party's obligation to exhaust issues and claims before the Board. While it is true that the Board has the discretion to consider issues not raised on appeal, this does not excuse a party from filing a Notice of Appeal and supporting brief that are sufficiently precise in identifying any claims, errors, and other issues in the immigration judge's decision with which the party disagrees. Further, it is not enough for a party to raise an issue on appeal in passing. Rather, the party must spell out, in a meaningful way, its arguments and claims of error in the Notice of Appeal or supporting brief. In addition, the regulation clarifies that the Board need not specifically address every issue raised on appeal, but is presumed to have considered all properly raised issues on appeal in reaching its decision, even if that decision is an AWO or short order that does not specifically discuss every issue the parties may have raised on appeal. *See, e.g., Toussaint* v. *Attorney General* , 455 F.3d 409 (3d Cir. 2006), *citing Zubeda* v. *Ashcroft* , 333 F.3d 463 (3d Cir. 2003); *Mansour* v. *INS* , 230 F.3d 902 (7th Cir. 2000). For purposes of complying with the mandate to exhaust administrative remedies as of right under section 242(d)(1) of the Act, 8 U.S.C. 1252(d)(1), claims of error raised in the Notice of Appeal or the brief shall be deemed the matters presented to the Board for review and thereby exhausted. Exhaustion of administrative remedies is an indispensable component of administrative decision making and judicial review of an agency's decisions. *See McCarthy* v. *Madigan* , 503 U.S. 140
(1992)(superseded by statute). Litigants fail to exhaust their claims at their own peril, in that they waive matters that might have been corrected by the agency. Courts that ignore this rule usurp the agency's role and function by setting aside an agency decision on grounds that were not raised to and disposed of by the agency. *See Unemployment Compensation Comm'n of Alaska* v. *Aragon* , 329 U.S. 143, 155 (1946). In the Immigration and Nationality Act, Congress has dictated that the Attorney General shall, in the first instance, resolve a controversy before judicial intervention, *see* 8 U.S.C. 1252(d)(1), and the Attorney General by regulation has delegated that function to the Board. The federal courts have consistently held that they do not sit as administrative agencies. Failure to raise an issue on appeal to the Board constitutes failure to exhaust administrative remedies or preserve the issue for appeal, and deprives the courts of appeal of jurisdiction to consider the issue. *See Rivera-Zurita* v. *INS* , 946 F.2d 118 (10th Cir. 1991); *Ravindran* v. *INS* , 976 F.2d 754 (1st Cir. 1992); *Farrokhi* v. *INS* , 900 F.2d 697 (4th Cir. 1990); *Martinez-Zelaya* v. *INS* , 841 F.2d 294 (9th Cir. 1988); *Campos-Guardado* v. *INS* , 809 F.2d 285 (5th Cir. 1987); *Cisternas-Estay* v. *INS* , 531 F.2d 155 (3d Cir. 1976). The courts have concluded that when the agency resolves the matter first, the legal and factual issues have been sufficiently developed to aid the court in reviewing a person's claim and the agency's findings and conclusions regarding such claim. *See Madigan* , 503 U.S. at 145-46. Recently, two courts of appeal have concluded otherwise when the Board's decision has been an AWO or a short order affirming the immigration judge's decision. In *Abebe* v. *Gonzales* , 432 F.3d 1037 (9th Cir. 2005), the Court of Appeals for the Ninth Circuit held that when the Board adopts or affirms the decision of an immigration judge without further opinion, and the Board does not explicitly state in its decision that it is declining to consider any arguments not raised on appeal, then the Board's adoption of the immigration judge's decision, which discusses all issues litigated below, is enough to satisfy the exhaustion requirement. Likewise, in *Pasha* v. *Gonzales* , 433 F.3d 530 (7th Cir. 2005), the Court of Appeals for the Seventh Circuit held that when the Board summarily affirms the immigration judge's decision below, the Board waives failure to exhaust, especially where the Board fails to specify that it was confining its review to the questions raised on appeal and deemed all others waived. Under the rule of law created by *Abebe* and *Pasha* , aliens can circumvent the appellate process set up by the Attorney General, which is designed specifically to review and correct any errors raised on appeal. Without a Notice of Appeal or brief that points out specific errors the parties believe the immigration judge made, the Board might choose to issue an AWO or short order affirming the immigration judge. The alien can then go to the courts of appeals and raise and fully brief arguments never made to the Board. This rule reaffirms the historical practice of the Board with respect to exhaustion requirements. The Board has repeatedly stated that it need not address issues that are not raised. *See, e.g.,* *Matter of Cervantes-Gonzales* , 22 I&N Dec. 560, 561 n.1 (BIA 1999) (noting that “[a]s the respondent does not raise this issue on appeal, we decline to address it”); *Matter of Gutierrez* , 19 I&N Dec. 562, 565 n.3 (BIA 1988) (stating that “[a]s the Service does not directly raise this issue on appeal, we shall not address it”). When the Board invokes its AWO authority or issues a short decision adopting the immigration judge's decision, there is no cause to depart from the foregoing exhaustion principles. Adopting the immigration judge's decision or designating the immigration judge's decision as the final agency determination under the AWO regulation is the final act of the Board that triggers the alien's opportunity to seek judicial review, but it occurs only after the alien has set the issues to be determined by the Board. It is those issues that the Board takes into account in determining what type of decision to issue. This rule would make clear, however, that the Board may address an issue that was not raised on appeal *sua sponte* when the Board in its discretion concludes that the issue warrants attention. *See generally* 8 CFR 1003.1(c) (authorizing the Board to certify a case to itself). *See also Ghassan* v. *INS* , 972 F.2d 631, 635 (5th Cir. 1992) (noting that the Board may consider an issue that has not been appealed by either party). The Board will continue to review the record and address any errors that it finds, in its discretion, could result in a miscarriage of justice. IV. Three-Member Panel Decisions Under the current regulations, a single Board member “may only” refer a case to a three-member panel if the case fits one or more of the enumerated criteria set out in 8 CFR 1003.1(e)(6)(i)-(vi). These circumstances are circumscribed and include the following:
(1)The need to settle inconsistencies among the rulings of different immigration judges,
(2)the need to establish a precedent construing the meaning of laws, regulations, or procedures,
(3)the need to review a decision by an immigration judge or DHS that is not in conformity with the law,
(4)the need to resolve a case or controversy of major national import,
(5)the need to review a clearly erroneous factual determination by an immigration judge, or
(6)the need to reverse the decision of an immigration judge or DHS. *Id.* The streamlining provisions anticipated that a single Board member would decide a substantial majority of the cases either through an AWO or through a short order. While the streamlining provisions allowed the Board to resolve its backlog, the Attorney General has determined that the Board is in a better position to devote more resources to improving its review of complex or problematic cases. This regulation expands the criteria for three-member decisions by allowing a Board member, in the exercise of discretion, to refer a case to a three-member panel when the case presents a complex, novel, or unusual legal or factual issue. The Attorney General anticipates that three-member review of complex or problematic cases may enhance the review and analysis of the issues presented, and may provide more authoritative guidance. This provision will also permit the panels to publish more cases as precedent decisions because the Board members will have greater discretion to refer cases to a three-member panel, and will therefore have more cases to consider for publication. Under the Board's current practice, opinions issued by a single Board member are not considered for publication as a precedent decision. Cases involving unusual or complex legal or factual issues are often the type of case that the Board would consider for publication of a precedent decision. In exercising its discretion to refer a case to a three-member panel under this provision, the Board may consider available resources and the best use of those resources while fulfilling its many responsibilities such as providing a full and fair review in each individual case, offering guidance to immigration judges and the federal courts of appeals when they are faced with recurring issues, promoting national uniformity in the interpretation of the immigration laws, and the need for issuing published precedential decisions. The Board will be able to determine the need for enhanced review and analysis, and the need to issue guidance, in evaluating which cases to refer for three-member review. V. Publication of Precedent Decisions A. The Importance of Precedent Decisions Another criticism that emerged during the Attorney General's review was that the promulgation of the Board reform rule made it more difficult for the Board to publish adequate numbers of precedential decisions. In fact, one of Attorney General Ashcroft's goals in adopting the Board reform rule in 2002 was to promote the cohesiveness and collegiality of the Board's decision-making process and to facilitate the publication of more precedent decisions with greater uniformity. *See* 67 FR at 54894. 3 3 The Attorney General discussed at some length the importance of the Board's role in providing precedential guidance regarding the interpretation of the immigration laws. *See* 67 FR at 54880 (“This precedent setting function recognizes that novel issues arise each and every time that the Act, or the regulations, change; complex issues arise because of the interrelationship of multiple provisions of law; and repetitive issues arise before different immigration judges because of the national nature of the immigration process. All of the participants in the immigration adjudication process deserve concise and useful guidance on how these novel, complex, and repetitive issues are best resolved * * *. Both the three-member panel and the en banc Board should be used to develop concise interpretive guidance on the meaning of the Act and regulations. Thus, the Department expects the Board to be able to provide more precedential guidance to the immigration judges, the Service, attorneys and accredited representatives, and respondents.”). Initially, after publication of the Board reform rule, the Board reduced the number of precedent decisions published. Instead, the Board concentrated its efforts and resources on implementing the many changes mandated by the rule, the most pressing of which was to address the backlog of cases and to create case management practices that would allow the Board to complete appeals in a timely fashion. As noted earlier, the Board has been successful in these endeavors, while adjusting to a smaller number of Board members. Now that the backlog has been brought under control and case management practices are firmly in place, the Board has been able to turn its attention to increasing the number of published decisions. In fiscal year 2006 the Board published more precedents
(25)than in any other year since fiscal year 2000, and surpassed that number in fiscal year 2007, publishing 40 decisions. At a time when the Board has been issuing some 44,000 decisions annually, the Attorney General has concluded that publishing a greater number of precedent decisions is required to resolve more of the important and recurring legal issues, factual settings, procedural questions, and matters of discretion facing the Board and the immigration judges. Given that there are approximately 220 immigration judges around the country who are adjudicating 350,000 cases annually, there is an important need not only to provide clear guidance but also to promote a degree of national uniformity and consistency in the disposition of these cases. Without published precedent decisions, immigration judges may continue to interpret the law in inconsistent ways, requiring duplicative litigation and appeals by the parties, which in turn raises the specter of possible inconsistencies in the Board's dispositions. At the least, in the absence of published precedent decisions addressing the interpretation of a particular statutory or regulatory provision, there is no clear assurance to the parties and the federal courts that the Board and the immigration judges are resolving issues consistently through unpublished decisions in a series of different cases. The number of Board decisions published as precedents also has important implications for judicial review. The courts of appeals have been issuing hundreds of precedent decisions each year in reviewing cases decided by the Board, and a substantial number of the court decisions are interpreting the immigration laws and regulations. As a result, the courts of appeals, in many cases, have found themselves faced with the need to resolve key interpretive or procedural issues without the benefit of any precedential guidance from the Board on those issues. In some cases, the courts of appeals have proceeded to announce their own interpretations, which then may become binding with respect to other immigration cases arising within that circuit. 4 This effect has been particularly evident in the Ninth Circuit, which hears slightly less than half of all of the immigration cases being appealed from the Board each year; thus, a precedent decision from the Ninth Circuit affects a very large number of other pending immigration cases. In any of the circuits, though, the result all too often is that the interpretation of the immigration laws has become fragmented, with the interpretation of legal or procedural issues often varying substantially depending solely on the circuit in which each case arises. Such results frustrate the goal of national uniformity and consistency in the immigration process. 4 *See,* *e.g.* , *Maharaj* v. *Gonzales,* 450 F.3d 961, 971-76 (9th Cir. 2006) (en banc) (noting that the Board had not issued a precedent decision interpreting the asylum regulation dealing with firm resettlement, 8 CFR 208.15, since it had been adopted 16 years earlier; court of appeals then surveyed judicial interpretations from various court of appeals decisions and announced its own interpretation of the regulatory language). In other cases, particularly in recent years, some courts of appeals instead have remanded pending cases back to the Board, allowing the Board to issue a precedent decision on the issues raised in the case, rather than having the court of appeals announce its own legal interpretation as a matter of first impression. These remand orders provide an opportunity for the Board to resolve the legal issues in each such case before the court adopts its own interpretations. In *Yuanliang Liu* v. *U.S. Dept. of Justice,* 455 F.3d 106 (2d Cir. 2006), the Second Circuit remanded a case to the Board with instructions to develop precedential standards and procedures for the immigration judges to follow in deciding whether an alien has knowingly filed a frivolous asylum application. Section 208(d)(6) of the INA provides that, if the Attorney General determines that an alien has knowingly made a frivolous asylum application after receiving notice of the statutory penalties for doing so, the alien shall be permanently ineligible for any benefits under the INA. Despite the significance of such a powerful sanction, the court of appeals found that the existing regulatory provision in 8 CFR 1208.20 leaves important substantive and procedural questions unresolved, and noted that the Board has not issued a precedent decision relating to section 208(d)(6) since it took effect over nine years ago. However, rather than undertaking to establish its own legal standards as a matter of first impression, the court remanded the case to the Board to provide precedential guidance on the issues arising under this provision. The Second Circuit's explanation of its reasons for doing so are relevant in a broader sense, as they set forth in a concise fashion many of the reasons why the Board itself may be considering the publication of precedent decisions, including the need for national uniformity, the absence of prior precedents, the existence of a statutory ambiguity, the volume of cases raising the same or similar issues, the importance of the issues, and the need for clearer standards to avoid ad hoc decision making. *Liu,* 455 F.3d at 116-17. In response to the remand, the Board recently issued a precedent decision addressing the interpretive issues with respect to frivolous asylum applications, *Matter of Y-L-* , 24 I&N Dec. 151 (BIA 2007). 5 5 In addition, in response to a remand order from the Second Circuit, the Board issued a comprehensive decision in *Matter of Wang,* 23 I&N Dec. 924 (BIA 2006), which addressed and resolved a number of different interpretive issues relating to the Chinese Student Protection Act and the relevance of Congress's subsequent enactment of a new process for adjustment of status under section 245(i) of the INA. As another example, in response to the Second Circuit's directive in *Shi Liang Lin* v. *U.S. Dep't of Justice,* 416 F.3d 184, 192 (2d Cir. 2005), the Board issued a precedent decision providing an interpretation of the asylum laws relating to coercive population control practices. *Matter of S-L-L-,* 24 I&N Dec. 1 (BIA 2006), *rev'd, Shi Liang Lin* v. *U.S. Dept. of Justice,* 494 F.3d 296 (2d Cir. 2007) (en banc). In another case, in response to a remand order from the court of appeals in *Ucelo-Gomez* v. *Gonzales,* 464 F.3d 163 (2d Cir. 2006), the Board issued a precedent decision concluding that the category of “affluent Guatemalans” does not qualify as a “particular social group” for purposes of claims of persecution under the asylum laws. *Matter of A-M-E- & J-G-U-,* 24 I&N Dec. 69 (BIA 2007), *aff'd sub nom. Ucelo-Gomez* v. *Mukasey,* 509 F.3d 70 (2d Cir. 2007). *See also Velazquez-Herrera* v. *Gonzales,* 466 F.3d 781, 783 (9th Cir. 2006) (“We decline to reach the question whether either of these two definitions (or any other definition) is a permissible construction of 8 U.S.C. 1227(a)(2)(E)(i) . * * * Given that the Board has twice touched upon the issue of child abuse without authoritatively defining the term, and that the Board's two definitions are not consistent with each other, we think it prudent to allow the BIA in the first instance to settle upon a definition of child abuse in a precedential opinion.”); *Mirzoyan* v. *Gonzales,* 457 F.3d 217 (2d Cir. 2006) (remanding to the Board to define standards with respect to economic persecution); *Matter of T-Z-,* 24 I&N Dec. 163 (BIA 2007) (establishing standards for determining whether nonphysical harm, including economic sanctions, rises to the level of persecution). Three other recent developments also emphasize the importance of precedential guidance from the Board. First, in *Gonzales* v. *Thomas,* 547 U.S. 183 (2006), the Supreme Court reversed a decision by the Ninth Circuit that had interpreted the asylum laws to mean that a person's membership in a nuclear family constitutes a “particular social group” for purposes of evaluating claims of persecution. The Supreme Court reversed, noting that such determinations should be made in the first instance by the Board rather than the federal courts. With respect to such issues arising under the immigration laws, *Thomas* emphasizes the importance of the Board's role to provide interpretive guidance. *Cf. Ucelo-Gomez* v. *Gonzales,* 464 F.3d 163, 172 (2d Cir. 2006) (“Our mandate serves the convenience of the BIA as well as this Court, and promotes the purposes of the INA. *Thomas* requires that we (in effect) certify this question. There is a press of cases raising similar questions in this Court, in the BIA, and before immigration judges; and the common project of deciding asylum cases promptly will be advanced by prompt guidance.”); *Jian Hui Shao* v. *BIA,* 465 F.3d 497, 502 (2d Cir. 2006) (noting the foreign policy considerations relating to Chinese coercive population control asylum cases and the large number of affected aliens and stating: “We believe, in light of these concerns, that it would be unsound for each of the several Courts of Appeals to elaborate a potentially non-uniform body of law; only a precedential decision by the BIA—or the Supreme Court of the United States—can ensure the uniformity that seems to us especially desirable in cases such as these.”); *Matter of J-H-S* -, 24 I&N Dec. 196 (BIA 2007) (responding to *Shao* v. *BIA, supra* ). Second, the Ninth Circuit has recently concluded that interpretations of the provisions of the INA announced in unpublished decisions of the Board are not entitled to judicial deference under the standards of *Chevron U.S.A., Inc.* v. *Natural Resources Defense Council, Inc.,* 467 U.S. 837 (1984). *See Garcia-Quintero* v. *Gonzales,* 455 F.3d 1006, 1012-14 (9th Cir. 2006). The court of appeals determined that, in light of the Supreme Court's more recent decision in *United States* v. *Mead Corp.,* 533 U.S. 218, 226-27 (2001), only published precedent decisions of the Board are entitled to *Chevron* deference. More recently, the Second Circuit also concluded that it will follow a similar approach with respect to unpublished BIA decisions. *Rotimi* v. *Gonzales,* 473 F.3d 55 (2d Cir. 2007). Given the disproportionate share of immigration cases arising in the Ninth Circuit and the Second Circuit, we recognize the importance of the issuance of precedent decisions in order to promote national uniformity and obtain *Chevron* deference for the Board's interpretive decisions. Third, the Supreme Court has made clear that an administrative agency is free to adopt a new interpretation of an ambiguous statutory provision, even though a federal court may have already issued a decision adopting a different interpretation of that same statute. *See National Cable & Telecomm. Ass'n* v. *Brand X Internet Services,* 545 U.S. 967 (2005). “A court's prior judicial construction of a statute trumps an agency construction otherwise entitled to *Chevron* deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.” *Id* . at 982. *Brand X Internet* makes clear that—unless the court finds the statutory provision unambiguous under *Chevron* step one—the administrative agency is free to adopt a contrary interpretation, as long as it does so with proper foundation and explanation, and the courts are thereafter required to defer to the agency's new interpretation if it is sustainable under *Chevron* step two. 6 The Supreme Court also noted that leaving the agency free to reinterpret statutory provisions, notwithstanding prior judicial precedents to the contrary, reflects the proper interpretive authority vested by Congress in the agency with respect to ambiguous statutory provisions. *See id.* at 983-84 (“In all other respects, the court's prior ruling remains binding law (for example, as to agency interpretations to which *Chevron* is inapplicable). The [court's] precedent has not been `reversed' by the agency, any more than a federal court's interpretation of a State's law can be said to have been ‘reversed' by a state court that adopts a conflicting (yet authoritative) interpretation of state law.”) *Cf. Jian Hui Shao,* 465 F.3d at 502 (“Accordingly, any effort expended by us interpreting the statute would be for nought should the BIA subsequently reach a different, yet reasonable, interpretation of this ambiguous provision.”). 6 As the Supreme Court explained, 545 U.S. at 982-83 (citations omitted): *Chevron* established a “presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.” Yet allowing a judicial precedent to foreclose an agency from interpreting an ambiguous statute, as the Court of Appeals assumed it could, would allow a court's interpretation to override an agency's. *Chevron's* premise is that it is for agencies, not courts, to fill statutory gaps. The better rule is to hold judicial interpretations contained in precedents to the same demanding *Chevron* step one standard that applies if the court is reviewing the agency's construction on a blank slate: Only a judicial precedent holding that the statute unambiguously forecloses the agency's interpretation, and therefore contains no gap for the agency to fill, displaces a conflicting agency construction. A contrary rule would produce anomalous results. It would mean that whether an agency's interpretation of an ambiguous statute is entitled to *Chevron* deference would turn on the order in which the interpretations issue: If the court's construction came first, its construction would prevail, whereas if the agency's came first, the agency's construction would command *Chevron* deference. Yet whether Congress has delegated to an agency the authority to interpret a statute does not depend on the order in which the judicial and administrative constructions occur. The Court of Appeals' rule, moreover, would “lead to the ossification of large portions of our statutory law,” by precluding agencies from revising unwise judicial constructions of ambiguous statutes. Neither *Chevron* nor the doctrine of stare decisis requires these haphazard results. The Supreme Court's decision in *Brand X* Internet offers an important opportunity for the Attorney General and the Board to be able to reclaim *Chevron* deference with respect to the interpretation of ambiguous statutory provisions in the immigration laws, notwithstanding contrary judicial interpretations, as long as the agency interpretation is within the scope of *Chevron* step two deference. Implementation of the interpretive authority recognized under *Brand X Internet* is undertaken through formal agency processes— *i.e.* , by rulemaking or by a precedent decision by the Board or the Attorney General. As a recent example, in *Matter of Torres-Garcia,* 23 I&N Dec. 866 (BIA 2006), the Board issued a precedent decision interpreting the provisions of section 212(a)(9)(C)(ii) of the Immigration and Nationality Act
(INA)and 8 CFR 212.2, as they relate to an alien seeking to establish admissibility in conjunction with an application for adjustment of status under section 245(i) of the INA. The Board's precedent decision explained at length why the Board disagreed with a prior decision of the Ninth Circuit that interpreted these same provisions to reach an opposite result. *See Perez-Gonzalez* v. *Ashcroft,* 379 F.3d 783 (9th Cir. 2004), *recon. denied,* 403 F.3d 1116 (9th Cir. 2005); *Torres-Garcia,* 23 I&N Dec. at 873-76. The Ninth Circuit has recognized that its prior decision in *Perez-Gonzalez* is no longer good law, because the court is required, under *Brand X Internet,* to defer to the Board's decision in *Torres-Garcia* that adopted a different, reasonable interpretation of the provisions at issue. *See Gonzales* v. *DHS,* 508 F.3d 1227 (9th Cir. 2007) (“under *Chevron* and *Brand X* we are required to defer to *In re Torres-Garcia's* interpretation of the statutory scheme, regardless of whether the agency once adhered to a different interpretation. * * * [W]e hold today that we are bound by the BIA's interpretation of the applicable statutes in *In re Torres-Garcia,* even though that interpretation differs from our prior interpretation in *Perez-Gonzalez.* ”). B. Changes to the Current Regulations Under the current regulations, the Board's decisions are published as precedents upon a majority vote of the permanent Board members. While that process ensures that precedent decisions are fully considered by the members of the Board, it also means that the Board's panels are not able to designate their decisions as precedential unless a majority of the Board members agree. At a time when the Board had only 5 members (which was the case until 1995), it made sense to require that a majority of Board members would be needed to designate any decision as a precedent. At that time, the three members of each panel constituted a majority of the Board members, and thus the members of a panel would have been able, on their own authority, to publish unanimous decisions of that panel as precedents. In fact, when the Board had only 5 members, the Board often published as many as 50 or 60 precedent decisions annually, at a time when the Board had a much smaller caseload and there were far fewer immigration judges whose decisions were being reviewed. To facilitate the publication of precedent decisions, the Attorney General has decided to revise the Board's processes to allow three-member panels to publish precedent opinions if a majority of the permanent Board members of a panel votes to publish a decision. This rule also proposes to codify the Attorney General's authority to direct the Board to publish a decision as a precedent. 7 7 Though the authority has not previously been codified in the regulations, the Attorney General in the past has directed the Board to publish a previously issued unpublished decision as a precedent to govern all similar cases. *See Matter of Toboso-Alfonso* , 20 I&N Dec. 819 (BIA 1990; A.G. 1994). This rule provides specific authority for the Attorney General to direct that previously issued Board decisions be published to serve as precedents. The rule also provides that the Attorney General may redelegate that authority to other Department officials, which may include the Deputy Attorney General or the Associate Attorney General. The Department acknowledges that most of the more than 40,000 decisions issued by the Board each year do not articulate a new rule of law or procedure, and indeed even a substantial number of the cases that are referred to a three-member panel under the specific standards of 8 CFR 1003.1(e)(6) may not merit publication as a precedent. However, in cases where a majority of the Board members issuing a panel decision conclude that a case involves one or more issues that the Board has not previously resolved in a precedent decision, 8 and that publishing a precedent would be appropriate, in the exercise of discretion, this rule facilitates the publication of Board decisions in order to provide authoritative guidance to the aliens and their representatives, the immigration judges, the administrative agencies, and the federal courts. 8 Note that a precedent decision need not address every issue in a case. Just as the courts of appeals do at times, the Board may choose to publish a precedent decision dealing with one or two key issues in the case, and then resolve the remaining issues in an unpublished decision if those issues do not merit discussion in a precedent decision. This rule encourages publication of opinions which meet certain criteria, such as whether:
(1)The case involves a substantial issue of first impression;
(2)the case involves a legal, factual, or procedural issue that can be expected to arise frequently in immigration cases;
(3)the case announces, modifies, or clarifies a rule of law;
(4)the case resolves a conflict in decisions by immigration judges or the federal courts;
(5)there is a need to achieve or maintain national uniformity of interpretation under the immigration laws and regulations with respect to the issues presented in the case, or to restore such uniformity of interpretation pursuant to interpretive authority recognized by the Supreme Court in *Brand X Internet* ; or
(6)the case warrants publication in light of other factors that give it general public interest. 9 9 Although the Board ordinarily does not entertain interlocutory appeals, the Board on very rare occasions does rule on the merits of interlocutory appeals where it is deemed necessary to address important jurisdictional questions regarding the administration of the immigration laws, or to correct recurring problems in the handling of cases by the immigration judges. *See, e.g.* , *Matter of Guevara* , 20 I&N Dec. 238 (BIA 1990, 1991); *Matter of Dobere* , 20 I&N Dec. 188 (BIA 1990). These standards for interlocutory appeals are appropriately narrow, in order to avoid piecemeal review of the myriad of questions that may arise in the course of removal proceedings, but they do suggest that the very rare cases that the Board concludes are appropriate for interlocutory review may also be considered for publication as precedents. The Board members will apply these standards on a case-by-case basis, in the exercise of their discretion, in determining which decisions to designate as precedents. Also, either of the parties may file a motion with the Board suggesting the appropriateness of designating a previously unpublished decision as a precedent. In addition, in view of the increasing importance of precedent decisions in the judicial review process, the Department recognizes that the Civil Division's Office of Immigration Litigation may suggest to EOIR the appropriateness of designating a decision as a precedent. Although under this proposed rule a panel of three Board members may publish a precedent decision, the underlying purpose of the rule is to encourage the Board to provide clear and consistent guidance to the immigration judges, the parties in removal proceedings, and the federal courts. In that regard, the rule provides that the Board Chairman or the Board en banc may set a policy that all decisions selected for publication by a panel will be circulated to all the Board members for a period of time prior to issuance. Such an opportunity for prior consideration is appropriate, because a published panel decision represents the precedential opinion of the Board and is binding on all panels. As provided in the existing regulations, 8 CFR 1003.1(a)(5), a case may be referred to the Board for en banc consideration and decision by vote of a majority of permanent Board members or by direction of the Chairman, and en banc review may be necessary to ensure that the decision reflects the views of a majority of the Board or if a potential exists for inconsistent decisions among the panels. In order not to delay the process, the Chairman or the Board en banc may establish appropriate time limits for the Board members to consider a panel's precedent decision prior to publication. Finally, although the regulations are being revised to facilitate publication, the parties should keep in mind that, while the immigration bar often looks to the Board to publish cases covering certain issues of law or circumstance, the Board may only address novel or important issues of law in the context of cases as they appear before it. The Board favors publication where both parties have submitted briefs clearly addressing the issues presented by the case and, conversely, prefers not to publish where the parties have not adequately briefed the issues. Therefore, parties should be prepared to fully develop the issues in well-presented briefs in order to facilitate the Board's publication of precedent decisions. However, in some cases the Board may choose to issue a new briefing schedule to facilitate participation by amicus curiae in order to address the issues in a case presenting important, unresolved issues. VI. Regulatory Requirements A. Regulatory Flexibility Act Pursuant to the Regulatory Flexibility Act (RFA), the Attorney General certifies that this rule will not have a significant economic impact on a substantial number of small businesses or small governmental entities. This rule is related to agency organization and management of cases pending before the immigration judges and the Board of Immigration Appeals. Accordingly, the preparation of a Regulatory Flexibility Analysis is not required. B. 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. C. Small Business Regulatory Enforcement Fairness Act of 1996 This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Act of 1996, 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets. D. Executive Order 12866 (Regulatory Planning and Review) The Department considers this rule to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, and accordingly it has been submitted to the Office and Management and Budget for review. E. Executive Order 13132 (Federalism) This 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, this rule does not have sufficient federalism implications to warrant preparation of a federalism summary impact statement. F. Executive Order 12988 (Civil Justice Reform) This rule has been prepared in accordance with the standards in sections 3(a) and 3(b)(2) of Executive Order 12988. G. Paperwork Reduction Act This rule does not create any information collection requirements. List of Subjects in 8 CFR Part 1003 Administrative practice and procedure, Aliens, Immigration, Legal services, Organization and functions (Government agencies). Accordingly, for the reasons stated in the preamble, chapter V of title 8 of the Code of Federal Regulations is proposed to be amended as follows: PART 1003—EXECUTIVE OFFICE FOR IMMIGRATION REVIEW 1. The authority citation for part 1003 continues to read as follows: Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1103, 1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231, 1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec. 2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002; section 203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506 and 1510 of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section 1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328. 2. Section 1003.1 is amended by: a. revising paragraph (e)(4)(i); b. adding paragraph (e)(4)(iii); c. revising paragraph (e)(6) introductory text; d. amending paragraph (e)(6)(v) by removing “or”; e. amending paragraph (e)(6)(vi) by removing the period and adding in its place “; or”; f. adding paragraph (e)(6)(vii); g. adding paragraph (e)(9); and by h. revising paragraph (g). The additions and revisions read as follows: § 1003.1 Organization, jurisdiction, and powers of the Board of Immigration Appeals.
(e)* * *
(4)*Affirmance without opinion* .
(i)The Board member to whom a case is assigned may, in that member's discretion, affirm the decision of the DHS immigration officer or the immigration judge, without opinion, if the Board member determines that the result reached in the decision under review was correct with respect to the issues raised by either party on appeal; that any errors in the decision under review raised by either party on appeal were harmless or nonmaterial; and that
(A)The issues on appeal are squarely controlled by existing Board or federal court precedent and do not involve the application of precedent to a novel factual situation; or
(B)The factual and legal issues raised by either party on appeal are not so substantial that the case warrants the issuance of a written opinion in the case.
(iii)A decision by the Board under this paragraph (e)(4), or under paragraphs (e)(5) or (e)(6) of this section, carries the presumption that the Board properly and thoroughly considered all issues, arguments, claims, and record evidence raised or presented by the parties, whether or not specifically mentioned in the decision. In addition, a decision by the Board under this paragraph (e)(4), or under paragraphs (e)(5) or (e)(6), is based on issues and claims of error raised on appeal by the parties and is not to be construed as waiving a party's obligation to exhaust administrative remedies by raising in a meaningful manner all issues and claims of error in the first instance on appeal to the Board. In any decision under paragraphs (e)(5) or (e)(6) of this section, the Board may, on its own motion and in the exercise of discretion, rule on any issue not raised by the parties in its decision.
(6)*Panel decisions* . Cases may be assigned for review by a three-member panel if the case presents one of these circumstances:
(vii)The need to resolve a complex, novel, or unusual issue of law or fact.
(9)The provisions of paragraphs (e)(4)(i), (e)(5), and (e)(6) of this section are intended to reflect an internal agency directive for the purpose of efficient management and disposition of cases pending before the Board, and do not, and shall not be interpreted to, create any substantive or procedural rights enforceable before any immigration judge or the Board, or any court.
(g)*Decisions as precedents* .—(1) *In general* . Except as Board decisions may be modified or overruled by the Board or the Attorney General, decisions of the Board and decisions of the Attorney General shall be binding on all officers and employees of the Department of Homeland Security or immigration judges in the administration of the immigration laws of the United States.
(2)*Precedent decisions* . Selected decisions designated by the Board, decisions of the Attorney General, and decisions of the Secretary of Homeland Security as provided in paragraph
(i)of this section shall serve as precedents in all proceedings involving the same issue or issues.
(3)*Designation of precedents* . By majority vote of the permanent Board members, by majority vote of the permanent Board members assigned to a three-member panel, or as directed by the Attorney General or his designee, selected decisions of the Board issued by a three-member panel or by the Board en banc may be designated to serve as precedents in all proceedings involving the same issue or issues. Under procedures established by the Chairman or the Board en banc, a panel shall provide notice to the Board en banc before publishing a precedent decision, in order to allow the Board to determine whether to consider the case en banc as provided in paragraph (a)(5) of this section. In determining whether to publish a precedent decision, the Board may take into account relevant considerations, in the exercise of discretion, including among other matters:
(i)Whether the case involves a substantial issue of first impression;
(ii)Whether the case involves a legal, factual, procedural, or discretionary issue that can be expected to arise frequently in immigration cases;
(iii)Whether the decision announces a new rule of law, or modifies or clarifies a rule of law or prior precedent;
(iv)Whether the case involves a conflict in decisions by immigration judges, the Board, or the federal courts;
(v)Whether there is a need to achieve, maintain, or restore national uniformity of interpretation of issues under the immigration laws or regulations; and
(vi)Whether the case warrants publication in light of other factors that give it general public interest. Dated: June 5, 2008. Michael B. Mukasey, Attorney General. [FR Doc. E8-13435 Filed 6-17-08; 8:45 am] BILLING CODE 4410-30-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0640; Directorate Identifier 2008-NM-070-AD] RIN 2120-AA64 Airworthiness Directives; Boeing Model 747-400, 747-400D, and 747-400F 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 747-400, 747-400D, and 747-400F series airplanes. This proposed AD would require installing an extension tube to the existing pump discharge port of the scavenge pump on the outboard side of the center fuel tank in the main fuel tank #2. This AD results from fuel system reviews conducted by the manufacturer. We are issuing this AD to prevent a fire or explosion in the fuel tank and consequent loss of the airplane. DATES: We must receive comments on this proposed AD by August 4, 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: Sulmo Mariano, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)917-6501; 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-2008-0640; Directorate Identifier 2008-NM-070-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. As a result of the SFAR 88 design review activity, Boeing has found that certain single failure modes within the electric scavenge pump could cause heating and sparking, which could create a potential ignition source inside the main fuel tank #2. This condition, if not corrected, could result in a fire or explosion in the main fuel tank #2 and consequent loss of the airplane. Relevant Service Information We have reviewed Boeing Special Attention Service Bulletin 747-28-2260, dated March 13, 2008. The service bulletin describes procedures for installing an extension tube to the existing pump discharge port of the scavenge pump on the outboard side of the center fuel tank in the main fuel tank #2. 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 accomplishing the actions specified in the service information described previously. Costs of Compliance We estimate that this proposed AD would affect 31 airplanes of U.S. registry. We also estimate that it would take about 16 work-hours per product to comply with this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $900 per product. Based on these figures, we estimate the cost of this proposed AD to the U.S. operators to be $67,580 fleet cost, or $2,180 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. 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-2008-0640; Directorate Identifier 2008-NM-070-AD. Comments Due Date
(a)We must receive comments by August 4, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to Boeing Model 747-400, 747-400D, and 747-400F series airplanes, certificated in any category; as identified in Boeing Special Attention Service Bulletin 747-28-2260, dated March 13, 2008. Unsafe Condition
(d)This AD results from fuel system reviews conducted by the manufacturer. We are issuing this AD to prevent a fire or explosion in the fuel tank and consequent loss of the airplane. Compliance
(e)Comply with this AD within the compliance times specified, unless already done. Installation
(f)Within 60 months after the effective date of this AD, install an extension tube to the existing pump discharge port of the scavenge pump on the outboard side of the center fuel tank in the main fuel tank #2, in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 747-28-2260, dated March 13, 2008. Alternative Methods of Compliance (AMOCs) (g)(1) The Manager, Seattle Aircraft Certification Office (SACO), FAA, ATTN: Sulmo Mariano, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, SACO, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)917-6501; 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 June 6, 2008. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-13714 Filed 6-17-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG-100464-08] RIN 1545-BH50 Accrual Rules for Defined Benefit Plans AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Notice of proposed rulemaking and notice of public hearing. SUMMARY: This document contains proposed regulations providing guidance on the application of the accrual rule for defined benefit plans under section 411(b)(1)(B) of the Internal Revenue Code
(Code)in cases where plan benefits are determined on the basis of the greatest of two or more separate formulas. These regulations would affect sponsors, administrators, participants, and beneficiaries of defined benefit plans. This document also provides a notice of a public hearing on these proposed regulations. DATES: Written or electronic comments must be received by September 16, 2008. Outlines of topics to be discussed at the public hearing scheduled for October 15, 2008, at 10 a.m. must be received by September 24, 2008. ADDRESSES: Send submissions to: CC:PA:LPD:PR (REG 100464-08), 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 100464-08), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC, or sent electronically via the Federal eRulemaking Portal at *http://www.regulations.gov* (IRS REG-100464-08). The public hearing will be held in the IRS Auditorium, Internal Revenue Building, 1111 Constitution Avenue, NW., Washington, DC. FOR FURTHER INFORMATION CONTACT: Concerning the regulations, Lauson C. Green or Linda S. F. Marshall at
(202)622-6090; concerning submissions of comments, the hearing, and/or being placed on the building access list to attend the hearing, Richard A. Hurst at *Richard.A.Hurst@irscounsel.treas.gov* or at
(202)622-7180 (not toll-free numbers). SUPPLEMENTARY INFORMATION: Background This document contains proposed Income Tax Regulations (26 CFR part 1) under section 411(b) of the Code. 1 1 Section 204(b) of the Employee Retirement Income Security Act of 1974, Public Law 93-406 (88 Stat. 829), as amended (ERISA), sets forth rules that are parallel to those in section 411(b) of the Code. Under section 101 of Reorganization Plan No. 4 of 1978 (43 FR 47713), the Secretary of the Treasury has interpretive jurisdiction over the subject matter addressed in these proposed regulations for purposes of ERISA, as well as the Code. Thus, these proposed Treasury regulations issued under section 411(b)(1)(B) of the Code would apply as well for purposes of section 204(b)(1)(B) of ERISA. Section 401(a)(7) provides that a trust is not a qualified trust under section 401 unless the plan of which such trust is a part satisfies the requirements of section 411 (relating to minimum vesting standards). Section 411(a) requires a qualified plan to provide that an employee's right to the normal retirement benefit is nonforfeitable upon attainment of normal retirement age and that an employee's right to his or her accrued benefit is nonforfeitable upon completion of the specified number of years of service under one of the vesting schedules set forth in section 411(a)(2). Section 411(a)(7)(A)(i) defines a participant's accrued benefit under a defined benefit plan as the employee's accrued benefit determined under the plan, expressed in the form of an annual benefit commencing at normal retirement age, subject to an exception in section 411(c)(3) under which the accrued benefit is the actuarial equivalent of the annual benefit commencing at normal retirement age in the case of a plan that does not express the accrued benefit as an annual benefit commencing at normal retirement age. Section 411(a) also requires that a defined benefit plan satisfy the requirements of section 411(b)(1). Section 411(b)(1) provides that a defined benefit plan must satisfy one of the three accrual rules of section 411(b)(1)(A), (B), and
(C)with respect to benefits accruing under the plan. The three accrual rules are the 3 percent method of section 411(b)(1)(A), the 133 1/3 percent rule of section 411(b)(1)(B), and the fractional rule of section 411(b)(1)(C). Section 411(b)(1)(A) provides that a defined benefit plan satisfies the requirements of the 3 percent method if, under the plan, the accrued benefit payable upon the participant's separation from service is not less than
(A)3 percent of the normal retirement benefit to which the participant would be entitled if the participant commenced participation at the earliest possible entry age under the plan and served continuously until the earlier of age 65 or the normal retirement age under the plan, multiplied by
(B)the number of years (not in excess of 33 1/3 years) of his or her participation in the plan. Section 411(b)(1)(A) provides that, in the case of a plan providing retirement benefits based on compensation during any period, the normal retirement benefit to which a participant would be entitled is determined as if the participant continued to earn annually the average rate of compensation during consecutive years of service, not in excess of 10, for which his or her compensation was highest. Section 411(b)(1)(A) also provides that Social Security benefits and all other relevant factors used to compute benefits are treated as remaining constant as of the current plan year for all years after the current year. Section 411(b)(1)(B) provides that a defined benefit plan satisfies the requirements of the 133 1/3 percent rule for a particular plan year if, under the plan, the accrued benefit payable at the normal retirement age is equal to the normal retirement benefit, and the annual rate at which any individual who is or could be a participant can accrue the retirement benefits payable at normal retirement age under the plan for any later plan year is not more than 133 1/3 percent of the annual rate at which the individual can accrue benefits for any plan year beginning on or after such particular plan year and before such later plan year. For purposes of applying the 133 1/3 percent rule, section 411(b)(1)(B)(i) provides that any amendment to the plan which is in effect for the current year is treated as in effect for all other plan years. Section 411(b)(1)(B)(ii) provides that any change in an accrual rate which does not apply to any individual who is or could be a participant in the current plan year is disregarded. Section 411(b)(1)(B)(iii) provides that the fact that benefits under the plan may be payable to certain participants before normal retirement age is disregarded. Section 411(b)(1)(B)(iv) provides that Social Security benefits and all other relevant factors used to compute benefits are treated as remaining constant as of the current plan year for all years after the current year. Section 411(b)(1)(C) provides that a defined benefit plan satisfies the fractional rule if the accrued benefit to which any participant is entitled upon his or her separation from service is not less than a fraction of the annual benefit commencing at normal retirement age to which the participant would be entitled under the plan as in effect on the date of separation if the participant continued to earn annually until normal retirement age the same rate of compensation upon which the normal retirement benefit would be computed under the plan, determined as if the participant had attained normal retirement age on the date on which any such determination is made (but taking into account no more than 10 years of service immediately preceding separation from service). This fraction, which cannot exceed 1, has a numerator that is the total number of the participant's years of participation in the plan (as of the date of separation from service) and a denominator that is the total number of years the participant would have participated in the plan if the participant separated from service at normal retirement age. Section 411(b)(1)(C) also provides that Social Security benefits and all other relevant factors used to compute benefits are treated as remaining constant as of the current plan year for all years after the current year. Section 1.411(a)-7(a)(1) of the Income Tax Regulations provides that, for purposes of section 411 and the regulations under section 411, the accrued benefit of a participant under a defined benefit plan is either
(A)the accrued benefit determined under the plan if the plan provides for an accrued benefit in the form of an annual benefit commencing at normal retirement age, or
(B)an annual benefit commencing at normal retirement age which is the actuarial equivalent (determined under section 411(c)(3) and § 1.411(c)-1)) of the accrued benefit under the plan if the plan does not provide for an accrued benefit in the form of an annual benefit commencing at normal retirement age. Section 1.411(b)-1(a)(1) provides that a defined benefit plan is not a qualified plan unless the method provided by the plan for determining accrued benefits satisfies at least one of the alternative methods in § 1.411(b)-1(b) for determining accrued benefits with respect to all active participants under the plan. The three alternative methods are the 3 percent method, the 133 1/3 percent rule, and the fractional rule. A defined benefit plan may provide that accrued benefits for participants are determined under more than one plan formula. Section 1.411(b)-1(a)(1) provides that, in such a case, the accrued benefits under all such formulas must be aggregated in order to determine whether or not the accrued benefits under the plan for participants satisfy one of these methods. Under § 1.411(b)-1(a)(1), a plan may satisfy different methods with respect to different classifications of employees, or separately satisfy one method with respect to the accrued benefits for each such classification, provided that such classifications are not so structured as to evade the accrued benefit requirements of section 411(b) and § 1.411(b)-1. Section 1.411(b)-1(b)(2)(i) provides that a defined benefit plan satisfies the 133 1/3 percent rule for a particular plan year if
(A)under the plan the accrued benefit payable at the normal retirement age (determined under the plan) is equal to the normal retirement benefit (determined under the plan), and
(B)the annual rate at which any individual who is or could be a participant can accrue the retirement benefits payable at normal retirement age under the plan for any later plan year cannot be more than 133 1/3 percent of the annual rate at which the participant can accrue benefits for any plan year beginning on or after such particular plan year and before such later plan year. Section 1.411(b)-1(b)(2)(ii)(A) through
(D)sets forth a series of rules that correspond to the rules of section 411(b)(1)(B)(i) through (iv). For example, § 1.411(b)-1(b)(2)(ii)(A) sets forth a special plan amendment rule for purposes of satisfying the 133 1/3 percent rule that corresponds to section 411(b)(1)(B)(i). Under that rule, any amendment to a plan that is in effect for the current year is treated as if it were in effect for all other plan years. Section 1.411(b)-1(b)(2)(ii)(E) provides that a plan is not treated as failing to satisfy the requirements of § 1.411(b)-1(b)(2) for a plan year merely because no benefits under the plan accrue to a participant who continues service with the employer after the participant has attained normal retirement age. 2 Section 1.411(b)-1(b)(2)(ii)(F) provides that a plan does not satisfy the requirements of § 1.411(b)-1(b)(2) if the base for the computation of retirement benefits changes solely by reason of an increase in the number of years of participation. 2 However, section 411(b)(1)(H), which was added to the Code after the issuance of § 1.411(b)-1, generally requires the continued accrual of benefits after attainment of normal retirement age. Rev. Rul. 2008-7 (2008-7 IRB 419), see § 601.601(d)(2)(ii)( *b* ), describes the application of the accrual rules of section 411(b)(1)(A) through
(C)and the regulations under section 411(b)(1)(A) through
(C)to a defined benefit plan that was amended to change the plan's benefit formula from a traditional formula based on highest average compensation to a new lump sum-based benefit formula. Under the terms of the plan described in the revenue ruling, for an employee who was employed on the day before the change, a hypothetical account was established equal to the actuarial present value of the employee's accrued benefit as of that date, and that account was also to be credited with subsequent pay credits and interest credits. Under transition rules set forth in the plan, the accrued benefit of certain participants is the greater of the accrued benefit provided by the hypothetical account balance at the age 65 normal retirement age and the accrued benefit determined under the traditional formula as in effect on the day before the change, but taking into account post-amendment compensation and service for a limited number of years. Revenue Ruling 2008-7 describes how the accrued benefits of different participant groups satisfy, or fail to satisfy, the accrual rules under section 411(b)(1)(A) through (C), taking into account the requirement in § 1.411(b)-1(a)(1) that a plan that determines a participant's accrued benefits under more than one formula must aggregate the accrued benefits under all of those formulas in order to determine whether or not the accrued benefits under the plan satisfy one of the alternative methods under section 411(b)(1)(A) through (C). However, Revenue Ruling 2008-7 explains that, in the case of a plan amendment that replaces the benefit formula under the plan for all periods after the amendment, pursuant to section 411(b)(1)(B)(i) and § 1.411(b)-1(b)(2)(ii)(A), the rule that would otherwise require aggregation of the multiple formulas does not apply. Under section 411(b)(1)(B)(i) and § 1.411(b)-1(b)(2)(ii)(A), any amendment to the plan which is in effect for the current plan year is treated as if it were in effect for all other plan years (including past and future plan years). Revenue Ruling 2008-7 illustrates the application of this rule with respect to participants who only accrue benefits under the new formula (who in the ruling are referred to as participants who are not “grandfathered”). For these participants, the plan amendment completely ceases accruals under a traditional pension benefit formula that provides an annuity at normal retirement age based on service and average pay and, for all periods after the amendment, provides for the greater of the section 411(d)(6) protected benefit under the pre-amendment formula and the benefit under a new post-amendment lump sum-based benefit formula. In such a case, as stated in Revenue Ruling 2008-7, the section 411(d)(6) protected benefit under the pre-amendment formula is not aggregated with the post-amendment formula, but rather is entirely disregarded, for purposes of applying the 133 1/3 percent rule because the new formula is treated under section 411(b)(1)(B)(i) and § 1.411(b)-1(b)(2)(ii)(A) as having been in effect for all plan years. This analysis was reflected in *Register* v. *PNC Fin. Servs. Group, Inc.,* 477 F.3d 56 (3d Cir. 2007). In addition to satisfying the requirements of section 411(b)(1)(B), a defined benefit plan must also satisfy the age discrimination rules of section 411(b)(1)(H), taking into account section 411(b)(5), as added to the Code by the Pension Protection Act of 2006, Pub. L. 109-280 (120 Stat. 780) (PPA '06). In the case of a conversion of a plan to a statutory hybrid plan pursuant to an amendment that is adopted after June 29, 2005 (a “post-PPA conversion plan”), the conversion amendment must satisfy the rule of section 411(b)(5)(B)(iii) that prohibits wearaway of benefits upon conversion. In the case of a plan converted to a statutory hybrid plan pursuant to an amendment that is adopted on or before June 29, 2005 (a “pre-PPA conversion plan”), as provided in Notice 2007-6, the IRS will not consider and will not issue determination letters with respect to whether such a pre-PPA conversion plan satisfies the requirements of section 411(b)(1)(H) (as in effect prior to the addition of section 411(b)(5) by PPA '06), including the effect of any wearaway. Thus, although wearaway upon conversion is expressly prohibited with respect to post-PPA conversion plans pursuant to section 411(b)(5), the IRS will not address and will not issue determination letters with respect to whether a conversion that results in wearaway with respect to a pre-PPA conversion plan violates the age discrimination rules of section 411(b)(1)(H). See § 601.601(d)(2)(ii)( *b* ). Revenue Ruling 2008-7 provides a different analysis as to whether a plan with wearaway fails to satisfy the accrual rules of section 411(b)(1)(B) when the pre-amendment formula continues in place after the amendment for a group of participants. In such a case, where an amendment has gone into effect but continues the prior formula for some period of time with respect to one or more participants, the application of the rule in section 411(b)(1)(B)(i) and § 1.411(b)-1(b)(2)(ii)(A) does not result in a disregard of the prior plan formula (which remains in effect after the amendment). Instead, the 133 1/3 percent rule must be applied with respect to those participants based on the combined effect of the two ongoing formulas. 3 3 Two federal courts have taken a position contrary to this interpretation of section 411(b)(1)(B)(i) and § 1.411(b)-1(b)(2)(ii)(A) as set forth in Revenue Ruling 2008-7. See *Tomlinson* v. *El Paso Corp.,* 2008 WL 762456 (D. Colo. Mar. 19, 2008); *Wheeler* v. *Pension Value Plan for Employees of Boeing Corp.,* 2007 WL 2608875 (S.D. Ill. Sept. 6, 2007). Revenue Ruling 2008-7 provides relief from disqualification under the Internal Revenue Code (under the authority of section 7805(b)) for a limited class of plans under which a group of employees specified under the plan receives a benefit equal to the greatest of the benefits provided under two or more formulas (an applicable “greater-of” benefit), provided that each such formula standing alone would satisfy an accrual rule of section 411(b)(1)(A), (B), or
(C)for the years involved. Under the relief set forth in Rev. Rul. 2008-7, for plan years beginning before January 1, 2009, the IRS will not treat a plan eligible for the relief as failing to satisfy the accrual rules of section 411(b)(1)(A), (B), and
(C)solely because the plan provides an applicable “greater-of” benefit, where the separate formulas, standing alone, would satisfy an accrual rule of section 411(b)(1)(A), (B), and (C). Explanation of Provisions The fact pattern described in Revenue Ruling 2008-7 has occurred in a number of situations over the past few years. Employers sponsoring these plans have suggested that their plans should satisfy the accrual rules of section 411(b)(1)(A), (B), and (C), contending that any technical violation of the accrual rules is directly because the participant has higher frontloaded accruals under one formula when compared to the other formula that will ultimately provide the larger benefit under the plan. While the relief under section 7805(b) that is provided under Revenue Ruling 2008-7 addresses the situation for past years, the relief does not apply for the parallel accrual rules of section 204(b)(1)(A),
(B)and
(C)of ERISA and only applies to plan years beginning before January 1, 2009. The proposed regulations would provide a limited exception to the existing requirement under § 1.411(b)-1(a)(1) to aggregate the accrued benefits under all formulas in order to determine whether or not the accrued benefits under the plan for participants satisfy one of the alternative methods under section 411(b)(1)(A) through (C). Under this limited exception, certain plans that determine a participant's benefits as the greatest of the benefits determined under two or more separate formulas would be permitted to demonstrate satisfaction of the 133 1/3 percent rule of section 411(b)(1)(B) by demonstrating that each separate formula satisfies the 133 1/3 percent rule of section 411(b)(1)(B). 4 4 These proposed regulations would only apply for purposes of the 133 1/3 percent rule of section 411(b)(1)(B) (and the parallel rule of section 204(b)(1)(B) of ERISA). Neither Rev. Rul. 2008-7 nor these proposed regulations are relevant to (and thus they do not affect) the application of the age discrimination rules of section 411(b)(1)(H) (or the parallel age discrimination rules of section 204(b)(1)(H) of ERISA). A plan would be eligible for this exception only if each of the separate formulas uses a different basis for determining benefits. For example, a plan would be eligible for this special rule if it provides a benefit equal to the greater of the benefits under two formulas, one of which determines benefits on the basis of highest average compensation and the other of which determines benefits on the basis of career average compensation. As another example, a traditional defined benefit plan which determined benefits based on highest average compensation that is amended to add a cash balance formula (as in the facts of Rev. Rul. 2008-7) would be eligible for this exception where, in order to provide a better transition for longer service active participants, the plan provides that a group of participants is entitled to the greater of the benefit provided by the hypothetical account balance and the benefit determined under the continuing traditional formula. In each of the above two examples, each separate formula under the plan uses a different basis for determining benefits and, therefore, both of those plans would be eligible to utilize this exception. Accordingly, both plans would be permitted to demonstrate satisfaction of the 133 1/3 percent rule of section 411(b)(1)(B) by demonstrating that each separate formula under the plan satisfies the 133 1/3 percent rule of section 411(b)(1)(B). The utility of this exception can be seen from the following example of a plan that provides a benefit equal to the greater of two formulas. One formula provides a benefit of 1 percent of average compensation for the 3 consecutive years of service with the highest such average multiplied by the number of years of service at normal retirement age (not in excess of 25 years of service), and the other formula provides a benefit that is the accumulation of 1.5 percent of compensation for each year of service. Under the existing final regulations, the 133 1/3 percent rule of section 411(b)(1)(B) is applied by reference to the annual rate of accrual for each year from the year of the test through normal retirement age. If the participant's accrued benefit currently is determined using the 1 percent formula (because the high-3 average compensation is significantly higher than the effective career average compensation that is used under the 1.5 percent formula), but the participant's normal retirement benefit will ultimately be determined using the 1.5 percent formula if service continues to normal retirement age (because the 25-year service cap will apply to the 1 percent formula, but not the 1.5 percent formula), then the annual rate of accrual will have to be determined for testing purposes on a consistent basis for each year, either using each year's compensation or high-3 average compensation. Thus, in order to test the plan under the 133 1/3 percent rule, the existing final regulations would require that either the accruals under the 1 percent formula be expressed in terms of a single year's pay or the accruals under the 1.5 percent formula be expressed in terms of high-3 average compensation. In either case, the annual rates of accrual would differ from the stated rates under the plan formulas. In addition, the annual rates of accrual for the accumulation formula when those rates are expressed in terms of high-3 average compensation could be negative in some cases. In contrast, using the exception set forth in the proposed regulation would enable the plan to be tested using the annual rates of accrual expressed in the plan formulas. The proposed regulations would also provide an extension of this exception in the case of a plan that provides benefits based on the greatest of three or more benefit formulas. In such a case, the plan would be eligible for a modified version of the formula-by-formula testing under the proposed regulations. Under this modification, the accrued benefits determined under all benefit formulas that have the same basis are first aggregated and then those aggregated formulas are treated as a single formula for purposes of applying the separate testing rule under the proposed regulations. Eligibility for separate testing under the proposed regulations would be constrained by an anti-abuse rule. The proposed regulations would provide that a plan is not eligible for separate testing if the Commissioner determines that the plan's use of separate formulas with different bases is structured to evade the general requirement to aggregate formulas under § 1.411(b)-1(a)(1) (for example, if the differences between the bases of the separate formulas are minor). Proposed Effective/Applicability Date These regulations are proposed to be effective for plan years beginning on or after January 1, 2009. 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 the 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 Chief Counsel for Advocacy of the Small Business Administration for comment on its 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 specifically 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. Under these proposed regulations, a plan eligible for the separate testing option would not violate the accrual rules merely because the plan provides higher frontloaded accruals under one formula when compared to the other formula that will ultimately provide the larger benefit under the plan. Some commentators have suggested a broader rule that would modify the regulations to provide that a plan does not violate the accrual rules where the plan provides a pattern of accruals that affords higher benefits in earlier years (that is, benefit accruals are frontloaded) relative to a pattern of accruals that satisfies the accrual rules. The 3 percent method of section 411(b)(1)(A) and the fractional rule of section 411(b)(1)(C) automatically achieve this result because they are cumulative tests that test on the basis of the total accrued benefit compared to the projected normal retirement benefit. By contrast, the 133 1/3 percent rule is based on a comparison of the “annual rate at which any individual who is or could be a participant can accrue the retirement benefits payable at normal retirement age” for a later plan year with the annual rate for an earlier plan year. The existing final regulations include an example (§ 1.411(b)-1(b)(2)(iii), *Example (3)* ) that demonstrates how a plan fails the 133 1/3 percent rule where it provides accruals in earlier years that are frontloaded relative to accruals that apply in later years. The proposed regulations do not include a provision under the 133 1/3 percent rule that recognizes prior frontloading of benefits. However, commentators who would suggest such a provision under the 133 1/3 percent rule should describe how that provision would fit within the statutory language of section 411(b)(1)(B), including the application of section 411(b)(1)(B)(i) (which requires that an amendment to the plan that is in effect for the current year be treated as in effect for all other plan years). A public hearing has been scheduled for October 15, 2008, beginning at 10 a.m. in the Auditorium, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. 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 written or electronic comments by September 16, 2008, and an outline of topics to be discussed and the amount of time to be devoted to each topic (a signed original and eight
(8)copies) by September 24, 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 authors of these regulations are Lauson C. Green and Linda S. F. Marshall, Office of Division Counsel/Associate Chief Counsel (Tax Exempt and Government Entities). However, other personnel from the IRS and the Treasury Department participated in the development of these regulations. 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 1.411(b)-1 is amended by adding new paragraph (b)(2)(ii)(G) to read as follows: § 1.411(b)-1 Accrued benefit requirements.
(b)* * *
(2)* * *
(ii)* * *
(G)*Special rule for multiple formulas—(1) In general.* Notwithstanding paragraph (a)(1) of this section, a plan that determines a participant's accrued benefit as the greatest of the benefits determined under two or more separate formulas is permitted, to the extent provided under this paragraph (b)(2)(ii)(G), to demonstrate satisfaction of section 411(b)(1)(B) and this paragraph
(b)by demonstrating that each separate formula satisfies the requirements of section 411(b)(1)(B) and this paragraph (b). ( *2* ) *Separate bases requirement.* A plan is eligible for separate testing under this paragraph (b)(2)(ii)(G) if each of the separate formulas uses a different basis for determining benefits. For example, a plan is eligible for this special rule if it provides an accrued benefit equal to the greater of the benefits under two formulas, one of which determines accrued benefits on the basis of highest average compensation and the other of which determines accrued benefits on the basis of career average compensation. As another example, a defined benefit plan that bases benefits on highest average compensation and that is amended to add a statutory hybrid benefit formula (as defined in § 1.411(a)(13)-1(d)(3)) that provides for pay credits to be made based on each year's compensation is eligible for this separate testing exception if the plan provides that one or more participants are entitled to the greater of the benefit determined under the statutory hybrid benefit formula and the benefit determined under the original formula. ( *3* ) *Plans with three or more formulas.* If a plan determines a participant's benefits as the greatest of the benefits determined under three or more separate formulas, but two or more of the formulas use the same basis for determining benefits, then the plan may nonetheless apply paragraphs (b)(2)(ii)(G)( *1* ) and ( *2* ) of this section by aggregating all benefit formulas that have the same basis and treating those aggregated formulas as a single formula for purposes of paragraphs (b)(2)(ii)(G)( *1* ) and ( *2* ) of this section. ( *4* ) *Anti-abuse rule.* A plan is not eligible for separate testing under this paragraph (b)(2)(ii)(G) if the Commissioner determines that the plan's use of separate formulas with different bases is structured to evade the requirement to aggregate formulas under paragraph (a)(1) of this section (for example, if the differences between the bases of the separate formulas are minor).
(5)*Effective/applicability date.* This paragraph (b)(2)(ii)(G) is applicable for plan years beginning on or after January 1, 2009. Steven T. Miller, Acting Deputy Commissioner for Services and Enforcement. [FR Doc. E8-13788 Filed 6-17-08; 8:45 am] BILLING CODE 4830-01-P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG-101258-08] RIN 1545-BH66 Guidance Under Sections 642 and 643 (Income Ordering Rules) AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Notice of proposed rulemaking and notice of public hearing. SUMMARY: This document contains proposed amendments providing guidance under Internal Revenue Code
(Code)section 642(c) with regard to the Federal tax consequences of an ordering provision in a trust, a will, or a provision of local law that attempts to determine the tax character of the amounts paid to a charitable beneficiary of the trust or estate. The proposed regulations also make conforming amendments to the regulations under section 643(a)(5). The proposed regulations affect estates, charitable lead trusts
(CLTs)and other trusts making payments or permanently setting aside amounts for a charitable purpose. This document also provides notice of a public hearing on these proposed regulations. DATES: Written or electronic comments must be received by September 16, 2008. Outlines of topics to be discussed at the public hearing scheduled for October 8, 2008, at 10 a.m., must be received by September 18, 2008. ADDRESSES: Send submissions to: CC:PA:LPD:PR (REG-101258-08), 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-101258-08), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC; or sent electronically via the Federal eRulemaking Portal at *http://www.regulations.gov* (IRS REG-101258-08). The public hearing will be held in the IRS Auditorium, Internal Revenue Building, 1111 Constitution Avenue, NW., Washington, DC. FOR FURTHER INFORMATION CONTACT: Concerning the proposed regulations, Vishal Amin, at
(202)622-3060; concerning submissions of comments, the hearing, and/or to be placed on the building access list to attend the hearing, Richard Hurst, at
(202)622-2949 (TDD telephone) (not toll-free numbers) or e-mail at *Richard.A.Hurst@irscounsel.treas.gov.* SUPPLEMENTARY INFORMATION: Background This document contains proposed amendments to 26 CFR part 1 under section 642 of the Code. Section 642 was added to the Code under the Internal Revenue Code of 1954 (68A Stat. 215). Section 642(c) of the Code provides that an estate or trust (other than a trust meeting the specifications of subpart B) shall be allowed a deduction in computing its taxable income any amount of the gross income, without limitation, which pursuant to the terms of the governing instrument is, during the taxable year, paid for a purpose specified in section 170(c) (determined without regard to section 170(c)(2)(A)). The regulations under § 1.642(c)-3 provide guidance concerning adjustments and other special rules for computing the charitable contributions deduction. The regulations under § 1.643(a)-5 provide guidance concerning rules for computing the amount of tax-exempt income included in distributable net income. These proposed regulations clarify the existing regulations under §§ 1.642(c)-3(b) and 1.643(a)-5(b). Section 1.642(c)-3(b)(2) provides that, in determining whether an amount of income paid to a charitable beneficiary includes particular items of income not included in gross income (for example, tax exempt income), provisions in the governing instrument will control if they specifically provide as to the source out of which amounts are to be paid to the charitable beneficiary. In the absence of specific provisions in the governing instrument or in local law, the amount of income distributed to each charitable beneficiary is deemed to consist of the same proportion of each class of the items of income of the estate or trust as the total of each class bears to the total of all classes. Section 1.643(a)-5(b) provides rules for reducing the amount of tax-exempt interest includable in distributable net income when tax-exempt interest is deemed to be included in income paid, permanently set aside, or to be used for the purposes specified in section 642(c). As similarly provided in § 1.642(c)-3(b), § 1.643(a)-5(b) provides “[i]f the governing instrument specifically provides as to the source out of which amounts are paid, permanently set aside, or to be used for such charitable purposes, the specific provisions control. In the absence of specific provisions in the governing instrument, an amount to which section 642(c) applies is deemed to consist of the same proportion of each class of the items of income of the estate or trust as the total of each class bears to the total of all classes.” The IRS and the Treasury Department believe that the current regulations under §§ 1.642(c)-3(b) and 1.643(a)-5(b) require that such a specific provision in a governing instrument or in local law that identifies the source(s) of the amounts to be paid, permanently set aside or used for a purpose specified in section 642(c) must have economic effect independent of income tax consequences in order for the specific provision in the governing instrument or in local law to be respected for Federal tax purposes. This belief is based on the structure and provisions of Subchapter J as a whole, as well as on an analysis of the existing regulations with their interrelated cross-references. Section 1.642(c)-3(b) and § 1.643(a)-5(b) refer to examples in §§ 1.662(b)-2 and 1.662(c)-4 to illustrate the rules of §§ 1.642(c)-3(b) and 1.643(a)-5(b). Section 1.662(b)-2 provides that, in determining the character of amounts distributed to a beneficiary when a charitable contribution is made, “* * * the principles contained in §§ 1.652(b)-1 and 1.662(b)-1 generally apply.” Section 1.652(b)-1 provides that “[i]n determining the gross income of a beneficiary, the amounts includible under § 1.652(a)-1 have the same character in the hands of the beneficiary as in the hands of the trust.” Section 1.652(b)-2(a) elaborates on the general principle in § 1.652(b)-1 by providing that the amount distributed to a beneficiary and includible in gross income under § 1.652(a)-1 generally consists of the same proportion of each class of items included in the trust's distributable net income
(DNI)as the total of each such class bears to the total DNI. These principles are repeated in § 1.662(b)-1. In addition, § 1.652(b)-2(b) defines the exception to this rule by providing that “[t]he terms of the trust are considered specifically to allocate different classes of income to different beneficiaries only to the extent that the allocation is required in the trust instrument, and only to the extent that it has economic effect independent of the income tax consequences of the allocation.” Section 1.681(a)-2(b)(2) provides guidance on the method of allocating gross income to unrelated business income that is not deductible under section 642(c). This regulation provides that “[u]nless the facts clearly indicate to the contrary * * *” the payment to charity consists of the same ratio of unrelated business income as the ratio of unrelated business income to all of the trust's taxable income. Examples given in this regulation confirm that a specific allocation of income items will be recognized when such specific allocation has economic effect independent of its tax consequences, such as when the amount of the charitable distribution will be dependent upon the amount of the class of income. Explanation of Provisions The IRS and the Treasury Department believe that the chain of references discussed above requires that a specific provision of the governing instrument or a provision under local law has economic effect independent of income tax consequences in order to be respected for Federal income tax purposes, and that this principle applies throughout Subchapter J. To make this concept clearer and easier to understand, the proposed regulations amend the regulations under section 642(c) to add the principle of economic effect directly into the language of the regulation itself, rather than being incorporated by reference to other regulation provisions. Thus, the proposed regulation will amend the regulations under section 642(c) to confirm that a provision in a governing instrument or in local law that specifically provides as to the source out of which amounts are to be paid, permanently set aside or used for a purpose specified in section 642(c) must have economic effect independent of income tax consequences in order to be respected for Federal tax purposes. If such provision does not have economic effect independent of income tax consequences, income distributed for a purpose specified in section 642(c) will consist of the same proportion of each class of the items of income as the total of each class bears to the total of all classes. See § 1.642(c)-3(b)(2). As an example, CLTs pay an annuity or unitrust amount to a charity for a determinable period, measured by a term of years or by reference to the life of one or more individuals. See section 170(f)(2)(B). At the end of the term, the remainder passes to one or more non-charitable beneficiaries. CLTs may earn various types of income (such as ordinary income, capital gains, unrelated business tax income and tax-exempt income) in any given taxable year. Some trust instruments attempt to source the payments to charity so as to maximize the tax benefits to the trust and beneficiaries. For example, the governing documents might include a provision directing that the charity's annuity or unitrust payment be made first out of ordinary income and capital gains in order to minimize the trust's tax liability. Thus, the trust attempts to retain the unrelated business taxable income and tax-exempt income (for which no section 642(c) deduction may be claimed or for which the deduction is limited by section 681). Such a provision in the governing instrument does not have economic effect independent of the income tax consequences, because the amount paid to the charitable beneficiary is not dependent upon the type of income it is allocated. Rather, such amount is the same regardless of the source of the income. An annuity payment is a fixed amount from year to year, and a unitrust amount is based upon a predetermined percentage of the trust's value. Thus, the amount of each type of income the trust earns is irrelevant to the amount the charity is entitled to receive. Accordingly, a provision under local law or in the governing instrument of a CLT that provides that the payment to charity (eligible for a deduction under section 642(c)) is deemed to consist of particular classes of income, determined on a non-pro rata basis, will not be respected because such a provision does not have economic effect independent of income tax consequences. Instead, such a payment to a charity will consist of the same proportion of each class of the items of income of the trust as the total of each class bears to the total of all classes. See § 1.642(c)-3(b)(2). This proposed amendment to the regulation serves only to confirm the economic effect requirement of the current regulations. The proposed regulations also similarly clarify the corresponding language in § 1.643(a)-5(b). Finally, the proposed regulations remove § 1.642(c)-3(b)(4) because the provisions of section 116 were repealed by the Tax Reform Act of 1986 (Pub. L. 99-514). Proposed Effective/Applicability Date The regulations, as proposed, apply to trusts and estates for taxable years beginning after the date final regulations are published in the **Federal Register** . 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 has also 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. Therefore, a Regulatory Flexibility Analysis is not required. Pursuant to section 7805(f) of the Code, this notice of proposed rulemaking will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its 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 also request comments on the clarity of the proposed rules and how they can be made easier to understand. All comments will be available for public inspection and copying. A public hearing has been scheduled for October 8, 2008, at 10 a.m. in the auditorium of the Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. 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 electronic or written comments by September 16, 2008, and 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 16, 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 Vishal R. Amin, Office of the Chief Counsel (Passthroughs and Special Industries). 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 1.642(c)-3 is amended by: 1. Revising the paragraph heading of paragraph
(b)and add a heading to paragraph (b)(1). 2. Revising paragraph (b)(2). 3. Adding a heading to paragraph (b)(3). 4. Removing paragraph (b)(4). The revisions and additions read as follows: § 1.642(c)-3 Adjustments and other special rules for determining unlimited charitable contributions deduction.
(b)*Determination of amounts deductible under section 642(c) and the character of such amounts* —(1) *Reduction of charitable contributions deduction by amounts not included in gross income.* * * *
(2)*Determination of the character of an amount deductible under section 642(c).* In determining whether the amounts of income so paid, permanently set aside, or used for a purpose specified in section 642(c)(1), (2), or
(3)include particular items of income of an estate or trust, whether or not included in gross income, a provision in the governing instrument or in local law that specifically provides the source out of which amounts are to be paid, permanently set aside, or used for such a purpose controls for Federal tax purposes to the extent such provision has economic effect independent of income tax consequences. See § 1.652(b)-2(b). In the absence of such specific provisions in the governing instrument or in local law, the amount to which section 642(c) applies is deemed to consist of the same proportion of each class of the items of income of the estate or trust as the total of each class bears to the total of all classes. See § 1.643(a)-5(b) for the method of determining the allocable portion of exempt income and foreign income. This paragraph (b)(2) is illustrated by the following example: Example. A charitable lead annuity trust has the calendar year as its taxable year, and is to pay an annuity of $10,000 annually to an organization described in section 170(c). A provision in the trust governing instrument provides that the $10,000 annuity should be deemed to come first from ordinary income, second from short-term capital gain, third from fifty percent of the unrelated business taxable income, fourth from long-term capital gain, fifth from the balance of unrelated business taxable income, sixth from tax-exempt income, and seventh from principal. This provision in the governing instrument does not have economic effect independent of tax consequences because the amount to be paid to charity is not dependent upon the type of income from which it is to be paid. Accordingly, the amount to which section 642(c) applies is deemed to consist of the same proportion of each class of the items of income of the trust as the total of each class bears to the total of all classes.
(3)*Other examples.* * * * **Par. 3.** Section 1.643(a)-5 is amended by revising the text of paragraph
(b)to read as follows: § 1.643(a)-5 Tax-exempt interest.
(b)If the estate or trust is allowed a charitable contributions deduction under section 642(c), the amounts specified in paragraph
(a)of this section and § 1.643(a)-6 are reduced by the portion deemed to be included in income paid, permanently set aside, or to be used for the purposes specified in section 642(c). If the governing instrument or local law specifically provides as to the source out of which amounts are paid, permanently set aside, or to be used for such charitable purposes, the specific provision controls for Federal tax purposes to the extent such provision has economic effect independent of income tax consequences. See § 1.652(b)-2(b). In the absence of specific provisions in the governing instrument, an amount to which section 642(c) applies is deemed to consist of the same proportion of each class of the items of income of the estate or trust as the total of each class bears to the total of all classes. For illustrations showing the determination of the character of an amount deductible under section 642(c), see *Examples 1* and *2* of § 1.662(b)-2 and § 1.662(c)-4(e). Linda E. Stiff, Deputy Commissioner for Services and Enforcement. [FR Doc. E8-13611 Filed 6-17-08; 8:45 am] BILLING CODE 4830-01-P DEPARTMENT OF COMMERCE Patent and Trademark Office 37 CFR Part 1 [Docket No.: PTO-P-2008-0023] RIN 0651-AC28 Fiscal Year 2009 Changes to Patent Cooperation Treaty Transmittal and Search Fees AGENCY: United States Patent and Trademark Office, Commerce. ACTION: Notice of proposed rulemaking. SUMMARY: The United States Patent and Trademark Office (Office) is proposing to revise the rules of practice to adjust the transmittal and search fees for international applications filed under the Patent Cooperation Treaty (PCT). The Office is proposing to adjust the PCT transmittal and search fees to recover the estimated average cost to the Office of processing PCT international applications and preparing international search reports and written opinions for PCT international applications. DATES: Written comments must be received on or before August 18, 2008. No public hearing will be held. ADDRESSES: Comments should be sent by electronic mail message over the Internet addressed to *AC28.comments@uspto.gov.* Comments may also be submitted by mail addressed to: Mail Stop Comments—Patents, Commissioner for Patents, P.O. Box 1450, Alexandria, VA 22313-1450, or by facsimile to
(571)273-0459, marked to the attention of Boris Milef, Office of the Deputy Commissioner for Patent Examination Policy. Although comments may be submitted by mail or facsimile, the Office prefers to receive comments via the Internet. Comments may also be sent by electronic mail message over the Internet via the Federal eRulemaking Portal. See the Federal eRulemaking Portal Web site ( *http://www.regulations.gov* ) for additional instructions on providing comments via the Federal eRulemaking Portal. The comments will be available for public inspection at the Office of the Commissioner for Patents, located in Madison East, Tenth Floor, 600 Dulany Street, Alexandria, Virginia, and will be available through anonymous file transfer protocol
(ftp)via the Internet ( *http://www.uspto.gov* ). Because comments will be made available for public inspection, information that the submitter does not desire to make public, such as an address or phone number, should not be included in the comments. FOR FURTHER INFORMATION CONTACT: Boris Milef, Legal Examiner, Office of PCT Legal Administration, Office of the Deputy Commissioner for Patent Examination Policy, by telephone at
(571)272-3288; or by mail addressed to: Box Comments Patents, Commissioner for Patents, P.O. Box 1450, Alexandria, VA 22313-1450. SUPPLEMENTARY INFORMATION: The PCT enables United States applicants to file one application (an international or PCT application) in a standardized format in English in a Receiving Office (either the United States Patent and Trademark Office or the International Bureau of the World Intellectual Property Organization (WIPO)) and have that application acknowledged as a regular national or regional filing by PCT member countries. *See* Manual of Patent Examining Procedure
(MPEP)§ 1801 (8th ed. 2001) (Rev. 6, Sept. 2007). The primary benefit of the PCT system is the ability to delay the expense of submitting papers and fees to the PCT national offices. *See* MPEP 1893. The Office acts as a Receiving Office
(RO)for United States residents and nationals. *See* 35 U.S.C. 361(a), 37 CFR 1.412(a), and MPEP 1801. An RO functions as the filing and formalities review organization for international applications. *See* MPEP 1801. The Office, in its capacity as a PCT Receiving Office, received over 50,000 international applications in each of fiscal years 2006 and 2007. The Office also acts as an International Searching Authority (ISA). *See* 35 U.S.C. 362(a), 37 CFR 1.413(a), and MPEP 1840. The primary functions of an ISA are to establish:
(1)International search reports, and
(2)written opinions of the ISA. *See* MPEP 1840. The transmittal and search fees for an international application are provided for in 35 U.S.C. 376. *See* 35 U.S.C. 376 (the Office “may also charge” a “transmittal fee,” “search fee,” “supplemental search fee,” and “any additional fees” (35 U.S.C. 376(a)), and the “amounts of [these] fees * * * shall be prescribed by the Director” (35 U.S.C. 376(b)). In addition, 35 U.S.C. 41(d) provides that fee amounts set by the Office “recover the estimated average cost to the Office of such processing, services, or materials.” *See* 35 U.S.C. 41(d). The Office has no basis for maintaining the PCT transmittal, search, and supplemental search fees at amounts less than that necessary to recover the estimated average cost to the Office of performing these functions for PCT international applications. Therefore, the Office is proposing to adjust the PCT transmittal fee and search fees to recover the estimated average cost to the Office of processing PCT international applications and preparing international search reports and written opinions for PCT international applications. The Office's cost analysis for these activities reveals that the average cost of the initial processing of PCT international applications is slightly over $415.00 and the average cost of search and preparation of ISA search reports or written opinions for international applications and for a supplemental search is slightly over $2,225.00 for each invention. Discussion of Specific Rules Title 37 of the Code of Federal Regulations, part 1, is proposed to be amended as follows: *Section 1.445:* Section 1.445(a)(1) is proposed to be amended to change the transmittal fee from $300.00 to $415.00. Section 1.445(a)(2) is proposed to be amended to change the search fee from $1,800.00 to $2,225.00. Section 1.445(a)(3) is proposed to be amended to change the supplemental search fee from $1,800.00 to $2,225.00. Rule Making Considerations A. Initial Regulatory Flexibility Analysis 1. *Description of the reasons that action by the agency is being considered:* The Office is proposing to revise the rules of practice to adjust the transmittal and search fees for international applications filed under the PCT. The Office is proposing to adjust the PCT transmittal and search fees to recover the estimated average cost to the Office of processing PCT international applications and preparing international search reports and written opinions for PCT international applications. 2. *Succinct statement of the objectives of, and legal basis for, the proposed rules:* The Office is proposing to adjust the PCT transmittal and search fees to recover the estimated average cost to the Office of processing PCT international applications and preparing international search reports and written opinions for PCT international applications. The changes proposed in this notice are authorized by 35 U.S.C. 41(d) and 376. 3. *Description and estimate of the number of affected small entities:* The Small Business Administration
(SBA)small business size standards applicable to most analyses conducted to comply with the Regulatory Flexibility Act are set forth in 13 CFR 121.201. These regulations generally define small businesses as those with fewer than a maximum number of employees or less than a specified level of annual receipts for the entity's industrial sector or North American Industry Classification System code. The Office, however, has formally adopted an alternate size standard as the size standard for the purpose of conducting an analysis or making a certification under the Regulatory Flexibility Act for patent-related regulations. *See Business Size Standard for Purposes of United States Patent and Trademark Office Regulatory Flexibility Analysis for Patent-Related Regulations* , 71 FR 67109 (Nov. 20, 2006), 1313 *Off. Gaz. Pat. Office* 60 (Dec. 12, 2006). This alternate small business size standard is the previously established size standard that identifies the criteria entities must meet to be entitled to pay reduced patent fees. *See* 13 CFR 121.802. If patent applicants identify themselves on the patent application as qualifying for reduced patent fees, the Office captures this data in the Patent Application Location and Monitoring
(PALM)database system, which tracks information on each patent application submitted to the Office. Unlike the SBA small business size standards set forth in 13 CFR 121.201, this size standard is not industry-specific. Specifically, the Office's definition of small business concern for Regulatory Flexibility Act purposes is a business or other concern that:
(1)Meets the SBA's definition of a “business concern or concern” set forth in 13 CFR 121.105; and
(2)meets the size standards set forth in 13 CFR 121.802 for the purpose of paying reduced patent fees, namely an entity:
(a)Whose number of employees, including affiliates, does not exceed 500 persons; and
(b)which has not assigned, granted, conveyed, or licensed (and is under no obligation to do so) any rights in the invention to any person who made it and could not be classified as an independent inventor, or to any concern which would not qualify as a non-profit organization or a small business concern under this definition. *See Business Size Standard for Purposes of United States Patent and Trademark Office Regulatory Flexibility Analysis for Patent-Related Regulations* , 71 FR at 67112, 1313 *Off. Gaz. Pat. Office* at 63. The changes in this proposed rule will apply to any small entity who files a PCT international application in the United States Receiving Office and who requests a search by the United States International Searching Authority. The Office received between 52,000 and 53,000 PCT international applications in each of fiscal years 2006 and 2007. There is no provision in 35 U.S.C. 376 (or elsewhere) for a small entity reduction for the transmittal or search fees for an international application. Thus, PCT applicants do not indicate and the Office does not record whether a PCT application is by a small entity or a non-small entity. The Office's PALM and Revenue Accounting and Management
(RAM)systems indicate that 12,043 of the PCT international applications in fiscal year 2006 claim priority to a prior application (nonprovisional or provisional) that has small entity status, and that 2,559 of the PCT international applications in fiscal year 2006 do not claim priority to any prior nonprovisional application or provisional application. The Office's PALM and RAM systems indicate that 12,716 of the PCT international applications in fiscal year 2007 claim priority to a prior application (nonprovisional or provisional) that has small entity status, and that 4,016 of the PCT international applications in fiscal year 2007 do not claim priority to any prior nonprovisional application or provisional application. 4. *Description of the projected reporting, recordkeeping and other compliance requirements of the proposed rules, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record:* This notice does not propose any reporting, recordkeeping and other compliance requirements. This notice proposes only to adjust the PCT transmittal and search fees. As discussed previously, there is no provision in 35 U.S.C. 376 (or elsewhere) for a small entity reduction for the search fees for an international application. The following table (Table 1) indicates the PCT international stage fee, the number of payments of the fee received by the Office in fiscal year 2007 (number of entities who paid the applicable fee in fiscal year 2007), the current fee amount, the proposed fee amount, and the net amount of the fee adjustment. Table 1 Fee Fiscal year 2007 payments Current fee amount Proposed fee amount Fee adjustment Transmittal Fee $54,335 $300.00 $415.00 $115.00 Search Fee 30,965 1,800.00 2,225.00 425.00 Supplemental Search Fee 941 1,800.00 2,225.00 425.00 The PCT international search fee and supplemental search fee were adjusted from $1,000.00 to $1,800.00 in November of 2007. *See April 2007 Revision of Patent Cooperation Treaty Procedures* , 72 FR 51559 (Sept. 10, 2007), 1323 *Off. Gaz. Pat. Office* 26 (Oct. 2, 2007) (final rule). Thus, the change to the search and supplemental search fee proposed in this notice is a $425.00 increase over the current search fee and supplemental search fee set in November of 2007, and a $1,225.00 increase over the search fee and supplemental search fee that was in effect prior to November of 2007. The PCT does not preclude United States applicants from filing patent applications directly in the patent offices of those countries which are Contracting States of the PCT (with or without previously having filed a regular national application under 35 U.S.C. 111(a) or 111(b) in the United States) and taking advantage of the priority rights and other advantages provided under the Paris Convention and the World Trade Organization
(WTO)administered Agreement on Trade-Related Aspects of Intellectual Property (TRIPs Agreement). *See* MPEP 1801. That is, the PCT is not the exclusive mechanism for seeking patent protection in foreign countries, but is instead simply an optional alternative route available to United States patent applicants for seeking patent protection in those countries that are Contracting States of the PCT. *See id.* In addition, an applicant filing an international application under the PCT in the United States Receiving Office (the United States Patent and Trademark Office) is not required to use the United States Patent and Trademark Office as the International Searching Authority. The European Patent Office (except for applications containing business method claims) or the Korean Intellectual Property Office may be selected as the International Searching Authority for international applications filed in the United States Receiving Office. The applicable search fee if the European Patent Office is selected as the International Searching Authority European is currently $2,496.00 (set by the European Patent Office), and the applicable search fee if the Korean Intellectual Property Office is selected as the International Searching Authority is currently $244.00 (set by the Korean Intellectual Property Office). 5. *Description of any significant alternatives to the proposed rules which accomplish the stated objectives of applicable statutes and which minimize any significant economic impact of the proposed rules on small entities:* The alternative of not adjusting the PCT transmittal and search fees would have a lesser economic impact on small entities, but would not accomplish the stated objectives of applicable statutes. *See* 35 U.S.C. 41(d) (requires that fees set by the Office recover the estimated average cost to the Office of the processing, services, or materials). 6. *Identification, to the extent practicable, of all relevant Federal rules which may duplicate, overlap or conflict with the proposed rules:* The Office is the sole agency of the United States Government responsible for administering the provisions of title 35, United States Code, pertaining to examination and granting patents. Therefore, no other federal, state, or local entity shares jurisdiction over the examination and granting of patents. The Office previously proposed changes to adjust the patent fees set by statute to reflect fluctuations in the Consumer Price Index (CPI). *See Revision of Patent Fees for Fiscal Year 2009* , 73 FR 31655 (June 3, 2008) (proposed rule). The changes proposed in that rule making do not duplicate, overlap, or conflict with the changes proposed in this notice. Other countries, however, have their own patent laws, and an entity desiring a patent in a particular country must make an application for patent in that country, in accordance with the applicable law. Although the potential for overlap exists internationally, this cannot be avoided except by treaty (such as the Paris Convention for the Protection of Industrial Property, or the PCT). Nevertheless, the Office believes that there are no other duplicative or overlapping rules. B. *Executive Order 13132 (Federalism):* This rule making does not contain policies with federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (Aug. 4, 1999). C. *Executive Order 12866 (Regulatory Planning and Review):* This rule making has been determined to be significant for purposes of Executive Order 12866 (Sept. 30, 1993), as amended by Executive Order 13258 (Feb. 26, 2002) and Executive Order 13422 (Jan. 18, 2007). D. *Executive Order 13175 (Tribal Consultation):* This rule making will not:
(1)Have substantial direct effects on one or more Indian tribes;
(2)impose substantial direct compliance costs on Indian tribal governments; or
(3)preempt tribal law. Therefore, a tribal summary impact statement is not required under Executive Order 13175 (Nov. 6, 2000). E. *Executive Order 13211 (Energy Effects):* This rule making is not a significant energy action under Executive Order 13211 because this rule making is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required under Executive Order 13211 (May 18, 2001). F. *Executive Order 12988 (Civil Justice Reform):* This rule making meets applicable standards to minimize litigation, eliminate ambiguity, and reduce burden as set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 (Feb. 5, 1996). G. *Executive Order 13045 (Protection of Children):* This rule making is not an economically significant rule and does not concern an environmental risk to health or safety that may disproportionately affect children under Executive Order 13045 (Apr, 21, 1997). H. *Executive Order 12630 (Taking of Private Property):* This rule making will not effect a taking of private property or otherwise have taking implications under Executive Order 12630 (Mar. 15, 1988). I. *Congressional Review Act:* Under the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 *et seq.* ), prior to issuing any final rule, the United States Patent and Trademark Office will submit a report containing the final rule and other required information to the U.S. Senate, the U.S. House of Representatives and the Comptroller General of the Government Accountability Office. The changes proposed in this notice are not expected to result in an annual effect on the economy of 100 million dollars or more, a major increase in costs or prices, or significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. Therefore, this rule making is not likely to result in a “major rule” as defined in 5 U.S.C. 804(2). J. *Unfunded Mandates Reform Act of 1995:* The changes proposed in this notice do not involve a Federal intergovernmental mandate that will result in the expenditure by State, local, and tribal governments, in the aggregate, of 100 million dollars (as adjusted) or more in any one year, or a Federal private sector mandate that will result in the expenditure by the private sector of 100 million dollars (as adjusted) or more in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions are necessary under the provisions of the Unfunded Mandates Reform Act of 1995. *See* 2 U.S.C. 1501 *et seq.* K. *National Environmental Policy Act:* This rule making will not have any effect on the quality of environment and is thus categorically excluded from review under the National Environmental Policy Act of 1969. *See* 42 U.S.C. 4321 *et seq.* L. *National Technology Transfer and Advancement Act:* The requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) are inapplicable because this rule making does not contain provisions which involve the use of technical standards. M. *Paperwork Reduction Act:* The changes proposed in this notice involve information collection requirements which are subject to review by the Office of Management and Budget
(OMB)under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). The collection of information involved in this notice has been reviewed and approved by OMB under OMB control number 0651-0021. The Office is not resubmitting an information collection package to OMB for its review and approval because the changes proposed in this notice concern revised fees for existing information collection requirements associated with the information collection under OMB control number 0651-0021. The Office will submit fee revision changes to the inventory of the information collection under OMB control number 0651-0021 if the changes proposed in this notice are adopted. *Comments are invited on:*
(1)Whether the collection of information is necessary for proper performance of the functions of the agency;
(2)the accuracy of the agency's estimate of the burden;
(3)ways to enhance the quality, utility, and clarity of the information to be collected; and
(4)ways to minimize the burden of the collection of information to respondents. Interested persons are requested to send comments regarding these information collections, including suggestions for reducing this burden, to:
(1)The Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10202, 725 17th Street, NW., Washington, DC 20503, Attention: Desk Officer for the Patent and Trademark Office; and
(2)Robert A. Clarke, Director, Office of Patent Legal Administration, Commissioner for Patents, P.O. Box 1450, Alexandria, VA 22313-1450. Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB control number. List of Subjects in 37 CFR Part 1 Administrative practice and procedure, Courts, Freedom of Information, Inventions and patents, Reporting and record keeping requirements, Small Businesses. Accordingly, the Office proposes to amend 37 CFR part 1 as follows: PART 1—RULES OF PRACTICE IN PATENT CASES 1. The authority citation for 37 CFR part 1 continues to read as follows: Authority: 35 U.S.C. 2(b)(2). 2. Subpart C of 37 CFR part 1 is amended immediately before the undesignated center heading “General Information” to include the following authority citation: Authority: Sections 1.401 through 1.499 also issued under 35 U.S.C. 351 through 376. 3. Section 1.445 is amended by revising paragraphs (a)(1), (a)(2) and (a)(3) to read as follows: § 1.445 International application filing, processing and search fees.
(a)* * *
(1)A transmittal fee (see 35 U.S.C. 361(d) and PCT Rule 14) $415.00
(2)A search fee (see 35 U.S.C. 361(d) and PCT Rule 16) 2,225.00
(3)A supplemental search fee when required, per additional invention $,225.00 Dated: June 12, 2008. Jon W. Dudas, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office. [FR Doc. E8-13730 Filed 6-17-08; 8:45 am] BILLING CODE 3510-16-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 82 [EPA-HQ-OAR-2008-0231; FRL-8582-7] RIN 2060-AP18 Protection of Stratospheric Ozone: Revision of Refrigerant Recovery Only Equipment Standards AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: The Environmental Protection Agency
(EPA)is proposing to update motor vehicle refrigerant recovery only equipment standards. Under Clean Air Act Section 609, motor vehicle air-conditioning
(MVAC)refrigerant handling equipment must be certified by the Administrator or an independent organization approved by the Administrator and, at a minimum, must be as stringent as the standards of the Society of Automotive Engineers
(SAE)in effect as of the date of the enactment of the Clean Air Act Amendments of 1990. In 1997, EPA promulgated regulations that required the use of SAE Standard J1732, HFC-134a Recycling Equipment for Mobile Air Conditioning Systems for certification of MVAC refrigerant handling equipment. SAE has replaced Standard J1732 with J2810, HFC-134a Refrigerant Recovery Equipment for Mobile Air Conditioning Systems. EPA is updating its reference to the new SAE standard for MVAC refrigerant recovery equipment used for MVAC servicing and MVAC disposal. This action reflects a change in industry standard practice. DATES: Written comments must be received by July 18, 2008. If anyone contacts us requesting a public hearing by June 30, 2008, the hearing will be held on July 3, 2008. If a public hearing is requested, the record for this action will remain open until August 4, 2008 to accommodate submittal of information related to the public hearing. For additional information on the public hearing, see the SUPPLEMENTARY INFORMATION section of this document. ADDRESSES: Submit your comments, identified by Docket ID No EPA-HQ-OAR-2008-0231, by mail to Environmental Protection Agency, Mailcode 6102T, EPA Docket Center (EPA/DC), 1200 Pennsylvania Avenue, NW., Washington, DC 20460. Comments may also be submitted electronically or through hand delivery/courier by following the detailed instructions in the ADDRESSES section of the direct final rule located in the rules section of this **Federal Register** . FOR FURTHER INFORMATION CONTACT: Karen Thundiyil, Stratospheric Protection Division, Office of Atmospheric Programs (MC 6205J), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number:
(202)343-9464; fax number
(202)343-2363; e-mail address: *thundiyil.karen@epa.gov.* SUPPLEMENTARY INFORMATION: In the “Rules and Regulations” section of this **Federal Register** , we are updating the existing motor vehicle refrigerant recovery only equipment standards, as a direct final rule without a prior proposed rule. If we receive no adverse comment, we will not take further action on this proposed rule. If a public hearing is held, it will be at EPA Headquarters in Washington, DC. I. Why Is EPA Issuing This Proposed Rule? This document proposes to take action on motor vehicle air-conditioning refrigerant recovery only equipment standards. We have published a direct final rule updating EPA's motor vehicle refrigerant recovery only equipment standards in the “Rules and Regulations” section of this **Federal Register** because we view this as a noncontroversial action and anticipate no adverse comment. We have explained our reasons for this action in the preamble to the direct final rule and are not repeating those here. If we receive no adverse comment, we will not take further action on this proposed rule. If we receive adverse comment, we will withdraw the direct final rule and it will not take effect. We would address all public comments in any subsequent final rule based on this proposed rule. We do not intend to institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information, please see the information provided in the ADDRESSES section of this document. II. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review This action is not a “significant regulatory action” under the terms of Executive Order
(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. The recordkeeping and reporting requirements included in this action are already included in an existing information collection burden. This action does not make any changes that would affect burden. However, the Office of Management and Budget
(OMB)has previously approved the information collection requirements contained in the existing regulations, 40 CFR part 82, under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control number 2060-0247. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. C. Regulatory Flexibility Act The Regulatory Flexibility Act
(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 proposed rule on small entities, small entity is defined as:
(1)A small business as defined by the Small Business Administration's
(SBA)regulations 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 proposed rule on small entities, we certify that this action will not have a significant economic impact on a substantial number of small entities. The requirements of this proposed rule do not require an immediate replacement of existing equipment with equipment certified to the new SAE standard. Rather, MVAC service shop owners will purchase equipment certified to the new SAE standard to replace existing refrigerant handling equipment as it approaches the end of its life. We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, 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 regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives 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. 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. This proposed rule does not affect State, local, or tribal governments. The impact of this proposed rule on the private sector will be less than $100 million per year. Thus, this proposed rule is not subject to the requirements of sections 202 and 205 of the UMRA. EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. This regulation does not apply to governmental entities. E. Executive Order 13132: Federalism Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This proposed rule applies directly to facilities that use these substances and not to governmental entities. Thus, Executive Order 13132 does not apply to this proposed 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 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This proposed rule does not have tribal implications, as specified in Executive Order 13175. It does not significantly or uniquely affect the communities of Indian tribal governments, because this regulation applies directly to facilities that use these substances and not to governmental entities. Thus, Executive Order 13175 does not apply to this proposed rule. 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 proposed rule is not subject to Executive Order 13045 because it is based on technology performance and not on health or safety risks. H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use This proposed 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”), Public Law No. 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. 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 explicitly references technical standards; EPA proposes to use SAE Standard J2810 which is the revised version of SAE Standard J1732. These standards can be obtained from *http://www.sae.org/technical/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 proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This action updates a regulatory reference to an obsolete standard to avoid confusion on the part of refrigerant handling equipment manufacturers, service technicians, automobile dismantling operators, and A/C service shop owners. List of Subjects in 40 CFR Part 82 Environmental protection, Motor vehicle air-conditioning, Recover/recycle equipment, Recover/recycle/recharge equipment, Reporting and certification requirements, Stratospheric ozone layer. Dated: June 12, 2008. Stephen L. Johnson, Administrator. [FR Doc. E8-13754 Filed 6-17-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2002-0043; FRL-8130-3] Pesticide Tolerance Nomenclature Changes; Proposed Technical Amendments AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule; Technical Amendments. SUMMARY: This document proposes minor technical revisions to terminology of certain commodity terms listed under 40 CFR part 180, subpart A and subpart C. EPA is proposing this action to eventually establish a uniform listing of commodity terms. DATES: Comments must be received on or before August 18, 2008. ADDRESSES: Submit your comments, identified by docket identification
(ID)number EPA-HQ-OPP-2002-0043, by one of the following methods: • *Federal eRulemaking Portal* : *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Office of Pesticide Programs
(OPP)Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. • *Delivery* : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Building), 2777 S. Crystal Drive, Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket telephone number is
(703)305-5805. *Instructions* : Direct your comments to docket ID number EPA-HQ-OPP-2002-0043. 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 Federal 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. *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 web site 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, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Building), 2777 S. Crystal Drive, Arlington, VA. The hours of operation of this Docket Facility are from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket telephone number is
(703)305-5805. FOR FURTHER INFORMATION CONTACT: Stephen Schaible, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
(703)308-9362; fax number:
(703)305-6920; e-mail address: *schiable.stephen@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to: • Crop production (NAICS code 111), e.g., agricultural workers; greenhouse, nursery, and floriculture workers; farmers. • Animal production (NAICS code 112), e.g., cattle ranchers and farmers, dairy cattle farmers, livestock farmers. • Food manufacturer (NAICS code 311), e.g., agricultural workers; farmers; greenhouse, nursery, and floriculture workers; ranchers; pesticide applicators. • Pesticide manufacturer (NAICS code 32532), e.g., agricultural workers; commercial applicators; farmers; greenhouse, nursery, and floriculture workers; residential users. This listing is not intended to be exhaustive, but rather 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 [insert appropriate cite to either another unit in the preamble or a section in a rule]. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT . B. What Should I Consider as I Prepare My Comments for EPA? 1. *Docket.* EPA has established a docket for this action under docket identification
(ID)number EPA-HQ-OPP-2002-0043. Publicly available docket materials are available either in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the Office of Pesticide Programs
(OPP)Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Building), 2777 S. Crystal Drive Arlington, VA. The hours of operation of this Docket Facility are from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket telephone number is
(703)305-5805. 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's Office of Pesticide Programs
(OPP)has developed a commodity vocabulary data base entitled “Food and Feed Commodity Vocabulary.” The data base was developed to consolidate all the major OPP commodity vocabularies into one standardized vocabulary. As a result, all future pesticide tolerances issued under 40 CFR part 180 will use the “preferred commodity term” as listed in the aforementioned data base. Previously, seven documents in a series of documents revising the terminology of commodity terms currently in tolerances in 40 CFR part 180 have been published. Final Rules, revising pesticide tolerance nomenclature, were published in the **Federal Register** on June 19, 2002 (67 FR 41802) (FRL-6835-2); June 21, 2002 (67 FR 42392) (FRL-7180-1); July 1, 2003 (68 FR 39428) (FRL-7308-9) and (68 FR 39435)(FRL-7316-9); December 13, 2006 (71 FR 74802) (FRL-8064-3); and September 18, 2007 (72 FR 53134)(FRL-8126-5); corrected on October 31, 2007 (72 FR 61535)(FRL-8151-4). This document proposes changes to certain commodity terminology in 40 CFR part 180. EPA is proposing to make the following format changes to the terminology of the commodity terms in 40 CFR part 180 to the extent the terminology is not already in this format: 1. The first letter of the commodity term is capitalized. All other letters, including the first letter of proper names, are changed to lower case. 2. Commodity terms are listed in the singular, although there are the following exceptions: leaves, roots, tops, greens, hulls, vines, fractions, shoots, and byproducts. 3. Commodity terms are amended so that generic terms precede modifying terms. Example - Aspirated grain fractions would be replaced with Grain, aspirated fractions. 4. Abbreviated terms would be replaced with the appropriate commodity terms. Example - Cattle, mbyp would be replaced with Cattle, meat byproducts. 5. Crop group terms would be revised to standardize with the “Food and Feed Vocabulary”. Examples are: • Vegetable, leafy greens, except Brassica, group 4 would be replaced with Vegetable, leafy, except brassica, group 4. • Legume vegetables, succulent or dried (except soybean) would be replaced with Vegetable, legume, group 6, except soybean. • Vegetable, legume, edible podded, subgroup would be replaced with Vegetable, legume, edible podded, subgroup 6A. B. Additional Changes In addition to format changes to the commodity terms, this document also proposes many revisions to the commodity terms in 40 CFR part 180, subpart C. These proposed revisions, if adopted, would replace certain commodity terms that are no longer used by EPA with the appropriate matching term in the “Food and Feed Vocabulary.” For example: 1. Carrot would be replaced with Carrot, roots. 2. Cotton, oil and Peanut oil would be replaced with Cotton, refined oil and Peanut, refined oil. 3. Cacao and Cacao bean would be replaced with Cacao bean, bean. 4. Coffee and Coffee, bean would be replaced with Coffee, bean, green. 5. Coffee, postharvest would be replaced with Coffee, bean, roasted bean, postharvest. 6. Citron would be replaced with Citron, citrus. 7. Corn, field, grain, flour would be replaced with Corn, field, flour. 8. Date would be replaced with Date, dried fruit. 9. Grass, fodder would be replaced with Grass, straw. 10. Guar bean would be replaced with Guar, seed. 11. Hop would be replaced with Hop, dried cones. 12. Millet, fodder would be replaced with Millet, straw. Milo, grain; Milo, fodder; and Milo, forage would be replaced with Sorghum, grain, grain; Sorghum, grain, stover; and Sorghum, grain, forage. 13. Mulberry, Indian would be replaced with Noni. 14. Oat milling fractions (except flour) and Oat, milled fractions (except flour) would be replaced with Oat, groats/rolled oats. 15. Pea, vines would be replaced with Pea, field, vines. 16. Peavine, hay would be replaced with Pea, field, hay. 17. Prickly pear cactus, fruit and Prickly pear cactus, pads would be replaced with Cactus, fruit and Cactus, pads. 18. Red beet roots and Red beet tops would be replaced with Beet, garden, roots and Beet, garden tops. 19. Soybean, aspirated grain fractions would be replaced with Grain, aspirated fractions. 20. Wheat, grain, milled byproducts and Wheat, milled feed fractions would be replaced with Wheat, milled byproducts. In certain instances, more than one replacement commodity term exists in the “Food and Feed Vocabulary for the older commodity terms in 40 CFR part 180, subpart C. For example, the preferred commodity terms for Grass are Grass, forage and Grass, hay. Certain revisions included in this document were made by choosing a replacement commodity term from the “Food and Feed Vocabulary“ based on the old commodity term and existing tolerances for related food or feed commodities. These changes are specific to the amended sections and paragraphs in 40 CFR part 180, supbart C. For example: In § 180.154(a) and § 180.169(a)(1) the commodity term Alfalfa would be replaced with Alfalfa, forage. Alfalfa, forage and Alfalfa, hay are preferred commodity terms for Alfalfa. Alfalfa, forage was chosen to replace Alfalfa since tolerances are established for Alfalfa, hay. In § 180.121(e) Beet (with or without tops) would be replaced with Beet, garden roots. Beet, garden, roots and Beet, garden, tops are the preferred commodity terms for Beet (with or without tops). Beet, garden roots was chosen since a tolerance is established for Beet, garden, tops. In § 180.408(a) Beet, garden would be replaced with Beet, garden, roots. A tolerance is established for Beet, garden, tops. In § 180.154(a) Birdsfoot trefoil would be replaced with Trefoil, forage. Trefoil, forage and Trefoil, hay are the preferred commodity terms for Birdsfoot trefoil. Trefoil forage was chosen since a tolerance is established for Trefoil, hay. In § 180.154(a) and § 180.169(a)(1) Clover would be replaced with Clover, forage. Clover, forage and Clover, hay are preferred commodity terms for Clover. Clover, forage was chosen since tolerances are established for Clover, hay. In § 180.121(a), § 180.204(a) and § 180.288(a), the commodity term Corn, forage would be replaced with Corn, field, forage. Corn, field, forage and Corn, sweet, forage are the preferred commodity terms for Corn, forage. Since there are no tolerances for sweet corn; Corn, field, forage was chosen to replace Corn, forage. In § 180.412(a) the commodity term Corn, field, forage was chosen to replace Corn, forage since a tolerance is established for Corn, sweet, forage. In § 180.111(a)(1) and § 180.169(a)(1) the commodity term Grass would be replaced with Grass, forage. The preferred terms for Grass are Grass, forage and Grass, hay. Grass, forage was chosen since tolerances are established for Grass, hay. In § 180.121(e) Rutabagas (with or without tops) would be replaced with Rutabaga, roots. Rutabaga, roots and Rutabaga, tops are the preferred terms for Rutabagas (with or without tops). Rutabaga, roots was chosen since a tolerance is established for Rutabaga tops. In § 180.342(a)(2) Turnip would be replaced with Turnip, roots. The preferred terms for Turnip are Turnip, roots and Turnip, greens. Turnip, roots was chosen since tolerances are established for Turnip, greens. In § 180.121(e) Turnip (with or without tops) would be replaced with Turnip, roots since a tolerance is established for Turnip, greens. This document also proposes to delete certain terms that are not needed to identify the tolerance commodities. Examples: 1. The term Peanut, meat (hulls removed) would be changed to Peanut. 2. The term Banana, pulp (no peel) would be changed to Banana, pulp. 3. The commodity term Peach (includes nectarines) would be changed to Peach; the “Food and Feed Vocabulary” uses the term Peach to include peach and nectarines. 4. The terms Horseradish, roots and Potato, tuber would be changed to Horseradish and Potato. 5. The terms Garlic, bulb and Garlic
(bulb)would be changed to Garlic. 6. The terms Plum (fresh) and Pineapple, fresh would be changed to Plum and Pineapple. III. Statutory and Executive Order Reviews This document proposes technical amendments to the Code of Federal Regulations which have no substantive impact on the underlying regulations, and does not otherwise impose or amend any requirements. As such, the Office of Management and Budget
(OMB)has determined that a technical amendment is not a “significant regulatory action” subject to review by OMB under Executive Order 12866, entitled *Regulatory Planning and Review* (58 FR 51735, October 4, 1993). Because this proposed rule has been exempted from review under Executive Order 12866 due to its lack of significance, this proposed 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). This proposed rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 *et seq.* , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995
(UMRA)(Public Law 104-4). Nor does it require any special considerations under Executive Order 12898, entitled *Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations* (59 FR 7629, February 16, 1994); or OMB review or any Agency action under Executive Order 13045, entitled *Protection of Children from Environmental Health Risks and Safety Risks* (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). The Regulatory Flexibility Act
(RFA)(5 U.S.C. 601 *et seq.* ) 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 impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental organizations. After considering the economic impacts of today's proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This action proposes technical amendments to the Code of Federal Regulations which have no substantive impact on the underyling regulations. These technical amendments will not have any negative economic impact on any entities, including small entities. In addition, the Agency has determined that this action 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, entitled *Federalism* (64 FR 43255, August 10, 1999). Executive Order 13132 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 proposed rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of the FFDCA. For these same reasons, the Agency has determined that this proposed rule does not have any “tribal implications” as described in Executive Order 13175, entitled *Consultation and Coordination with Indian Tribal Governments* (65 FR 67249, November 6, 2000). Executive Order 13175, 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.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” This proposed rule will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this proposed rule. List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pest, Reporting and recordkeeping requirements. Dated: June 4, 2008. Debra Edwards, Director, Office of Pesticide Programs. Therefore, 40 CFR chapter I, part 180 is proposed to be amended as follows: PART 180 —[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority: 21 U.S.C. 321(q), 346a, and 371. 2. Section 180.1 is amended by revising the table to paragraph
(g)to read as follows: § 180.1 Definitions and interpretations.
(g)* * * A B Alfalfa *Medicago sativa L. Subsp. sativa* , (alfalfa, lucerne); *Onobrychis viciifolia Scop* . (sainfoin, holy clover, esparcet); and *Lotus corniculatus L* . (trefoil); and varieties and/or hybrids of these. Banana Banana, plantain. Bean *Cicer arietinum* (chickpea, garbanzo bean); *Lupinus* spp. (including sweet lupine, white sweet lupine, white lupine, and grain lupine). *Phaseolus* spp. (including kidney bean, lima bean, mung bean, navy bean, pinto bean, snap bean, and waxbean; *Vicia faba* (broad bean, fava bean); *Vigna* spp. (including asparagus bean, blackeyed pea and cowpea). Bean, dry All beans above in dry form only. Bean, succulent All beans above in succulent form only. Blackberry *Rubus eubatus* (including bingleberry, black satin berry, boysenberry Cherokee blackberry, Chesterberry, Cheyenne blackberry, coryberry, darrowberry, dewberry, Dirksen thornless berry, Himalayaberry, hullberry, Lavacaberry, lowberry, Lucretiaberry, mammoth blackberry, marionberry, nectarberry, olallieberry, Oregon evergreen berry, phenomenalberry, rangerberry, ravenberry, rossberry, Shawnee blackberry, and varieties and/or hybrids of these). Broccoli Broccoli, chinese broccoli (gia lon, white flowering broccoli). Cabbage Cabbage, Chinese cabbage (tight-heading varieties only). Caneberry *Rubus* spp. (including blackberry); *Rubus caesius* (youngberry); *Rubus loganbaccus* (loganberry); *Rubus idaeus* (red and black raspberry); cultivars, varieties, and/or hybrids of these. Celery Celery, Florence fennel (sweet anise, sweet fennel, finochio) (fresh leaves and stalks only). Cherry Cherry, sweet, and cherry, tart. Endive Endive, escarole. Fruit, citrus Grapefruit, lemon, lime, orange, tangelo, tangerine, citrus citron, kumquat, and hybrids of these. Garlic Garlic, great headed; garlic, and serpent garlic. Lettuce Lettuce, head; and lettuce, leaf Lettuce, head Lettuce, head; crisphead varieties only Lettuce, leaf Lettuce, leaf; cos (romaine), butterhead varieties Marjoram *Origanum* spp. (includes sweet or annual marjoram, wild marjoram or oregano, and pot marjoram). Melon Muskmelon, including hybrids and/or varieties of *Cucumis melo* (including true cantaloupe, cantaloupe, casaba, Santa Claus melon, crenshaw melon, honeydew melon, honey balls, Persian melon, golden pershaw melon, mango melon, pineapple melon, snake melon); and watermelon, including hybrids and/or varieties of ( *Citrullus* spp.). Muskmelon *Cucumis melo* (includes true cantaloupe, cantaloupe, casaba, Santa Claus melon, crenshaw melon, honeydew melon, honey balls, Persian melon, golden pershaw melon, mango melon, pineapple melon, snake melon, and other varieties and/or hybrids of these.) Onion Bulb onion; green onion; and garlic. Onion, bulb Bulb onion; garlic; great headed garlic; serpent garlic; Chinese onion; pearl onion; potato onion; and shallot, bulb. Onion, green Green onion; lady's leek; leek; wild leek; Beltsville bunching onion; fresh onion; tree onion, tops; Welsh onion; and shallot, fresh leaves. Peach Peach, nectarine Pea *Cajanus cajan* (includes pigeon pea); *Cicer* spp. (includes chickpea and garbanzo bean); *Lens culinaris* (lentil); *Pisum* spp. (includes dwarf pea, garden pea, green pea, English pea, field pea, and edible pod pea). [Note: A variety of pesticide tolerances have been previously established for pea and/or bean. Chickpea/garbanzo bean is now classified in both the bean and the pea categories. For garbanzo bean/chickpea only, the highest established pea or bean tolerance will apply to pesticide residues found in this commodity.] Pea, dry All peas in dry form only. Pea, succulent All peas in succulent form only. Pepper All varieties of pepper including pimento and bell, hot, and sweet pepper. Radish, oriental, roots *Raphanus sativus* var. *longipinnatus* (roots and tops), including Chinese or Japanese radish (both white and red), winter radish, daikon, lobok, lo pak, and other cultivars and/or hybrids of these. Radish, oriental, tops) *Raphanus sativus* var. *longipinnatus* (roots and tops), including Chinese or Japanese radish (both white and red), winter radish, daikon, lobok, lo pak, and other cultivars and/or hybrids of these. Rapeseed *Brassica napus* , *B. campestris* , and *Crambe abyssinica* (oilseed-producing varieties only which include canola and crambe.) Raspberry *Rubus* spp. (including bababerry; black raspberry; blackcap; caneberry; framboise; frambueso; himbeere; keriberry; mayberry; red raspberry; thimbleberry; tulameen; yellow raspberry; and cultivars, varieties, and/or hybrids of these). Sorghum, grain, grain *Sorghum* spp. [sorghum, grain, sudangrass (seed crop), and hybrids of these grown for its seed]. Sorghum, forage, stover *Sorghum* spp. [sorghum, forage; sorghum, stover; sudangrass, and hybrids of these grown for forage and/or stover. Squash Pumpkin, summer squash, and winter squash. Sugar apple *Annona squamosa L* . (sugar apple, sweetsop, anon), and its hybrid *A. squamosa L. x A. cherimoya M* . (atemoya). Also *A. reticulata L* . (true custard apple). Squash, summer Fruits of the gourd ( *Cucurbitaceae* ) family that are consumed when immature, 100% of the fruit is edible either cooked or raw, once picked it cannot be stored, has a soft rind which is easily penetrated, and if seeds were harvested they would not germinate; e.g., *Cucurbita pepo* (i.e., crookneck squash, straightneck squash, scallop squash, and vegetable marrow); *Lagenaria* spp. (i.e., spaghetti squash, hyotan, cucuzza); *Luffa* spp. (i.e., hechima, Chinese okra); *Momordica* spp. (i.e., bitter melon, balsam pear, balsam apple, Chinese cucumber); *Sechium edule* (chayote); and other cultivars and/or hybrids of these. Sweet potato Sweet potato, yam. Tangerine Tangerine (mandarin or mandarin orange); tangelo, tangor, and other hybrids of tangerine with other citrus. Tomato Tomato, tomatillo. Turnip tops or turnip greens Broccoli raab (raab, raab salad), hanover salad, turnip tops (turnip greens). Wheat Wheat, triticale. § 180.368 [Amended] 3. Section 180.368 is amended by removing from the table in pararaph (a)(1) the entry for “Milo, grain.” § 180.412 [Amended] 4. Section 180.412 is amended by removing from the table in pararaph
(a)the entry for “Potato, granules.” PART 180 —[AMENDED] 5. Part 180 is amended as follows: In Section In paragraph Remove the term Add in its place the term 180.106 (a)(1) table Grass crops (other than Bermuda grass) Grass, forage, except bermudagrass 180.111 (a)(1) table Date Date, dried fruit 180.111 (a)(1) table Grass Grass, forage 180.111 (a)(1) table Hop Hop, dried cones 180.111 (a)(1) table Lupine, seed Lupin, seed 180.111 (a)(1) table Peavine, hay Pea, field, hay 180.111 (a)(1) table Shallots Shallot, bulb 180.117 table Bean, castor Castorbean, seed 180.121
(a)table Corn, forage Corn, field, forage 180.121
(a)table Hop Hop, dried cones 180.121
(a)table Soybean Soybean, seed 180.121
(e)table Beet (with or without tops) Beet, garden, roots 180.121
(e)table Rutabagas (with or without tops) Rutabaga, roots 180.121
(e)table Turnip (with or without tops) Turnip, roots 180.122
(a)table Sorghum Sorghum, grain, grain 180.129 table Citron Citron, citrus 180.153 (a)(1) table Potato, sweet Sweet potato, roots 180.153 (a)(1) table Sheep, meat (fat basis) Sheep, meat 180.153 (a)(1) table Sheep, meat byproducts (fat basis) Sheep, meat byproducts 180.154
(a)table Alfalfa Alfalfa, forage 180.154
(a)table Birdfoot trefoil Trefoil, forage 180.154
(a)table Clover Clover, forage 180.169 (a)(1) table Alfalfa Alfalfa, forage 180.169 (a)(1) table Clover Clover, forage 180.169 (a)(1) table Grass Grass, forage 180.169 (a)(1) table Pea (with pods) Pea, edible podded 180.169 (a)(1) table Prickly pear cactus, fruit Cactus, fruit 180.169 (a)(1) table Prickly pear cactus, pads Cactus, pad 180.169
(c)table Dill, fresh Dillweed, fresh leaves 180.173
(a)table Cattle, meat (fat basis) Cattle, meat 180.176
(a)table Banana, pulp (no peel) Banana, pulp 180.176
(a)table Corn grain (except popcorn grain) Corn, field, grain 180.176
(a)table Rye, milled feed fraction Rye, bran 180.176
(a)table Wheat, milled feed fractions Wheat, milled byproducts 180.204
(a)table Corn, forage Corn, field, forage 180.205
(a)table Cacao bean Cacao bean, bean 180.205
(a)table Guar Guar, seed 180.206
(a)table Hop Hop, dried cones 180.215 (a)(1) table Hop Hop, dried cones 180.227 (a)(1) table Cotton, meal Cottonseed, meal 180.253
(a)table Grass, Bermuda Bermudagrass, forage 180.253
(a)table Pea, vines Pea, field, vines 180.288
(a)table Corn, forage Corn, field, forage 180.342 (a)(2) table Legume vegetables, succulent or dried (except soybean) Vegetable, legume, group 6, except soybean 180.342 (a)(2) table Peanut oil Peanut, refined oil 180.342 (a)(2) table Turnip Turnip, roots 180.353
(b)table Red beet roots Beet, garden, roots 180.353
(b)table Red beet tops Beet, garden, tops 180.364
(a)table Cacao bean Cacao bean, bean 180.364
(a)table Coffee, bean Coffee, bean, green 180.364
(a)table Date Date, dried fruit 180.368 (a)(1) table Millet, fodder Millet, straw 180.368 (a)(1) table Milo, fodder Sorghum, grain, stover 180.368 (a)(1) table Milo, forage Sorghum, grain, forage 180.368 (a)(3) table Garlic, bulb Garlic 180.379 (a)(1) table English walnut Walnut 180.381
(a)table Date Date, dried fruit 180.399 (a)(1) table Bean, dried, vine hay Cowpea, hay 180.399
(c)table Chinese mustard Mustard greens 180.408
(a)table Beet, garden Beet, garden, roots 180.410
(a)table Pineapple, fresh Pineapple 180.411 (c)(2) table Coffee, bean Coffee, bean, green 180.412
(a)table Corn fodder Corn, field, stover 180.412
(a)table Corn forage Corn, field, forage 180.414 (a)(1) table Garlic, bulb Garlic 180.419 (a)(2) table Oat milling fractions (except flour) Oat, groats/rolled oats 180.420
(c)table Hop Hop, dried cones 180.428 (a)(1) table Grass, fodder Grass, straw 180.431
(a)table Oat, milled fractions (except flour) Oat, groats/rolled oats 180.435 (a)(1) table Cotton, oil Cotton, refined oil 180.436 (a)(1) table Vegetable, leafy greens, except Brassica, group 4 Vegetable, leafy, except brassica, group 4 180.438 (a)(1) table Corn, field, grain, flour Corn, field, flour 180.438 (a)(2) table Corn, field, grain, flour Corn, field, flour 180.448
(a)table Hop Hop, dried cones 180.450
(a)table Sorghum, forage, hay Sorghum, forage 180.466
(a)table Cotton, oil Cotton, refined oil 180.474 (a)(1) table Peach (includes nectarine) Peach 180.491 (a)(1) table Cocoa bean, bean Cacao bean, roasted bean 180.498 (a)(2) table Horseradish, roots Horseradish 180.515
(a)table Cacao Cacao bean, bean 180.515
(a)table Coffee Coffee, bean, green 180.515
(a)table Date Date, dried fruit 180.515
(a)table Grain, cereal, forage (excluding corn and sorghum) Grain, cereal, forage, fodder and straw group 16, except corn and sorghum; forage 180.515
(a)table Kava, Kava Kava, roots 180.515
(a)table Mulberry, Indian Noni 180.515
(a)table Soursop, group Soursop 180.515
(a)table Tea Tea, dried 180.515
(a)table Wasabia, roots Wasaba, roots 180.516
(a)table Carrot Carrot, roots 180.516
(a)table Peanut, meat (hulls removed) Peanut 180.516
(a)table Yam, true Yam, true, tuber 180.532 (a)(1) table Carrot Carrot, roots 180.564
(a)table Soybean, aspirated grain fractions Grain, aspirated fractions 180.565
(a)table Coffee \1\ Coffee, bean, green \1\ 180.565
(a)table Soybean, aspirated grain fractions Grain, aspirated fractions 180.567 (a)(2) table Potato, tuber Potato 180.568
(a)table Garlic
(bulb)Garlic 180.569 (a)(2) table Plum (fresh) Plum 180.573 (a)(1) table Soybean, aspirated grain fraction Grain, aspirated fractions 180.575 (a)(1) table Coffee, postharvest Coffee, bean, roasted bean, postharvest 180.579 (a)(1) table Garlic, bulb Garlic 180.582 (a)(1) table Vegetable, legume, edible podded, subgroup Vegetable, legume, edible podded, subgroup 6A 180.584
(a)table Hop 1 Hop, dried cones 1 180.615
(d)table Wheat, grain, milled byproducts Wheat, milled byproducts [FR Doc. E8-13368 Filed 6-17-08; 8:45 am] BILLING CODE 6560-50-S DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Parts 9 and 52 [FAR Case 2007-018; Docket 2008-0002; Sequence 1] RIN 9000-AK98 Federal Acquisition Regulation; FAR Case 2007-018, Organizational Conflicts of Interest AGENCIES: Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Advance notice of proposed rulemaking; Reopening of comment period. SUMMARY: The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (the Councils) are seeking information that will assist in determining whether the Federal Acquisition Regulation System's current guidance on organizational conflicts of interest
(OCIs)adequately addresses the current needs of the acquisition community or whether providing standard provisions and/or clauses, or a set of such standard provisions and clauses, might be beneficial. The comment period is reopened an additional 30 days to provide additional time for interested parties to review and comment on the Advance notice of proposed rulemaking. DATES: *Comment Date* : Interested parties should submit written comments to the FAR Secretariat at the address shown below on or before July 18, 2008 to be considered in the formulation of a proposed rule. ADDRESSES: Submit comments identified by FAR case 2007-018 by any of the following methods: • Regulations.gov: *http://www.regulations.gov* . Submit comments via the Federal eRulemaking portal by inputting “FAR Case 2007-018” under the heading “Comment or Submission”. Select the link “Send a Comment or Submission” that corresponds with FAR Case 2007-018. Follow the instructions provided to complete the “Public Comment and Submission Form”. Please include your name, company name (if any), and “FAR Case 2007-018” 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 FAR case 2007-018 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. Please include your name and company name (if any) inside the document. FOR FURTHER INFORMATION CONTACT: Meredith Murphy, Procurement Analyst, at
(202)208-6925 for clarification of content. For information pertaining to status or publication schedules, contact the FAR Secretariat at
(202)501-4755. Please cite FAR case 2007-018. SUPPLEMENTARY INFORMATION: The Councils published an Advance notice of proposed rulemaking in the **Federal Register** at 73 FR 15962, March 26, 2008. To allow additional time for interested parties to review the Advance notice of proposed rulemaking and submit comments, the comment period is reopened for an additional 30 days. Dated: June 11, 2008. Al Matera, Director, Office of Acquisition Policy. [FR Doc. E8-13724 Filed 6-17-08; 8:45 am] BILLING CODE 6820-EP-S DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [FWS-R7-ES-2008-0004; 1111 FY07 MO-B2] Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To List the Long-Tailed Duck (Clangula hyemalis) as Endangered AGENCY: Fish and Wildlife Service, Interior. ACTION: Notice of 90-day petition finding. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to list the long-tailed duck (Clangula hyemalis) as endangered under the Endangered Species Act of 1973, as amended (Act). We find that the petition does not present substantial scientific or commercial information indicating that listing the species may be warranted. Therefore, we will not initiate a further status review in response to this petition. We ask the public to submit to us any new information that becomes available concerning the status of the long-tailed duck or threats to it or its habitat at any time. This information will help us monitor and encourage the conservation of the species. DATES: The finding announced in this document was made on *June 18, 2008.* You may submit new information concerning this species for our consideration at any time. ADDRESSES: This finding is available on the Internet at http://www.regulations.gov. Supporting information we used in preparing this finding is available for public inspection, by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Anchorage Fish and Wildlife Field Office, 605 West 4th Avenue, G-61, Anchorage, AK 99501. Please submit any new information, materials, comments, or questions concerning this species or this finding to the above address. FOR FURTHER INFORMATION CONTACT: Mr. Greg Balogh, Endangered Species Branch Chief, Anchorage Fish and Wildlife Field Office, (see ADDRESSES ); by telephone at 907-271-2778; or by facsimile at 907-271-2786. Persons who use a telecommunications devise for the deaf
(TTD)may call the Federal Information Relay Service
(FIRS)at 800-877-8339. SUPPLEMENTARY INFORMATION: Background Section 4(b)(3)(A) of the Act (16 U.S.C. 1531 *et seq.* ) requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information to indicate that the petitioned action may be warranted. We are to base this finding on information provided in the petition, supporting information submitted with the petition, and information otherwise available in our files at the time we make the determination. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition, and publish our notice of this finding promptly in the **Federal Register** . Our standard for substantial information within the Code of Federal Regulations
(CFR)with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial information was presented, we are required to promptly commence a review of the status of the species. In making this finding, we based our decision on information provided by the petitioner and otherwise available in our files at the time of the petition review, and we evaluated this information in accordance with 50 CFR 424.14(b). Our process for making a 90-day finding under section 4(b)(3)(A) of the Act and 50 CFR 424.14(b) of our regulations is limited to a determination of whether the information in the petition meets the “substantial information” threshold. Petition On February 10, 2000, we received an undated petition from Nancy Hillstrand, Homer, Alaska, to list the long-tailed duck as endangered and to designate critical habitat in southcentral and southeastern Alaska, including Kodiak and the Aleutians, the Yukon-Delta National Wildlife Refuge, and the National Petroleum Reserve. The petition itemizes threats to the species based on personal observations. The petition references, but does not provide supporting data on, multiple threats to the long-tailed duck and other species of the Tribe Mergini. As the petition does not specify the particular population to be listed as endangered, the Service assumed the petitioned action was to list the species as endangered throughout its entire range. On March 10, 2000, the Service informed the petitioner that funds available for listing activities were fully allocated to higher-priority actions associated with statutory requirements and active litigation, and that we would address the petition as funding became available. We also concluded in our March 10, 2000, letter that emergency listing of the long-tailed duck was not indicated. Responding to the petition was further delayed due to the high priority of responding to court orders and settlement agreements regarding other species, until funding recently became available to respond to the petition. This finding fulfills the Service's obligation under 16 U.S.C. 1533(b)(3)(A) and its implementing regulations at 50 CFR 424.14(b). Biology and Distribution The long-tailed duck ( *Clangula hyemalis* ) (Order Anseriformes, Family Anatidae) is a small to medium-sized sea duck, with a long tail, steep forehead, flattened crown, small stout bill, and strongly contrasting plumages of white, black, and brown. It is most similar to the harlequin duck ( *Histrionicus histrionicus* ) and Steller's eider ( *Polysticta stelleri* ). Adults weigh roughly 750 to 1,000 grams (1.7 to 2.2 pounds) and measure roughly 38 to 53 centimeters (15 to 21 inches) in length. Average male body mass and size is greater than that of the female. The long-tailed duck is Holarctic in distribution, breeding in tundra and taiga regions around the globe as far north as 80 degrees north latitude. With a worldwide population of more than seven million birds, this species may be the most abundant Arctic sea duck. The following information regarding the description and natural history of the long-tailed duck has been condensed from Robertson and Savard
(2002)and Wilbor (1999). Specific references are cited for data of particular relevance to this finding. In North America, the long-tailed duck breeds from the northern coast of Alaska east across Canada to Ellesmere and Baffin Islands and northern Labrador south to southern and central Alaska, northwestern British Columbia, eastern and southcentral Ontario, and Hudson and James Bays (Robertson and Savard 2002, p. 3). This species winters on both coasts of North America and on the Great Lakes. In western North America, it winters throughout the Aleutian Islands and Kodiak Island and along coastal southern Alaska, the entire British Columbia coast, the Puget Sound, and coastal Washington State south to northern Oregon (Robertson and Savard 2002, p. 3). It is rare along the Oregon and California coasts and present throughout all western provinces and States east to Colorado and Utah and south to Gulf of California, Mexico. On the east coast of North America, it winters from southern Labrador, Newfoundland, St. Lawrence estuary, Gulf of St. Lawrence, Prince Edward Island, Nova Scotia, Gulf of Maine, and along the New England coast and Chesapeake Bay south to Cape Hatteras, North Carolina. It is common south to the north shore of the Gulf of Mexico and Atlantic Coast to Florida and rare as far south as Bermuda. Inland, it winters on all five Great Lakes. Small numbers are scattered throughout many water bodies in eastern North America. It remains in northern areas as long as open water is available. In the Palearctic, the breeding range of the long-tailed duck is circumpolar, including all of coastal Greenland (except the far north), Iceland, northern Scandinavia, the north coast of continental arctic Russia to the Chukotska Peninsula, and most offshore islands. It winters in southwest Greenland and throughout most of Iceland. Large numbers winter in the Baltic Sea and Finland, and in the North Sea and coastal Norway. In the Pacific, the species winters along eastern and southern Kamchatka Peninsula, along Commander Island, Bering Strait, and northern Anadyr Gulf. Long-tailed ducks breed over a vast range and at low densities, making comprehensive surveys of their abundance difficult. They are even more difficult to monitor in winter due to their offshore distribution. Although incomplete survey coverage reduces reliability of population size and trend estimates, current population estimates suggest they are the most abundant Arctic sea duck. The North American population may number up to two million birds (USFWS 2001, p. 45). Approximately 200,000 birds breed in Alaska; the remainder breeds in Canada (USFWS 2003, p. 50). Miyabayashi and Mundkur (1999, p. 118) estimate 500,000 to 1,000,000 birds breed and winter in eastern Asia. Nearly 150,000 birds breed in Iceland and Greenland (Wetlands International 2002, p. 97), and an estimated 4,600,000 breed in western Siberia and northern Europe (Scott and Rose 1996, p. 208). The size of the pre-breeding population (birds less than 3 years old) is unknown. Although the Icelandic breeding population experienced a marked decline in the early 20th century, the breeding populations in Iceland and Greenland are now thought to be stable (Wetlands International 2002, p. 97). Scott and Rose (1996, p. 208) indicated that post-breeding numbers on the tundra of western and central Siberia and breeding populations in northern Europe were stable between 1972 and 1989. In contrast, several surveys suggest declining long-tailed duck populations in some parts of Alaska and Canada. The North American Waterfowl Breeding Population Survey indicated an average annual decline of 5.3 percent from 1973 to 1997 (USFWS 2001, p. 45), and Conant and Groves (2005, p. 5) report a 29-year downward trend for long-tailed ducks in Alaska and the Yukon Territory. Larned, *et al.* (2005, p. 7) reported an insignificant decline in long-tailed duck numbers on the Arctic Coastal Plain in Alaska, and Mallek, *et al.* (2006, p. 4) reported a significant downward 20-year trend for the same area. However, existing breeding population surveys must be interpreted with caution. Both Conant and Groves (2005, p. 9) and Larned, *et al.* (2005, p. 7) suggest that survey timing relative to spring arrival (whether early or late) may account for the lower abundances detected in recent years. The North American Waterfowl Breeding Population Survey does not include major breeding grounds in Canada and Alaska, its transect lines are not located systematically throughout all habitat strata, and it is unlikely that birds are evenly distributed in the sampled area. Such incomplete survey coverage represents an obstacle to providing reliable population and trend estimates for species like the long-tailed duck that occur over vast regions at low densities (USFWS 2001, p. 45). In contrast to suggested population declines in northern Alaska, the Yukon-Kuskokwim Delta Coastal Zone Survey indicated significantly increasing populations for long-tailed ducks since 1988 (Platte and Stehn 2005, p. 6). Long-tailed ducks have the most complex molt of any waterfowl species, with three different plumages (basic, supplemental, and alternate) during the year; plumage is changing almost continuously. In winter and spring, male plumage is mainly white with a black ear patch, black collar around the breast, completely dark wings, and dark central tail feathers; the male has a short dark bill with a pink subterminal band. In early spring and early summer, males appear mostly dark, with a pale gray facial patch. By mid-summer, males have gray flanks and buff on their wings. The pattern of plumage change in the female is similar to that of the male, lighter in winter and darker in summer, but lacks the sharp contrast of dark and white, thus appearing darker than the male in winter plumage. Females also do not possess long central tail feathers. Juveniles resemble females but are duller, and the white areas are less distinct than in adult plumages. There are no recognized subspecies or geographic variations. Long-tailed ducks nest in small clusters in subarctic and arctic wetlands on lake islands and by ponds in open tundra and taiga, rarely to tree line; offshore islands with freshwater ponds and tundra-like vegetation are also used. Nests are usually in upland habitat, concealed in vegetation, and close to fresh water with emergent vegetation ( *Arctophila* spp. or *Carex* spp.) for cover, and open deep water for feeding. Nest site selection may be influenced by predation pressure from foxes ( *Vulpes* spp. and *Alopex* spp.), gulls ( *Larus* spp.), ravens ( *Corvus corax* ), and jaegers ( *Stercorarius* spp.). Long-tailed ducks avoid nesting on ponds where herring gulls ( *Larus argentatus* ), Pacific loons ( *Gavia pacifica* ), and common eiders ( *Somateria mollissima* ) nest (Robertson and Savard 2002, pp. 5, 12-13). While male long-tailed ducks defend a territory, females are not territorial at any stage. Although information on the mating system is scarce, site fidelity of males and females to breeding grounds suggests long-term monogamy. Data from Hudson Bay (Alison 1975, pp. 10, 43) indicate that females show a strong tendency to return to their previous nest area and suggest some level of subadult female philopatry to natal breeding areas as well. A diurnal feeder, the long-tailed duck dives for food and has a highly variable diet of animal prey, focusing on locally abundant food items. Diving to depths greater than 60 meters (196.8 feet), it is probably the deepest diver among waterfowl (Robertson and Savard 2002, p. 6). On breeding grounds, its diet consists mainly of larval and adult aquatic insects, crustaceans, fish roe, and vegetable matter. On marine wintering grounds, epibenthic crustaceans, amphipods, mysids, isopods, bivalves, gastropods, fish, and fish eggs are important in the diet; amphipods, fish, mollusks, and oligochaete worms make up the diet on freshwater wintering grounds (Robertson and Savard 2002, p. 7). Nest sites, selected by the female, are generally close to water on islands in freshwater ponds, on mainland tundra, in marshy habitat, in scrubland ( *Salix* spp. and *Betula* spp.), and in dry uplands. Alison (1975, p. 43) documented nest reuse for three successful females. Between six and eight smooth, pale gray to olive buff eggs are laid between late June and late July, depending on location and weather, particularly snow melt. Hatching occurs after 24-29 days of incubation (by the female only), between early July and early August. Ducklings are precocial, and leave the nest 1-2 days after hatching, feeding on material that surfaces when the female dives. The female will lead broods to new ponds when food resources become depleted in the occupied pond. Hens and broods tend to use lakes without fish and may use 10-20 different ponds during the pre-fledging period. Young birds fledge 35-40 days after hatching. Re-nesting following nest failure is not documented in this species and is unlikely at high latitudes. Mean annual survival rate of adult females in Alaska is estimated to be 75 percent (+8 Standard Error (SE)) (Robertson and Savard 2002, p. 15). In Iceland, mean annual survival of banded adults is 72 percent (Robertson and Savard 2002, p. 15). Although little information is available, first breeding is thought to begin at age 2 years, but first attempts to breed are likely unsuccessful. Periodic non-breeding may occur, although it is poorly documented. Long-tailed ducks are thought to be long-lived; band recovery data include a male at least 15 years old recovered alive and a male at least 18 years old that had been harvested. Very little data are available on percent of eggs that eventually result in fledged young, fledging success of hatched young, or mean number of young fledged per nest attempt. Nest success ranges from 41.3 percent in western Alaska to 58.9 percent in northern Manitoba (Robertson and Savard 2002, p. 14). Duckling success in western Alaska is reported to average 9 percent (Robertson and Savard 2002, p. 14). In North America during years with warmer arctic temperatures, more immature birds are harvested, suggesting that temperatures influence reproductive success. In northern Sweden, the proportion of females that reared at least one brood to fledging was higher in years with abundant small rodents ( *Lemmus* spp. and *Microtus* spp.) (Robertson and Savard 2002, p. 15). The long-tailed duck is a short-to-medium-distance migrant that stages in the thousands at traditional coastal locations before migrating north. Northerly movements begin in late February in western North America and late March on the east coast of North America (Robertson and Savard 2002, p. 4; Wilbor 1999, p. 16). Northward migration from the Great Lakes area begins in late February. Birds travel along the northeast Alaska coast from late May to mid-June, and move inland to nesting areas from Baffin Bay during mid-to late June. Large flocks make use of ice leads in the Arctic until breeding areas become available for nesting. Birds arrive on the breeding grounds from mid-May in southerly areas to June in arctic Alaska, Baffin Island, and Ellesmere Island (Robertson and Savard 2002, p. 4). Post-breeding males begin molting-migration mid-June in Manitoba and late June along the north Alaska coast. Sub-adults leave Arctic Coastal Plain breeding areas by late June. Females migrate to molting sites several weeks after males in mid-to late August. Small molting populations are thought to occur throughout most of the breeding range. Major molting habitats in the Beaufort Sea occur near St. Lawrence Island and in coastal lagoons on the west and north coasts of Alaska. Other important molting sites, with concentrations numbering 30,000 to 40,000 individuals, are located between Prudhoe Bay and Demarcation Bay. A large number of birds molt along the coasts of western Baffin Bay. North American breeders may also molt in coastal eastern Russia and northwestern Greenland (Robertson and Savard 2002, p. 5). Long-tailed ducks winter in either offshore marine habitat or inland freshwater areas. Southerly migration begins in late fall with arrival at the Pacific coast, Great Lakes, and Atlantic coast wintering areas in October. Resident populations may exist in Alaska and Hudson Bay (Robertson and Savard 2002, p. 4). Migration routes are both marine (coastal and up to 160 kilometers
(km)(99.4 miles (mi)) from offshore) (Fischer, *et al.* 2002, p. 76) and overland. Few long-tailed ducks have been banded, making it difficult to determine affiliations between breeding and wintering locations. Breeding birds banded in northern Manitoba were found to winter primarily in the Great Lakes and to a lesser extent on the Atlantic Coast (Chesapeake Bay). Birds banded in Alaska have never been recovered on the Atlantic Coast (Robertson and Savard 2002, p. 5). Although there may be two or more geographic populations of long-tailed ducks in North America that are separated by the breeding and wintering distribution, the delineation of these populations is not documented (USFWS 2001, p. 45). Traditional band recovery data are insufficient to determine the relationship between breeding, molting, migrating, and wintering groups of long-tailed ducks across their distribution. Threats Analysis Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations at 50 CFR 424 set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act:
(A)The present or threatened destruction, modification, or curtailment of habitat or range;
(B)overutilization for commercial, recreational, scientific, or educational purposes;
(C)disease or predation;
(D)inadequacy of existing regulatory mechanisms; or
(E)other natural or manmade factors affecting its continued existence. In making this finding, we evaluated whether threats to the long-tailed duck presented in the petition and other information available in our files at the time of the petition review reasonably indicate that listing the long-tailed duck may be warranted. Our evaluation of these threats is presented below. In the discussion below, we have evaluated the threats listed in the petition under the most appropriate listing factor. Certain aspects of long-tailed duck ecology and demography should be considered when evaluating the species' status and threats. When compared with dabbling (Anatini) and diving (Aythyini) ducks, long-tailed ducks are considered K-selected species. Healthy populations of K-selected species are characterized by delayed sexual maturity, low annual recruitment, relatively low and variable breeding propensity, and high adult survival. Low annual productivity rates and high annual survival rates balance to ensure that individuals replace themselves with offspring that survive to recruit into the breeding population. Although factors that compromise productivity can cause populations to decline, population growth rates are most sensitive to changes in adult survival (Goudie, *et al.* 1994, p. 30). K-selected species will decline in abundance most rapidly if adults are removed from the population prior to replacing themselves ( *i.e.* , if adult survival is decreased). A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range The petitioner listed, but did not discuss in detail or provide supporting biological data, the following reasons for the petition that may be addressed under Factor A: increasing oil exploration and development and associated oil spills, removal of biomass from the marine environment by fishing in the North Pacific, and “mussel beds.” Only the indirect, habitat-related effects to long-tailed ducks of oil spills and operational waste discharges are discussed under Factor A; direct effects to long-tailed ducks from exposure to oil and operational wastes will be discussed in Factor E. Lacking more specific information, we interpreted the term “mussel beds” to refer to potential competition with nearshore marine aquaculture facilities. The petitioner provided no supporting information to support these claims; therefore, we relied on information in Service files to clarify these potential threats. No direct measures of habitat degradation are available (Robertson and Savard 2002, p. 18), nor is habitat loss (nesting, molting, or wintering) implicated as a factor influencing the Bering/Pacific or North American long-tailed duck population decline (Wilbor 1999, p. 49). Several sources cite oil pollution as a threat to marine birds in general and long-tailed ducks in particular [in Alaska (Wilbor 1999, p. 51; USFWS 2003, p. 51); in the North Sea (International Council for the Exploration of the Sea 2004, p. 24); in the Baltic Sea (Laine and Backer 2002, p. 2); in Britain and Ireland (Kirby, *et al.* 1993, p. 123); and globally (Robertson and Savard 2002, p. 17)]. However, most are concerned with the acute mortality phase of exposure to oil (to be discussed under Factor E), and none reported any evidence of long-term effects on long-tailed duck populations due to habitat degradation. Franson, *et al.* (2004, p. 504) analyzed blood from long-tailed ducks collected at near-shore islands in the vicinity of Prudhoe Bay and at a reference site for trace elements to compare contaminant levels in sea ducks using the marine environment near the Prudhoe Bay oil fields. In marine ecosystems, persistent contaminants, including trace elements and organochlorines, reach their greatest concentrations in coastal regions, and, except for selenium, concentrations of metals in blood were low and were not consistently higher at one location (Franson, *et al.* 2004, pp. 504-505). Flint, *et al.* (2003, p. 38) utilized nearshore and offshore aerial surveys, as well as ground-based studies, in both industrialized and control areas to evaluate how long-tailed ducks may be affected by industrialization. Their data demonstrated that, even when flightless, long-tailed ducks moved considerable distances. There was little evidence of displacement of individuals associated with disturbance; rather, patterns of movements were thought to be primarily influenced by weather conditions, particularly wind direction. Further, declines in duck numbers in the seismic area could not be attributed to underwater seismic activities, as similar changes in aerial survey counts and lagoon movements were observed in both the industrial and control areas (Flint, *et al.* 2003, p. 55). The potential for competition with mussel aquaculture in the nearshore environment is limited to areas where overwintering long-tailed ducks and marine aquaculture overlap, and is anticipated to be low due to the broad diversity of the winter diet of the species (Robertson and Savard 2002, p. 7). Additionally, aquaculture sites may present an attractive foraging site for long-tailed ducks. The removal of biomass from the marine environment through overfishing of herring and other species may reduce the availability of spawn for migrating long-tailed ducks (Robertson and Savard 2002, p. 18); however, no correlation between these indirect impacts and long-tailed duck population trends has been documented. Increasing oil exploration and development and associated oil spills, removal of biomass from the marine environment by fishing in the North Pacific, and “mussel beds,” as identified by the petitioner, are all potential habitat-related threats to the long-tailed duck. However, no evidence of long-term effects on long-tailed duck populations due to habitat degradation or loss has been documented. We find that the petition does not present substantial scientific or commercial information indicating that listing the long-tailed duck as endangered may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range. B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes The petitioner asserts that subsistence harvest is increasing, and collection by museums continues despite population declines. The petitioner provided no information to support these statements; therefore, we relied on information in Service files to clarify these potential threats. The majority of long-tailed ducks harvested during the migratory game bird season are taken on the Atlantic Coast. Alaska accounts for approximately 2 percent of the total harvest of approximately 14,500 birds (Trost and Drut 2002, p. 28), which is less than 1 percent of the world population. Wilbor (1999, p. 51) estimated the total long-tailed duck subsistence harvest in the Alaska/Pacific flyway to be 11,000 birds annually (plus 1,000 during the migratory game bird season); however, Service data (Alaska Migratory Bird Co-Management Council 2007) and Trost and Drut (2002, p. 28) reported much lower harvest levels: fewer than 5,000 (subsistence) and fewer than 500 (sport). Based on an annual take of 12,000 birds, Wilbor (1999, p. 51) estimated that about 2 percent of the total Bering/Pacific long-tailed duck population is harvested annually and concluded that the impact on the population dynamics of this segment of the population was low. Although the long-tailed duck is believed to be an important species in the eastern Russian commercial sea duck harvest (Goudie, *et al.* 1994, p. 36), no information is available on the Russian and Japanese harvests. A review of migratory game bird harvest data reported by Trost and Drut (2002, p. 28) indicates that harvest of long-tailed ducks in Alaska has remained relatively stable between 1966 and 2001, as has subsistence harvest of the species in Alaska (Wentworth and Wong 2001, p. 96). Finally, Robertson and Savard (2002, p. 18) report scientific research activities have no obvious impacts. Accordingly, we find that the petition does not present substantial scientific or commercial information indicating that listing the long-tailed duck as endangered may be warranted due to overutilization of long-tailed ducks for commercial, recreational, scientific, or educational purposes. C. Disease or Predation The petition does not provide information or state that disease or predation is a threat to the species. In addition, there is no information in our files to indicate that disease or predation is a threat to the long-tailed duck. D. Inadequacy of Existing Regulatory Mechanisms The petitioner lists lack of protection under the Migratory Bird Treaty Act (16 U.S.C. 703-712), inadequacy of existing regulatory mechanisms, increased hunting pressure on long-tailed ducks due to bag limit reductions on dabbler and goose species, unchanged bag limits despite population declines, and legalization of the spring subsistence hunt as threats to the species. The petitioner provided no additional evidence to support these claims; therefore, we relied on information in Service files to clarify these potential threats. The long-tailed duck is not currently listed under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), nor is it included on the International Union for the Conservation of Nature
(IUCN)Red List (Threatened Animals of the World) (Wilbor 1999, p. 3). No specific State or provincial designation has been given to the long-tailed duck in the United States, Northwest Territories, Yukon Territory, Canada, or Russia (Wilbor 1999, p. 4). The long-tailed duck is protected under the Migratory Bird Treaty Act of 1918
(MBTA)in the United States, and is covered by treaties with Canada, Russia, and Japan. Unless permitted by regulations, the MBTA provides that it is unlawful to pursue, hunt, take, capture or kill, possess, sell or purchase, or transport or export any migratory bird, part, nest, egg or product. The MBTA grants the Secretary of the Interior the authority to establish hunting seasons for any of the migratory game bird species, including the long-tailed duck, listed in the MBTA. The Fish and Wildlife Service has determined that hunting is appropriate only for those species for which hunting is consistent with population status and long-term conservation. The Fish and Wildlife Service annually publishes migratory game bird regulations in the **Federal Register** . State and provincial game laws formulated in conjunction with the Fish and Wildlife Service and Canadian Wildlife Service establish bag limits and seasons. In Canada and Russia, long-tailed duck sport hunting is managed under hunting regulations set forth by the Canadian Wildlife Service and the Russian Ministry of Environment and Natural Resources, respectively. Monitoring requirements of the MBTA, the fall/winter migratory game bird hunting regulations, and the spring/summer subsistence harvest regulations provide mechanisms to limit the harvest of long-tailed ducks if necessary for population regulation. We have no documented information that these mechanisms will not adequately protect long-tailed duck populations. Accordingly, we find that the petition does not present substantial scientific or commercial information indicating that listing the long-tailed duck as endangered may be warranted due to the inadequacy of existing regulatory mechanisms. E. Other Natural or Manmade Factors Affecting Its Continued Existence Threats listed by the petitioner that may be addressed under Factor E include increased oil spills due to offshore drilling and “the climatic decadal oscillation.” The discussion of oil-related effects under this factor will be limited to the acute, direct effects to long-tailed ducks from exposure to oil. Indirect effects of habitat degradation resulting from offshore oil development and oil spills are discussed above under Factor A. Furthermore, as the petitioner provided no additional information to support these claims, we relied on information in Service files to clarify these potential threats. Stehn and Platte (2000, p. 1) constructed a spatial model by overlaying bird density estimates with predicted spill trajectories. Spills of various sizes were used to estimate the potential effects of an offshore spill from the proposed Liberty Project in the nearshore Beaufort Sea. Their model predicted that the average number of birds that would be exposed to oil in the event of a spill at the site was greatest for long-tailed ducks (as high as 2,062) and that the average proportion of the total long-tailed duck population in the study area that would be exposed to oil in the event of a spill at the site was between 3 percent and 9 percent, and may approach 19 percent. The petitioner did not define the term “Pacific Decadal Oscillation” or identify specific concerns regarding the relationship between this mode of interdecadal climatic variation and long-tailed duck populations. Hare and Mantua (2000, p. 105) describe the Pacific Decadal Oscillation
(PDO)as a long-lived El Niño (ENSO)-like pattern of Pacific climate variability that explains variations in the Pacific Basin and North American regions. The PDO is characterized by fluctuations between warm- and cold-water regimes. No data exist evaluating the relationship between long-tailed duck productivity, survival, or population trends and large-scale climate patterns. Species like the long-tailed duck have the ability to exploit a wider range of habitats and food sources, are less sensitive to early stages of ice formation, and respond to persistent ice cover in the nearshore zone by concentrating in offshore areas (Zydelis 2001, p. 307). Zydelis and Ruskyte (2005, p. 139) found body condition and fat reserves in winter to be equivalent between long-tailed ducks feeding primarily on mollusks and those feeding on mobile, energy-rich food items such as crustaceans. The possible effects of exposure to oil on long-tailed ducks are thought to be localized, and have not been implicated in global population declines. Additionally, no localized long-tailed duck declines have been documented. While climate patterns and oceanographic conditions are important factors influencing long-tailed duck habitat, food resources, and distribution, the relative ecological plasticity of the species in selecting winter habitat and food suggests it is less sensitive to inter-annual and inter-decadal climatic variability (Zydelis and Ruskyte 2005, p. 139) than other sea ducks. In spite of potential localized impacts resulting from oil spills, the long-tailed duck remains the most abundant arctic sea duck and continues to occupy historical breeding and wintering ranges. For these reasons, we believe the impact of these potential threats on the population dynamics of this species is negligible. Therefore, we find that the petition does not provide substantial scientific or commercial information indicating that listing the long-tailed duck as endangered may be warranted as a result of increased oil spills due to offshore drilling and “the climatic decadal oscillation” or any other natural or manmade factors affecting the species' continued existence. Significant Portion of the Range The petition does not specify a population of concern, it does not articulate that the long-tailed duck should be listed in any particular portion of its range, and it does not specify any particular portion of the species' range that it maintains is significant. Therefore, we based our threats analysis on the entire range of the species. Nearly all of the threats identified in the petition appear to be potential threats which could occur, rather than actual threats, with no documented correlation between these potential threats and impacts on long-tailed duck populations. Our threats analysis does not find substantial information to indicate that any of the five factors poses a threat to the long-tailed duck. If we were to determine in the future that the long-tailed duck is threatened or endangered in a significant portion of its range, we would add the species to the candidate list and propose its listing. Finding We have reviewed and evaluated the five listing factors with regard to the long-tailed duck, based on the information in the petition and available in our files. On the basis of this review and evaluation, we conclude that the petition does not present substantial scientific or commercial information to indicate that listing the long-tailed duck as endangered under the Act may be warranted. While the petitioner did not provide detailed information on the abundance or geographic distribution of the long-tailed duck, information in Service files indicates that the long-tailed duck is currently numerous and widespread. Its breeding range has not contracted. The information provided in the petition on the potential impacts to the species caused by offshore oil exploration and development, removal of biomass due to fishing, and potential competition with nearshore marine aquaculture is inadequate to determine that these activities are destroying or modifying habitat in a manner and at a level that affects the species to such an extent that a reasonable person could conclude that listing may be warranted. Likewise, evidence in our files concerning hunting (both sport and subsistence), collecting by scientific institutions, and oil spill losses does not provide substantial information to support a conclusion that listing the species may be warranted. No data exist evaluating the relationship between long-tailed duck productivity, survival, or population trends and large-scale climate patterns such as Pacific Decadal Oscillation. We also found the evidence in our files inadequate to corroborate the petitioner's assertion that the MBTA may not be an effective regulatory mechanism, because under the MBTA, the harvest of long-tailed ducks is regulated and monitored. After reviewing and evaluating the petition and information available in our files, we find that the petition does not present substantial scientific or commercial information to indicate that listing the long-tailed duck as endangered may be warranted at this time. Although we will not commence a status review in response to this petition, we will continue to monitor the long-tailed duck population status and trends, potential threats, and ongoing management actions that might be important with regard to the conservation of the long-tailed duck. If you wish to provide information regarding the long-tailed duck, you may submit your information and materials to the Anchorage Fish and Wildlife Field Office (see ADDRESSES ). References Cited A complete list of all references cited in this document is available, upon request, from the Anchorage Fish and Wildlife Field Office (see ADDRESSES ). Author The primary author of this document is staff of the Anchorage Fish and Wildlife Field Office (see ADDRESSES ). Authority The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 *et seq.* ) Dated: June 12, 2008. Kenneth Stansell, Acting Director, U.S. Fish and Wildlife Service. [FR Doc. E8-13840 Filed 6-17-08; 8:45 am] BILLING CODE 4310-55-P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 20 [FWS-R9-MB-2008-0032;91200-1231-9BPP-L2] RIN 1018-AV62 Migratory Bird Hunting; Supplemental Proposals for Migratory Game Bird Hunting Regulations for the 2008-09 Hunting Season; Notice of Meetings AGENCY: Fish and Wildlife Service, Interior. ACTION: Proposed rule; supplemental. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), proposed in an earlier document to establish annual hunting regulations for certain migratory game birds for the 2008-09 hunting season. This supplement to the proposed rule provides the regulatory schedule, announces the Service Migratory Bird Regulations Committee and Flyway Council meetings, provides Flyway Council recommendations resulting from their March meetings, and provides regulatory alternatives for the 2008-09 duck hunting seasons. DATES: You must submit comments on the proposed regulatory alternatives for the 2008-09 duck hunting seasons and the updated cost/benefit analysis by June 27, 2008. Following later **Federal Register** documents, you will be given an opportunity to submit comments for proposed early-season frameworks by July 31, 2008, and for proposed late-season frameworks and subsistence migratory bird seasons in Alaska by August 31, 2008. The Service Migratory Bird Regulations Committee will meet to consider and develop proposed regulations for early-season migratory bird hunting on June 25 and 26, 2008, and for late-season migratory bird hunting and the 2009 spring/summer migratory bird subsistence seasons in Alaska on July 30 and 31, 2008. All meetings will commence at approximately 8:30 a.m. ADDRESSES: You may submit comments on the proposals by one of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov* . Follow the instructions for submitting comments. • *U.S. mail or hand-delivery:* Public Comments Processing, Attn: 1018-AV62; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203. We will not accept e-mail or faxes. We will post all comments on *http://www.regulations.gov* . This generally means that we will post any personal information you provide us (see the Public Comments section below for more information). The Service Migratory Bird Regulations Committee will meet in room 200 of the U.S. Fish and Wildlife Service's Arlington Square Building, 4401 N. Fairfax Dr., Arlington, VA. FOR FURTHER INFORMATION CONTACT: Ron W. Kokel, U.S. Fish and Wildlife Service, Department of the Interior, MS MBSP-4107-ARLSQ, 1849 C Street, NW., Washington, DC 20240;
(703)358-1714. SUPPLEMENTARY INFORMATION: Regulations Schedule for 2008 On May 28, 2008, we published in the **Federal Register** (73 FR 30712) a proposal to amend 50 CFR part 20. The proposal provided a background and overview of the migratory bird hunting regulations process, and dealt with the establishment of seasons, limits, and other regulations for hunting migratory game birds under §§ 20.101 through 20.107, 20.109, and 20.110 of subpart K. This document is the second in a series of proposed, supplemental, and final rules for migratory game bird hunting regulations. We will publish proposed early-season frameworks in early July and late-season frameworks in early August. We will publish final regulatory frameworks for early seasons on or about August 17, 2008, and for late seasons on or about September 14, 2008. Service Migratory Bird Regulations Committee Meetings The Service Migratory Bird Regulations Committee will meet June 25-26, 2008, to review information on the current status of migratory shore and upland game birds and develop 2008-09 migratory game bird regulations recommendations for these species, plus regulations for migratory game birds in Alaska, Puerto Rico, and the Virgin Islands. The Committee will also develop regulations recommendations for September waterfowl seasons in designated States, special sea duck seasons in the Atlantic Flyway, and extended falconry seasons. In addition, the Committee will review and discuss preliminary information on the status of waterfowl. At the July 30-31, 2008, meetings, the Committee will review information on the current status of waterfowl and develop 2008-09 migratory game bird regulations recommendations for regular waterfowl seasons and other species and seasons not previously discussed at the early-season meetings. In addition, the Committee will develop recommendations for the 2009 spring/summer migratory bird subsistence season in Alaska. In accordance with Departmental policy, these meetings are open to public observation. You may submit written comments to the Service on the matters discussed. Announcement of Flyway Council Meetings Service representatives will be present at the individual meetings of the four Flyway Councils this July. Although agendas are not yet available, these meetings usually commence at 8 a.m. on the days indicated. *Atlantic Flyway Council:* July 24-25, Princeton Westin at Forrestal Village, Princeton, NJ. *Mississippi Flyway Council:* July 24-25, Crown Plaza Hotel, Knoxville, TN. *Central Flyway Council:* July 24-25, Holiday Inn, Overland Park, KS. *Pacific Flyway Council:* July 25, Red Lion Hotel at the Park, Spokane, WA. Review of Public Comments This supplemental rulemaking describes Flyway Council recommended changes based on the preliminary proposals published in the May 28, 2008, **Federal Register** . We have included only those recommendations requiring either new proposals or substantial modification of the preliminary proposals and do not include recommendations that simply support or oppose preliminary proposals and provide no recommended alternatives. We will publish responses to all proposals and written comments when we develop final frameworks. In addition, this supplemental rulemaking contains the regulatory alternatives for the 2008-09 duck hunting seasons. We have included all Flyway Council recommendations received relating to the development of these alternatives. We seek additional information and comments on the recommendations in this supplemental proposed rule. New proposals and modifications to previously described proposals are discussed below. Wherever possible, they are discussed under headings corresponding to the numbered items identified in the May 28 proposed rule. Only those categories requiring your attention or for which we received Flyway Council recommendations are discussed below. 1. Ducks Duck harvest management categories are:
(A)General Harvest Strategy;
(B)Regulatory Alternatives, including specification of framework dates, season length, and bag limits;
(C)Zones and Split Seasons; and
(D)Special Seasons/Species Management. A. General Harvest Strategy *Council Recommendations:* The Upper- and Lower-Region Regulations Committees of the Mississippi Flyway Council recommended that regulations changes be restricted to one step per year, both when restricting as well as liberalizing hunting regulations. Both Committees further recommended not implementing the western mallard Adaptive Harvest Management
(AHM)protocol. The Central Flyway Council recommended not implementing the western mallard AHM protocol. The Pacific Flyway Council recommended implementing the Service's proposal for a revised protocol for managing the harvest of mallards in Western North America. They further recommended inclusion of the following initial components:
(1)Regulation packages that are currently in place in the Pacific Flyway and generally described as Liberal, Moderate, Restrictive, and Closed, with associated target harvest rates of 12, 8, 4, and 0 percent, respectively;
(2)A harvest objective that corresponds to no more than 95 percent of the Maximum Sustained Yield
(MSY)on the yield curve (they further note that current harvest estimates suggest that the current Pacific Flyway mallard harvest is at 80 percent of MSY);
(3)Consider use of a weighting factor within the decision matrix that would soften the knife-edge effect of optimal policies when regulation changes are warranted;
(4)No change in the duck regulation provisions for Alaska, except implementation through the western mallard AHM strategy;
(5)An optimization based only on western mallards; and
(6)Clarification of the impacts of removing Alaska from the mid-continent mallard strategy. They also requested that the Service explore options of incorporating mallards and other waterfowl stocks derived from surveyed areas in Canada important to the Pacific Flyway ( *e.g.* , Alberta, Northwest Territories) into the decision process in the future. *Service Response:* As we stated in the May 28 **Federal Register** , the final Adaptive Harvest Management protocol for the 2008-09 season will be detailed in the early-season proposed rule, which will be published in mid-July. B. Regulatory Alternatives *Council Recommendations:* The Atlantic Flyway Council recommended that the current restriction of two hens in the 4-bird mallard daily bag limit be removed from the “liberal” package in the Atlantic Flyway to allow the harvest of 4 mallards of any sex. The Upper- and Lower-Region Regulations Committees of the Mississippi Flyway Council and the Central Flyway Council recommended that regulatory alternatives for duck hunting seasons remain the same as those used in 2007. *Service Response:* As we stated in the May 28 **Federal Register** , the final regulatory alternatives for the 2008-09 season will be detailed in the early-season proposed rule, which will be published in mid-July. D. Special Seasons/Species Management iii. Black Ducks *Council Recommendations:* The Atlantic Flyway Council endorsed the interim international harvest strategy for black ducks, with the following modifications:
(1)the original criteria of a 25 percent change in the 5-year running average from the long-term (1998-2007) breeding population
(BPOP)should be changed to a 15 percent change measured by a 3-year running average, and
(2)the original criteria of a 5-year running average to measure parity should be changed to a 3-year running average. The Upper- and Lower-Region Regulations Committees of the Mississippi Flyway Council endorsed the agreement in concept and the interim approach to the harvest management of black ducks as outlined by the Black Duck International Management Group. *Service Response:* For several years we have consulted with the Atlantic and Mississippi Flyway Councils, the Canadian Wildlife Service, and provincial wildlife agencies in eastern Canada concerning the development of an international harvest strategy for black ducks. In 2008, U.S. and Canadian waterfowl managers developed a draft interim harvest strategy that was designed to be employed by both countries over the next three seasons (2008-09 to 2010-11), allowing time for the development of a formal strategy based on the principles of Adaptive Harvest Management. The interim harvest strategy is prescriptive, in that it would call for no substantive changes in hunting regulations unless the black duck breeding population, averaged over the most recent 3 years, exceeds or falls below the long-term average breeding population by 15 percent or more. It would allow additional harvest opportunity (commensurate with the population increase) if the 3-year average breeding population exceeds the long-term average by 15 percent or more, and would require reduction of harvest opportunity if the 3-year average falls below the long-term average by 15 percent or more. The strategy is designed to share the black duck harvest equally between the two countries; however, recognizing incomplete control of harvest through regulations, it will allow realized harvest in either country to vary between 40 and 60 percent. We propose to adopt this interim international black duck harvest strategy for the 2008-09, 2009-10, and 2010-11 seasons. To expedite development of a formal Adaptive Harvest Management strategy, we seek input from the Atlantic and Mississippi Flyway Councils on an appropriate long-term harvest management objective. iv. Canvasbacks *Council Recommendations:* The Atlantic Flyway Council recommended that the canvasback harvest strategy be modified to include a provision to allow a daily bag limit of 2 canvasbacks when the predicted breeding population is greater than 750,000 birds. The Upper- and Lower-Region Regulations Committees of the Mississippi Flyway Council recommended an alternative canvasback harvest management strategy that uses threshold levels based on breeding population size in order to determine bag limits. These threshold levels would allow 2 canvasbacks per day when the population is above 800,000, 1 canvasback per day when the population is between 400,000 and 800,000, and close the season when the population drops below 400,000. The Central Flyway Council recommended maintaining the current canvasback harvest strategy and updating harvest predictions in the current model. The Pacific Flyway Council requested revision of the canvasback harvest strategy to include a harvest management prescription for a two-bird, full season option when the canvasback breeding population and predicted harvest will sustain the population at or above 600,000. *Service Response:* We support modification of the existing canvasback strategy to allow for a 2-bird daily bag limit when the projected breeding population in the next year exceeds an established threshold level. This support is contingent on receiving Flyway Council and public input regarding the exact threshold level to be employed for the bag limit increase. Based on our recent biological assessment this threshold should fall between 600,000 and 750,000 canvasbacks projected as the next year's breeding population. If the input received fails to indicate a reasonable consensus on the appropriate value, we propose to continue using the current canvasback harvest management strategy for the 2008-2009 hunting season. v. Pintails *Council Recommendations:* The Atlantic Flyway Council recommended several modifications and considerations for the proposed pintail derived harvest strategy. They recommended we continue exploration of a derived strategy versus a prescribed strategy and consider a closure constraint. They also commented that Flyway-specific bag limits may not be needed to maintain the desired harvest distribution. The Upper- and Lower-Region Regulations Committees of the Mississippi Flyway Council recommended continued use of the current prescribed northern pintail harvest management strategy until they can see further modeling results of emphasizing a management objective that minimizes the frequency of closed and partial seasons. The Central Flyway Council recommended that the proposed derived pintail harvest strategy not be adopted and recommended continued use of the current prescribed strategy. The Pacific Flyway Council recommended that the current prescribed harvest management protocol for pintail be continued in 2008. *Service Response:* Based on Flyway Council comments and recommendations, we propose to continue the use of the current pintail harvest strategy for the 2008-09 season. We will continue to work with the Flyway Councils to address their concerns on a derived strategy over the next year. vi. Scaup *Council Recommendations:* The Atlantic Flyway Council recommended implementation of the proposed scaup harvest strategy in the 2008 conditional upon several modifications:
(1)A harvest management objective that achieves 95 percent of the long-term cumulative harvest when the breeding population is less than 4.0 million birds;
(2)Seasons remain open when the breeding population is at or above 2 million scaup;
(3)Agreement to use alternative methodology developed by the Atlantic Flyway Technical Section to predict scaup harvests in the Atlantic Flyway;
(4)Allow a “hybrid” season option for the Atlantic Flyway that allows for at least 20 days of the general duck season to have a daily bag limit of at least 2 while the remaining days would have a daily bag limit of 1;
(5)A “restrictive” harvest package in the Atlantic Flyway consisting of a 20-day season with a daily bag limit of 2, and a 40-day season with a daily bag limit of 1;
(6)A “moderate” harvest package in the Atlantic Flyway consisting of a 60-day season with a daily bag limit of 2;
(7)A “liberal” harvest package in the Atlantic Flyway consisting of a 60-day season with a daily bag limit of 3;
(8)Designation of the proposed strategy as “interim” and subject to immediate reconsideration if alternative/competing scaup population models are available that will inform management decisions; and
(9)Reconsideration of the model elements after 3 years. The Council also urged us to expedite the exploration of alternative/competing models describing scaup population dynamics that may be used to inform a harvest management strategy. The Upper- and Lower-Region Regulations Committees of the Mississippi Flyway Council recommended we not adopt the proposed scaup harvest strategy and urged us to delay implementation until some alternative models can be developed. The Central Flyway Council recommended that we delay implementation of the proposed scaup harvest strategy until alternative models are developed and evaluated. The Pacific Flyway Council supported the implementation of a scaup harvest strategy in 2008, with the following conditions:
(1)A “shoulder” strategy objective that corresponds to 95 percent of MSY;
(2)Revision of harvest prediction models to provide a greater capacity to predict Pacific Flyway scaup harvest; and
(3)Revision of flyway harvest allocations to recognize proportions of greater scaup in flyway harvests. They also urged us to continue to work on alternative models to incorporate into the decision framework as soon as possible. *Service Response:* We propose to adopt the scaup harvest strategy as originally proposed last year (June 8 and July 23, 2007, **Federal Register** , 72 FR 31789 and 72 FR 40194). We believe that an informed, scientifically-based decision process is far preferable to any other possible approach. Further, we have been patient in allowing additional time for review by the Flyway Councils and general public of the proposed strategy. We note that no substantive criticisms suggesting that the proposed approach is not valid have been offered. We acknowledge and support the comments received that suggest additional models based on changing carrying capacity should be investigated and used if they can be reasonably developed and are supported by existing scaup population data. However, we note that we consider all strategies currently employed for species-specific harvest regulation to be subject to further analysis, review and improvement as new information becomes available, and we fully intend to pursue such improvements for the proposed scaup strategy as well as all of the other species-specific strategies employed by the Service. We also note that we have requested specific input from the Councils and the public regarding the specific harvest management objective that should be employed for the scaup harvest strategy. Based on input to date, we propose the harvest management objective be established as 95 percent of the expected MSY for scaup on an annual basis and we solicit further review and comment on this objective from the Flyway Councils and public. viii. Wood Ducks *Council Recommendations:* The Atlantic Flyway Council provided the following comments on the proposed wood duck harvest strategy:
(1)The Council endorses the use of the Potential Biological Removal method for calculating allowable harvest;
(2)Adult males should be the cohort to monitor;
(3)The management objective should be MSY, with the test criteria that the upper 95 percent confidence interval of the 3-year running average of both northern and region-wide adult male observed kill rates not exceed MSY based on their respective allowable kill rates;
(4)Should monitoring show impact on northern males, the harvest strategy should revert to a 2-bird daily bag limit;
(5)Bag limits should be allowed to differ between flyways; and
(6)The strategy should be adopted in 2008. The Upper- and Lower-Region Regulations Committees of the Mississippi Flyway Council endorsed use of the Potential Biological Removal method to assess wood duck harvest potential and provided the following guidance on outstanding wood duck harvest management policy issues:
(1)Monitor adult male kill rates from the Atlantic and Mississippi Flyways combined to determine whether actual kill rates exceed allowable kill rates;
(2)Use the point of Maximum Sustained Yield ( 1/2 r <sup>max</sup> ), combined with a test criteria requirement that the upper 95 percent confidence interval of the observed kill rate be below the allowable kill rate, as the management objective;
(3)Allow wood duck bag limits to differ between the Atlantic and Mississippi Flyways; and
(4)Implement in the 2008-09 season. The Central Flyway Council recommended that the Central Flyway be included in the development and implementation of the wood duck harvest strategy for the Atlantic and Mississippi Flyways. *Service Response:* We support a wood duck harvest strategy based on the Potential Biological Removal method, with the management objective of 95 percent confidence that harvest will not exceed maximum sustained yield. Although we prefer a test criterion based on range-wide kill rates of adult males, we recognize the Atlantic Flyway Council's concerns about the potential impacts on northern wood ducks. We do not endorse implementing the proposed strategy until those concerns have been addressed to the satisfaction of the Atlantic, Mississippi, and Central Flyway Councils. 4. Canada Geese A. Special Seasons *Council Recommendations:* The Atlantic Flyway Council recommended allowing a 10-day experimental extension of the September Resident Canada goose season in Delaware from September 16 to September 25 consistent with September Canada goose seasons in Atlantic Population
(AP)zones in the adjacent States of Pennsylvania and New Jersey and other States in the Atlantic Flyway. They requested that this experimental season be permitted for a 3-year period, at which time an analysis of direct band recoveries will be conducted to determine if the harvest of AP Canada geese exceeds 10 percent of the overall goose harvest during Delaware's 10-day extension of the early season. This extended season will not incorporate the “expanded hunting methods” and would be implemented in 2008. The Pacific Flyway Council recommended allowing Wyoming to modify its current framework that allows 4 geese per season to a 4-bird possession limit. B. Regular Seasons *Council Recommendations:* The Upper- and Lower-Region Regulations Committees of the Mississippi Flyway Council recommended that the framework opening date for all species of geese for the regular goose seasons in Michigan and Wisconsin be September 16, 2008. 9. Sandhill Cranes *Council Recommendations:* The Central and Pacific Flyway Councils recommended using the 2008 Rocky Mountain Population
(RMP)sandhill crane harvest allocation of 1,633 birds as proposed in the allocation formula using the 3-year running average. They further recommended that a new RMP greater sandhill crane hunt area be established in Uinta County, Wyoming. The Pacific Flyway Council recommended modifying Wyoming's RMP hunt areas by:
(1)expanding the hunt area in Lincoln County to include the Hams Fork drainage, and
(2)expanding Area 6 in the Bighorn Basin to include all of Park, Bighorn, Hot Springs and Washakie Counties. The Council also recommended initiating a limited hunt for Lower Colorado River sandhill cranes in Arizona, with the goal of the hunt being a limited harvest of 6 cranes in January. To limit harvest, Arizona would issue permit tags to hunters and require mandatory checking of all harvested cranes. To limit disturbance of wintering cranes, Arizona would restrict the hunt to one 3-day period. Arizona would also coordinate with the National Wildlife Refuges where cranes occur. 16. Mourning Doves *Council Recommendations:* The Atlantic Flyway Council and the Upper- and Lower-Region Regulations Committees of the Mississippi Flyway Council recommended that States within the Eastern Management Unit should be offered a 70-day season and 15-bird daily bag limit for the 2008-2009 mourning dove hunting season, and the dichotomous hunting season structure should be eliminated. 18. Alaska *Council Recommendations:* The Pacific Flyway Council recommended maintaining status quo in the Alaska early-season framework, except for increasing the daily bag limit for canvasbacks to 2 per day with 6 in possession, and increasing the daily bag limit for brant to 3 per day with 6 in possession. 20. Puerto Rico *Council Recommendations:* The Atlantic Flyway Council recommended that Puerto Rico be permitted to adopt a 20-bird bag limit for doves in the aggregate for the next three hunting seasons, 2008-2010. Legally hunted dove species in Puerto Rico are the Zenaida dove, the white-winged dove, and the mourning dove. They also recommended that the 20-bird aggregate bag limit should include no more than 10 Zenaida doves and no more than 3 mourning doves. Public Comments The Department of the Interior's policy is, whenever practicable, to afford the public an opportunity to participate in the rulemaking process. Accordingly, we invite interested persons to submit written comments, suggestions, or recommendations regarding the proposed regulations. Before promulgation of final migratory game bird hunting regulations, we will take into consideration all comments received. Such comments, and any additional information received, may lead to final regulations that differ from these proposals. You may submit your comments and materials concerning this proposed rule by one of the methods listed in the ADDRESSES section. We will not consider comments sent by e-mail or fax or to an address not listed in the ADDRESSES section. Finally, we will not consider hand-delivered comments that we do not receive, or mailed comments that are not postmarked, by the date specified in the DATES section. We will post your entire comment—including your personal identifying information—on *http://www.regulations.gov.* If you provide personal identifying information in your comment, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on *http://www.regulations.gov,* or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Division of Migratory Bird Management, Room 4107, 4501 North Fairfax Drive, Arlington, VA 22203. For each series of proposed rulemakings, we will establish specific comment periods. We will consider, but possibly may not respond in detail to, each comment. As in the past, we will summarize all comments received during the comment period and respond to them after the closing date in any final rules. NEPA Consideration NEPA considerations are covered by the programmatic document “Final Supplemental Environmental Impact Statement: Issuance of Annual Regulations Permitting the Sport Hunting of Migratory Birds (FSES 88-14),” filed with the Environmental Protection Agency on June 9, 1988. We published Notice of Availability in the **Federal Register** on June 16, 1988 (53 FR 22582). We published our Record of Decision on August 18, 1988 (53 FR 31341). In addition, an August 1985 environmental assessment entitled “Guidelines for Migratory Bird Hunting Regulations on Federal Indian Reservations and Ceded Lands” is available from the address indicated under the caption FOR FURTHER INFORMATION CONTACT . In a notice published in the September 8, 2005, **Federal Register** (70 FR 53376), we announced our intent to develop a new Supplemental Environmental Impact Statement for the migratory bird hunting program. Public scoping meetings were held in the spring of 2006, as detailed in a March 9, 2006, **Federal Register** (71 FR 12216). We have prepared a scoping report summarizing the scoping comments and scoping meetings. The report is available by either writing to the address indicated under FOR FURTHER INFORMATION CONTACT or by viewing on our Web site at *http://www.fws.gov/migratorybirds.* Endangered Species Act Consideration Prior to issuance of the 2008-09 migratory game bird hunting regulations, we will comply with provisions of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531-1543; hereinafter, the Act), to ensure that hunting is not likely to jeopardize the continued existence of any species designated as endangered or threatened, or modify or destroy its critical habitat, and is consistent with conservation programs for those species. Consultations under Section 7 of this Act may cause us to change proposals in this and future supplemental rulemaking documents. Executive Order 12866 The Office of Management and Budget has determined that this rule is significant and has reviewed this rule under Executive Order 12866. OMB bases its determination upon the following four criteria:
(a)Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government.
(b)Whether the rule will create inconsistencies with other Federal agencies' actions.
(c)Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.
(d)Whether the rule raises novel legal or policy issues. Clarity of the Rule We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(a)Be logically organized;
(b)Use the active voice to address readers directly;
(c)Use clear language rather than jargon;
(d)Be divided into short sections and sentences; and
(e)Use lists and tables wherever possible. If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc. Regulatory Flexibility Act The regulations have a significant economic impact on substantial numbers of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). We analyzed the economic impacts of the annual hunting regulations on small business entities in detail as part of the 1981 cost-benefit analysis discussed under Executive Order 12866. This analysis was revised annually from 1990-95. In 1995, the Service issued a Small Entity Flexibility Analysis (Analysis), which was subsequently updated in 1996, 1998, 2004, and 2008. The primary source of information about hunter expenditures for migratory game bird hunting is the National Hunting and Fishing Survey, which is conducted at 5-year intervals. The 2008 Analysis was based on the 2006 National Hunting and Fishing Survey and the U.S. Department of Commerce's County Business Patterns, from which it was estimated that migratory bird hunters would spend approximately $1.2 billion at small businesses in 2008. To make our cost/benefit analysis as complete as possible, we seek additional information and comments. You must submit comments on the analysis by June 27, 2008. Copies of the Analysis are available upon request from the address indicated under FOR FURTHER INFORMATION CONTACT or from our Web site at * http://www.fws.gov/migratorybirds/reports/ reports.html * or at *http://www.regulations.gov.* Small Business Regulatory Enforcement Fairness Act This rule is a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. For the reasons outlined above, this rule has an annual effect on the economy of $100 million or more. However, because this rule establishes hunting seasons, we do not plan to defer the effective date under the exemption contained in 5 U.S.C. 808(1). Paperwork Reduction Act We examined these regulations under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). The various recordkeeping and reporting requirements imposed under regulations established in 50 CFR part 20, Subpart K, are utilized in the formulation of migratory game bird hunting regulations. Specifically, OMB has approved the information collection requirements of our Migratory Bird Surveys and assigned control number 1018-0023 (expires 2/28/2011). This information is used to provide a sampling frame for voluntary national surveys to improve our harvest estimates for all migratory game birds in order to better manage these populations. OMB has also approved the information collection requirements of the Alaska Subsistence Household Survey, an associated voluntary annual household survey used to determine levels of subsistence take in Alaska, and assigned control number 1018-0124 (expires 1/31/2010). A Federal 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. Unfunded Mandates Reform Act We have determined and certify, in compliance with the requirements of the Unfunded Mandates Reform Act, 2 U.S.C. 1502 *et seq.* , that this rulemaking will not impose a cost of $100 million or more in any given year on local or State government or private entities. Therefore, this rule is not a “significant regulatory action” under the Unfunded Mandates Reform Act. Civil Justice Reform—Executive Order 12988 The Department, in promulgating this proposed rule, has determined that this proposed rule will not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of Executive Order 12988. Takings Implication Assessment In accordance with Executive Order 12630, this proposed rule, authorized by the Migratory Bird Treaty Act, does not have significant takings implications and does not affect any constitutionally protected property rights. This rule will not result in the physical occupancy of property, the physical invasion of property, or the regulatory taking of any property. In fact, these rules allow hunters to exercise otherwise unavailable privileges and, therefore, reduce restrictions on the use of private and public property. Energy Effects—Executive Order 13211 On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. While this proposed rule is a significant regulatory action under Executive Order 12866, it is not expected to adversely affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required. Federalism Effects Due to the migratory nature of certain species of birds, the Federal Government has been given responsibility over these species by the Migratory Bird Treaty Act. We annually prescribe frameworks from which the States make selections regarding the hunting of migratory birds, and we employ guidelines to establish special regulations on Federal Indian reservations and ceded lands. This process preserves the ability of the States and tribes to determine which seasons meet their individual needs. Any State or Indian tribe may be more restrictive than the Federal frameworks at any time. The frameworks are developed in a cooperative process with the States and the Flyway Councils. This process allows States to participate in the development of frameworks from which they will make selections, thereby having an influence on their own regulations. These rules do not have a substantial direct effect on fiscal capacity, change the roles or responsibilities of Federal or State governments, or intrude on State policy or administration. Therefore, in accordance with Executive Order 13132, these regulations do not have significant federalism effects and do not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. List of Subjects in 50 CFR Part 20 Exports, Hunting, Imports, Reporting and recordkeeping requirements, Transportation, Wildlife. The rules that eventually will be promulgated for the 2008-09 hunting season are authorized under 16 U.S.C. 703-712 and 16 U.S.C. 742 a-j. Dated: June 10, 2008. Mitchell Butler, Acting Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. E8-13737 Filed 6-17-08; 8:45 am] BILLING CODE 4310-55-P 73 118 Wednesday, June 18, 2008 Notices DEPARTMENT OF AGRICULTURE Submission for OMB Review; Comment Request June 13, 2007. The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding
(a)whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b)the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used;
(c)ways to enhance the quality, utility and clarity of the information to be collected;
(d)ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), *OIRA_Submission@OMB.EOP.GOV* or fax
(202)395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Comments regarding these information collections are best assured of having their full effect if received within 30 days of this notification. Copies of the submission(s) may be obtained by calling
(202)720-8958. An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number. Farm Service Agency *Title:* Volunteer Programs. *OMB Control Number:* 0560-0232. *Summary of Collection:* Section 1526 of the Food and Agriculture Act of 1981 (7 U.S.C. 2272) permits the Secretary of Agriculture to establish a program to use volunteers to perform a wide range of activities to carry out the programs of or supported by the Department of Agriculture. 5 U.S.C. 3111 grants agencies the authority to establish programs designed to provide educationally related work assignments for students in non-pay status. While serving as a Farm and Foreign Agriculture Service volunteer, each individual is subject to the same responsibilities and guidelines for conduct to which Federal employees are expected to adhere. These program(s) will provide a valuable service to the agencies while allowing the participants to receive training, supervision and work experience. *Need and Use of the Information:* Applicants accepted for the Volunteer Programs will complete the “Service Agreement and Attendance Record”. The Agency will use the recording information to respond to the Department of Agriculture and the Office of Personnel Management request for information on Agency Volunteers. Without the information, the Farm Service Agency would be unable to document service performed without compensation by persons in the program. *Description of Respondents:* Individuals or households. *Number of Respondents:* 60. *Frequency of Responses:* Reporting: On occasion. *Total Burden Hours:* 30. Farm Service Agency *Title:* Transfer of Farm Records Between Counties. *OMB Control Number:* 0560-0253. *Summary of Collection:* Most Farm Service Agency
(FSA)programs are administered on the basis of “farm”. For program purposes, a farm is a collection of tracts of land that have the same owner and the same operator. Land with different owners may be considered to be a farm if all the land is operated by one person and additional criteria are met. A farm is typically administered in the FSA county office where the farm is physically located. A farm transfer can be initiated if the farm is being transferred back to the county where the farm is physically located, the principal dwelling on the farm operator has changed, a change has occurred in the operation of the land, or there has been a change that would cause the receiving administrative county to be more accessible. Form FSA-179, “Transfer of Farm Record Between Counties,” is used as the request for a farm transfer from one county to another initiated by the producer. *Need and Use of the Information:* The information collected on the FSA-179 is collected only if a farm transfer is being requested and is collected in a face-to-face setting with county office personnel. The information is used by county office employees to document which farm is being transferred, what county it is being transferred to, and why it is being transferred. Without the information, county offices will be unable to determine whether the producer desires to transfer a farm. *Description of Respondents:* Farms. *Number of Respondents:* 25,000. *Frequency of Responses:* Reporting: On occasion. *Total Burden Hours:* 29,175. Ruth Brown, Departmental Information Collection Clearance Officer. Editorial Note: This document was received in the Office of the Federal Register on June 13, 2008. [FR Doc. E8-13738 Filed 6-17-08; 8:45 am] BILLING CODE 3410-05-P DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. APHIS-2007-0017] Bayer CropScience; Availability of Petition and Draft Environmental Assessment for Determination of Nonregulated Status for Cotton Genetically Engineered for Glyphosate Herbicide Tolerance AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Notice. SUMMARY: We are advising the public that the Animal and Plant Health Inspection Service has received a petition from Bayer CropScience seeking a determination of nonregulated status for cotton genetically engineered for tolerance to the herbicide glyphosate derived from a transformation event designated as GHB614. The petition has been submitted in accordance with our regulations concerning the introduction of certain genetically engineered organisms and products. In accordance with those regulations, we are soliciting comments on whether this genetically engineered cotton is or could be a plant pest. We are making available for public comment the petition and draft environmental assessment for the proposed determination of nonregulated status. DATES: We will consider all comments that we receive on or before August 18, 2008. ADDRESSES: You may submit comments by either of the following methods: • Federal eRulemaking Portal: Go to *http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2007-0017* to submit or view comments and to view supporting and related materials available electronically. • Postal Mail/Commercial Delivery: Please send two copies of your comment to Docket No. APHIS-2007-0017, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road, Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. APHIS-2007-0017. *Reading Room:* You may read any comments that we receive on this docket in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue, SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call
(202)690-2817 before coming. *Other Information:* Additional information about APHIS and its programs is available on the Internet at *http://www.aphis.usda.gov.* FOR FURTHER INFORMATION CONTACT: Dr. Patricia Beetham, Biotechnology Regulatory Services, APHIS, 4700 River Road, Unit 147, Riverdale, MD 20737-1236;
(301)734-0664, e-mail *patricia.k.beetham@aphis.usda.gov.* To obtain copies of the petition or the draft environmental assessment, contact Ms. Cindy Eck at
(301)734-0667, e-mail *cynthia.a.eck@aphis.usda.gov.* The petition and the draft environmental assessment are also available on the Internet at *http://www.aphis.usda.gov/brs/aphisdocs/06_33201p.pdf* and *http://www.aphis.usda.gov/brs/aphisdocs/06_33201p_ea.pdf* . SUPPLEMENTARY INFORMATION: Background The regulations in 7 CFR part 340, “Introduction of Organisms and Products Altered or Produced Through Genetic Engineering Which Are Plant Pests or Which There Is Reason to Believe Are Plant Pests,” regulate, among other things, the introduction (importation, interstate movement, or release into the environment) of organisms and products altered or produced through genetic engineering that are plant pests or that there is reason to believe are plant pests. Such genetically engineered organisms and products are considered “regulated articles.” The regulations in § 340.6(a) provide that any person may submit a petition to the Animal and Plant Health Inspection Service (APHIS) seeking a determination that an article should not be regulated under 7 CFR part 340. Paragraphs
(b)and
(c)of § 340.6 describe the form that a petition for a determination of nonregulated status must take and the information that must be included in the petition. On November 28, 2006, APHIS received a petition seeking a determination of nonregulated status (APHIS No. 06-332-01p) from Bayer CropScience
(BCS)of Research Triangle Park, NC, for cotton ( *Gossypium hirsutum* ) designated as transformation event GHB614, which has been genetically engineered for tolerance to the herbicide glyphosate, stating that cotton line GHB614 does not present a plant pest risk and, therefore, should not be a regulated article under APHIS' regulations in 7 CFR part 340. BCS responded to APHIS' subsequent request for additional information and clarification on May 11, 2007. The petition is available for public review and comment. Analysis As described in the petition, cotton transformation event GHB614 utilizes the enzyme 5-enolpyruvylshikimate-3-phosphate synthase (EPSPS) gene isolated from a previously deregulated cotton event (Event GA21; APHIS petition number 97-099-01) and introduces two amino acid substitutions within the EPSPS gene (designated 2mEPSPS). These modifications decrease the binding affinity to glyphosate, thus producing tolerance to the herbicide. The 2mEPSPS protein allows the plant to tolerate applications of the broad spectrum herbicide glyphosate. Regulatory elements for the transgenes were obtained from *Agrobacterium tumefaciens* and were introduced into cotton cells using *Agrobacterium-* mediated transformation methodology. These regulatory sequences are not transcribed and do not encode proteins. Transformation event GHB614 has been considered a regulated article under the regulations in 7 CFR part 340 because it contains gene sequences from a plant pathogen. GHB614 cotton has been field tested in the United States since 2002 under notifications authorized by the U.S. Department of Agriculture (USDA). APHIS has presented three alternatives in the draft environmental assessment
(EA)based on its analyses of data submitted by BCS, a review of other scientific data, as well as data gathered from field tests conducted under APHIS oversight. These are the three alternatives that APHIS is considering:
(1)Take no action (GHB614 remains a regulated article),
(2)deregulate GHB614 in whole, or
(3)deregulate GHB614 in part. In § 403 of the Plant Protection Act (7 U.S.C. 7701 *et seq.* ), “plant pest” is defined as any living stage of any of the following that can directly or indirectly injure, cause damage to, or cause disease in any plant or plant product: A protozoan, a nonhuman animal, a parasitic plant, a bacterium, a fungus, a virus or viroid, an infectious agent or other pathogen, or any article similar to or allied with any of the foregoing. APHIS views this definition broadly to cover direct or indirect injury, disease, or damage not just to agricultural crops, but also to other plants, for example, native species, as well as to plant parts and plant products whether natural, manufactured, or processed. GHB614 cotton is subject to regulation by other Federal agencies. The U.S. Environmental Protection Agency
(EPA)is responsible for the regulation of pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended (7 U.S.C. 136 *et seq.* ). FIFRA requires that all pesticides, including herbicides, be registered prior to distribution or sale, unless exempt from EPA regulation. In order to be registered as a pesticide under FIFRA, it must be demonstrated that when used with common practices, a pesticide will not cause unreasonable adverse effects in the environment. Under the Federal Food, Drug, and Cosmetic Act (FFDCA), as amended (21 U.S.C. 301 *et seq.* ), pesticides added to (or contained in) raw agricultural commodities generally are considered to be unsafe unless a tolerance or exemption from tolerance has been established. Residue tolerances for pesticides are established by EPA under the FFDCA, and the U.S. Food and Drug Administration
(FDA)enforces the tolerances set by EPA. BCS submitted the appropriate regulatory package to EPA for registering the use of glyphosate herbicide on GBH614 cotton. Safe use of glyphosate has been established by the EPA through the registration of glyphosate for use on cotton and the setting of tolerances for the herbicide. FDA's policy statement concerning regulation of products derived from new plant varieties, including those genetically engineered, was published in the **Federal Register** on May 29, 1992 (57 FR 22984-23005). Under this policy, FDA uses what is termed a consultation process to ensure that human and animal feed safety issues or other regulatory issues (e.g., labeling) are resolved prior to commercial distribution of a bioengineered food. In compliance with the FDA policy, BCS has submitted a food and feed safety and nutritional assessment summary for GHB614 cotton to the FDA. This assessment is pending. As of May 29, 2008, FDA has not announced the completion of BCS' consultation for cotton event GHB614 (see *http://www.cfsan.fda.gov/lrd/~biocon.html* ). National Environmental Policy Act A draft EA has been prepared to provide the APHIS decisionmaker with a review and analysis of any potential environmental impacts associated with the proposed determination of nonregulated status for GHB614. The draft EA was prepared in accordance with
(1)The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 *et seq.* ),
(2)regulations of the Council on Environmental Quality for implementing the procedural provisions of NEPA (40 CFR parts 1500-1508),
(3)USDA regulations implementing NEPA (7 CFR part 1b), and
(4)APHIS' NEPA Implementing Procedures (7 CFR part 372). In accordance with § 340.6(d) of the regulations, we are publishing this notice to inform the public that APHIS will accept written comments regarding the petition for a determination of nonregulated status from interested or affected persons for a period of 60 days from the date of this notice. We are also soliciting written comments from interested or affected persons on the draft EA prepared to examine any potential environmental impacts of the proposed determination for the deregulation of the subject cotton event. The petition and the draft EA are available for public review, and copies of the petition and the draft EA are available as indicated under ADDRESSES and FOR FURTHER INFORMATION CONTACT above. After the comment period closes, APHIS will review all written comments received during the comment period and any other relevant information. All public comments received regarding the petition and draft EA will be available for public review. After reviewing and evaluating the comments on the petition and the draft EA and other data, APHIS will furnish a response to the petitioner, either approving (in whole or part) or denying the petition. APHIS will then publish a notice in the **Federal Register** announcing the regulatory status of BCS' herbicide-tolerant cotton event GHB614 and the availability of APHIS' written regulatory and environmental decision. Authority: 7 U.S.C. 7701-7772 and 7781-7786; 31 U.S.C. 9701; 7 CFR 2.22, 2.80, and 371.3. Done in Washington, DC, this 12th day of June 2008. Kevin Shea, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E8-13736 Filed 6-17-08; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. APHIS-2007-0070] Interstate Movement of Municipal Solid Waste From Hawaii; Availability of an Environmental Assessment and Finding of No Significant Impact AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Notice. SUMMARY: We are advising the public that the Animal and Plant Health Inspection Service has prepared a regional programmatic environmental assessment and finding of no significant impact relative to the interstate movement of municipal solid waste from Hawaii to landfills in the States of Idaho, Oregon, and Washington. The environmental assessment contains a general assessment of the potential environmental effects associated with moving garbage interstate from Hawaii to Idaho, Oregon, and Washington subject to certain pest risk mitigation measures and documents our review and analysis of the environmental impacts associated with, and alternatives to, such movements. Based on its finding of no significant impact, the Animal and Plant Health Inspection Service has determined that an environmental impact statement need not be prepared. FOR FURTHER INFORMATION CONTACT: Ms. Shannon Hamm, Acting Deputy Administrator, Policy and Program Development, APHIS, 4700 River Road Unit 20, Riverdale, MD 20737-1231;
(301)734-4957. SUPPLEMENTARY INFORMATION: Background The importation and interstate movement of garbage is regulated by the Animal and Plant Health Inspection Service (APHIS) under 7 CFR 330.400 and 9 CFR 94.5 in order to protect against the introduction into and dissemination within the United States of plant and animal pests and diseases. On March 13, 2008, we published in the **Federal Register** (73 FR 13525, Docket No. APHIS-2007-0070) a notice 1 in which we announced the availability, for public review and comment, of a regional programmatic environmental assessment relative to the interstate movement of municipal solid waste from Hawaii to landfills in the States of Idaho, Oregon, and Washington. 1 To view the notice and the comments we received, go to *http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2007-0070.* The environmental assessment, titled “Regional Movement of Plastic-baled Municipal Solid Waste from Hawaii to Washington, Oregon, and Idaho” (February 2008), considers the movement of a cumulative maximum amount of baled municipal solid waste from the State of Hawaii to any qualified landfill in Washington, Oregon, or Idaho under compliance agreements with APHIS and in accordance with the standards previously established by APHIS regarding baling, handling, spill response, and disposal. We solicited comments on the regional programmatic environmental assessment for 30 days ending on April 14, 2008. We received three comments by that date, from the State of Idaho, a private citizen, and a law office. All of the commenters raised specific issues regarding the environmental assessment. In an attachment to the finding of no significant impact determination, we respond to each of the issues raised by the commenters. Based on the information contained in the regional programmatic environmental assessment and following our consideration of the information submitted during the comment period, we have determined that implementation of either alternative examined in the environmental assessment—i.e., the barging of municipal solid waste from Hawaii to landfills within the States of Oregon, Washington, and Idaho under compliance agreements with APHIS or taking no action (no interstate movement of municipal solid waste from Hawaii)—is not expected to result in a significant impact to the human environment, and an environmental impact statement does not need to be prepared. The environmental assessment and finding of no significant impact have been prepared in accordance with:
(1)The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 *et seq.* ),
(2)regulations of the Council on Environmental Quality for implementing the procedural provisions of NEPA (40 CFR parts 1500-1508),
(3)USDA regulations implementing NEPA (7 CFR part 1), and
(4)APHIS' NEPA Implementing Procedures (7 CFR part 372). Done in Washington, DC, this 12th day of June 2008. Kevin Shea, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E8-13735 Filed 6-17-08; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF AGRICULTURE Food and Nutrition Service Agency Information Collection Activities: Proposed Collection; Comment Request; Waivers Under Section 6(o) of the Food Stamp Act AGENCY: Food and Nutrition Service, USDA. ACTION: Notice. SUMMARY: In accordance with Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on proposed information collections. The proposed collection is a revision of a currently approved collection. The purpose of Section 6(o) of the Food Stamp Act of 1977, as amended by Section 824 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, is to establish a time limit for the receipt of food stamp benefits for certain able-bodied adults who are not working. The provision authorizes the Secretary of Agriculture, upon a State agency's request, to waive the provision for any group of individuals if the Secretary determines “that the area in which the individuals reside has an unemployment rate of over 10 percent, or does not have a sufficient number of jobs to provide employment for the individuals.” As required in the statute, in order to receive a waiver the State agency must submit sufficient supporting information so that the United States Department of Agriculture
(USDA)can make the required determination as to the area's unemployment rate or sufficiency of available jobs. This collection of information is therefore necessary in order to obtain waivers of the food stamp time limit. DATES: Written comments must be received on or before August 18, 2008. ADDRESSES: *Comments are invited on:*
(a)Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility;
(b)the accuracy of the agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used;
(c)ways to enhance the quality, utility, and clarity of the information to be collected;
(d)ways to minimize the burden of the collection of information on those who respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. Comments may be sent to Patrick Waldron, Chief, Certification Policy Branch, Program Development Division, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Alexandria, VA 22302. Comments may also be faxed to the attention of Mr. Waldron at
(703)305-2486. The e-mail address is: *Patrick.Waldron@FNS.USDA.GOV.* All written comments will be open for public inspection at the office of the Food and Nutrition Service during regular business hours (8:30 a.m. to 5 p.m., Monday through Friday) at 3101 Park Center Drive, Alexandria, Virginia, 22302, Room 812. All responses to this notice will be summarized and included in the request for OMB approval. All comments will be a matter of public record. FOR FURTHER INFORMATION CONTACT: Requests for additional information should be directed to Mr. Waldron at
(703)305-2495. SUPPLEMENTARY INFORMATION: *Title:* Waiver Guidance for Food Stamp Time Limits. *OMB Number:* 0584-0479. *Expiration Date:* August 31, 2008. *Type of Request:* Revision of a currently approved collection. *Abstract:* Section 824 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), Public Law 104-193, 110 Stat. 2323 amended Section 6(o) of the Food Stamp Act of 1977 (7 U.S.C. 2015(o)) to establish a time limit for the receipt of food stamp benefits for certain able-bodied adults who are not working. The provision authorizes the Secretary of Agriculture, upon a State agency's request, to waive the provision for any group of individuals if the Secretary determines “that the area in which the individuals reside has an unemployment rate of over 10 percent, or does not have a sufficient number of jobs to provide employment for the individuals.” As required in the statute, in order to receive a waiver the State agency must submit sufficient supporting information so that USDA can make the required determination as to the area's unemployment rate or sufficiency of available jobs. This collection of information is therefore necessary in order to obtain waivers of the food stamp time limit. During the last three years, the Food and Nutrition Service
(FNS)has received on average 48 requests for waivers from an average of 48 State agencies. We wish to note that FNS has granted a limited number of 2-year waivers and that the estimated average of 48 submissions a year is based on multiple annual submissions from some State agencies and less biannual submissions from other State agencies. Each request submitted by a State agency to exempt individuals residing in specified areas is considered by FNS to be a separate request, since the requested exemptions may be based on different criteria, are submitted at different times, and require separate analysis. Although State agencies have submitted significantly fewer multiple requests since the last time that this reporting burden was extended, in order to ensure that all areas that potentially qualify for exemptions are included in their waiver requests, State agencies are employing a more sophisticated analysis covering multiple timeframes and multi-county geographical and labor market areas, requiring more time for the preparation and evaluation of each request. *Affected Public:* State and Local governments. *Estimated Number of Respondents:* 48. *Estimated Number of Responses:* 48. *Estimated Number of Responses per Respondent:* 1. *Estimated Time per Response:* 35 hours. *Estimated Total Burden:* 1680 hours. Dated: June 12, 2008. Roberto Salazar, Administrator, Food and Nutrition Service. [FR Doc. E8-13739 Filed 6-17-08; 8:45 am] BILLING CODE 3410-30-P DEPARTMENT OF AGRICULTURE Food and Nutrition Service Agency Information Collection Activities: Proposed Collection; Comment Request—Evaluation of the Birth Month Breastfeeding Changes to the WIC Food Packages AGENCY: Food and Nutrition Service (FNS), USDA. ACTION: Notice. SUMMARY: In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on this proposed information collection. On December 6, 2007, FNS published an interim regulation in the **Federal Register** : Special Supplemental Nutrition Program for Women, Infants and Children (WIC): Revisions in the WIC Food Packages; Interim Rule [72 FR 68966]. This current notice announces FNS' intent to request from the Office of Management and Budget
(OMB)approval to collect information for the evaluation of impacts of the Interim Rule on the food package choices and breastfeeding outcomes of postpartum women who participate in WIC. DATES: Written comments must be received on or before August 18, 2008. ADDRESSES: *Comments are invited on:*
(a)Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility;
(b)the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions that were used;
(c)ways to enhance the quality, utility, and clarity of the information to be collected; and
(d)ways to minimize the burden of the collection of information on those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. *Comments may be sent to:* Ted Macaluso, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Alexandria, VA 22302. Comments may also be submitted via fax to the attention of Ted Macaluso at 703-305-2576 or via e-mail to *Ted.Macaluso@fns.usda.gov.* All responses to this notice will be summarized and included in the request for OMB approval. All comments will be a matter of public record. FOR FURTHER INFORMATION CONTACT: Requests for additional information or copies of this information collection should be directed to Ted Macaluso at 703-305-2121. SUPPLEMENTARY INFORMATION: *Title:* Evaluation of the Birth Month Breastfeeding Changes to the WIC Food Packages. *OMB Number:* Not Yet Assigned. *Expiration Date:* Not Yet Determined. *Type of Request:* New collection of information. *Abstract:* The Special Supplemental Nutrition Program for Woman, Infants and Children (WIC), (42 U.S.C. 1786) provides low-income pregnant, breastfeeding, and postpartum women, infants, and children up to age five with nutritious supplemental foods. The program also provides nutrition education and referrals to health and social services. An Interim Rule published on December 6, 2007 (72 FR 68966) revises the WIC food packages to align them with the 2005 Dietary Guidelines for Americans and infant feeding practice guidelines of the American Academy of Pediatrics. The Interim Rule revisions largely reflect recommendations made by the Institute of Medicine
(IOM)of the United States National Academies, in its 2005 report, “WIC Food Packages: Time for a Change,” with certain cost containment and administrative modifications found necessary by the Department to ensure cost neutrality. The Interim Rule's comment period ends on February 1, 2010. The revised food packages for infants and women were designed to strengthen WIC's breastfeeding promotion efforts and provide additional incentives to assist mothers in making the decision to start and continue breastfeeding. Under the interim regulation, there are three infant feeding options available in the first month after birth—either
(1)fully formula feeding;
(2)fully breastfeeding; or
(3)partially breastfeeding. Under the partial breastfeeding food package, the amount of infant formula available during the first month postpartum is limited. Thereafter, in months two through six, partially breastfed infants may only receive one half of the maximum amount of infant formula available to a fully formula fed infant. These changes are designed to promote the initiation, intensity, and duration of breastfeeding. The underlying theory is that by greatly reducing the amount of formula available for the partial breastfeeding option in the first month postpartum:
(a)more mothers will initiate breastfeeding; and
(b)mothers who have difficulty breastfeeding during the first month will be less likely to stop breastfeeding if formula is not so readily available. In addition, if less formula is available to partial breastfeeding mothers in months two through five postpartum, there is a greater likelihood that:
(a)mothers will feed their infants relatively more breastmilk than formula each month; and
(b)they will do so for longer than they would if formula were more plentiful. These regulatory changes may have intended or unintended consequences for WIC mothers and infants. To identify potential positive impacts of the regulatory change, to address concerns about unintended consequences, and in response to recommendations from the IOM to study the effects of the rule change, FNS has funded this study to examine the effects of the changes in packages for postpartum women and infants on the initiation, intensity, and duration of breastfeeding. To study the effects of the changes in food packages for postpartum women and infants, FNS is conducting a study in 16 Local WIC Agencies (LWAs). The study will gather data from administrative records; local WIC administrators; and WIC participants in 16 LWAs, selected as a sample with probability proportional to size; as well as officials from those States where the 16 LWAs are located. Data will be gathered prior to and after the interim regulation is implemented. The study will measure the impact of changes on food package choices and on breastfeeding initiation, intensity and duration. The study also will describe the implementation of these changes in these LWAs. *Affected Public:* Respondent groups identified include:
(1)WIC participants who are postpartum women with infants newborn through six months of age;
(2)local WIC administrators from 16 LWAs selected as a sample with probability proportional to size; and
(3)State WIC officials from, at most, 16 States (if the 16 sampled Local WIC Agencies are from different States). *Estimated Number of Respondents:* The total estimated number of respondents is 2,144. This includes: 2,000 WIC participants (80% of whom will complete interviews); 16 Local WIC Agency directors; 16 Local WIC Agency outreach coordinators; 16 Local WIC Agency senior nutrition coordinators; 32 Local WIC Agency nutritionists; and, at most, 16 State WIC directors, 16 State breastfeeding coordinators, and 16 State nutrition coordinators. *Estimated Number of Responses per Respondent:* The WIC participants will be asked to participate in one survey. All other respondents (Local WIC Agency directors, Local WIC Agency outreach coordinators, Local WIC Agency senior nutrition coordinators, Local WIC Agency nutritionists, State WIC directors, State breastfeeding coordinators, and State nutrition coordinators) will respond to one telephone interview and two in-person interviews for a total of three responses each. *Estimated Total Annual Responses:* 2,432. *Estimated Time per Response:* 32.4 minutes (0.54 hours). The estimated time of response varies from 30 to 60 minutes depending on respondent group, as shown in the table below, with an average estimated time of three minutes for non-responders to the participant survey. *Estimated Total Annual Burden on Respondents:* 78,800 minutes (1,335.20 hours). See the table below for estimated total annual burden for each type of respondent. Respondent Estimated # respondents Responses annually per respondent Total annual responses (Col. bxc) Estimated avg. # of hours per response Estimated total hours (Col. dxe) Reporting Burden WIC Participants—completed interviews 1600 1 1,600.00 0.58450 935.2 WIC Participants—attempted interviews 400 1 400 0.1 40.0 State WIC Director 16 3 48 1 48 State Breastfeeding Coordinator 16 3 48 0.5 24 State Nutrition Coordinator 16 3 48 0.5 24 Local WIC Agency Director 16 3 48 1 48 Local WIC Breastfeeding Coordinator 16 3 48 1 48 Local WIC Agency Outreach Coordinator 16 3 48 0.5 24 Local WIC Agency Nutritionists 32 3 96 1 96 Local WIC Agency Senior Nutrition Coordinator 16 3 48 1 48 Total Reporting Burden 2,144 2,432.00 1,335.20 Dated: June 12, 2008. Roberto Salazar, Administrator, Food and Nutrition Service. [FR Doc. E8-13742 Filed 6-17-08; 8:45 am] BILLING CODE 3410-30-P DEPARTMENT OF AGRICULTURE Natural Resources Conservation Service Agricultural Air Quality Task Force AGENCY: Natural Resources Conservation Service, USDA. ACTION: Notice of Request for Nominations for the Agricultural Air Quality Task Force. SUMMARY: The Secretary of Agriculture intends to reestablish the Agricultural Air Quality Task Force (AAQTF) and requests nominations for qualified persons to serve as members. DATES: Nominations must be received in writing (see SUPPLEMENTARY INFORMATION section) by August 4, 2008. ADDRESSES: Send written nominations to: Michele Laur, Designated Federal Official, USDA/Natural Resources Conservation Service, Post Office Box 2890, Room 6165-South, Washington, DC 20013. FOR FURTHER INFORMATION CONTACT: Questions or comments should be directed to Michele Laur, Designated Federal Official, telephone:
(202)720-1858; fax:
(202)720-2646; or e-mail: *michele.laur@wdc.usda.gov.* SUPPLEMENTARY INFORMATION: AAQTF Purpose As required by Section 391 of the Federal Agriculture Improvement and Reform Act of 1996, the Chief of the Natural Resources Conservation Service
(NRCS)shall establish a task force to review research that addresses air quality issues related to agriculture or the agriculture infrastructure. The task force will provide recommendations to the Secretary of Agriculture on the development and implementation of air quality policy and air quality research needs. The requirements of the Federal Advisory Committee Act apply to this task force. The task force will: 1. Review research on agricultural air quality supported by Federal agencies; 2. Provide recommendations to the Secretary of Agriculture regarding air quality and its relation to agriculture, based upon sound scientific findings; 3. Work to ensure intergovernmental (Federal, State, and local) coordination in establishing policy for agricultural air quality, and to avoid duplication of efforts; 4. Assist, to the extent practical, Federal agencies in correcting erroneous data with respect to agricultural air quality; and, 5. Ensure that air quality research, related to agriculture, receives adequate peer review and considers economic feasibility. AAQTF Membership The task force will be made up of United States citizens and be composed of: 1. Individuals with expertise in agricultural air quality and/or agricultural production; 2. Representatives of institutions with expertise in the impacts of air quality on human health; 3. Representatives from agriculture interest groups having expertise in production agriculture; 4. Representatives from State or local agencies having expertise in agriculture and air quality; and 5. An atmospheric scientist. Task force nominations must be in writing, and provide the appropriate background documents required by the Department of Agriculture
(USDA)policy, including Form AD-755. Previous nominees and current task force members who wish to be reappointed must completely update their nominations and provide a new background disclosure form (AD-755) to reaffirm their candidacy. Service as a task force member shall not constitute employment by, or the holding of an office of the United States for the purpose of Federal law. A task force member shall serve for a term of 2 years. Task force members shall receive no compensation from NRCS for their service as task force members except as described below. While away from home or regular place of business as a member of the task force, the member will be eligible for travel expenses paid by NRCS, including per diem in lieu of subsistence, at the same rate as a person employed intermittently in the Government service, under Section 5703 of Title 5, United States Code. Additional information about AAQTF is located on the Internet at *http://www.airquality.nrcs.usda.gov/AAQTF/.* Submitting Nominations Nominations should be typed and include the following: 1. A brief summary of no more than two pages explaining the nominee's qualifications to serve on AAQTF; 2. Resume; 3. A completed copy of Form AD-755; 4. Any recent publications relative to air quality; and 5. Any letters of endorsement. Nominations should be sent to Michele Laur at the address listed above and postmarked no later than August 4, 2008. Equal Opportunity Statement To ensure that recommendations of the task force take into account the needs of underserved and diverse communities served by USDA, membership shall include, to the extent practicable, individuals representing minorities, women, and persons with disabilities. Signed in Washington, DC, on June 3, 2008. Arlen L. Lancaster, Chief, Natural Resources Conservation Service. [FR Doc. E8-13675 Filed 6-17-08; 8:45 am] BILLING CODE 3410-16-P DEPARTMENT OF COMMERCE International Trade Administration Applications for Duty-Free Entry of Scientific Instruments Pursuant to Section 6(c) of the Educational, Scientific and Cultural Materials Importation Act of 1966 (Pub. L. 89-651, as amended by Pub. L. 106-36; 80 Stat. 897; 15 CFR part 301), we invite comments on the question of whether instruments of equivalent scientific value, for the purposes for which the instruments shown below are intended to be used, are being manufactured in the United States. Comments must comply with 15 CFR 301.5(a)(3) and
(4)of the regulations and be postmarked on or before (Insert date 20 days after publication in the **Federal Register** ). Address written comments to Statutory Import Programs Staff, Room 2104, U.S. Department of Commerce, Washington, DC 20230. Applications may be examined between 8:30 a.m. and 5 p.m. at the U.S. Department of Commerce in Room 2104. Docket Number: 08-026. Applicant: Howard Hughes Medical Institute, 4000 Jones Bridge Rd., Chevy Chase, MD 20815. Instrument: Electron Microscope, Model Tecnai Spirit T12BT. Manufacturer: FEI Company, Czech Republic. Intended Use: The instrument is intended to be used to examine all or portions of vertebrate and invertebrate organisms. The instrument will be a means of examination of samples for a wide range of studies. The overall objective is to examine these structures at high resolution. Application accepted by Commissioner of Customs: May 16, 2008. Dated: June 5, 2008. Faye Robinson, Director, Statutory Import Programs Staff. [FR Doc. E8-13393 Filed 6-17-08; 8:45 am] BILLING CODE 3510-DS-M DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Evaluation of State Coastal Management Programs and National Estuarine Research Reserves AGENCY: National Oceanic and Atmospheric Administration (NOAA), Office of Ocean and Coastal Resource Management, National Ocean Service, Commerce. ACTION: Notice of Intent to Evaluate and Notice of Availability of Final Findings. SUMMARY: The NOAA Office of Ocean and Coastal Resource Management
(OCRM)announces its intent to evaluate the performance of the Hawaii Coastal Management Program, the Minnesota Coastal Management Program, the San Francisco (California) Bay Conservation and Development Commission, and the California State Coastal Conservancy. The Coastal Zone Management Program evaluations will be conducted pursuant to section 312 of the Coastal Zone Management Act of 1972, as amended
(CZMA)and regulations at 15 CFR part 923, Subpart L. The CZMA requires continuing review of the performance of states with respect to coastal program implementation. Evaluation of Coastal Management Programs requires findings concerning the extent to which a state has met the national objectives, adhered to its Coastal Management Program document approved by the Secretary of Commerce, and adhered to the terms of financial assistance awards funded under the CZMA. Each evaluation will include a site visit, consideration of public comments, and consultations with interested Federal, state, and local agencies and members of the public. A public meeting will be held as part of the site visit. Notice is hereby given of the dates of the site visits for the listed evaluations, and the dates, local times, and locations of the public meetings during the site visits. *Dates and Times:* The Hawaii Coastal Management Program evaluation site visit will be held July 25-August 4, 2008. One public meeting will be held during the week. The public meeting will be held on Wednesday, July 30, 2008, at 7 p.m. at the Hilo State Office Building, Conference Rooms A, B, and C, 75 Aupuni Street, Hilo, Hawaii. Minnesota's Lake Superior Coastal Program evaluation site visit will be held August 4-8, 2008. One public meeting will be held during the week. The public meeting will be held on Monday, August 4, 2008, at 6 p.m. at the Lafayette Community Center, 3026 Minnesota Avenue, Duluth, Minnesota. The joint San Francisco (California) Bay Conservation and Development Commission and the California State Coastal Conservancy evaluation site visit will be held September 22-26, 2008. One public meeting will be held during the week. The public meeting will be held on Tuesday, September 23, 2008, at 7 p.m. at the San Francisco Bay Conservation and Development Commission, McAteer-Petris Conference Room, 50 California Street, San Francisco, California. ADDRESSES: Copies of states' most recent performance reports, as well as OCRM's evaluation notification and supplemental information request letters to the states, are available upon request from OCRM. Written comments from interested parties regarding these Programs are encouraged and will be accepted until 15 days after the public meeting held for a Program. Please direct written comments to Kate Barba, Chief, National Policy and Evaluation Division, Office of Ocean and Coastal Resource Management, NOS/NOAA, 1305 East-West Highway, 10th Floor, N/ORM7, Silver Spring, Maryland 20910. When the evaluation is completed, OCRM will place a notice in the **Federal Register** announcing the availability of the Final Evaluation Findings. SUPPLEMENTARY INFORMATION: Notice is hereby given of the availability of the final evaluation findings for the Ohio Coastal Management Program (CMP). Section 312 of the Coastal Zone Management Act of 1972 (CZMA), as amended, requires a continuing review of the performance of coastal states with respect to approval of CMPs. The state of Ohio was found to be implementing and enforcing its federally approved coastal management programs addressing the national coastal management objectives identified in CZMA Section 303(2)(A)-(K), and adhering to the programmatic terms of its financial assistance awards. A copy of these final evaluation findings may be obtained upon written request from: Kate Barba, Chief, National Policy and Evaluation Division, Office of Ocean and Coastal Resource Management, NOS/NOAA, 1305 East-West Highway, 10th Floor, N/ORM7, Silver Spring, Maryland 20910, or *Kate.Barba@noaa.gov.* FOR FURTHER INFORMATION CONTACT: Kate Barba, Chief, National Policy and Evaluation Division, Office of Ocean and Coastal Resource Management, NOS/NOAA, 1305 East-West Highway, 10th Floor, N/ORM7, Silver Spring, Maryland 20910,
(301)563-1182. Federal Domestic Assistance Catalog 11.419, Coastal Zone Management Program Administration. Dated: June 12, 2008. David M. Kennedy, Director, Office of Ocean and Coastal Resource Management, National Ocean Service, National Oceanic and Atmospheric Administration. [FR Doc. E8-13747 Filed 6-17-08; 8:45 am] BILLING CODE 3510-08-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XH04 Incidental Takes of Marine Mammals During Specified Activities; Rat Population Eradication at Rat Island, AK AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; proposed incidental take authorization; request for comments. SUMMARY: NMFS has received an application from the U.S. Fish and Wildlife Service (USFWS) for an Incidental Harassment Authorization
(IHA)to take small numbers of marine mammals, by harassment, incidental to the eradication of rat populations at Rat Island, AK. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposed IHA for these activities. DATES: Comments and information must be received no later than July 18, 2008. ADDRESSES: Comments on the application should be addressed to Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910-3225. The mailbox address for providing email comments is PR1. *0648-XD79@noaa.gov* . Comments sent via e-mail, including all attachments, must not exceed a 10-megabyte file size. A copy of the application containing a list of the references used in this document may be obtained by writing to the address specified above, telephoning the contact listed below (see FOR FURTHER INFORMATION CONTACT ), or visiting the internet at: *http://www.nmfs.noaa.gov/pr/permits/incidental.htm* . Documents cited in this notice may be viewed, by appointment, during regular business hours, at the aforementioned address. FOR FURTHER INFORMATION CONTACT: Howard Goldstein or Ken Hollingshead, NMFS,
(301)713-2289. SUPPLEMENTARY INFORMATION: Background Sections 101(a)(5)(A) and
(D)of the MMPA (16 U.S.C. 1361 *et seq.* ) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review. Authorization shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for certain subsistence uses, and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as ”...an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the United States can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: any act of pursuit, torment, or annoyance which
(I)has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or
(ii)has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment]. Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny issuance of the authorization. Summary of Request On February 29, 2008, NMFS received a letter from the USFWS, requesting issuance of a proposed IHA. The requested IHA would authorize the take, by harassment, of small numbers of Steller sea lions ( *Eumetopias jubatus* ), and Pacific harbor seals ( *Phoca vitulina richardsi* ), incidental to rat population eradication and bait application operations. Operations will be conducted on foot, by watercraft (boat), and by aircraft (helicopter) by a field crew. Additional information on the eradication operations is contained in the application and Environmental Assessment (EA), which is available upon request (see ADDRESSES ). Restoration of natural ecosystem function on Rat Island promises to re-establish native seabirds and other native species, thus returning this wilderness island to a healthy natural community. This restoration cannot occur until the island is cleared of the invasive non-native Norway rats that now dominate the living community. Introduced non-native species are a leading cause of extinctions in island communities worldwide. Increasingly, land managers are removing introduced species to aid in the restoration of native ecosystems. Rats are responsible for 40-60% of all recorded bird and reptile extinctions worldwide. Given their widespread successful colonization on islands and the resulting impact to native species, introduced rats are identified as key species for eradication. Most of the Aleutian Islands lying within the Alaska Maritime National Wildlife Refuge (AMNWR) provide important breeding habitat for seabirds, including many for which the Aleutians provide a substantial portion of their worldwide range. Norway rats are established on at least 10 Aleutian islands or island groups, and the diversity and numbers of breeding seabirds occurring on those islands are now conspicuously low. Rat-caused modifications to other components of the island ecosystems (e.g., other birds, plants, and invertebrates) are also evident. The restoration of Aleutian ecosystems through introduced predator eradications has long been identified as a priority for AMNWR, and the initial efforts have been directed to removing introduced Arctic foxes. The focus now has turned to rats. The intent of the proposed operations is to facilitate the restoration of the natural island ecosystem by improving habitat quality for native species. Proposed Rat Eradication Project Description Rats were first introduced to Alaska over 200 years ago at Rat Island in the western Aleutian Island archipelago. Prior to this introduction, the island likely supported significant populations of breeding seabirds and other ground nesting birds which evolved in the absence of mammalian predators. Since their introduction, rats and foxes have extirpated breeding seabirds and had detrimental impacts on vegetation and intertidal life on the island. AMNWR personnel eradicated foxes on Rat Island in 1984. Working with others, the USFWS proposes to eradicate rats from the island using removal techniques based on successful island rat eradications elsewhere in the U.S. and globally. The purpose of eradicating rats from Rat Island is to conserve, protect and enhance habitat for native wildlife species, especially nesting habitat for seabirds, and to restore the biotic integrity of the island. The overarching goal in a successful eradication is to ensure the delivery of a lethal dose of toxicant to every rodent on the island. The primary method for eradicating rats from Rat Island is delivery of compressed-grain bait pellets containing rodenticide to every rat territory on the island through aerial broadcast. The bait pellets will contain 25 ppm brodifacoum and will be applied according to Environmental Protection Agency
(EPA)approved label directions. The need for caution near the marine and freshwater environments, due to the chemical composition of the bait pellets and potential for contamination of the water column (bait pellets disintegrate and dissolve quickly in water), requires a buffer when broadcasting the rodenticide. As a result, some areas may not receive the optimal bait coverage with helicopter broadcast. In cases where it is evident or suspected that any land area on Rat Island or offshore islets did not receive full coverage, there will be supplemental systematic hand broadcast either by foot, boat, helicopter, or any combination of the above. All bait application activities will be conducted by, or under the supervision of, a Pesticide Applicator certified by the State of Alaska. Proposed Staging and Preparation Field crews will visit Rat Island in the summer prior to the rat eradication to install temporary infrastructure and storage sites. These will include: 1) a camp site capable of supporting 20 people for up to seven weeks; 2) three bait staging areas, where bait will be contained in up to 200 storage units at each staging area; and 3) a fuel storage site that will comply with all appropriate safety standards and regulations. Additional material may be brought to the island at that time and staged for the fall application of bait. Helicopters will deliver most of the necessary materials to each site on the island from a vessel anchored nearby. Staging procedures in summer will be conducted using a helicopter capable of lifting a 700 kg (1,543 lbs) payload. Helicopter operations during project staging will be localized to discrete flight paths and landing sites servicing the camp, three bait staging locations, and a fuel storage site. It is possible that some of the material needed for eradication will not be available in the summer. In this case, that material will be staged on the island during the week prior to the fall application of bait. Proposed Bait Application Proposed bait application operations will be conducted using two single-primary-rotor/single tail-rotor helicopters. Bait will be applied from specialized bait hoppers slung 15-20 m (49-66 ft) beneath the helicopter. Helicopter operations for the bait application will necessitate low-altitude overflights of the entire land area of Rat Island and adjacent vegetated islets. The helicopter will fly at a speed ranging from 25-50 knots (46-93 km/hr or 29-58 mph) at an average altitude of approximately 50 m (164 ft) above the ground. To make bait available to all possible rat home ranges on the island, bait will need to be applied evenly across emergent land area, with every reasonable effort made to prevent bait spread into the marine environment. The baiting regime will follow common practice in which parallel, overlapping flight swaths are flown across the interior island area and overlapping swaths with a deflector attached to the hopper (to prevent bait spread into the marine environment) flown around the coastal perimeter. Flight swaths will be defined by the uniform distance of bait broadcast from the hopper, ranging from 50-75 m (164-246 ft). Flight swaths will be flown in a parallel pattern, with subsequent flight swaths overlapping the previous by approximately 25-50% to ensure no gaps in bait coverage. Proposed Special Treatment of the Islet off Ayugadak Point The islet located 1.6 km (1 mi) off Ayugadak Point is a Steller sea lion rookery, designated as Critical Habitat under the Endangered Species Act (ESA). The islet is also potential rat habitat and the thick kelp beds between the main island and this islet make rat migration to and from the islet possible. Bait will be delivered to the islet off Ayugadak Point with an adaptive alternative-baiting strategy designed to minimize disturbance of Steller sea lions from helicopters. During the month of August, project crews will attempt to access the islet by boat, landing on a beach that is out of view of the Steller sea lion rookery. Personnel will install multiple enclosed bait stations on the islet, which will be designed to provide easy access to the bait inside for rats while minimizing bait access by non-target species that may be present on the islet, including song sparrows. Stations will be anchored securely in place, and filled with enough bait to ensure that any rats on the island will have bait available for many weeks. During the major bait application operation in the fall, project crews will attempt to access the islet by boat again, although the sea state during this season may make access more difficult than earlier in the season. If personnel can access the island by boat, they will check the bait stations installed earlier for signs of bait consumption or other rat activity. Bait stations will be refilled as necessary during this visit. If rats are detected or suspected, personnel may additionally hand-broadcast bait pellets on the islet according to label instructions. If project field crews are unable to access the islet by boat at any time during fall operations it will be necessary to aerially treat the island. Proposed Demobilization Once eradication has been completed operational demobilization and clean-up will commence. A charter vessel will be employed to transport all crew and equipment off the island. Demobilization and clean-up will include deconstructing and removing: 1) field camp; 2) garbage and human waste; 3) staging areas; and 4) fuel. All tents, weatherports, and other field camp equipment will be disassembled, packed, and returned to the vessel by helicopter. All equipment will be removed from bait staging areas and transported off the island. The wooden storage boxes will be disassembled, bound, and transported by helicopter back to the vessel. Excess fuel will also be transported back to the vessel by helicopter. Additional details regarding the proposed rat eradication operations can be found in the Environmental Assessment (EA): “Restoring Wildlife Habitat on Rat Island” USFWS 2007 (EA). The EA can also be found online at: *http://alaskamaritime.fws.gov/news.htm* Proposed Dates, Duration, and Region of Activities Rat Island is located in the western Aleutian Islands approximately 51° 80′ North, 178° 30′ West, approximately 1,931 km (1200 mi) west of Anchorage, Alaska. The Ayugadak Point rookery is located on an islet approximately one mile southeast of Rat Island at 51° 45.5′ North, 178deg; 24.5′ East. Proposed Staging and Preparation at Rat Island The summer staging and preparation activities for Rat Island are expected to take 5 days during the week of July 7-11. Helicopter support during this period is estimated to take two days. Wooden storage boxes and platform construction materials will be staged at three areas, as indicated in Figure 1 in USFWS' IHA application. Fuel and all other camp materials will be delivered to the Gunner's Cove field camp location. All materials not available during the summer staging and preparation periods will be transported to Rat Island during the week of September 22-27, 2008. Helicopter support during this period is estimated to take two days. Proposed Bait Application at Rat Island Bait application will commence once staging and preparation have been accomplished as planned. The application will occur during a 45-day time period from September 28-November 11, 2008 (except on the islet off Ayugadak Point). The bait application is estimated to take approximately 35 hours total flight time; however, the implementation will likely be interrupted by typical fall weather patterns in the central Aleutians, which are notoriously unsettled. Therefore, a maximum of 45 days will be allotted to achieve the 35 hour operation window. Proposed Demobilization at Rat Island During the first week of August, a project crew will attempt to access the islet by boat to install bait stations containing rodenticide. The installation will take approximately four hours. If weather and sea conditions allow the installation of bait stations in August, a project crew will attempt to access the islet by boat again during the major bait application operations in October. Sea state during this season may make access more difficult than the August attempt. If personnel can access the island by boat, they will check the bait stations installed earlier for signs of bait consumption or other rat activity and refill stations as necessary. Personnel may also hand-broadcast bait pellets on the islet if rats are detected or suspected. This work is estimated to take between four and six hours. If project crews are not able to access the islet in August or during the Rat Island bait application in October, it will be treated by aerial broadcast. This would take place during the October 1-November 11, 2008 time frame and require approximately 15 minutes of helicopter flight time. Proposed Bait Application at Ayugadak Point Rookery During the first week of August, a project crew will attempt to access the islet by boat to install bait stations containing rodenticide. The installation will take approximately four hours. If weather and sea conditions allow the installation of bait stations in August, a project crew will attempt to access the islet by boat again during the major bait application operations in October. Sea state during this season may make access more difficult than the August attempt. If personnel can access the island by boat, they will check the bait stations installed earlier for signs of bait consumption or other rat activity and refill stations as necessary. Personnel may also hand-broadcast bait pellets on the islet if rats are detected or suspected. This work is estimated to take between four and six hours. If project crews are not able to access the islet in August or during Rat Island bait application in October, it will be treated by aerial broadcast. This would take place during the October1-November 11 time frame and require approximately 15 minutes of helicopter flight time. Status and Distribution of Affected Species Table 1. Recent survey results for pinnipeds in the Rat Island area. Species Number Year Source Comments Harbor Seal 93 “Fairly common” 1999 2007 Small *et al* . in press Buckelew *et al.* 2007 Aerial survey Often seen in water, not seen hauled out Steller sea lion 45 254 2004 2005 NMFS database NMFS database Aerial survey for Rat Is.(adults and juveniles) Aerial survey for Ayugadak Point Rookery (includes 83 pups) present 2007 Bucklew 2007 Seen from boat offshore at Rat Is. And Ayugadak Pt. Steller Sea Lion Steller sea lions range along the North Pacific Rim from northern Japan to California. They are most abundant in the Gulf of Alaska and Aleutian Islands (NMFS, 2006). Two separate stocks of Steller sea lions are recognized in U.S. waters; an eastern U.S. stock that includes animals east of Cape Suckling, Alaska (144° West), and a western U.S. stock which includes animals west of Cape Suckling. The western Distinct Population Segment
(DPS)of Steller sea lions has experienced a major decline of 75% over the past 20 years (Calkins et al., 1999; USFWS, 1997; NMFS, 2007). Consequently the western DPS of Steller sea lions were listed as Endangered under the ESA in 1997. The reasons for this decline are not entirely known and are currently under investigation. Aerial survey data from 2004-2005 were used to calculate a minimum population estimate of 39,988 animals for the western U.S. waters stock. The Bering Sea/Aleutian Islands area population estimate for the same period is 20,578 (NMFS, 2006). Steller sea lions are considered non-migratory with dispersal generally limited to juveniles and adult males. In the Aleutian Islands, Steller sea lions generally breed and give birth from late May to early July (Pitcher and Calkins, 1981), and pups remain at rookeries until about early to mid-September (Calkins et al., 1999). Non-reproductive animals congregate at haul out sites. At Rat Island, a persistent haul-out side is known at the west end of the island near Krysi Point and a rookery is known from the islet off Ayugadak Point. Both sites were active in 2007 (Buckelew *et al* ., 2007). Pacific Harbor Seal In the Pacific Ocean, harbor seals occur in coastal waters and estuaries from Baja California north along the west coast of the U.S. and Canada to Alaska including the Aleutian Islands, southern Bristol Bay and the Pribilof Islands. Harbor seals living in the Aleutian Islands are part of the Gulf of Alaska stock. The Gulf of Alaska stock has experienced significant declines ranging from 50-85% over the past 30 years (NMFS, 2006). Limited information suggests some modest recovery from initial declines and the stock has not been listed under the ESA. The current statewide population estimate for Alaska harbor seals is 180,017 (NMFS, 2006). Harbor seals are generally non-migratory with some local movements related to season, weather, and food availability (NMFS, 2006). In Alaska, harbor seals typically give birth to a single pup between May and mid-July. Pups are generally weaned within one month and separate from their mother. Harbor seals in the Gulf of Alaska undergo an annual molt which peaks between the first week in August and the first week in September (Daniel et al., 2003). Harbor seals are found in scattered locations along the shores of Rat Island and some offshore islets. Incidental Taking Authorization Requested The proposed rat eradication effort and associated operations may result in the taking of marine mammals by Level B incidental harassment only. As a result, the USFWS has requested an IHA for Level B harassment. An incidental take of Level B harassment occurs if an animal moves away any distance in response to the presence of field crew personnel, watercraft, and/or aircraft, or if the animal was already moving and changed direction. Animals that raise their head and look at field crew personnel and/or operated vehicle without moving are not considered disturbed. Most incidental takings would be related to harassment from the noise and visual presence/ movement of helicopter operations during the bait application period. A small number of takes could also occur as a result of human presence and boat operations during the course of the project. The use of a rodenticide is not expected to result in any Level A harassment (i.e., injury) or death of marine mammals. Marine mammals are unlikely to ingest bait pellets of rodenticide opportunistically or accidentally. The rodenticide is retained at low levels in body tissues and numerous large exposures would have to occur in order to ingest an injurious or lethal amount. Steller sea lions and harbor seals diet does not include either bait pellets or rat carcasses that have succumbed to the rodenticide application. Further information on the biology and distribution of these species and others in the region can be found in USFWS' application and EA, which is available upon request (see ADDRESSES ), and the Marine Mammal Stock Assessment Reports, which are available online at *http://www.nmfs.noaa.gov/prot_res/PR2/Stock_Assessment_Program/individual_sars.html.* Potential Impact and Effects of the Proposed Activity on the Marine Mammals Steller Sea Lions The response of pinnipeds, like Steller sea lions, to aircraft overflights varies from no discernable reaction to completely vacating haul outs after a single overflight (Calkins, 1979; Efroymson and Suter, 2001). Approaching aircraft generally flush animals into the water. In one case, Withrow et al. (1985 in Richardson *et al* ., 1995) reported Steller sea lions left a beach in response to a Bell 205 helicopter >1.6 km away, but the noise from a helicopter is typically directed down in a “cone” underneath (Richardson *et al.* , 1995) so disturbance at such great distance is probably uncommon. At Rat Island, known persistent haul out sites will be avoided during proposed staging operations as will any other haul out sites discovered prior to helicopter operations. In spite of these precautions, sea lions encountered unexpectedly during proposed helicopter operations could be flushed from land temporarily. An individual sea lion's exposure to peak noise from the helicopter will be limited to animals that remain ashore, and is likely to be of short duration, as the elevation and speed of the helicopter will limit the time that any single location is exposed to maximum noise. It will be more difficult to avoid known haul sites on Rat Island with the helicopter during bait application because of the need for thorough coverage. No pups are expected on Rat Island. The impacts of disturbance to sea lions during molting (a sensitive period to disturbance, Richardson *et al* ., 1995) will be minimized by timing overflights after the peak molting period is over. Proposed installation of bait stations on the islet off Ayugadak Point in August is likely to result in short-term displacement of some non-breeding animals from the islet. This disturbance is likely to be limited to the few-hour period when personnel are present on the island. Sea lion pups will likely be present on the islet during installation of bait stations. To prevent disturbance to the rookery, the islet will be approached slowly in a small boat, from the side of the island opposite and out of sight of the rookery. While on the islet, personnel will remain out of sight of the rookery. In October, the bait stations on the islet will need to be replenished. Again, the approach to the island will be slow, and opposite the rookery. This may result in displacing a few non-breeding animals for a few hours when personnel are present on the islet. If it is not possible to land a skiff on the islet, the island will be baited with the helicopter as described in the EA, in the fall after the pupping and primary molting season. This is likely to result in flushing sea lions from the islet resulting in short-term displacement. However, as helicopter baiting will be a very short process (approximately 15 minutes), disturbance to Steller sea lions is likely to be very short-term. Risks to Steller's sea lions from personnel camps on Rat Island will be minimal as camps and storage sites will be located well inland away from possible Steller sea lion haul out areas. Overall, the effects of the operations described in the EA on Steller's sea lions will vary depending on the number of disturbance events. However, the short-term displacement from haul-outs that is likely to occur as a result of helicopter noise and personnel is not anticipated to have any effect on overall energy balance or fitness of any individual animals. It is not likely that any Steller sea lions will suffer injury or the potential for injury as a result of the activities described in the EA. The potential disturbance associated with the project would result in Steller sea lions entering the water; which they do as part of their normal pattern of behavior, and possibly flushing of groups of animals at pinniped haul-outs. This analysis concludes that implementation of rat eradication activities as described in the EA is not likely to adversely affect individual Steller sea lions on an individual or population level. Pacific Harbor Seals The response of pinnipeds to proposed aircraft overflights varies from no discernable reaction to completely vacating haul outs after a single overflight (Calkins, 1979; Efroymson and Suter, 2001). Approaching aircraft generally flush animals into the water. During proposed staging operations, project managers will plan helicopter flight lines and boat travel to minimize the potential for disturbance to harbor seal haul-outs known from existing databases and surveys conducted prior to operations. However, in spite of these precautions, seals encountered unexpectedly during helicopter operations could be flushed from land temporarily. An individual seal's exposure to peak noise from the helicopter will be limited to animals that remain ashore, and is likely to be of short duration, as the elevation and speed of the helicopter (see Description of Activities, above) will limit the time that any single location is exposed to maximum noise. It will be more difficult to avoid known haul-out sites of Rat Island with the helicopter during proposed bait application because of the need for through coverage of the entire island. No young pups are expected on Rat Island during the fall. The impacts of disturbance to seals during molting (another sensitive period) will be minimized by timing overflights after the peak molting period is over. The sporadic personnel presence and temporary infrastructure installations that may be necessary near seal haul-outs during both proposed staging and bait application operations may result in localized disturbances, although this is much less likely to disturb animals than helicopter overflights. The camps and staging areas themselves will be well inland and will have negligible impacts on seals hauled out on the coastline. Overall, the short-term displacement from haul-out sites that is likely to occur as a result of helicopter noise and personnel activities is not anticipated to have any significant effect on overall energy balance or fitness of any individual animals. It is not likely that any harbor seals will suffer injury or the potential for injury as a result of project activities. Therefore, this analysis concludes that implementation of rat eradication activities is not likely to result in significant effects to harbor seals at an individual or population level. Variable numbers of sea lions and harbor seals typically haul out near bait application sites used for proposed eradication operations, with breeding activity occurring at one known site. Pinnipeds likely to be affected by rat eradication activity are those that are hauled out on land at or near bait application sites. Incidental harassment may result if hauled animals move away from the field crew personnel, watercraft, and aircraft. For the purpose of estimating the potential numbers of pinnipeds taken by these proposed activities, NMFS assumes that pinnipeds that move or change the direction of their movement in response to the presence of field crew personnel are taken by Level B Harassment. Although marine mammals will not be deliberately approached by field crew personnel during proposed operations, approach may be unavoidable if pinnipeds are hauled out directly upon the bait application sites. If disturbed, hauled-out animals may move toward the water without risk of encountering significant hazards. In these circumstances, the risk of injury or death to hauled animals is very low. The risk of marine mammal injury or mortality associated with rat eradication operations increases somewhat if disturbances occur during breeding season, as it is possible that mothers and dependent pups could become separated. If separated pairs don't reunite fairly quickly, risks of mortality to pups (through starvation) may increase. Also, adult Steller sea lions may trample sea lion pups if disturbed, which could potentially result in the injury or death of pups. However, to mitigate this risk, NMFS and USFWS proposes to include time of year restrictions to limit the presence of field crew personnel activities to months that Steller sea lion and harbor seal dependent pups are not present at the bait application sites. Last, field crew personnel are to use great care approaching sites with pinnipeds and will leave as soon as possible to minimize effects. Because of the circumstances and the proposed IHA requirements discussed above, NMFS believes it highly unlikely that the proposed activities would result in the injury or mortality of pinnipeds. For the purposes of estimating take in the IHA, NMFS estimates take as the total of all three categories of disturbed behavior recorded (discussed in the Proposed Monitoring and Reporting section below). Number of Marine Mammals That May Be Affected Rat Island Most of the disturbance associated with the Rat Island eradication will be a result of aircraft noise. The helicopters used to apply bait to the island will make two passes across most of the island to ensure success of the project. This could result in two harassment incidents of Steller sea lions and harbor seals that are hauled out at that time. The area surrounding a known Steller sea lion haul out at Krysi Point will be avoided by all activities other than bait application. Harbor seals use many parts of Rat Island shoreline and could also be affected by boat operations and personnel movements. Thus the number of takes was estimated at 2.5 for each individual of this species. Steller sea lions at Rat Island were counted during an aerial survey in 2004. The number of animals during that survey was increased to allow for potential population growth and then used to calculate the total take in Table 2 (below). The composition of Steller sea lions, which haul out away from rookeries, shifts between seasons and is not well understood. Although no pups are expected at Rat Island, determining the age and sex ratio of animals using the known haul out near Krysi Point in October is difficult at best. For this reason the number is calculated as adult and sub-adult animals without reference to the sex of these animals. Harbor seals at Rat Island were counted by an aerial survey in 1999. The number of animals recorded during that survey was increased to allow for potential population growth and then used to calculate the total take in Table 2 (below). Information regarding the demographics of harbor seals on Rat Island is not available. The number of animals recorded in the 1999 survey was used to calculate a total number of harbor seal takes. Table 2. Estimated number of marine mammals affected by aircraft operations on Rat Island. M= male, F= female Species # of Animals # of take events per animal Pups Pups Subadults M F Subadults M F Adults M F Adults M F Total # of Takes Steller sea lion 65 2 0 0 ? ? ? ? 130 Pacific harbor seal 100 2.5 ? ? ? ? ? ? 250 Ayugadak Point Rookery Project crews will attempt to access the Ayugadak Point islet by boat in early August. Landing will be attempted on a beach that is out of view of the rookery. The topography of the islet will allow bait stations to be installed without detection by animals on the rookery. The installation of bait stations will be conducted in a manner that will not disturb animals (adults and pups) on the rookery itself. Previous surveys at the islet have sometimes encountered one or two non-breeding bulls outside of the rookery area near the landing area. These were young or old bulls unable to hold a territory at the rookery. If weather allows a visit in August, a follow-up visit will be attempted in October and could result in a similar take event. A female with a dependent pup has not been encountered outside the rookery area on the islet. However, marine mammals can be unpredictable and this remote possibility cannot be completely discounted. A survey of Steller sea lions was conducted by NMFS in 2005. This survey data was increased to allow for potential population growth and then used to calculate the number of animals anticipated to be affected by this proposed operation plan in the table below. The numbers in the table below also reflect the remote possibility of encountering a female with a dependent pup outside the rookery area. There are no location-specific population estimates available for harbor seals on the islet off Ayugadak Point. However, the total take estimate of harbor seals in Table 2 (above) already takes proposed personnel activities, such as boat operation and bait station installation, into account. The harbor seal take estimate from Table 2 (above) includes any harbor seals also present on the islet. Table 3. Estimated number of Steller sea lions affected by bait station installation visits to the islet near Ayugadak Point, August and October. Species # of Animals # of take events per animal Pups Subadults Subadults Adults Adults Total # of Takes Steller sea lion 320 2 1 10 0 9 1 42 If project crews are not able to visit the islet off Ayugadak Point during either of the proposed planned visits in August and October, the islet would be aerially treated at the same time at Rat Island in October. The aerial broadcast would require approximately 15 minutes of flight time, but would likely disturb all animals present at the time. Survey numbers from the NMFS survey in 2005 indicate the presence of 83 pups. By October, the pups will be of an adequate size to avoid being trampled by other animals and largely independent of their mothers. NMFS survey data was increased to allow for potential population growth and then used to calculate the number of animals affected by an aerial treatment of the islet in the table below. Table 4. Estimated number of Steller sea lions affected by possible aerial broadcast of the islet near Ayugadak Point, October. Species # of Animals # of take events per animal Pups Subadults Adults Total # of Takes Steller sea lion 320 1 100 0 220 320 The distribution of pinnipeds hauled-out along the shorelines is not even between sites or at different times of the year. The number of marine mammals disturbed will vary by month and location, and, compared to animals hauled-out on the shoreline farther away from proposed operations, only those animals hauled-out closest to the actual proposed operation sites are likely to be disturbed by the presence of field crew personnel activities and alter their behavior or attempt to move out of the way. As discussed earlier, the take estimates consider an animal to have been harassed if it moves away any distance in response to the presence of field crew personnel, watercraft, and/or aircraft, or if the animal is already moving and changed direction. Based on past observations and assuming a maximum level of incidental harassment of marine mammals at each site during periods of visitation, NMFS estimates that the maximum total possible numbers of individuals that will be incidentally harassed during the effective dates of the proposed IHA would be 385 Steller sea lions, and 100 Pacific harbor seals may be taken by incidental harassment as a result of this activity. The population size of the U.S. western stock of Steller sea lions is estimated to be 44,780, with a minimum population estimate of 38,988 animals (Angliss and Outlaw, 2007). Population estimates for the U.S. Gulf of Alaska stock of Pacific harbor seals range from a minimum of 44,453 to an average of 45,975 animals (Angliss and Outlaw, 2007). The estimated total possible number of individuals that will be incidentally harassed during the proposed project is 0.009 and 0.002 percent of the respective Steller sea lion and harbor seal U.S. stock populations for these species. NMFS has determined that these are small numbers, relative to population estimates, of Steller sea lions and Pacific harbor seals. Anticipated Impacts to Subsistence Users In the Aleutian Islands, rural residents harvest Steller sea lions and Pacific harbor seals for subsistence purposes. The proposed rat eradication operations described in the EA should have no effect on those subsistence uses. Rat Island is uninhabited and is located more than 322 km (200 mi) from the nearest rural community of Adak, Alaska. The subsistence resources used by rural residents in the Aleutian Islands are harvested near the islands where the communities are located. Rat Island is not known to have been used for subsistence purposes since the 1800's. Anticipated Impact of the Proposed Activity upon Marine Mammal Habitat NMFS anticipates the proposed rat eradication operations described in the IHA application and this document will result in no impacts to the habitat of marine mammals in the Rat Island area beyond rendering the areas immediately around each of the baiting application and broadcasting sites less desirable as haul-out sites for a short time period during the length of the action. Helicopter and field crew operations will occasionally need to occur within the Steller sea lion “no-entry zones” established by 50 CFR 223.202. Although Level B harassment is expected to occur in some instances, these proposed activities will not result in the physical alteration of habitat or lead to any effects on the prey base of Steller's sea lions or harbor seals. The proposed rat eradication project should not result in the loss or modification of marine mammal habitat and the application of rodenticide bait is not likely to affect marine mammals during the described operations. Proposed Mitigation Several mitigation measures to reduce the potential for harassment from rat population eradication operations would be (or are proposed to be implemented) implemented as part of the proposed USFWS activities. The risk of injury or mortality would be avoided with the following proposed measures. Timing The proposed rat eradication program will include all measures possible to minimize marine mammal disturbance. This will be especially critical during periods when Steller sea lions and harbor seals are giving birth, mating, rearing young, and molting. Disturbances to females with dependent pups (in the cases of Steller sea lions and Pacific harbor seals) will be mitigated to the greatest extent practicable by avoiding visits to baiting sites with resident pinnipeds during periods of breeding, lactation, and molting. During this period, proposed rat eradication operations would be limited to sites where pinniped breeding, post-partum nursing, and molting does not occur. The reproductive period for Steller sea lions is generally late May through early July, with a peak in the second and third weeks of June (Pitcher and Calkins, 1981; Gisiner, 1985). Pups stay on land for about two weeks, after which they spend increasing time in nearshore waters until they begin to disperse from rookeries to haul-outs with females at about 2.5 months of age (Raum-Suryan et al., 2004; Maniscalco et al., 2002, 2006). In the Aleutian Island area, most pupping is complete by the last week of June and dispersal should occur by mid-September. Molting in Steller sea lions varies by age and sex and is known to last about 45 days. Juveniles molt first, followed by adult females, bulls and pups (Daniel, 2003). The molt should be nearly completed during the proposed planned bait application period. Harbor seals typically give birth during May and June. Pups are usually weaned within a month and no longer need to be close to their mothers. The peak molting period occurs between August and September (Jemison and Kelly, 2001; Daniel *et al* ., 2003). Conducting proposed bait application operations after marine mammal breeding and molting is complete reduces the potential for disturbances to these species during the sensitive periods of breeding, pup rearing, and molting. Limiting visits to the breeding, lactation, and molting sites to periods when these activities do not occur will reduce the possibility of incidental harassment and the potential for injury or mortality of dependent Steller sea lion pups and Pacific harbor seals to near zero. Proposed Operations Mitigation of the impacts on affected pinnipeds requires that field crew personnel are judicious in the route of approach to haul-out sites and/or rookeries, avoiding close contact with pinnipeds hauled-out on shore. In no case will marine mammals be deliberately approached by field crew personnel, and in all cases every possible measure will be taken to select a pathway of approach to baiting sites that minimizes the number of marine mammals harassed. After each visit to a given baiting site, the site will be vacated as soon as possible so that it can be re-occupied by hauled-out marine mammals that may have been disturbed by the presence of field crew personnel. Steller sea lions have a persistent haul-out at Krysi Point at the west end of Rat Island and a rookery on the islet off Ayugadak Point. Steller sea lions are likely to haul-out at other locations on Rat Island as well. During staging operations, helicopter flight lines will avoid the rookery, the known haul-out sites discovered prior to helicopter operations. Unlike during staging, it will be more difficult to avoid known haul-out sites on Rat Island with the helicopter during bait application because of the need for thorough coverage of the island. Disturbance from installation of bait stations on the islet off Ayugadak Point is likely to be limited to the few-hour period when field crew personnel are present on the island. To prevent disturbance to the rookery, the islet will be approached slowly in a small boat, from the side of the island opposite and out of site of the rookery. This will prevent any possibility of stampede. While on the islet, personnel will remain out of sight of the rookery and conduct the installation as quickly as possible. If a successful installation is completed in August, the bait stations on the islet will need to be replenished in October. Again, the approach to the island will be slow, and opposite the rookery. A few non-breeding animals could be displaced during the bait station check. If it is not possible to land a skiff of the islet, the island will be baited with the helicopter as described in the EA and IHA application. The helicopter baiting will likely be completed in approximately 15 minutes and disturbance to Steller sea lions is likely to be very short term. Harbor seals will also be avoided to the greatest extent possible during helicopter operations. During staging operations, project managers will plan helicopter flight lines and boat travel to minimize the potential for disturbance to harbor seal haul-outs known from existing databases and surveys conducted prior to the operations. Unlike during staging it will be more difficult to avoid known haul sites on Rat Island with the helicopter during bait application because of the need for thorough coverage of the entire island. Field Crew Personnel The Steller sea lion haul-out at Krysi Point on Rat Island will be avoided by personnel involved with this proposed project. The sporadic personnel presence and temporary infrastructure installations that may be necessary near harbor seal haul-outs during both staging and bait application operations may result in localized disturbances, although this is much less likely to disturb animals than proposed helicopter overflights. The camps and staging areas themselves will be well inland and will have negligible impacts on Steller sea lions and harbor seals hauled out on the coastline. Proposed Monitoring and Reporting When marine mammals are encountered during the project, personnel will record information regarding species, distribution, behavior, and number of animals. When conditions permit, information regarding sex, age (pup, sub-adult, adult) and any marked animals will also be recorded. As part of the proposed monitoring, USFWS will record the numbers of disturbed animals that flush into the water, the number that move more than 1 m (3.3 ft), but do not enter the water, and the number that become alert and move, but do not move more than 1 m. Upon completion of the project, this information will be compiled and provided to NMFS. Aircraft and personnel activities related to the proposed project will be coordinated to reduce potential take. The staff of AMNWR and their partners will evaluate incidental take and stop any operations should the potential for incidental take be too great. Proposed monitoring requirements in relation to USFWS rat eradication operations will include observations made by the applicant and field crew personnel associated with the action. Information recorded will include species counts (with numbers of pups), numbers of observed disturbances, and descriptions of the disturbance behaviors during the proposed rat eradication operations. Observations of unusual behaviors, numbers, or distributions of pinnipeds on Rat Island will be reported to NMFS during and after the project, so that any potential follow-up observations can be conducted by the appropriate personnel. In addition, observations of tag-bearing pinniped carcasses as well as any rare or unusual species of marine mammals will be reported to NMFS. If at any time injury or death of any marine mammal occurs that may be a result of the proposed rat population eradication operations, USFWS will suspend baiting application and broadcasting activities and contact NMFS immediately to determine how best to proceed to ensure that another injury or death does not occur, and to ensure that the applicant remains in compliance with the MMPA. A draft final report must be submitted to NMFS within 90 days after the conclusion of the field season. The report will include a summary of the information gathered pursuant to the monitoring requirements set forth in the IHA. A final report must be submitted to the Regional Administrator within 30 days after receiving comments from NMFS on the draft final report. If no comments are received from NMFS, the draft final report will be considered to be the final report. ESA For the reasons already described in this **Federal Register** Notice, NMFS has determined that the described rat population extermination operations and the accompanying IHA may have an effect on species or critical habitat protected under the ESA (specifically, the Steller sea lion). Therefore, consultation under Section 7 is required and will be concluded prior to issuance of an IHA. National Environmental Policy Act
(NEPA)USFWS prepared an Environmental Assessment
(EA)of Restoring Wildlife Habitat on Rat Island, AK, and a Finding of No Significant Impact (FONSI), which analyzed the proposed issuance of an IHA for these activities and operations. A copy of the EA and FONSI are available upon request (see ADDRESSES ). NMFS is reviewing this EA and will either adopt it or prepare its own NEPA document before making a determination on the issuance of an IHA to the USFWS on this activity. Conclusions Based on the USFWS' application, as well as the analysis contained herein, NMFS has preliminarily determined that the impact of the described rat extermination at Rat Island will result, at most, in a temporary modification in behavior by small numbers of Steller sea lions and Pacific harbor seals, in the form of head alerts, movement away from personnel, watercraft and aircraft, and/or flushing from the beach. In addition, no take by injury or death is anticipated, and take by harassment will be at the lowest level practicable due to incorporation of the mitigation measures mentioned previously in this document. NMFS has further preliminarily determined that the anticipated takes will have a negligible impact on the affected species and not have an unmitigable adverse impact on subsistence uses of marine mammals. Proposed Authorization NMFS proposes to issue an IHA to the USFWS for the harassment of Steller sea lions and Pacific harbor seals incidental to non-native rat population extermination operations, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. Dated: June 12, 2008. Tammy C. Adams, Acting Chief, Permits, Conservation, and Education Division, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. E8-13786 Filed 6-17-08; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration National Sea Grant Review Panel AGENCY: National Oceanic and Atmospheric Administration, Commerce. ACTION: Notice of public meeting. SUMMARY: This notice sets forth the schedule and proposed agenda of a forthcoming meeting of the Sea Grant Review Panel. The meeting will have several purposes. Panel members will discuss and provide advice to the National Sea Grant College Program in fisheries extension enhancement, the November Panel Meeting in Baton Rouge and Sea Grant re-authorization. DATES: The announced meeting is scheduled for Tuesday, July 15, 2008. ADDRESSES: Conference Call. Public access is available at SSMC Bldg 3, Room #5836, 1315 East-West Highway, Silver Spring, MD. FOR FURTHER INFORMATION CONTACT: Ms. Gina Barrera, National Sea Grant College Program, National Oceanic and Atmospheric Administration, 1315 East-West Highway, Room 11875, Silver Spring, Maryland 20910,
(301)734-1077. SUPPLEMENTARY INFORMATION: The Panel, which consists of a balanced representation from academia, industry, state government and citizens groups, was established in 1976 by Section 209 of the Sea Grant Improvement Act (Pub. L. 94-461, 33 U.S.C. 1128). The Panel advises the Secretary of Commerce and the Director of the National Sea Grant College Program with respect to operations under the Act, and such other matters as the Secretary refers to them for review and advice. The agenda for the meeting is as follows: Tuesday, July 15, 2008—11 a.m. to 1 p.m., EST Agenda I. Fisheries Extension Enhancement Committee Report. II. Update on the November Panel meeting in Baton Rouge. III. Update on Sea Grant Re-authorization. This meeting will be open to the public. Dated: June 12, 2008. Terry Bevels, Deputy Chief Financial Officer, Office of Oceanic and Atmospheric Research. [FR Doc. E8-13745 Filed 6-17-08; 8:45 am] BILLING CODE 3510-KA-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN: 0648-XI34 Pacific Fishery Management Council; Public Meeting AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of public meeting. SUMMARY: The Pacific Fishery Management Council's (Council) Groundfish Allocation Committee
(GAC)will hold a working meeting, which is open to the public. DATES: The GAC meeting will be held Wednesday, July 9, 2008, from 1 p.m. until business for the day is completed. The GAC will reconvene Thursday, July 10, 2008,at 8:30 a.m. until their business is completed. ADDRESSES: The GAC meeting will be held at the Crowne Plaza Hotel, Downtown Convention Center, Bellmont C Room, 1441 NE Second Avenue, Portland, OR 97232. telephone:
(503)241-2401. *Council address* : Pacific Fishery Management Council, 7700 NE Ambassador Place, Suite 101, Portland, OR 97220-1384. FOR FURTHER INFORMATION CONTACT: Mr. LB Boydstun, Open Access Fishery Coordinator; telephone:
(916)844-4358. SUPPLEMENTARY INFORMATION: The purpose of the GAC meeting is to consider draft alternatives and other material for a contemplated limited entry licensing system for West Coast open access groundfish fisheries (open access license limitation). No management actions will be decided by the GAC. The GAC's role will be development of recommendations and refinement of draft alternatives for analysis in a contemplated environmental impact statement for open access license limitation. The GAC recommendations will be provided for consideration by the Council at its September 2008 meeting in Boise, ID. Although non-emergency issues not contained in the meeting agenda may come before the GAC for discussion, those issues may not be the subject of formal GAC action during this meeting. GAC action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under Section 305a) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the GAC's intent to take final action to address the emergency. Special Accommodations This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Ms. Carolyn Porter at
(503)820-2280 at least 5 days prior to the meeting date. Dated: June 13, 2008. Tracey L. Thompson, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E8-13695 Filed 6-17-08; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XI49 Pacific Fishery Management Council; Halibut Managers Workgroup
(HMW)AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of public meeting. SUMMARY: The HMW is not a committee of the Pacific Fishery Management Council (Council), however, the Council has expressed interest in having a report from the HMW, and has offered to provide meeting space. The meeting is open to the public. DATES: The meeting will be held Tuesday, July 8, 2008, from 9:30 a.m. to 4 p.m. ADDRESSES: The meeting will be held at the Council Office. *Council address* : Pacific Fishery Management Council, 7700 NE Ambassador Place, Suite 101, Portland, Oregon, 97220-1384. FOR FURTHER INFORMATION CONTACT: Mr. Chuck Tracy, Salmon and Halibut Management Staff Officer, Pacific Fishery Management Council, 503-820-2280. SUPPLEMENTARY INFORMATION: The purpose of the meeting is to allow an exchange of information and ideas among managers and industry representatives from Area 2A, primarily as they relate to the upcoming IPHC workshop on catch apportionment. The objective of the meeting will be to develop a consensus on a catch apportionment strategy that will be both fair and biologically sound, which can be presented at the IPHC workshop later in 2008. Although nonemergency issues not contained in the meeting agendas may come before the HMW for discussion, those issues may not be the subject of formal action during these meetings. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency. Special Accommodations These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Ms. Carolyn Porter at 503-820-2280 at least five days prior to the meeting date. Dated: June 13, 2008. Tracey L. Thompson, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E8-13717 Filed 6-17-08; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Science Advisory Board
(SAB)AGENCY: Office of Oceanic and Atmospheric Research (OAR), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC). ACTION: Notice of open meeting. SUMMARY: The Science Advisory Board
(SAB)was established by a Decision Memorandum dated September 25, 1997, and is the only Federal Advisory Committee with responsibility to advise the Under Secretary of Commerce for Oceans and Atmosphere on strategies for research, education, and application of science to operations and information services. SAB activities and advice provide necessary input to ensure that National Oceanic and Atmospheric Administration
(NOAA)science programs are of the highest quality and provide optimal support to resource management. *Time and Date:* The meeting will be held Wednesday, July 16, 2008, from 10 a.m. to 4 p.m. and Thursday, July 17, 2008, from 8:30 a.m. to 5:30 p.m. These times and the agenda topics described below are subject to change. Please refer to the Web page *http://www.sab.noaa.gov/Meetings/meetings.html* for the most up-to-date meeting agenda. *Place:* The meeting will be held both days at the Kalahari Resort, 7000 Kalahari Drive, Sandusky, Ohio 44870. Please check the SAB Web site *http://www.sab.noaa.gov* for confirmation of the venue and for directions. *Status:* The meeting will be open to public participation with a 30-minute public comment period on July 17 (check Web site to confirm time). The SAB expects that public statements presented at its meetings will not be repetitive of previously submitted verbal or written statements. In general, each individual or group making a verbal presentation will be limited to a total time of five
(5)minutes. Written comments should be received in the SAB Executive Director's Office by July 11, 2008 to provide sufficient time for SAB review. Written comments received by the SAB Executive Director after July 11, 2008, will be distributed to the SAB, but may not be reviewed prior to the meeting date. Seats will be available on a first-come, first-served basis. *Matters To Be Considered:* The meeting will include the following topics:
(1)Final Report from the Working Group to Examine Advisory Options for Improving Communications among NOAA's Partners (Partnerships WG or PWG);
(2)Preliminary Draft Report from the Fire Weather Research Working Group (FWRWG);
(3)National Climate Service;
(4)Climate Working Group Update on Climate Services;
(5)Climate Working Group Review on Research and Modeling Review;
(6)Oceans and Human Health;
(7)Unmanned Aircraft Systems
(UAS)in NOAA;
(8)NOAA Transition to the Next Administration;
(9)SAB Benchmark Review Discussion;
(10)SAB Strategic Planning Discussion; and
(11)a series of brief presentations on NOAA activities in the Great Lakes. FOR FURTHER INFORMATION CONTACT: Dr. Cynthia Decker, Executive Director, Science Advisory Board, NOAA, Rm. 11230, 1315 East-West Highway, Silver Spring, Maryland 20910. (Phone: 301-734-1156, Fax: 301-713-1459, E-mail: *Cynthia.Decker@noaa.gov* ); or visit the NOAA SAB Web site at *http://www.sab.noaa.gov.* Dated: June 12, 2008. Terry Bevels, Deputy Chief Financial Officer, Office of Oceanic and Atmospheric Research, National Oceanic and Atmospheric Administration. [FR Doc. E8-13793 Filed 6-17-08; 8:45 am] BILLING CODE 3510-KD-P DEPARTMENT OF COMMERCE Patent and Trademark Office Submission for OMB Review; Comment Request The United States Patent and Trademark Office (USPTO) will submit to the Office of Management and Budget
(OMB)for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35). *Agency:* United States Patent and Trademark Office (USPTO). *Title:* Patent Examiner Employment Application. *Form Number(s):* N/A. *Agency Approval Number:* 0651-0042. *Type of Request:* Extension of a currently approved collection. *Burden:* 3,500 hours annually. *Number of Respondents:* 7,000 responses per year. *Average Hours per Response:* 30 minutes. The USPTO estimates that it will take the public approximately 30 minutes (0.50) to gather and prepare the necessary information, and submit the electronic employment application. *Needs and Uses:* The Patent Examiner Employment Application, as administered through the USA Staffing system provided by the Office of Personnel Management (OPM), is used by the public to apply for entry-level patent examiner positions in a user-friendly process. The USPTO uses the electronic transmission of this information to review and rate applicants on-line almost instantaneously. It is also used by the USPTO to expedite the hiring process by eliminating the time used in the mail distribution process, thereby streamlining labor and reducing costs. *Affected Public:* Individuals or households. *Frequency:* On occasion. *Respondent's Obligation:* Voluntary. *OMB Desk Officer:* David Rostker,
(202)395-3897. Copies of the above information collection proposal can be obtained by any of the following methods: *E-mail: Susan.Fawcett@uspto.gov.* Include “0651-0042 copy request” in the subject line of the message. *Fax:* 571-273-0112, marked to the attention of Susan K. Fawcett. *Mail:* Susan K. Fawcett, Records Officer, Office of the Chief Information Officer, Customer Information Services Group, Public Information Services Division, U.S. Patent and Trademark Office, P.O. Box 1450, Alexandria, VA 22313-1450. Written comments and recommendations for the proposed information collection should be sent on or before July 18, 2008 to David Rostker, OMB Desk Officer, Room 10202, New Executive Office Building, 725 17th Street, NW., Washington, DC 20503. Dated: June 11, 2008. Susan K. Fawcett, Records Officer, USPTO, Office of the Chief Information Officer, Customer Information Services Group, Public Information Services Division. [FR Doc. E8-13719 Filed 6-17-08; 8:45 am] BILLING CODE 3510-16-P COMMODITY FUTURES TRADING COMMISSION Renewal of the Global Markets AGENCY: Commodity Futures Trading Commission. ACTION: Notice of Renewal of the Global Markets Advisory Committee. SUMMARY: The Commodity Futures Trading Commission has determined to renew the charter of its Global Markets Advisory Committee. As required by sections 9(a)(2) and 14(a)(2)(A) of the Federal Advisory Committee Act, 5 U.S.C. app. 2, §§ 9(a)(2) and 14(a)(2)(A), and 41 CFR 101-6.1007 and 101-6.1029, the Commission has consulted with the Committee Management Secretariat of the General Services Administration. The Commission certifies that the renewal of this advisory committee is necessary and is in the public interest in connection with the performance of duties imposed on the Commission by the Commodity Exchange Act, 7 U.S.C. 1, *et seq.,* as amended. This notice is published pursuant to section 9(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. app. 2, § 9(a)(2), and 41 CFR 101-6.1015. FOR FURTHER INFORMATION CONTACT: Martin B. White, Committee Management Officer, at 202-418-5129. Written comments should be submitted to David A. Stawick, Secretary, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581. SUPPLEMENTARY INFORMATION: The purpose of the Global Markets Advisory Committee is to provide the Commission with input on international market issues that affect the integrity and competitiveness of U.S. futures markets. The advisory committee also serves as a channel for communication between the Commission and U.S. and foreign markets, firms and end users involved in and affected by futures market globalization. Contemporaneously with publication of this notice in the **Federal Register** , a copy of the renewal charter of the Global Markets Advisory Committee will be filed with the Commission, the Senate Committee on Agriculture, Nutrition and Forestry and the House Committee on Agriculture. A copy of the renewal charter will be furnished to the Library of Congress and to the Committee Management Secretariat and will be posted on the Commission's Web site at *http://www.cftc.gov.* Issued in Washington, DC, on June 12, 2008, by the Commission. David A. Stawick, Secretary of the Commission. [FR Doc. E8-13743 Filed 6-17-08; 8:45 am] BILLING CODE 6351-01-P DEPARTMENT OF EDUCATION Notice of Proposed Information Collection Requests AGENCY: Department of Education. SUMMARY: The IC Clearance Official, Regulatory Information Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995. DATES: Interested persons are invited to submit comments on or before August 18, 2008. SUPPLEMENTARY INFORMATION: Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget
(OMB)provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The IC Clearance Official, Regulatory Information Management Services, Office of Management, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following:
(1)Type of review requested, e.g. new, revision, extension, existing or reinstatement;
(2)Title;
(3)Summary of the collection;
(4)Description of the need for, and proposed use of, the information;
(5)Respondents and frequency of collection; and
(6)Reporting and/or Recordkeeping burden. OMB invites public comment. The Department of Education is especially interested in public comment addressing the following issues:
(1)Is this collection necessary to the proper functions of the Department;
(2)will this information be processed and used in a timely manner;
(3)is the estimate of burden accurate;
(4)how might the Department enhance the quality, utility, and clarity of the information to be collected; and
(5)how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Dated: June 13, 2008. Angela C. Arrington, IC Clearance Official, Regulatory Information Management Services, Office of Management. Institute of Education Sciences *Type of Review:* New. *Title:* Evaluation of Moving High-Performing Teachers To Low-Performing Schools. *Frequency:* Annually. *Affected Public:* Individuals or household. *Reporting and Recordkeeping Hour Burden:* *Responses:* 80. *Burden Hours:* 1,240. *Abstract:* This OMB package for the Evaluation of Moving High-Performing Teachers to Low-Performing Schools requests clearance to recruit school districts to test the effect of teacher incentives designed to move high-performing teachers to targeted low-performing schools. The evaluation aims to estimate the impact of the high-performing teachers on the low-performing schools to which they transfer. The Department is also requesting clearance to collect student records data from those recruited districts and administer a data collection form to a group of 70 teachers participating in a pilot study that will be conducted for the 2008-09 school year. This request is the first of two. A future request will seek clearance to collect additional teacher and principal survey data associated with the evaluation. Requests for copies of the proposed information collection request may be accessed from *http://edicsweb.ed.gov* , by selecting the “Browse Pending Collections” link and by clicking on link number 3734. When you access the information collection, click on “Download Attachments” to view. Written requests for information should be addressed to U.S. Department of Education, 400 Maryland Avenue, SW., LBJ, Washington, DC 20202-4537. Requests may also be electronically mailed to *ICDocketMgr@ed.gov* or faxed to 202-401-0920. Please specify the complete title of the information collection when making your request. Comments regarding burden and/or the collection activity requirements should be electronically mailed to *ICDocketMgr@ed.gov* . Individuals who use a telecommunications device for the deaf
(TDD)may call the Federal Information Relay Service
(FIRS)at 1-800-877-8339. [FR Doc. E8-13731 Filed 6-17-08; 8:45 am] BILLING CODE 4000-01-P DEPARTMENT OF EDUCATION Notice of Proposed Information Collection Requests AGENCY: Department of Education. SUMMARY: The IC Clearance Official, Regulatory Information Management Services, Office of Management, invites comments on the proposed information collection requests as required by the Paperwork Reduction Act of 1995. DATES: Interested persons are invited to submit comments on or before August 18, 2008. SUPPLEMENTARY INFORMATION: Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget
(OMB)provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The IC Clearance Official, Regulatory Information Management Services, Office of Management, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following:
(1)Type of review requested, e.g. new, revision, extension, existing or reinstatement;
(2)Title;
(3)Summary of the collection;
(4)Description of the need for, and proposed use of, the information;
(5)Respondents and frequency of collection; and
(6)Reporting and/or Recordkeeping burden. OMB invites public comment. The Department of Education is especially interested in public comment addressing the following issues:
(1)Is this collection necessary to the proper functions of the Department;
(2)will this information be processed and used in a timely manner;
(3)is the estimate of burden accurate;
(4)how might the Department enhance the quality, utility, and clarity of the information to be collected; and
(5)how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Dated: June 13, 2008. Angela C. Arrington, IC Clearance Official, Regulatory Information Management Services, Office of Management. Office of Elementary and Secondary Education *Type of Review:* Extension. *Title:* Annual Report of Children in State Agency and Locally Operated Institutions for Neglected and Delinquent Children. *Frequency:* Annually. *Affected Public:* State, Local, or Tribal Gov't, SEAs or LEAs. *Reporting and Recordkeeping Hour Burden:* *Responses:* 3,052. *Burden Hours:* 4,224. *Abstract:* An annual survey is conducted to collect data on
(1)the number of children enrolled in educational programs of State-operated institutions for neglected or delinquent (N or D) children, community day programs for N or D children, and adult correctional institutions and
(2)the October caseload of N or D children in local institutions. Requests for copies of the proposed information collection request may be accessed from *http://edicsweb.ed.gov* , by selecting the “Browse Pending Collections” link and by clicking on link number 3694. When you access the information collection, click on “Download Attachments” to view. Written requests for information should be addressed to U.S. Department of Education, 400 Maryland Avenue, SW., LBJ, Washington, DC 20202-4537. Requests may also be electronically mailed to *ICDocketMgr@ed.gov* or faxed to 202-401-0920. Please specify the complete title of the information collection when making your request. Comments regarding burden and/or the collection activity requirements should be electronically mailed to *ICDocketMgr@ed.gov* . Individuals who use a telecommunications device for the deaf
(TDD)may call the Federal Information Relay Service
(FIRS)at 1-800-877-8339. [FR Doc. E8-13732 Filed 6-17-08; 8:45 am] BILLING CODE 4000-01-P DEPARTMENT OF EDUCATION [CFDA Nos. 84.381A] Teachers for a Competitive Tomorrow: Programs for Baccalaureate Degrees in Science, Technology, Engineering, Mathematics, or Critical Foreign Languages, with Concurrent Teacher Certification ACTION: Correction; notice correcting the dates. SUMMARY: We correct the *Applications Available* and *Deadline for Transmittal of Applications* dates in the notice published on June 4, 2008 (73 FR 31835-31840). SUPPLEMENTARY INFORMATION: On June 4, 2008, we published a notice in the **Federal Register** (73 FR 31835) inviting applications for new awards for fiscal year
(FY)2008 for the Teachers for a Competitive Tomorrow: Programs for Baccalaureate Degrees in Science, Technology, Engineering, Mathematics, or Critical Foreign Languages, with Concurrent Teacher Certification. The *Deadline for Transmittal of Applications* date (as published on pages 31835 and 31837) is corrected to July 8, 2008 and the *Deadline for Intergovernmental Review* date (as published on pages 31835 and 31837) is corrected to September 8, 2008. FOR FURTHER INFORMATION CONTACT: Brenda Shade, U.S. Department of Education, 1990 K Street, NW., room 7090, Washington, DC 20006-8526. Telephone:
(202)502-7773 or by e-mail: *Brenda.Shade@ed.gov.* If you use a TDD, call the FRS, toll-free, at 1-800-877-8339. Individuals with disabilities can obtain this document in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the program contact person listed under FOR FURTHER INFORMATION CONTACT . *Electronic Access to This Document:* You can view this document, as well as all other documents of this Department published in the **Federal Register** , in text or Adobe Portable Document Format (PDF), on the Internet at the following site: *http://www.ed.gov/news/fedregister.* To use PDF, you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at
(202)512-1530. Note: The official version of this document is the document published in the **Federal Register** . Free Internet access to the official edition of the **Federal Register** and the Code of Federal Regulations is available on GPO Access at: *http://www.gpoaccess.gov/nara/index.html.* Dated: June 13, 2008. Sara Martinez Tucker, Under Secretary of Education. [FR Doc. 08-1366 Filed 6-13-08; 3:36 pm]
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U.S. Code
- Office of Personnel Management§ 1101
- Establishment of agency Chief Human Capital Officers§ 1401
- Federal Aviation Administration§ 106
- Public information; agency rules, opinions, orders, records, and proceedings§ 552
- Purposes§ 3501
- Administration of leasing§ 1334
- Regulation of natural gas companies§ 717
- Federal Energy Regulatory Commission§ 60502
- Jurisdiction of Commission§ 7172
- Ancillary matters§ 555
- Definitions§ 601
- EXPEDITED PROCESSING OF REQUESTS FOR JAPANESE IMPERIAL GOVERNMENT RECORDS.§ 804
- Regulatory process§ 1531
- Cooperation of agencies; reports; availability of information; recommendations; international and national coordination of efforts§ 4332
- SHORT TITLE.§ 9701
- Leases, easements, and rights-of-way on the outer Continental Shelf§ 1337
- Definitions§ 1301
- Remedies and penalties§ 1350
- Establishment, functions, and activities§ 272
- SHORT TITLE.§ 801
- Recordkeeping, inspections, monitoring, and entry§ 7414
- Consolidation, merger, and acquisition of control of motor carriers of passengers§ 14303
- Authority to exempt transportation or services§ 13541
- Certain collective activities; exemption from antitrust laws§ 13703
- Authorizing construction and operation of railroad lines§ 10901
- Authority to exempt rail carrier transportation§ 10502
- Short line purchases by Class II and Class III rail carriers§ 10902
- Railroad development§ 10907
- Offers of financial assistance to avoid abandonment and discontinuance§ 10904
- State and local area recreation and historic trails§ 1247
- Use of terminal facilities§ 11102
- Limitation on pooling and division of transportation or earnings§ 11322
- Consolidation, merger, and acquisition of control: conditions of approval§ 11324
- Rate agreements: exemption from antitrust laws§ 10706
- Restrictions on officers and directors§ 11328
- Authority and criteria: rates, classifications, rules, and practices prescribed by Board§ 10704
- Authority: through routes, joint classifications, rates, and divisions prescribed by Board§ 10705
- Situations requiring immediate action to serve the public§ 11123
- Liability of carriers under receipts and bills of lading§ 14706
- Additional billing and collecting practices§ 13710
- Equipment trusts: recordation; evidence of indebtedness§ 11301
- Legal status of EOIR§ 521
- Powers and duties of the Secretary, the Under Secretary, and the Attorney General§ 1103
- Judicial review of orders of removal§ 1252
- Deportable aliens§ 1227
- Departmental regulations§ 301
- Definitions§ 1101
- Functions of the Attorney General§ 509
- Rules and regulations§ 7805
- Receiving Office§ 361
- International Searching Authority and International Preliminary Examining Authority§ 362
- Fees§ 376
- Patent fees; patent and trademark search systems§ 41
- Application§ 111
- Purposes§ 1501
- Congressional declaration of purpose§ 4321
- Powers and duties§ 2
- Definitions§ 351
- Definitions; generally§ 321
- Congressional findings and declaration of purposes and policy§ 1531
- Determination of endangered species and threatened species§ 1533
- Effective date of certain rules§ 808
- Definitions§ 1502
- Omitted§ 742
- Volunteers for Department of Agriculture programs§ 2272
- Acceptance of volunteer service§ 3111
- Findings§ 7701
- Definitions§ 136
- Short title§ 301
- Eligibility disqualifications§ 2015
- Special supplemental nutrition program for women, infants, and children§ 1786
- Congressional findings and declaration of policy§ 1361
- National Sea Grant Advisory Board§ 1128
- Short title§ 1
register
CFR
- General.§ 91.403
- May I address the unsafe condition in a way other than that set out in the airworthiness directive?§ 39.19
- Purpose.§ 1.5
- General requirements for pipeline right-of-way holders.§ 250.1010
- What definitions apply to this part?§ 291.101
- May I call the BSEE Hotline to informally resolve an allegation that open and nondiscriminatory access was denied?§ 291.102
- May I use alternative dispute resolution (ADR) to informally resolve an allegation that open and nondiscriminatory access was denied?§ 291.103
- Who may file a complaint or a third-party brief?§ 291.104
- Complaints (Rule 206).§ 385.206
- What must a complaint contain?§ 291.105
- How do I file a complaint?§ 291.106
- How do I answer a complaint?§ 291.107
- Who may BSEE require to produce information?§ 291.110
- How do I pay the processing fee?§ 291.108
- Can I ask for a fee waiver or a reduced processing fee?§ 291.109
- How does BSEE treat the confidential information I provide?§ 291.111
- What actions may BSEE take to remedy denial of open and nondiscriminatory access?§ 291.113
- How do I exhaust administrative remedies?§ 291.115
- Do I have to comply with the decision or order while my appeal is pending?§ 290.7
- What size standards has SBA identified by North American Industry Classification System codes?§ 121.201
- Rules and regulations.§ 601.601
- The United States Receiving Office.§ 1.412
- The United States International Searching Authority.§ 1.413
- What size standards are applicable to reduced patent fees programs?§ 121.802
- How does SBA define "business concern or concern"?§ 121.105
- Processing of applications by the Department of Commerce.§ 301.5
158 references not yet in our index
- 5 CFR 250
- 3 CFR 748
- 14 CFR 39
- 1 CFR 51
- 16 CFR 24
- 61 FR 51577
- 60 FR 48027
- 60 FR 48056
- 61 FR 25560
- 72 FR 28906
- 50 FR 26187
- 15 USC 41-58
- 30 CFR 291
- 345 F.3d 910
- 18 CFR 330
- Pub. L. 109-58
- 119 Stat. 594
- 30 CFR 291.104-291
- 30 CFR 250
- 15 USC 717-717z
- 30 CFR 290
- 43 CFR 2
- 5 CFR 1320.4
- Pub. L. 106-554
- 43 CFR 4
- 40 CFR 82
- 40 CFR 9
- Pub. L. 104-4
- Pub. L. 104-113
- 49 CFR 1002
- 49 CFR 1002.3
- 49 CFR 1002.3(d)
- 49 USC 721(a)
- 49 CFR 1150.31-1150
- 49 CFR 1150.36
- 49 CFR 1150.41-1150
- 49 CFR 1150.21-1150
- Pub. L. 97-35
- 49 CFR 1152.50
- 49 CFR 1180.2(d)
+ 118 more
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