Unknown. Interim final rule
154,576 words·~703 min read·
/register/2008/06/25/08-1387A 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-2008-06-25.xml --- 73 123 Wednesday, June 25, 2008 Contents Agricultural Agricultural Marketing Service RULES Hazelnuts Grown in Oregon and Washington: Establishment of Interim Final and Final Free and Restricted Percentages; 2007-2008 Marketing Year, 35888-35893 E8-14338 Sweet Onions Grown in the Walla Walla Valley of Southeast Washington and Northeast Oregon: Increased Assessment Rate, 35886-35888 E8-14339 Agriculture Agriculture Department See Agricultural Marketing Service See Food Safety and Inspection Service See Natural Resources Conservation Service Antitrust Antitrust Division NOTICES Proposed Final Judgment and Competitive Impact Statement:
United States v. National Association of Realtors, 36104-36118 E8-13902 Arts Arts and Humanities, National Foundation See National Foundation on the Arts and the Humanities Centers Centers for Disease Control and Prevention NOTICES Meetings: Disease, Disability, and Injury Prevention and Control Special Emphasis Panel (SEP), 36087 E8-14313 Children Children and Families Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 36087-36090 E8-14219 E8-14220 E8-14221 E8-14222 Coast Guard Coast Guard RULES Safety Zones: 31st Annual Virginia Lakes Festival Fireworks Event, John H.
Kerr Lake, Clarksville, VA, 35932-35934 E8-14366 Big Bay July 4th Fireworks Show; San Diego Bay, San Diego, CA, 35937-35939 E8-14353 Founder's Day Fireworks Event, Chesapeake Bay, Hampton, VA, 35924-35926 E8-14350 Fourth of July Fireworks Event, Pagan River, Smithfield, VA, 35930-35932 E8-14365 Mission Bay Yacht Club 4th of July Display; Mission Bay, San Diego, CA, 35934-35937 E8-14370 Paradise Point Resort 4th of July Display; Mission Bay, San Diego, CA, 35928-35930 E8-14364 Stars and Stripes Fourth of July Fireworks Event, Nansemond River, Suffolk, VA, 35926-35928 E8-14348 Shipping;
Technical, Organizational, and Conforming Amendments, 35959-35961 E8-14293 Special Local Regulations for Marine Events: San Diego Harbor, 35923-35924 E8-14351 PROPOSED RULES Drawbridge Operation Regulations: LaLoutre Bayou, Yscloskey, LA, 35985-35987 E8-14367 Safety Zones: Citron Energy Drink Offshore Challenge, Lake St. Clair, Harrison Township, MI, 35987-35990 E8-14372 NOTICES Final Supplemental Environmental Assessment and Finding of No Significant Impact: Proposed Expansion of the Cove Point Facility, Cove Point, MD, 36094-36095 E8-14288 Meetings:
National Maritime Security Advisory Committee, 36095 E8-14368 Commerce Commerce Department See Foreign-Trade Zones Board See International Trade Administration See National Institute of Standards and Technology See National Oceanic and Atmospheric Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 36037-36038 E8-14281 E8-14282 CITA Committee for the Implementation of Textile Agreements NOTICES Request for Public Comment on Commercial Availability Request under the North American Free Trade Agreement (NAFTA), 36062-36063 E8-14408 Education Education Department NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 36063 E8-14399 Waivers for the Rehabilitation Training; Rehabilitation Continuing Education Program (RCEP), 36063-36064 E8-14413 Employment Employment and Training Administration NOTICES Affirmative Determination Regarding Application for Reconsideration: Ametek, Inc.; Measurement and Calibration Technology Division; Sellersville, PA, 36119 E8-14301 Honeywell Aerospace; Aerospace - Defense & Space Division; Teterboro, NJ, 36119 E8-14302 Amended Certification Regarding Eligibility to Apply for Worker Adjustment Assistance:
Delphi Corp. et al., 36119-36120 E8-14299 Westell, Inc., et al., 36120 E8-14300 Investigations Regarding Certifications: Kincaid Furniture Company, Inc., et al., 36120-36121 E8-14296 Negative Determination on Remand: Joy Mining Machinery, 36121-36127 E8-14298 Termination of Investigation: Columbia Falls Aluminum Company, LLC; Columbia Falls, MT, 36127 E8-14304 Home Depot; Store Number 0379; Opelousas, LA, 36127 E8-14295 Motorola, Inc.; Fort Worth, TX, 36127 E8-14303 Parlex USA;
Methuen, MA, 36127 E8-14305 Energy Energy Department See Federal Energy Regulatory Commission NOTICES Meetings: Basic Energy Sciences Advisory Committee, 36064-36065 E8-14343 DOE/NSF Nuclear Science Advisory Committee, 36065 E8-14340 Fusion Energy Sciences Advisory Committee, 36065-36066 E8-14337 EPA Environmental Protection Agency RULES Exhaust Emission Standards for 2012 and Later Model Year Snowmobiles, 35946-35952 E8-14411 IBM Semiconductor Manufacturing Facility in Essex Junction, VT, Under Project XL, 35944-35946 E8-14403 National Emission Standards for Hazardous Air Pollutants for Source Category:
Gasoline Dispensing Facilities, 35939-35944 E8-14377 PROPOSED RULES Exhaust Emission Standards for 2012 and Later Model Year Snowmobiles, 35991-35994 E8-14414 National Emission Standards for Hazardous Air Pollutants for Source Category: Gasoline Dispensing Facilities, 35990-35991 E8-14373 NOTICES Access to Confidential Business Information by Midwest Research Institute, 36070-36071 E8-13878 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 36071-36072 E8-14417 Hazard Education Before Renovation of Target Housing:
State of Colorado Authorization Application, 36072-36075 E8-14401 Meetings: Science Advisory Board Acrylamide Review Panel, 36075-36076 E8-14402 Pesticide Products; Registration Applications, 36076-36077 E8-13877 Pesticide Registration Review: New Dockets Opened for Review and Comment; Closure of the Phosalone Registration Review Case, 36077-36080 E8-14238 Triadimefon; Product Cancellation Order, 36080-36081 E8-14113 FAA Federal Aviation Administration RULES Airworthiness Directives:
Bombardier Model DHC 8 400 Series Airplanes, 35902-35904 E8-13921 Cessna Aircraft Company Models 208 and 208B Airplanes, 35898-35900 E8-13564 Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model EMB-135BJ Airplanes, 35904-35911 E8-13924 E8-13926 Pilatus Aircraft Ltd. PC-6 Series Airplanes, 35911-35913 E8-14106 Pratt & Whitney Canada Corp. (P&WC) Models PW305A and PW305B Turbofan Engines, 35900-35902 E8-13854 Special Conditions: Embraer S.A. Model EMB-500; Full Authority Digital Engine Control (FADEC) System, 35896-35898 E8-14383 PROPOSED RULES Airworthiness Directives:
Pratt & Whitney Canada PW206A, PW206B, PW206B2, PW206C, PW206E, PW207C, PW207D, and PW207E Turboshaft Engines, 35982-35984 E8-14320 Turbomeca S.A. Models Arriel 1E2, 1S, and 1S1 Turboshaft Engines, 35981-35982 E8-14321 Special Conditions: Honda Aircraft Company, Model HA-420 HondaJet Airplane; Fire Extinguishing, 35979-35980 E8-14380 FCC Federal Communications Commission PROPOSED RULES Service Rules for Advanced Wireless Services in the 1915-1920 MHz, 1995-2000 MHz, 2155-2175 MHz, and 2175-2180 MHz Bands, 35995-36013 E8-14423 NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 36081-36082 E8-14356 Suspension and Initiation of Debarment Proceedings: Schools and Libraries Universal Service Support Mechanism, 36082-36086 E8-14354 E8-14360 Federal Emergency Federal Emergency Management Agency RULES Final Flood Elevation Determinations, 35953-35959 E8-14326 E8-14327 PROPOSED RULES Proposed Flood Elevation Determinations, 35994-35995 E8-14325 NOTICES Disaster Declarations: Georgia, 36095-36096 E8-14324 Indiana, 36096-36097 E8-14331 E8-14332 E8-14361 E8-14362 Iowa, 36097-36098 E8-14318 E8-14322 E8-14323 E8-14329 E8-14358 Montana, 36099 E8-14357 Wisconsin, 36099-36100 E8-14316 E8-14319 E8-14359 Federal Energy Federal Energy Regulatory Commission NOTICES Applications:
Empire Pipeline Inc., 36066 E8-14286 Environmental Impact Statements; Availability, etc.: Southern California Edison Company; Devers-Palo Verde No. 2 Transmission Line Project, 36066-36070 E8-14284 Star Mill, Inc., 36070 E8-14285 Federal Housing Federal Housing Enterprise Oversight Office RULES Risk-Based Capital Regulation; Loss Severity Amendments, 35893-35896 E8-13378 FMC Federal Maritime Commission NOTICES Agreements Filed, 36086 E8-14410 Ocean Transportation Intermediary License Applicants, 36086 E8-14390 Federal Motor Federal Motor Carrier Safety Administration RULES Hours of Service of Drivers;
Availability of Supplemental Documents, 35975-35976 E8-14491 Federal Reserve Federal Reserve System NOTICES Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 36086-36087 E8-14308 Food Food and Drug Administration NOTICES Guidance for Industry: Microbiological Considerations for Antimicrobial Food Additive Submissions; Availability, 36090 E8-14397 Food Food Safety and Inspection Service NOTICES Funding Opportunity with the Food Safety and Inspection Service for Food Safety and Defense Training for Spanish-Speaking Plant Owners and Operators, 36035-36037 E8-14287 MISSING FOR:
Foreign-Trade Zones Board Foreign-Trade Zones Board NOTICES Approval for Manufacturing Authority: Imperium Renewables, Inc., (Biodiesel), Aberdeen and Hoquiam, WA, 36038 E8-14418 Approval of Manufacturing Authority, Within Foreign-Trade Zone 38, Spartanburg County, SC: Kittel Supplier USA, Inc., (Automotive Door Trim Components), 36038 E8-14389 Expansion of Foreign-Trade Zone: Calhoun and Victoria Counties, TX, Area, 36038-36039 E8-14419 Grant of Authority for Subzone Status:
Sony Electronics Inc., (Audio, Video, Communications and Information Technology Products and Accessories), Romeoville, Illinois, 36039 E8-14391 GSA General Services Administration RULES Federal Travel Regulation; Relocation Allowances; Relocation Income Tax Allowance Tax Tables, 35952-35953 E8-14276 PROPOSED RULES General Services Acquisition Regulation: GSAR Case 2006-G512; Rewrite of GSAR Part 509, Contractor Qualifications, 36013-36015 E8-14392 Government Government Ethics Office RULES Post-Employment Conflict Of Interest Restrictions, 36168-36210 E8-13394 Health Health and Human Services Department See Centers for Disease Control and Prevention See Children and Families Administration See Food and Drug Administration See National Institutes of Health Homeland Homeland Security Department See Coast Guard See Federal Emergency Management Agency NOTICES Meetings:
Implementing Privacy Protections in Government Data Mining Workshop, 36093-36094 E8-14394 Housing Housing and Urban Development Department See Federal Housing Enterprise Oversight Office RULES Revisions to the Hospital Mortgage Insurance Program: Technical and Clarifying Amendments, 35920-35923 E8-14131 NOTICES Funding Opportunity
(NOFA)for HOME Investment Partnership Program (HOME): Competitive Reallocation of CHDO Funds to Provide for Energy Efficient and Environmentally, etc.; Correction, 36100-36101 E8-14289 Interior Interior Department See Land Management Bureau See National Park Service See Surface Mining Reclamation and Enforcement Office International International Trade Administration NOTICES Antidumping Duty: Brake Rotors from the Peoples Republic of China; Revocation, 36039-36040 E8-14421 Honey from the Peoples Republic of China; Partial Rescission, 36040-36041 E8-14409 Export Trade Certificate of Review, 36041-36042 E8-14371 Extension of Time Limits for Preliminary Results of New Shipper Review: Cut-to-Length Carbon Steel Plate from the Peoples Republic of China, 36042 E8-14407 Justice Justice Department See Antitrust Division See Prisons Bureau Labor Labor Department See Employment and Training Administration See Veterans Employment and Training Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 36118-36119 E8-14352 Land Land Management Bureau NOTICES Public Land Order: Florida, 36101 E8-14385 Montana, 36101 E8-14382 National Archives National Archives and Records Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 36128 E8-14496 National Capital National Capital Planning Commission NOTICES Members of Senior Executive Service Performance Review Board, 36128-36129 E8-14398 National Credit National Credit Union Administration PROPOSED RULES Member Business Loans, 35977-35978 E8-14294 National Foundation National Foundation on the Arts and the Humanities NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 36129 E8-14344 National Institute National Institute of Standards and Technology RULES Technology Innovation Program, 35913-35920 E8-14083 NIH National Institutes of Health NOTICES Meetings: Board of Scientific Counselors, NIEHS, 36090-36091 E8-14261 Center for Scientific Review, 36091 E8-14262 National Institute of Diabetes and Digestive and Kidney Disorders, 36092-36093 E8-14278 National Institute on Aging, 36091-36092 E8-14264 National Institute on Drug Abuse, 36092 E8-14277 NOAA National Oceanic and Atmospheric Administration NOTICES Marine Mammals, 36042-36043 E8-14415 Meetings: New England Fishery Management Council, 36043 E8-14280 Taking Marine Mammals Incidental to Specified Activities: Seismic Surveys in the Beaufort and Chukchi Seas, 36044-36062 E8-14393 National Park National Park Service NOTICES National Register of Historic Places; Notification of Pending Nominations and Related Actions, 36102-36103 E8-14297 NRCS Natural Resources Conservation Service RULES Regulations for Complying with the National Environmental Policy Act, 35883-35886 E8-14122 Nuclear Nuclear Regulatory Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 36129-36130 E8-14345 E8-14347 Confirmatory Order: Florida Power and Light Co., St. Lucie Nuclear Plant, 36131-36134 E8-14317 Environmental Assessment and Finding of No Significant Impact: Dominion Energy Kewaunee, Inc., Kewaunee Power Station, 36134-36135 E8-14315 Issuance and Availability of Regulatory Guide, 36135 E8-14314 Office Office of Federal Housing Enterprise Oversight See Federal Housing Enterprise Oversight Office Pipeline Pipeline and Hazardous Materials Safety Administration PROPOSED RULES Pipeline Safety: Integrity Management Program for Gas Distribution Pipelines, 36015-36034 08-1387 NOTICES Pipeline Safety: Hazardous Liquid Pipeline Operators, Request for Voluntary Advance Notification of Intent to Transport Biofuels, 36164-36165 E8-14137 Postal Postal Regulatory Commission NOTICES Administrative Practice and Procedure, 36136-36156 E8-14396 Prisons Prisons Bureau PROPOSED RULES Use of Non-Lethal Force: Delegation, 35984-35985 E8-14363 SEC Securities and Exchange Commission PROPOSED RULES Nationally Recognized Statistical Rating Organizations, 36212-36252 E8-13887 NOTICES Self-Regulatory Organizations; Proposed Rule Changes: The American Stock Exchange LLC, et al., 36156-36160 E8-14330 Suspension of trading Acclaim Entertainment, Inc., et al., 36160-36161 08-1388 SBA Small Business Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 36161 E8-14336 Disaster Declarations: Indiana, 36161 E8-14334 Iowa, 36161-36162 E8-14333 Interest Rates, 36162 E8-14369 Meetings: National Small Business Development Center Advisory Board, 36162 E8-14335 State State Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 36162-36163 E8-14375 E8-14376 Culturally Significant Objects Imported for Exhibition Determinations: Artistic Luxury; Faberge Tiffany Lalique, 36163-36164 E8-14378 Surface Surface Mining Reclamation and Enforcement Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 36103-36104 E8-14212 Surface Surface Transportation Board RULES Regulations Governing Fees for Services Performed in Connection with Licensing Related Services-2008 Update, 35976 E8-14346 Textile Textile Agreements Implementation Committee See Committee for the Implementation of Textile Agreements Thrift Thrift Supervision Office NOTICES Amendment of a Savings Associations Bylaws, 36165 E8-14379 Transportation Transportation Department See Federal Aviation Administration See Federal Motor Carrier Safety Administration See Pipeline and Hazardous Materials Safety Administration See Surface Transportation Board RULES Procedures for Transportation Workplace Drug and Alcohol Testing Programs, 35961-35975 E8-14218 Treasury Treasury Department See Thrift Supervision Office Veterans Veterans Employment and Training Service NOTICES Meetings: The Advisory Committee on Veterans’ Employment, Training and Employer Outreach, 36127-36128 E8-14307 Separate Parts In This Issue Part II Government Ethics Office, 36168-36210 E8-13394 Part III Securities and Exchange Commission, 36212-36252 E8-13887 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. 73 123 Wednesday, June 25, 2008 Rules and Regulations DEPARTMENT OF AGRICULTURE Natural Resources Conservation Service 7 CFR Part 650 RIN 0578-AA41 [Docket No. NRCS-IFR-08001] Regulations for Complying With the National Environmental Policy Act AGENCY: Natural Resources Conservation Service (NRCS), USDA. ACTION: Interim final rule. SUMMARY: The Natural Resources Conservation Service (NRCS or Agency) is amending its National Environmental Policy Act
(NEPA)compliance regulations by clarifying the appropriate use of a program environmental assessment
(EA)and by aligning its NEPA public involvement process with that of the Council on Environmental Quality's
(CEQ)regulations that implement the NEPA. Both changes would better align the Agency regulations with the CEQ NEPA regulations and provide for the efficient and timely environmental review of NRCS actions, particularly those actions where Congress has directed NRCS action within short time periods of 60-90 days. DATES: *Effective date:* This rule is effective June 25, 2008. *Comment date:* Submit comments on or before July 25, 2008. ADDRESSES: You may send comments (identified by Docket Number NRCS-IFR-08001) using any of the following methods: • *Government-wide rulemaking Web site:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* Ecological Sciences Division, Natural Resources Conservation Service, Compliance with NEPA Comments, P.O. Box 2890, Room 6158-S, Washington, DC 20013. • *Fax:* 1-202-720-2646. • *Hand Delivery:* Room 6158-S of the USDA South Office Building, 1400 Independence Avenue, SW., Washington, DC 20250, between 9 a.m. and 4 p.m., Monday through Friday, except Federal Holidays. For more information on the rulemaking process, *see* the SUPPLEMENTARY INFORMATION section of this document. FOR FURTHER INFORMATION CONTACT: Matt Harrington, National Environmental Coordinator, Ecological Sciences Division, NRCS, P.O. Box 2890, Room 6158-S, Washington, DC 20013; telephone
(202)720-4925; submit e-mail to: *matt.harrington@wdc.usda.gov, Attention:* Compliance with NEPA comments. SUPPLEMENTARY INFORMATION: Comments Invited The NRCS invites interested persons to submit written comments, data(s), or views. The most helpful comments reference a specific portion of the revisions, explain the reason for any recommended further changes, and include supporting data. We ask that you send us two copies of written comments. We will file all comments we receive in the docket, as well as a report summarizing each substantive public comment with NRCS personnel concerning this interim final rulemaking. The docket, including any personal information you provide, is made available for public inspection. We will consider all comments we receive on or before the closing date for comments when we review the final rule's implementation and determine whether further action on these sections is necessary. We will consider comments filed late if it is possible to do so without incurring expense or delay. Availability of Rulemaking Documents You can get an electronic copy of the full Compliance with NEPA rule using the Internet through the NRCS homepage, at *http://www.nrcs.usda.gov,* and by selecting “Programs,” then “National Environmental Policy Act
(NEPA)Documents.” Background Synopsis of the Rule The rule will better align the NRCS' NEPA regulations with that of the CEQ's regulations that implement the NEPA. The rule amends 7 CFR 650.5(c) Figure 1 by inserting “Program EA” to the flow chart on NRCS decision-making and the rule adds a section to 7 CFR 650.8(a), which discusses the criteria for determining the need for a program EA. The rule also makes changes to 7 CFR 650.12 so that 650.12 better conforms to CEQ's similar regulations. First, the rule amends 7 CFR 650.5(c) Figure 1 by inserting “Program EA” to the flow chart on NRCS decision-making and by adding a section to 7 CFR 650.8 discussing the criteria for determining the need for a program EA. Previously, Agency regulations did not address NRCS' ability to tier to Program EAs or clarify when it is appropriate to use a program environmental assessment. The change to Figure 1 explicitly confirms the State and field offices' ability to tier site specific environmental reviews and decision-making to either a Program EA or Program EIS. The change to section 650.8 clearly states when it is appropriate to use an environmental assessment. This change aligns NRCS' NEPA regulations with 40 CFR 1507.3(b)(2), which states that Agency NEPA regulations should identify specific criteria for and those classes of action which normally require EA but not EIS. For rulemaking actions under the Farm Bill, the Agency has prepared program EAs in the past because the limited significance of the actions did not warrant the preparation of an EIS. Therefore, this rule change provides for the efficient and timely environmental review of NRCS actions. Second, NRCS is changing the current requirement of publication of the notice of availability for every EA/FNSI in the **Federal Register** . CEQ regulations require public involvement in preparing any EA/Finding of No Significant Impact
(FNSI)and require a 30 day review period of the EA/FNSI only in the following limited circumstances:
(a)The action is, or closely similar to, one which normally requires the preparation of an EIS, as defined by NRCS NEPA implementing regulations at 7 CFR 650.7, or
(b)the nature of the action is one without precedent. The revised interim final rule in 7 CFR 650.12 will change NRCS regulations to mirror CEQ's regulations. This will provide the Agency with the flexibility for all program actions to determine the most appropriate method of public involvement in preparing the EA/FNSI and the most appropriate method for publication of the notice of the availability of the EA/FNSI. As noted by CEQ regulations implementing NEPA (40 CFR 1506.6), actions primarily of local concern may be published in local newspapers and use other means to reach the interested and affected members of the public. The rule will also allow the Agency to implement an action upon issuing the notice of availability of the EA/FNSI or at a specified time period after issuance of the notice based on the public involvement provided. For Agency actions with statutorily short rulemaking timeframes or for emergency actions, the ability to tailor public involvement and review allows the Agency to implement the action upon issuance of the notice of availability or a shorter time frame thereafter while still meeting the requirements of NEPA as well as its intent. This enables the Agency to prepare adequate NEPA analyses and to proceed with timely implementation for these important actions. Regulatory Certifications Executive Order 12866 The NRCS reviewed this interim final rule under U.S. Department of Agriculture (Department) procedures and Executive Order 12866 issued September 30, 1993 (E.O. 12866), as amended by E.O. 13422 on Regulatory Planning and Review. This interim final is issued in accordance with the E.O. 12866. It has been determined that this interim final is not significant and, therefore, it has not been reviewed by the OMB. Regulatory Flexibility Act It has been determined that the Regulatory Flexibility Act is not applicable to this rule because NRCS is not required by 5 U.S.C. 553 or any other provision of law to publish a notice of interim final rulemaking with respect to the subject matter of this rule. Environmental Analysis The interim final rule amends the procedures for implementing the National Environmental Policy Act
(NEPA)at 7 CFR part 650 and would not directly impact the environment. Agency NEPA procedures are procedural guidance to assist agencies in the fulfillment of agency responsibilities under NEPA, but are not the agency's final determination of what level of NEPA analysis is required for a particular action. The CEQ set forth the requirements for establishing agency NEPA procedures in its regulations at 40 CFR 1505.1 and 1507.3. The CEQ regulations do not require agencies to conduct NEPA analyses or prepare NEPA documentation when establishing their NEPA procedures. The determination that establishing agency NEPA procedures does not require NEPA analysis and documentation has been upheld in *Heartwood, Inc.* v. *U.S. Forest Service* , 230 F.3d 947, 954-55 (7th Cir. 2000). Paperwork Reduction Act There are no requirements for information collection associated with this interim final that would require approval under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). Unfunded Mandates Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), NRCS has assessed the effects of this interim final on State, local, and Tribal governments and the private sector. This interim final does not compel the expenditure of $100 million or more by any State, local, or Tribal governments or anyone in the private sector. Therefore, a statement under section 202 of the Act is not required. Civil Justice Reform This interim final rule has been reviewed under Executive Order 12988, Civil Justice Reform. After adoption of this interim final,
(1)all State and local laws and regulations that conflict with this rule or that would impede full implementation of this rule will be preempted;
(2)no retroactive effect would be given to this interim final; and
(3)before an action may be brought in a Federal court of competent jurisdiction, the administrative appeal rights afforded persons at 7 CFR parts 614, 780, and 11 must be exhausted. Federalism NRCS has considered this interim final rule under the requirements of Executive Order 13132 issued August 4, 1999 (E.O. 13132), “Federalism.” The Agency has made an assessment that the interim final rule conforms with the Federalism principles set out in this Executive Order; would not impose any compliance costs on the States; and would not have substantial direct effects on the States, on the relationship between the national government and the States, nor on the distribution of power and responsibilities among the various levels of government. Therefore, NRCS concludes that this interim final rule does not have Federalism implications. Energy Effects This interim final rule has been reviewed under Executive Order 13211 issued May 18, 2001 (E.O. 13211), “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.” NRCS has determined that this interim final does not constitute a significant energy action as defined in E.O. 13211. For the reasons stated in the preamble, the Natural Resources Conservation Service amends 7 CFR 650 as follows: PART 650—COMPLIANCE WITH NEPA 1. The authority citation for part 650 is amended to read as follows: Authority: 42 U.S.C. 4321 *et seq.* ; Executive Order 11514 (Rev.); 7 CFR 2.62, unless otherwise noted. § 650.5 [Amended] 2. Section 650.5, following paragraph (c), Figure 1 is revised. BILLING CODE 3410-16-P ER25JN08.003 BILLING CODE 3410-16-C 3. Section 650.8 paragraph
(b)is revised, and paragraphs
(c)and
(d)are added as follows: § 650.8 When to prepare an environmental assessment (EA).
(b)Other actions that the EE reveals may be a major Federal action significantly affecting the quality of the human environment.
(c)Criteria for determining the need for a program EA:
(1)A program EA is to be prepared when NRCS has determined, based on the environmental evaluation, that a program EIS is not required and the program and actions to implement the program are not categorically excluded; and
(2)A program EA may also be prepared to aid in NRCS decision-making and to aid in compliance with NEPA.
(d)The RFO, through the process of tiering, is to determine if a site-specific EA or EIS is required for an action that is included in a program EA or EIS. 4. Section 650.12 paragraph
(c)heading text is revised; the (c)(1) designation is removed; paragraphs (c)(2) and (c)(3) are removed; paragraph
(d)is revised; and new paragraph
(e)is added to read as follows: § 650.12 NRCS Decisionmaking.
(c)*Environmental Impact Statement
(EIS)and Record of decision* * * *
(d)*Environmental Assessments and Finding of No Significant Impact (FNSI)*
(1)*EA's.* If the EA indicates that the proposed action is not a major Federal action significantly affecting the quality of the human environment, the RFO is to prepare a finding of no significant impact (FNSI).
(2)*Availability of the FNSI (40 CFR 1501.4(e)(2)).* In accordance with CEQ regulations at 40 CFR 1501.4(e)(2), NRCS shall make the EA/FNSI available for public review for thirty days in the following instances: The proposed action is, or closely similar to, one which normally requires the preparation of an EIS as defined by NRCS NEPA implementing regulations at § 650.7, or the nature of the action is one without precedent. When availability for public review for thirty days is not required, NRCS will involve the public in the preparation of the EA/FONSI and make the EA/FONSI available for public review in accordance with CEQ regulations at 40 CFR 1501.4(b) and 1506.6.
(e)*Changes in actions.* When it appears that a project or other action needs to be changed, the RFO will perform an environmental evaluation of the authorized action to determine whether a supplemental NEPA analysis is necessary before making a change. Dated: June 11, 2008. Arlen Lancaster, Chief, Natural Resources Conservation Service. [FR Doc. E8-14122 Filed 6-24-08; 8:45 am] BILLING CODE 3410-16-P DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 956 [Docket No. AMS-FV-07-0157; FV08-956-1 FR] Sweet Onions Grown in the Walla Walla Valley of Southeast Washington and Northeast Oregon; Increased Assessment Rate AGENCY: Agricultural Marketing Service, USDA. ACTION: Final rule. SUMMARY: This rule increases the assessment rate established for the Walla Walla Sweet Onion Marketing Committee (Committee) for the 2008 and subsequent fiscal periods from $0.21 to $0.22 per 50-pound bag or equivalent of Walla Walla sweet onions handled. The Committee locally administers the marketing order which regulates the handling of sweet onions grown in the Walla Walla Valley of Southeast Washington and Northeast Oregon. Assessments upon Walla Walla sweet onion handlers are used by the Committee to fund the reasonable and necessary expenses of the program. The fiscal period begins January 1 and ends December 31. The assessment rate will remain in effect indefinitely unless modified, suspended, or terminated. DATES: *Effective Date:* June 26, 2008. FOR FURTHER INFORMATION CONTACT: Barry Broadbent or Gary Olson, Northwest Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1220 SW Third Avenue, Suite 385, Portland, OR 97204; *Telephone:*
(503)326-2724, *Fax:*
(503)326-7440, or *E-mail: Barry.Broadbent@usda.gov* or *GaryD.Olson@usda.gov.* Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237; *Telephone:*
(202)720-2491, *Fax:*
(202)720-8938, or *E-mail: Jay.Guerber@usda.gov.* SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Agreement and Order No. 956, both as amended (7 CFR part 956), regulating the handling of Walla Walla sweet onions grown in Southeast Washington and Northeast Oregon, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Department of Agriculture
(USDA)is issuing this rule in conformance with Executive Order 12866. This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, Walla Walla sweet onion handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate, as proposed herein, will be applicable to all assessable Walla Walla sweet onions beginning on January 1, 2008, and continue until amended, suspended, or terminated. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule. The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling. This rule increases the assessment rate established for the Committee for the 2008 and subsequent fiscal periods from $0.21 to $0.22 per 50-pound bag or equivalent of Walla Walla sweet onions handled. The Walla Walla sweet onion marketing order provides authority for the Committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Committee are producers and handlers of Walla Walla sweet onions. They are familiar with the Committee's needs and with the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input. For the 1998-1999 and subsequent fiscal periods, the Committee recommended, and USDA approved, an assessment rate of $0.21 per 50-pound bag or equivalent that would continue in effect indefinitely unless modified, suspended, or terminated by USDA upon the basis of the Committee's recommendation or other information available to USDA. On December 11, 2007, the Committee met and unanimously recommended 2008 expenditures of $116,255 and a $0.01 increase in the assessment rate from $0.21 to $0.22 per 50-pound bag or equivalent. In comparison, the budgeted expenditures for the 2007 fiscal period were $139,210. The increase in the assessment rate is necessary to offset the recent decline in assessments paid by handlers. Assessment receipts have decreased as the production levels of Walla Walla sweet onions have dropped below historical averages—a result of lower total acreage planted and isolated weather-related crop failures. In response to the lower assessment income level, the Committee reduced the total budgeted expenditures from $139,210 in 2007 to $116,255 for 2008, but still found it necessary to increase the assessment rate to adequately fund Committee operations. The major expenditures recommended by the Committee for the 2008 fiscal year include $62,732 for administration, $5,000 for travel, $44,000 for promotion, and $2,000 for compliance. Budgeted expenses for these items in 2007 were $62,477, $5,000, $63,300, and $1,000, respectively. The assessment rate recommended by the Committee was derived by dividing anticipated expenses by expected shipments of Walla Walla sweet onions from the production area. Walla Walla sweet onion shipments are estimated to be 510,250 50-pound bags or equivalents for the 2008 fiscal period, which should provide $112,255 in assessment income. The remaining difference between the anticipated Committee expenses and the anticipated revenue from assessments is expected to come from interest income on reserve funds ($4,000). Funds held in reserve by the Committee (currently $144,953) are not expected to exceed the equivalent of two fiscal periods budgeted expenditures, the maximum permitted by the order. The assessment rate established in this rule will continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other available information. Although this assessment rate will be in effect for an indefinite period, the Committee will continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA will evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Committee's 2008 budget, and those for subsequent fiscal periods, will be reviewed and, as appropriate, approved by USDA. Final Regulatory Flexibility Analysis Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service
(AMS)has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis. The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. There are approximately 42 producers of Walla Walla sweet onions in the production area and approximately 20 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201)(SBA) as those having annual receipts less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $6,500,000. The Committee estimates that in 2007, 494,918 50-pound units of Walla Walla sweet onions were marketed at an average FOB price of approximately $19.00 per 50-pound unit. Using that price as a basis, the total industry value at shipping point was approximately $9,400,000. Average receipts per handler were $470,000, which is much less than the threshold the SBA uses to define a small service firm. Average receipts for the 42 producers of Walla Walla sweet onions for last year were approximately $225,000, well within the SBA definition of small agricultural producer. Thus, it can be concluded that most, if not all, handlers and producers of Walla Walla sweet onions may be classified as small entities based on the definition of the SBA. This rule increases the assessment rate established for the Committee and collected from handlers for the 2008 and subsequent fiscal periods from $0.21 to $0.22 per 50-pound bag or equivalent. The Committee unanimously recommended 2008 expenditures of $116,255 and an assessment rate of $0.22 per 50-pound bag or equivalent. The assessment rate of $0.22 is $0.01 higher than the rate previously established in the order. The quantity of assessable Walla Walla sweet onions for the 2008 year is estimated at 510,250 50-pound bags or equivalents. Thus, the $0.22 rate should provide $112,255 in assessment income and, along with $4,000 in interest income, will be adequate to meet this year's budgeted expenses of $116,255. The major expenditures recommended by the Committee for the 2008 year include $62,732 for administration, $5,000 for travel, $44,000 for promotion, and $2,000 for compliance. Budgeted expenses for these items in 2007 were $62,477, $5,000, $63,300, and $1,000, respectively. The recent decline in assessments collected from handlers has necessitated this assessment rate increase. Assessment income has decreased as the production levels of Walla Walla sweet onions have dropped below historical average levels as a result of lower total acreage planted and isolated weather related crop failures. In response to the lower assessment income level, the Committee reduced its total budgeted expenditures from $139,210 in 2007 to $116,255 for 2008, but still found it necessary to increase the assessment rate to adequately fund Committee operations without depleting the Committee's reserve funds. The Committee reviewed and unanimously recommended 2008 expenditures of $116,255. Prior to arriving at this budget, the Committee considered information from various sources, including the Finance and the Promotion sub-committees. Alternative expenditure levels were discussed at length by all parties. The assessment rate of $0.22 per 50-pound bag or equivalent of assessable Walla Walla sweet onions was then determined by dividing the total recommended budget by the quantity of assessable Walla Walla sweet onions, estimated at 510,250 50-pound units for the 2008 fiscal period. Anticipated assessment revenue is expected to be approximately $4,000 below the budgeted expenses, which the Committee determined to be acceptable. The Committee expects that interest income for the year will compensate for the $4,000 deficit, but is prepared to use reserve funds if necessary. A review of historical information and preliminary information pertaining to the upcoming crop year indicates that the producer price for Walla Walla sweet onions for the 2008 season could range between $10.00 and $12.00 per 50-pound bag or equivalent. Therefore, the estimated assessment revenue for the 2008 crop year as a percentage of total producer revenue could range between 1.83 and 2.20 percent. This action increases the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. Some of the additional costs may be passed on to producers. However, these costs are offset by the benefits derived by the operation of the marketing order. In addition, the Committee's meeting was widely publicized throughout the Walla Walla sweet onion industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the December 11, 2007, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. This rule imposes no additional reporting or recordkeeping requirements on either small or large Walla Walla sweet onion handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes. As noted in the initial regulatory flexibility analysis, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this final rule. A proposed rule concerning this action was published in the **Federal Register** on March 14, 2008 (73 FR 13798). Copies of the proposed rule were also mailed or sent via facsimile to all Walla Walla sweet onion handlers. Finally, the proposal was made available through the Internet by USDA and the Office of the Federal Register. A 60-day comment period ending May 13, 2008, was provided for interested persons to respond to the proposal. No comments were received. A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: *http://www.ams.usda.gov/AMSv1.0/ams.fetchTemplateData.do?template=TemplateN&page=MarketingOrdersSmallBusinessGuide* . Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section. After consideration of all relevant material presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act. Pursuant to 5 U.S.C. 553, it also found and determined that good cause exists for not postponing the effective date of this rule until 30 days after publication in the **Federal Register** because handlers are already receiving 2008 crop Walla Walla sweet onions from producers. The crop year began on January 1, 2008, and the assessment rate applies to all Walla Walla sweet onions received during the 2008 and subsequent seasons. Also, the Committee needs funds to pay its expenses, which are incurred on a continuing basis. Further, handlers are aware of this rule which was recommended at a public meeting. Finally, a 60-day comment period was provided for in the proposed rule. List of Subjects in 7 CFR Part 956 Marketing agreements, Onions, Reporting and recordkeeping requirements. For the reasons set forth in the preamble, 7 CFR part 956 is amended as follows: PART 956—SWEET ONIONS GROWN IN THE WALLA WALLA VALLEY OF SOUTHEAST WASHINGTON AND NORTHEAST OREGON 1. The authority citation for 7 CFR part 956 continues to read as follows: Authority: 7 U.S.C. 601-674. 2. Section 956.202 is revised to read as follows: § 956.202 Assessment rate. On and after January 1, 2008, an assessment rate of $0.22 per 50-pound bag or equivalent is established for Walla Walla sweet onions. Dated: June 19, 2008. Lloyd C. Day, Administrator, Agricultural Marketing Service. [FR Doc. E8-14339 Filed 6-24-08; 8:45 am] BILLING CODE 3410-02-P DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 982 [Docket No. AMS-FV-07-0150; FV08-982-1 FIR] Hazelnuts Grown in Oregon and Washington; Establishment of Interim Final and Final Free and Restricted Percentages for the 2007-2008 Marketing Year AGENCY: Agricultural Marketing Service, USDA. ACTION: Final rule. SUMMARY: The Department of Agriculture
(USDA)is adopting, as a final rule, without change, an interim final rule establishing interim final and final free and restricted percentages for domestic inshell hazelnuts for the 2007-2008 marketing year under the Federal marketing order for hazelnuts grown in Oregon and Washington. This rule continues in effect the interim final free and restricted percentages of 8.1863 and 91.8137 percent, respectively, and the final free and restricted percentages of 9.2671 and 90.7329 percent, respectively. The percentages allocate the quantity of domestically produced hazelnuts which may be marketed in the domestic inshell market
(free)and the quantity of domestically produced hazelnuts that must be disposed of in outlets approved by the Board (restricted). Volume regulation is intended to stabilize the supply of domestic inshell hazelnuts to meet the limited domestic demand for such hazelnuts with the goal of providing producers with reasonable returns. This rule was recommended unanimously by the Hazelnut Marketing Board (Board), the agency responsible for local administration of the marketing order. DATES: *Effective Date:* July 25, 2008. This rule applies to all 2007-2008 marketing year restricted hazelnuts until they are properly disposed of in accordance with marketing order requirements. FOR FURTHER INFORMATION CONTACT: Barry Broadbent or Gary Olson, Northwest Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1220 SW Third Avenue, Suite 385, Portland, OR 97204; Telephone:
(503)326-2724, Fax:
(503)326-7440, or E-mail: *Barry.Broadbent@usda.gov* or *GaryD.Olson@usda.gov.* Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237; Telephone:
(202)720-2491, Fax:
(202)720-8938, or E-mail: *Jay.Guerber@usda.gov.* SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Agreement No. 115 and Marketing Order No. 982, both as amended (7 CFR Part 982), regulating the handling of hazelnuts grown in Oregon and Washington, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” USDA is issuing this rule in conformance with Executive Order 12866. This rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is intended that this action apply to all merchantable hazelnuts handled during the 2007-2008 marketing year beginning July 1, 2007. This action applies to all 2007-2008 marketing year restricted hazelnuts until they are properly disposed of in accordance with marketing order requirements. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule. The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling. This rule continues in effect free and restricted percentages which allocate the quantity of domestically produced hazelnuts that may be marketed in domestic inshell markets
(free)and hazelnuts that must be exported, shelled, or otherwise disposed of by handlers (restricted). The Board met and, after determining that volume regulation would tend to effectuate the declared policy of the Act, developed a marketing policy to be employed for the duration of the 2007-2008 marketing year. Volume regulation is intended to stabilize the supply of domestic inshell hazelnuts to meet the limited domestic demand for such hazelnuts, with the goal of providing producers with reasonable returns. Based on an estimate of the domestic inshell trade demand and the total supply of domestically produced hazelnuts available for the 2007-2008 marketing year, the Board voted unanimously at their November 15, 2007, meeting to recommend to USDA that the interim final free and restricted percentages for the 2007-2008 marketing year be established at 8.1863 percent and 91.8137 percent, respectively. Additionally, the Board unanimously voted to set the final free and restricted percentages, effective May 1, 2008, at 9.2671 and 90.7329 percent, respectively. The Board's authority to recommend volume regulation and use computations to determine the allocation of hazelnuts to individual markets is specified in § 982.40 of the order. Under the order's provisions, free and restricted market allocations of hazelnuts are expressed as percentages of the total hazelnut supply subject to regulation. The percentages are derived by dividing the estimated domestic inshell trade demand (computed by formula) by the Board's estimate of the total domestically produced supply of hazelnuts that are expected to be available over the course of the marketing year. Inshell trade demand, the key component of the marketing policy, is the estimated quantity of inshell hazelnuts necessary to adequately supply the domestic inshell hazelnut market for the duration of the marketing year. The Board determines the domestic inshell trade demand for each year and uses that estimate as the basis for setting the percentage of the available supply of domestically produced hazelnuts that handlers may ship to the domestic inshell market throughout the marketing season. The order specifies that inshell trade demand be computed by averaging the preceding three years' trade acquisitions of inshell hazelnuts, allowing adjustments for abnormal crop or marketing conditions. In addition, the Board may increase the computed inshell trade demand by up to 25 percent, if market conditions warrant an increase. As required by the order, prior to September 20 of each marketing year, the Board meets to establish its marketing policy for that year. If the Board determines that volume control would tend to effectuate the declared policy of the Act, the Board then follows a procedure, specified by the order, to compute and announce preliminary free and restricted percentages. The preliminary free percentage releases 80 percent of the adjusted inshell trade demand that handlers may ship to the domestic market. The purpose of releasing only 80 percent of the inshell trade demand under the preliminary stage of regulation is to guard against any potential underestimate of crop size. The preliminary free percentage is expressed as a percentage of the total hazelnut supply subject to regulation, where total supply is the sum of the estimated crop production less the three-year average disappearance plus the undeclared carry-in from the previous marketing year. On August 21, 2007, the National Agricultural Statistics Service
(NASS)released an estimate of 2007 hazelnut production for the Oregon and Washington area at 33,000 dry orchard-run tons. NASS uses an objective yield survey method to estimate hazelnut production which has historically been very accurate. On August 23, 2007, the Board met for the purpose of
(1)determining if volume control regulation would tend to effectuate the declared policy of the Act;
(2)estimating the total available supply and the domestic inshell trade demand for hazelnuts;
(3)establishing preliminary free and restricted marketing percentages for the 2007-2008 marketing year; and
(4)authorizing market outlets for restricted hazelnuts. After discussion, the Board unanimously determined that volume regulation would be necessary to effectively market the industry's 2007 crop and would tend to effectuate the declared policy of the Act. The determination was based on
(1)the size of the 2007 hazelnut crop;
(2)the inability of the domestic inshell market to absorb such a large crop;
(3)the projected large size of the world hazelnut crop and the probability of an oversupplied world market; and
(4)the average price paid to Oregon-Washington producers has not exceeded the parity price in any one of the past 18 years. The Board then estimated the total available supply for the 2007 crop year to be 33,603 tons. The Board arrived at that quantity by using the crop estimate compiled by NASS (33,000 tons) and then adjusting that estimate to account for disappearance and carry-in. The order requires the Board to reduce the crop estimate by the average disappearance over the preceding three years (1,426 tons) and to increase it by the amount of undeclared carry-in from previous years' production (2,029 tons). In the calculation, disappearance is defined as the difference between the estimated orchard-run production and the actual supply of merchantable product available for sale by handlers. Disappearance can consist of
(1)unharvested hazelnuts;
(2)culled product (nuts that are delivered to handlers but later discarded);
(3)product used on the farm, sold locally, or otherwise disposed of by producers; and
(4)statistical error in the orchard-run production estimate. Undeclared carry-in is defined as hazelnuts that were produced in a previous marketing year but were not subject to regulation because they were not shipped during that marketing year. Undeclared carry-in is subject to regulation during the current marketing year and is accounted for as such by the Board. Additionally, the Board estimated domestic inshell trade demand for the 2007-2008 marketing year to be 2,478 tons. The Board arrived at this estimate by taking the average of the domestic inshell trade acquisitions for the 2003/2004, 2004/2005, and the 2006/2007 marketing years (2,649 tons), increasing that amount by 5 percent (133 tons) to encourage sales (as allowed by the order), and then reducing that quantity by the declared carry-in from last year's crop (304 tons). The trade acquisition data for the 2005-2006 marketing year was omitted from the Board's calculations, as allowed by the order, after it was determined to be abnormal due to crop and marketing conditions. The Board is also allowed to increase the average domestic inshell trade acquisitions in their calculation by up to 25 percent, if market conditions justify such an increase. At this stage in the establishment of the marketing policy, the Board voted unanimously that a 5 percent increase would be sufficient to encourage new sales without risking oversupply of the market. The declared carry-in represents product regulated under the order during a preceding marketing year but not shipped during that year. This inventory must be accounted for when estimating the quantity of product to make available to adequately supply the market. After establishing estimates for total available hazelnut supply and domestic inshell trade demand, the Board used those estimates to compute and announce preliminary free and restricted percentages of 5.8983 percent and 94.1017 percent, respectively. The Board computed the preliminary free percentage by multiplying the adjusted inshell trade demand by 80 percent and dividing the result by the estimate of the total available supply subject to regulation (2,478 tons x 80 percent/33,603 tons = 5.8983 percent). The preliminary free percentage initially released 1,982 tons of hazelnuts from the 2007-2008 supply for domestic inshell use. The Board authorized the preliminary restricted percentage (31,621 tons) to be exported or shelled for the domestic kernel markets. Under the order, the Board must meet again on or before November 15 to review and revise the preliminary estimate of the total available supply of hazelnuts and to recommend interim final and final free and restricted percentages. As indicated earlier, when establishing preliminary free and restricted percentages, the Board utilizes a pre-harvest objective yield survey, compiled by NASS on behalf of the Board, to estimate the upcoming crop size. After the hazelnut harvest has concluded—usually sometime in October—information is available directly from handlers to more accurately estimate crop size. The Board may use this information to amend their preliminary estimate of total available supply before calculating the interim final and final percentages. At this meeting, the Board may also amend the percentage increase included in the computation of inshell trade demand to encourage increased sales. Interim final percentages are calculated in the same way as the preliminary percentages but release 100 percent of the inshell trade demand, effectively releasing the additional 20 percent held back at the preliminary stage. Final free and restricted percentages may release up to an additional 15 percent of the average trade acquisitions of inshell hazelnuts for desirable carryout, to provide an adequate carryover of product into the following season. The order requires that final free and restricted percentages be effective 30 days prior to the end of the marketing year, or earlier, if recommended by the Board and approved by USDA. The Board is allowed to combine the interim final and the final stages of the marketing policy, if marketing conditions so warrant, by recommending final percentages which immediately release 100 percent of the inshell trade demand (the preliminary percentage plus the additional 20 held back) plus any percentage increase the Board determines for desirable carryout. Revisions in the marketing policy can be made until February 15 of each marketing year, but the inshell trade demand can only be revised upward, consistent with § 982.40(e). The Board met, as required by the order, on November 15, 2007, to review and approve an amended marketing policy and to recommend the establishment of interim final and final free and restricted percentages. At that time, the Board revised the crop estimate in the marketing policy to 36,270 tons (from 33,000 tons) after considering the results of post-harvest handler survey information compiled by the Board. The Board also revised the percentage increase meant to encourage sales that is included in the inshell trade demand computation from 5 percent to 25 percent, effectively allocating another 529 tons of inshell hazelnuts that may be marketed in the domestic market. Using the revised crop estimate and the increased inshell trade demand, the Board then computed interim final free and restricted percentages. The percentages release the remaining 20 percent of the estimated inshell trade demand that was withheld during the preliminary stage of the marketing policy, as well as take into account the amendments made by the Board to the marketing policy computations (revising the total supply estimate and increasing the inshell trade demand). The interim final free and restricted percentages were therefore set at 8.1863 and 91.8137 percent, respectively. The interim final free percentage immediately releases a total of 3007 tons of inshell hazelnuts from the 2007-2008 supply that may be marketed in domestic markets. During the meeting, the Board decided that market conditions were such that the industry would benefit from the release of an additional 15 percent of the three year average trade acquisitions to allow for desirable carryout and that the increase would not adversely affect the 2007-2008 domestic inshell market. The final free and restricted percentages were set at 9.2671 and 90.7329 percent, respectively. The final percentages are to become effective May 1, 2008. The final free percentage releases 3,404 tons of inshell hazelnuts from the 2007-2008 supply for domestic use, which includes 397 tons released late in the marketing year for desirable carryout. The final marketing percentages are based on the Board's final production estimate and the following supply and demand information for the 2007-2008 marketing year: Total available supply Tons
(1)Production forecast (11/15/07 crop estimate) 36,270
(2)Minus: Disappearance (three year average—4.32 percent of Item 1) −1,567
(3)Merchantable production (Item 1 minus Item 2) 34,703
(4)Plus: Undeclared carry-in as of July 1, 2007 (subject to 2007-2008 regulation) + 2,029
(5)Available supply subject to regulation (Item 3 plus Item 4) 36,732 Inshell trade demand
(6)Average trade acquisition
(ATA)of inshell hazelnuts (three prior years domestic sales) 2,649
(7)Plus: Increase to encourage increased sales (25% of average trade acquisitions) + 662
(8)Minus: Declared carry-in as of July 1, 2007 (not subject to 2007-2008 regulation) −304
(9)Adjusted inshell trade demand (Item 6 plus Item 7 minus Item 8) 3,007 Percentages Free Restricted
(10)Interim final percentages (Item 9 divided by Item 5) × 100 8.1863 91.8137
(11)Interim final free tonnage (Item 9) 3,007
(12)Interim final restricted in tons (Item 5 minus Item 9) 33,725
(13)Final percentages (Item 14 divided by Item 5) × 100 9.2671 90.7329
(14)Final free tonnage (Interim final free tonnage (Item 11) plus 15% of ATA(397)) 3,404
(15)Final restricted tonnage (Item 5 minus Item 11) 33,328 In addition to complying with the provisions of the order, the Board also considered USDA's 1982 “Guidelines for Fruit, Vegetable, and Specialty Crop Marketing Orders” (Guidelines) when making its computations in the marketing policy. This volume control regulation provides a method to collectively limit the supply of inshell hazelnuts available for sale in domestic markets. The Guidelines provide that the domestic inshell market has available a quantity equal to 110 percent of prior years' shipments before allocating supplies for the export inshell, export kernel, and domestic kernel markets. This provides for a plentiful supply of inshell hazelnuts for consumers and for market expansion, while retaining the mechanism for dealing with oversupply situations. The established final percentages make available approximately 755 additional tons to encourage increased sales. The total free supply for the 2007-2008 marketing year is estimated to be 3,404 tons of hazelnuts, which is 137 percent of the average of the last three prior years' sales (2,478 tons) and exceeds the goal of the Guidelines. Final Regulatory Flexibility Analysis Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service
(AMS)has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis. The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those having annual receipts of less than $6,500,000. There are approximately 650 producers of hazelnuts in the production area and approximately 19 handlers subject to regulation under the order. Using statistics compiled by NASS, the average value of production received by producers in 2004-2006 was $54,088,000. Using those estimates, the average annual hazelnut revenue per producer would be approximately $83,200. The level of sales of other crops by hazelnut producers is not known. In addition, based on records maintained by the Board, approximately 83 percent of the handlers ship under $6,500,000 worth of hazelnuts on an annual basis. In view of the foregoing, it can be concluded that the majority of hazelnut producers and handlers may be classified as small entities. Board meetings are widely publicized in advance of the meetings and are held in a location central to the production area. The meetings are open to all industry members and other interested persons who are encouraged to participate in the deliberations and voice their opinions on topics under discussion. Thus, Board recommendations can be considered to represent the interests of small business entities in the industry. Currently, U.S. hazelnut production is allocated among three main market outlets: Domestic inshell, export inshell, and kernel markets. Handlers and producers receive the highest return for sales in the domestic inshell market. They receive less for product going to export inshell, and the least for kernels. Based on Board records of average shipments for 1997-2006, the percentage going to each of these markets was 10 percent (domestic inshell), 53 percent (export inshell), and 36 percent (kernels). Other minor market outlets make up the remaining 1 percent. The inshell hazelnut market can be characterized as having limited and inelastic demand with a very short primary marketing period. On average, 80 percent of domestic inshell hazelnut shipments occur between October 1 and November 30, primarily to supply holiday nut demand. The inshell market is, therefore, prone to oversupply and correspondingly low producer prices in the absence of supply restrictions. This volume control regulation provides a method for the U.S. hazelnut industry to limit the supply of domestic inshell hazelnuts available for sale in the continental U.S. and thereby mitigate market oversupply conditions. Many years of marketing experience led to the development of the current volume control procedures. These procedures have helped the industry solve its marketing problems by keeping inshell supplies in balance with domestic needs. Volume controls ensure that the domestic inshell market is fully supplied while protecting the market from the negative effects of oversupply. Although the domestic inshell market is a relatively small portion of total hazelnut sales (averaging 10 percent of total shipments for 1997-2006), it remains a profitable market segment. The volume control provisions of the order are designed to avoid oversupplying this particular market segment, because that would likely lead to substantially lower producer prices. The other market segments, export inshell and kernels, are expected to continue to provide good outlets for U.S. hazelnut production into the future. Adverse climatic conditions that negatively impacted hazelnut production in the other hazelnut producing regions of the world in 2004 and 2005 have corrected and the total world supply in 2007-2008 is predicted to be near the historically high levels seen in 2006. Product prices in the world market have trended downward in the expectation of the large available supply. While the U.S. hazelnut industry continues to experience high demand for their large sized and high quality product, the prices that producers receive are tied to the global market. In light of the anticipated world supply situation, regulation of the domestic inshell market is important to the U.S. hazelnut industry to insulate that specialty market from the supply related challenges of the global hazelnut market. In Oregon and Washington, lower hazelnut production years typically follow higher production years (a historically consistent cyclical pattern), and such was the case in 2007. The 2006 crop of 43,000 tons was 20 percent above the 10-year average (34,000 tons for 1997-2006) for hazelnut production. The 2007 crop of (36,720 tons, according to the survey of handlers conducted by the Board) is estimated to be 16 percent below the previous year. Using the NASS estimate of 33,000 tons, the crop is 23 percent lower. It is predicted that the 2008 crop will follow the recent production pattern and will be larger than the current crop year. This cyclical trait also leads to an inversely corresponding cyclical price pattern for hazelnuts. The intrinsic cyclical nature of the hazelnut industry lends credibility to the volume control measures enacted by the Board under the marketing order. Recent production and price data reflect the stabilizing effect of volume control regulations. Industry statistics show that total hazelnut production has varied widely over the 10-year period between 1997 and 2006, from a low of 15,500 tons in 1998 to a high of 49,500 tons in 2001. Production in the smallest crop year and the largest crop year were 48 percent and 145 percent, respectively, of the 10-year average of 34,000 tons. Producer price, however, has not fluctuated to the extent of production. Prices in the lowest price year and the highest price year were 63 percent and 200 percent, respectively, of the 10-year average price of $1,114 per ton. If the extraordinarily high price for the 2005 crop year is excluded as an aberration that stems from a global production crisis, the percentage variation in price drops to 70 percent and 145 percent of a $988 per ton average price, respectively. The lower level of variability of price versus the variability of production provides an illustration of the order's price-stabilizing impact. The coefficient of variation (a standard statistical measure of variability; “CV”) for hazelnut production over the 10-year period is 0.33. In contrast, the coefficient of variation for hazelnut producer prices, excluding the 2005 price, is only 0.20, dramatically lower than the CV for production. The lower level of variability of price versus the variability of production provides an illustration of the order's price-stabilizing impact. Comparing producer revenue to cost is useful in highlighting the impact on producers of recent product and price levels. A recent hazelnut production cost study from Oregon State University estimated cost-of-production per acre to be approximately $1,340 for a typical 100-acre hazelnut enterprise. Average producer revenue per bearing acre (based on NASS acreage and value of production data) equaled or exceeded that typical cost level only four times from 1997 to 2006. Average producer revenue was below typical costs in the other years. Without the stabilizing influence of the order, producers may have lost more money. While crop size has fluctuated, volume regulations contribute to orderly marketing and market stability by moderating the variation in returns for all producers and handlers, both large and small. While the level of benefits of this rulemaking is difficult to quantify, the stabilizing effects of volume regulation impact both small and large handlers positively by helping them maintain and expand markets even though hazelnut supplies fluctuate widely from season to season. This regulation provides equitable allotment of the most profitable market, the domestic inshell market. That market is available to all handlers, regardless of size. As an alternative to this regulation, the Board discussed not regulating the marketing of the 2007 hazelnut crop. However, without any regulation in effect, the Board believes that the industry would tend to oversupply the inshell domestic market. The 2007 hazelnut crop is smaller than last year's crop but is still 7 percent above the ten-year average. The unregulated release of 36,732 tons on the domestic inshell market could easily oversupply the small, but lucrative domestic inshell market. The Board believes that any oversupply would completely disrupt the market, causing producer returns to decrease dramatically. Section 982.40 of the order establishes a procedure and computations for the Board to follow in recommending to USDA establishment of preliminary, interim final, and final percentages of hazelnuts to be released to the free and restricted markets each marketing year. The program results in a plentiful supply of hazelnuts for consumers and for market expansion while retaining the mechanism for dealing with oversupply situations. Hazelnuts produced under the order comprise virtually all of the hazelnuts produced in the U.S. This production represents, on average, less than 3 percent of total U.S. production of all tree nuts, and less than 5 percent of the world's hazelnut production. Last season, 73 percent of the domestically produced hazelnut kernels were marketed in the domestic market and 27 percent were exported. Domestically produced kernels generally command a higher price in the domestic market than imported kernels. The industry is continuing its efforts to develop and expand other markets with emphasis on the domestic kernel market. Small business entities, both producers and handlers, benefit from the expansion efforts resulting from this program. Inshell hazelnuts produced under the order compete well in export markets because of their high quality. Based on Board statistics, Europe has historically been the primary export market for U.S. produced inshell hazelnuts. Shipments have also been relatively consistent, not varying much from the 10 year average of 4,906 tons. Recent years, though, have seen a significant increase in export destinations. Last season, inshell shipments to Europe totaled 4,401 tons, representing just 16 percent of exports, with the largest share going to Germany. Inshell shipments to Southwest Pacific countries—Hong Kong in particular—have increased dramatically in the past few years, rising to 79 percent of total inshell exports of 27,259 tons for the 2006-2007 marketing year. The industry continues to pursue export opportunities. AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes. There are some reporting, recordkeeping, and other compliance requirements under the order. The reporting and recordkeeping burdens are necessary for compliance purposes and for developing statistical data for maintenance of the program. The information collection requirements have been previously approved by the Office of Management and Budget under OMB No. 0581-0178, Vegetable and Specialty Crops. The forms require information which is readily available from handler records and which can be provided without data processing equipment or trained statistical staff. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. This rule does not change those requirements. In addition, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule. Further, the Board's meetings were widely publicized throughout the hazelnut industry and all interested persons were invited to attend the meetings and participate in Board deliberations. Like all Board meetings, those held on August 23, 2007, and November 15, 2007, were public meetings and all entities, both large and small, were able to express their views on this issue. An interim final rule concerning this action was published in the **Federal Register** on February 19, 2008. Copies of the rule were mailed by the Board's staff to all Board members and hazelnut handlers. In addition, the rule was made available through the Internet by USDA and the Office of the Federal Register. That rule provided for a 60-day comment period which ended April 21, 2008. No comments were received. A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: *http://www.ams.usda.gov/AMSv1.0/ams.fetchTemplateData.do?template=TemplateN&page=MarketingOrdersSmallBusinessGuide.* Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section. After consideration of all relevant material presented, including the information and recommendation submitted by the Board and other available information, it is hereby found that finalizing the interim final rule, without change, as published in the **Federal Register** (73 FR 9000, February 19, 2008) will tend to effectuate the declared policy of the Act. List of Subjects in 7 CFR Part 982 Filberts, Hazelnuts, Marketing agreements, Nuts, Reporting and recordkeeping requirements. PART 982—HAZELNUTS GROWN IN OREGON AND WASHINGTON Accordingly, the interim final rule amending 7 CFR part 982 which was published at 73 FR 9000 on February 19, 2008, is adopted as a final rule without change. Dated: June 19, 2008. Lloyd C. Day, Administrator, Agricultural Marketing Service. [FR Doc. E8-14338 Filed 6-24-08; 8:45 am] BILLING CODE 3410-02-P DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT Office of Federal Housing Enterprise Oversight 12 CFR Part 1750 RIN 2550-AA38 Risk-Based Capital Regulation—Loss Severity Amendments AGENCY: Office of Federal Housing Enterprise Oversight, HUD. ACTION: Final rule. SUMMARY: The Office of Federal Housing Enterprise Oversight (OFHEO) is amending its regulations related to Risk-Based Capital (Risk-Based Capital Regulation) to enhance the transparency, sensitivity to risk, and accuracy of the calculation of the risk-based capital requirement for the Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac). OFHEO is amending the Risk-Based Capital Regulation by changing the current loss severity equations that understate losses on defaulted single-family conventional and government guaranteed loans and by changing the treatment of Federal Housing Administration insurance in the Risk-Based Capital Regulation to conform the treatment to current law. DATES: *Effective Date:* June 25, 2008. FOR FURTHER INFORMATION CONTACT: David A. Felt, Deputy General Counsel, telephone
(202)414-3750, or Jamie Schwing, Associate General Counsel, telephone
(202)414-3787 (not toll free numbers), Office of Federal Housing Enterprise Oversight, Fourth Floor, 1700 G Street, NW., Washington, DC 20552. The telephone number for the Telecommunications Device for the Deaf is
(800)877-8339. SUPPLEMENTARY INFORMATION: Background Title XIII of the Housing and Community Development Act of 1992, Public Law 102-550, titled the Federal Housing Enterprises Financial Safety and Soundness Act of 1992
(Act)(12 U.S.C. 4501 *et seq.* ), established OFHEO as an independent office within the Department of Housing and Urban Development to ensure that Fannie Mae and Freddie Mac (collectively the Enterprises) are adequately capitalized, operate safely and soundly, and comply with applicable laws, rules and regulations. The Act provides that the Director of OFHEO (Director) is authorized to make such determinations and take such actions as the Director determines necessary with respect to the issuance of regulations regarding, among other things, the required capital levels for the Enterprises. The Act further provides that the Director shall issue regulations establishing the risk-based capital test (Risk-Based Capital Regulation) and that the Risk-Based Capital Regulation, subject to certain confidentiality provisions, shall be sufficiently specific to permit an individual other than the Director to apply the risk-based capital test in the same manner as the Director. Pursuant to the Act, OFHEO published a final regulation setting forth a risk-based capital test which forms the basis for determining the risk-based capital requirement for each Enterprise. The Risk-Based Capital Regulation has been amended to incorporate corrective and technical amendments that enhance the transparency sensitivity to risk and accuracy of the calculation of the risk-based capital requirement. Consistent with the Act and OFHEO's commitment to review, update and enhance the Risk-Based Capital Regulation in order to ensure an accurate risk sensitive and transparent calculation of the risk-based capital requirement, OFHEO published a notice of proposed rulemaking
(NPRM)to incorporate amendments to the Risk-Based Capital Regulation. Specifically, OFHEO proposed two changes to the Risk-Based Capital Regulation. The first change was proposed because certain loss severity equations resulted in the Enterprises recording profits instead of losses on foreclosed mortgages during the calculation of the risk-based capital requirement. The current loss severity equations overestimate Enterprise recoveries for defaulted government guaranteed and low loan-to-value loans. The results generated by the current loss severity equations are not consistent with the Risk-Based Capital Regulation and result in significant reductions in the risk-based capital requirements for the Enterprises. The second change relates to the treatment of Federal Housing Administration insurance associated with single-family loans with a loan-to-value ratio below 78%. OFHEO proposed changes related to these loans that would make the Risk-Based Capital Regulation consistent with current law. The following table shows the estimated capital impact of all of the amendments at September 30 and December 31, 2006. Table 1.—Estimated Capital Impact of Amendments [Billions of dollars] Quarter Interest rate scenario RBC requirement Current regulation Current regulation with proposed amendments Change * Fannie Mae 2006 3Q Up-Rate $22.5 $32.0 $9.5 Down-Rate 16.4 25.1 8.6 2006 4Q Up-Rate 26.9 36.6 9.8 Down-Rate 9.1 16.6 7.5 Freddie Mac 2006 3Q Up-Rate 14.9 19.4 4.5 Down-Rate 13.8 18.2 4.4 2006 4Q Up-Rate 15.3 20.7 5.4 Down-Rate 12.9 17.5 4.5 * Figures may not sum precisely due to rounding. The amendments substantially increase the RBC Requirement in both the up and down interest rate scenarios for both Enterprises for the two quarters analyzed. However, if the amendments had been in effect during the analyzed periods, total capital would have exceeded the RBC Requirement and the capital classifications of the Enterprises would not have changed. The 90-day comment period ended March 4, 2008. All comments received have been made available to the public in the OFHEO Public Reading Room and have also been posted on the OFHEO Web site at *http://www.OFHEO.gov* . Comments Received Comments were received from the American Bankers Association (ABA), Fannie Mae, Freddie Mac, the National Association of Homebuilders (NAHB), and the Mortgage Insurance Companies of America (MICA). All comments were taken into consideration. Significant comments related to the proposed regulation are discussed below. Purpose and Scope Fannie Mae commented that the proposed amendments fail to recognize properly its experience during times of credit stress. In support of this statement, Fannie Mae presented data on mortgage defaults that occurred between 1992 and 2006 when home prices declined more than 15% between origination and foreclosure. Within this population of loans, Fannie Mae realized a gain on 20% of the loans with an LTV of 60 percent or less and also realized a gain on six percent of the loans with high levels of third party mortgage insurance. OFHEO does not find that the comment and data presented by Fannie Mae support a change in OFHEO's proposed amendment to the Risk-Based Capital Regulation. While gains on defaults of individual loans are possible and have occurred in the historical data, the risk-based capital stress test simulates the average behavior of groups of similar loans, rather than that of individual loans. From that perspective the data presented by Fannie Mae bolsters the OFHEO proposal to restrict negative losses. The data from Fannie Mae show that 80% of defaulted loans with an LTV below 60 percent result in a loss and 94% of defaulted loans with high levels of mortgage insurance result in a loss. Although Fannie Mae did not provide the average gain or loss for these populations, it is unlikely that there was an average gain, given the small percentages of loans with gains. Fannie Mae also commented that the proposed amendments, by not fully recognizing the Enterprises' loss mitigation practices, do not provide the proper incentive to the Enterprises to engage in those practices. The ABA and the NAHB also raised concerns that the risk-based capital stress test might not fully recognize the benefits of the Enterprises' loss mitigation practices. OFHEO expects that only rarely, if at all, would the risk-based capital stress test limit the representation of benefits of the Enterprises' loss mitigation practices. This expectation is consistent with the data on loans with high levels of mortgage insurance that Fannie Mae presented in its comment, which showed a gain on only six percent of those loans. OFHEO also acknowledges that the risk-based capital stress test does not capture every detail of the risks and the risk mitigation strategies of the Enterprises, since, of necessity, it is a stylized representation of the financial operations and statements of the Enterprises. As such, the risk-based capital stress test reflects numerous accommodations across the dimensions of accuracy, complexity, transparency, operational workability, and regulatory caution. OFHEO will continue to review the RBC Stress Test Model and will propose enhancements where appropriate. This final amendment is a marked improvement over the prior approach. Freddie Mac and MICA commented in favor of all of the proposed amendments. In addition to its comments on the proposed amendments, MICA raised additional concerns that were beyond the scope of the current rulemaking. MICA expressed concern that the current Risk-Based Capital Regulation allowed the cross-subsidization of interest-rate and credit risk, thereby allowing the Enterprises to hold an insufficient amount of capital against either risk. MICA also commented that OFHEO should revise the Risk-Based Capital Regulation to apply the regulation on a combined loan-to-value ratio of an Enterprise's position and to develop measures of credit risk that distinguish subprime and non-traditional mortgage structures from less-risky ones. Although these comments are beyond the scope of the current rulemaking, OFHEO nevertheless welcomes MICA's suggestions for possible future rulemaking topics. OFHEO has taken into consideration all of the comments submitted in connection with this rulemaking, and for the reasons discussed above, OFHEO has determined to issue the amendments as proposed. Regulatory Impacts Executive Order 12866, Regulatory Planning and Review The amendments incorporate changes to the loss severity equations used to calculate the risk-based capital requirement as well as changes to the treatment of Federal Housing Administration insurance in the Risk-Based Capital Regulation in order to conform to current law. The amendments to the Risk-Based Capital Regulation are not classified as an economically significant rule under Executive Order 12866 because they do not result in an annual effect on the economy of $100 million or more or a major increase in costs or prices for consumers, individual industries, Federal, state or local government agencies, or geographic regions; or have significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in foreign or domestic markets. Accordingly, no regulatory impact assessment is required. Nevertheless, the amendments were submitted to the Office of Management and Budget
(OMB)for review under the provisions of Executive Order 12866 as a significant regulatory action. Executive Order 13132, Federalism Executive Order 13132 requires that Executive departments and agencies identify regulatory actions that have significant federalism implications. A regulation has federalism implications if it has substantial direct effects on the states, on the relationship or distribution of power between the Federal Government and the states, or the distribution of power and responsibilities among various levels of government. The Enterprises are federally chartered entities supervised by OFHEO. The amendments to the Risk-Based Capital Regulation address matters which the Enterprises must comply with for Federal regulatory purposes. The amendments to the Risk-Based Capital Regulation address matters regarding the risk-based capital calculation for the Enterprises and therefore do not affect in any manner the powers and authorities of any state with respect to the Enterprises or alter the distribution of power and responsibilities between Federal and state levels of government. Therefore OFHEO has determined that the amendments to the Risk-Based Capital Regulation have no federalism implications that warrant preparation of a Federalism Assessment in accordance with Executive Order 13132. Paperwork Reduction Act The amendments do not contain any information collection requirements that require the approval of OMB under the Paperwork Reduction Act (44 U.S.C. 3501 *et seq.* ). Regulatory Flexibility Act The Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ) requires that a regulation that has a significant economic impact on a substantial number of small entities, small businesses, or small organizations must include an initial regulatory flexibility analysis describing the regulation's impact on small entities. Such an analysis need not be undertaken if the agency has certified that the regulation does not have a significant economic impact on a substantial number of small entities 5 U.S.C. 605(b). OFHEO has considered the impact of the amendments to the Risk-Based Capital Regulation under the Regulatory Flexibility Act. The General Counsel of OFHEO certifies that the amendments to the Risk-Based Capital Regulation are not likely to have a significant impact on a substantial number of small business entities because the regulation is applicable only to the Enterprises, which are not small entities for the purposes of the Regulatory Flexibility Act. List of Subjects in 12 CFR Part 1750 Capital classification, Mortgages, Risk-based capital. Accordingly, for the reasons stated in the preamble, OFHEO is amending 12 CFR part 1750 as follows: PART 1750—CAPITAL 1. The authority citation for part 1750 continues to read as follows: Authority: 12 U.S.C. 4513, 4514, 4611, 4612, 4614, 4618. 2. Amend Appendix A to subpart B of part 1750 as follows: a. In paragraph 3.6.3.6.4.3[a]1, under the explanation “Where: m′ = m, except for counterparties rated below BBB, where m′ = 120″, revise the equation; b. In paragraph 3.6.3.6.5.1[a] revise equation; c. In paragraph 3.6.3.6.5.1[b]2 revise equation. Appendix A to Subpart B of Part 1750—Risk-Based Capital Text Methodology and Specifications 3.6.3.6.4.3 * * * [a] * * * 1. * * * ER25JN08.000 3.6.3.6.5.1 * * * [a] * * * ER25JN08.001 [b] * * * 2. * * * ER25JN08.002 Dated: June 10, 2008. James B. Lockhart III, Director, Office of Federal Housing Enterprise Oversight. [FR Doc. E8-13378 Filed 6-24-08; 8:45 am] BILLING CODE 4220-01-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 23 [Docket No. CE288; Special Conditions No. 23-228-SC] Special Conditions: Embraer S.A. Model EMB-500; Full Authority Digital Engine Control (FADEC) System. AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final special conditions; request for comments. SUMMARY: These special conditions are issued for the Embraer S.A. Model EMB-500 airplane. This airplane will have a novel or unusual design feature(s) associated with the use of an electronic engine control system instead of a traditional mechanical control system. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards. DATES: The effective date of these special conditions is June 16, 2008. Comments must be received on or before July 25, 2008. ADDRESSES: Comments on these special conditions may be mailed in duplicate to: Federal Aviation Administration, Regional Counsel, ACE-7, Attention: Rules Docket CE288, 901 Locust, Room 506, Kansas City, Missouri 64106, or delivered in duplicate to the Regional Counsel at the above address. Comments must be marked: CE288. Comments may be inspected in the Rules Docket weekdays, except Federal holidays between 7:30 and 4 p.m. FOR FURTHER INFORMATION CONTACT: Peter L. Rouse, Federal Aviation Administration, Aircraft Certification Service, Small Airplane Directorate, ACE-111, 901 Locust, Room 301, Kansas City, Missouri 64106; 816-329-4135, fax 816-329-4090. SUPPLEMENTARY INFORMATION: The FAA has determined that notice and opportunity for prior public comment hereon are impracticable because these procedures would significantly delay issuance of the design approval and thus delivery of the affected aircraft. In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance. Comments Invited Interested persons are invited to submit such written data, views, or arguments as they may desire. Communications should identify the regulatory docket or special condition number and be submitted in duplicate to the address specified above. All communications received on or before the closing date for comments will be considered by the Administrator. The special conditions may be changed in light of the comments received. All comments received will be available in the Rules Docket for examination by interested persons, both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerning this rulemaking will be filed in the docket. Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must include a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. CE288.” The postcard will be date stamped and returned to the commenter. Background On October 5, 2005, Embraer S.A. applied for a type certificate for their new Model EMB-500. The Model EMB-500 is a normal category, low-winged monoplane with “T” tailed vertical and horizontal stabilizers, retractable tricycle type landing gear and twin turbofan engines mounted on the aircraft fuselage. Its design characteristics include a predominance of metallic construction. The maximum takeoff weight is 9,965 pounds, the V <sup>MO</sup> /M <sup>MO</sup> is 275 KIAS/M 0.70 and maximum altitude is 41,000 feet. The Embraer S.A. Model EMB-500 airplane is equipped with Pratt & Whitney Canada PW617F turbofan engines using an electronic engine control system instead of a traditional mechanical control system. Even though the engine control system will be certificated as part of the engine, the installation of an engine with an electronic control system requires evaluation due to critical environmental effects and possible effects on or by other airplane systems. For example, indirect effects of lightning, radio interference with other airplane electronic systems, shared engine and airplane data and power sources. The regulatory requirements in 14 CFR part 23 for evaluating the installation of complex systems, including electronic systems and critical environmental effects, are contained in § 23.1309. However, when § 23.1309 was developed, the use of electronic control systems for engines was not envisioned. Therefore, the § 23.1309 requirements were not applicable to systems certificated as part of the engine (reference § 23.1309(f)(1)). Although the parts of the system that are not certificated with the engine could be evaluated using the criteria of § 23.1309, the integral nature of systems such as these makes it unfeasible to evaluate the airplane portion of the system without including the engine portion of the system. In some cases, the airplane that the engine is used in will determine a higher classification (Advisory Circular
(AC)23.1309) than the engine controls are certificated for, which will require that the FADEC/DEEC (Digital Electronic Engine Control) systems be analyzed at a higher classification. As of November 2005 FADEC special conditions will mandate the classification for § 23.1309 analysis for loss of FADEC control as catastrophic for any airplane. This is not to imply that an engine failure is classified as catastrophic, but that the digital engine control must provide an equivalent reliability to mechanical engine controls. Type Certification Basis Under the provisions of 14 CFR 21.17, Embraer S.A. must show that the Model EMB-500 meets the applicable provisions of 14 CFR part 23, as amended by Amendments 23-1 through 23-55, thereto. If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 23) do not contain adequate or appropriate safety standards for the Model EMB-500 because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16. In addition to the applicable airworthiness regulations and special conditions, the Model EMB-500 must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36, and the FAA must issue a finding of regulatory adequacy pursuant to section 611 of Public Law 92-574, the “Noise Control Act of 1972.” Special conditions, as appropriate, as defined in 11.19, are issued in accordance with § 11.38, and become part of the type certification basis in accordance with § 21.17(a)(2). Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, the special conditions would also apply to the other model under the provisions of § 21.101. Novel or Unusual Design Features The Embraer S.A. Model EMB-500 will incorporate the following novel or unusual design features: Electronic engine control system. Applicability As discussed above, these special conditions are applicable to the Model EMB-500. Should Embraer S.A. apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well under the provisions of § 21.101. Conclusion This action affects only certain novel or unusual design features on one model (Model EMB-500) of airplane. It is not a rule of general applicability, and it affects only the applicant who applied to the FAA for approval of these features on the airplane. Under standard practice, the effective date of final special conditions would be 30 days after the date of publication in the **Federal Register** ; however, as the certification date for the Embraer S.A. Model EMB-500 is imminent, the FAA finds that good cause exists to make these special conditions effective upon issuance. List of Subjects in 14 CFR Part 23 Aircraft, Aviation safety, Signs and symbols. Citation The authority citation for these special conditions is as follows: Authority: 49 U.S.C. 106(g), 40113 and 44701; 14 CFR 21.16 and 21.17; and 14 CFR 11.38 and 11.19. The Special Conditions Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Embraer S.A. Model EMB-500 airplanes. 1. *Electronic Engine Control* . The installation of the electronic engine control system must comply with the requirements of § 23.1309(a) through
(e)at Amendment 23-55. The intent of this requirement is not to reevaluate the inherent hardware reliability of the control itself, but rather determine the effects, including environmental effects addressed in § 23.1309(e), on the airplane systems and engine control system when installing the control on the airplane. When appropriate, engine certification data may be used when showing compliance with this requirement; however, the effects of the installation on this data must be addressed. For these evaluations, the loss of FADEC control will be analyzed utilizing the threat levels associated with a catastrophic failure. Issued in Kansas City, Missouri, on June 16, 2008. James E. Jackson, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-14383 Filed 6-24-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0331; Directorate Identifier 2008-CE-009-AD; Amendment 39-15569; AD 2008-13-06] RIN 2120-AA64 Airworthiness Directives; Cessna Aircraft Company Models 208 and 208B Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule. SUMMARY: The FAA adopts a new airworthiness directive
(AD)for certain Cessna Aircraft Company (Cessna) Models 208 and 208B airplanes. This AD requires you to inspect the left and right wing wire bundle(s) and repair or replace damaged wire. This AD also requires inspecting the wire bundles for correct attachment to the anchor points and correcting any deficient attachments. This AD results from chafed wiring found on wire bundles in the left and right wings containing the auto-control wing de-ice system, fuel quantity indication, and low fuel annunciation on the Cessna 208B airplanes. Improper installation of wire bundle supporting hardware can cause chafed wiring in the affected bundles. We are issuing this AD to detect and correct damaged wiring of the auto-control wing de-ice system, fuel quantity indication, and low fuel annunciation systems. This condition could result in incorrect fuel quantity indications, loss of low fuel quantity annunciations, or loss of the autocontrol wing de-ice system. DATES: This AD becomes effective on July 30, 2008. On July 30, 2008, the Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD. ADDRESSES: To get the service information identified in this AD, contact Cessna Aircraft Company, One Cessna Boulevard, P.O. Box 7706, Wichita, KS 67277-7704; telephone:
(316)517-5800; fax:
(316)942-9006. 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-2008-0331; Directorate Identifier 2008-CE-009-AD. FOR FURTHER INFORMATION CONTACT: Daniel Hilton, Aerospace Engineer, 1801 Airport Road, Room 100, Wichita, Kansas 67209; telephone:
(316)946-4173; fax:
(316)946-4107. SUPPLEMENTARY INFORMATION: Discussion On March 11, 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 Cessna Model 208 and 208B airplanes. This proposal was published in the **Federal Register** as a notice of proposed rulemaking
(NPRM)on March 17, 2008 (73 FR 14191). The NPRM proposed to detect and correct damaged wiring of the auto-control wing de-ice system, fuel quantity indication, and low fuel annunciation systems. Comments We provided the public the opportunity to participate in developing this AD. The following presents the comments received on the proposal and FAA's response to each comment: Comment Issue: Allow More Time for Service Bulletin The Aircraft Owners and Pilots Association
(AOPA)comments that they believe the issuance of an AD on the wiring bundles of the Cessna 208 is premature. The AOPA comments that it believes a service bulletin is an effective way to correct the wiring bundle issues, and FAA should have allowed more time for the service bulletin, dated February 4, 2008, to be distributed to Cessna 208 owners and mechanics. The commenter adds that if after a reasonable amount of time the service bulletin is not appropriately addressing the safety concern, then the FAA could issue a special airworthiness information bulletin
(SAIB)or an AD. We do not concur with the AOPA comment. Mandatory service bulletins and their process thereof do not constitute rulemaking for owners/operators to complete the requested action. The only enforceable process to assure that the unsafe condition is properly addressed on all aircraft is through the rulemaking process, in this case an AD. We are making no changes to the final rule based on this comment. 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 512 airplanes in the U.S. registry. We estimate the following costs to do the inspection: Labor cost Parts cost Total cost per airplane Total cost on U.S. operators 1 work-hour × $80 per hour = $80 Not Applicable $80 $40,960 We estimate the following costs to do any necessary repairs that would be required based on the results of the inspection. We have no way of determining the number of airplanes that may need this repair/replacement: Labor cost Parts cost Total cost per airplane 1 work-hour × $80 per hour = $80 $10 $90 Warranty credit will be given to the extent specified in Cessna Aircraft Company Service Bulletin CAB08-2, dated February 4, 2008. 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-2008-0331; Directorate Identifier 2008-CE-009-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 a new AD to read as follows: **2008-13-06 Cessna Aircraft Company:** Amendment 39-15569; Docket No. FAA-2008-0331; Directorate Identifier 2008-CE-009-AD. Effective Date
(a)This AD becomes effective on July 30, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to the following airplane models and serial numbers that are certificated in any category: Models Serial Nos. 208 20800001 through 20800415. 208B 208B0001 through 208B1299. Unsafe Condition
(d)This AD results from reports of chafed wiring found on wire bundles in the left and right wings containing the auto-control wing de-ice system, fuel quantity indication, and low fuel annunciation on several Cessna Model 208B airplanes. We are issuing this AD to detect and correct damaged wiring of the auto-control wing de-ice system, fuel quantity indication, and low fuel annunciation systems. This condition, if not corrected, could result in incorrect fuel quantity indications, loss of low fuel quantity annunciations, or loss of the auto-control wing de-ice system. Compliance
(e)To address this problem, you must do the following, unless already done: Actions Compliance Procedures
(1)Inspect the left and right wing electrical wire bundles at the anchor attach points for loose and damaged wiring Within the next 200 hours time-in-service after July 30, 2008 (the effective date of this AD) or within 12 months after July 30, 2008 (the effective date of this AD), whichever comes first Follow Cessna Aircraft Company Service Bulletin CAB08-2, dated February 4, 2008.
(2)If, as a result of the inspection required by paragraph (e)(1) of this AD, damaged wires are found, repair or replace damaged wires and properly attach wire bundle Before further flight after the inspection required by paragraph (e)(1) of this AD Follow Cessna Aircraft Company Service Bulletin CAB08-2, dated February 4, 2008.
(3)If, as a result of the inspection required by paragraph (e)(1) of this AD, loosely attached wires were found, secure any wires that are loosely attached and properly attach wire bundle supporting hardware Before further flight after the inspection required by paragraph (e)(1) of this AD Follow Cessna Aircraft Company Service Bulletin CAB08-2, dated February 4, 2008. Alternative Methods of Compliance (AMOCs)
(f)The Manager, Wichita 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: Daniel Hilton, Aerospace Engineer, FAA, Wichita ACO, 1801 Airport Road, Room 100, Wichita, Kansas 67209; telephone: 316-946-4173; e-mail address: *daniel.hilton@faa.gov* . 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 Cessna Aircraft Company Service Bulletin CAB08-2, dated February 4, 2008, 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 Cessna Aircraft Company, One Cessna Boulevard, P.O. Box 7706, Wichita, KS 67277-7704; telephone:
(316)517-5800; fax:
(316)942-9006.
(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/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. E8-13564 Filed 6-24-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0664; Directorate Identifier 2008-NE-04-AD; Amendment 39-15579; AD 2008-13-16] RIN 2120-AA64 Airworthiness Directives; Pratt & Whitney Canada Corp. (P&WC) Models PW305A and PW305B Turbofan Engines AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule; request for comments. SUMMARY: We are adopting a new airworthiness directive
(AD)for 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: There have been two incidents of fan blade dislodgements due to blade fracture on relatively hi-time PW305 engines (over 5000 Hrs). The blade dislodgement in both cases was contained. However, engine installations sustained considerable collateral damage. The root cause of fan blade fracture was determined to be the under-minimum material condition at the fracture location. This AD requires actions that are intended to address the unsafe condition described in the MCAI, which could result in an engine shutdown and damage to the airplane. DATES: This AD becomes effective July 10, 2008. The Director of the Federal Register approved the incorporation by reference of P&WC Alert Service Bulletin
(ASB)PW300-72-A24588, Revision 2, dated November 27, 2007, listed in the AD as of July 10, 2008. We must receive comments on this AD by July 25, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* U.S. Department of Transportation, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001. • *Hand Delivery:* Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. • *Fax:*
(202)493-2251. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone
(800)647-5527) is the same as the Mail address provided in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Ian Dargin, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; e-mail: *ian.dargin@faa.gov* ; telephone
(781)238-7178; fax
(781)238-7199. SUPPLEMENTARY INFORMATION: Discussion Transport Canada (TC), which is the aviation authority for Canada, has issued Airworthiness Directive CF-2008-08R1, dated March 18, 2008, (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: There have been two incidents of fan blade dislodgements due to blade fracture on relatively hi-time PW305 engines (over 5000 Hrs). The blade dislodgement in both cases was contained. However, engine installations sustained considerable collateral damage. The root cause of fan blade fracture was determined to be the under-minimum material condition at the fracture location. P&WC has established that the subject under-minimum material condition is limited only to fan blades P/N 30B2855-01, manufactured under heat code: MCBWF. Accordingly, P&WC on 24 August 2007 issued Alert Service Bulletin
(ASB)No. A24588, requiring, on priority bases, identification and removal of all such discrepant fan blades from service, in accordance with Special Instructions
(SI)No. 37-2007. ASB No. A24588 was subsequently revised (Rev. 2) on 27 November 2007 to include clarification on the incorporation of another Service Bulletin
(SB)No. 24595, on the same subject. Considering the potentially hazardous consequence of possible uncontained dislodgement of discrepant blade and its impact on aircraft safety, this AD is issued to mandate the inspection of the affected engine low-pressure
(LP)compressor fan blades in accordance with ASB A24588 requirements. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information P&WC has issued ASB PW300-72-A24588, Revision 2, dated November 27, 2007. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of This AD This product has been approved by the aviation authority of Canada, and is approved for operation in the United States. Pursuant to our bilateral agreement with Canada, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all the information provided by Canada and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. FAA's Determination of the Effective Date An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because fan blades identified by this AD have been found to have an under-minimum material thickness condition which has caused failure and release of fan blades. In one event, the fan blade failure (contained) resulted in high engine vibrations causing the loss of the upper and lower engine cowls. Fan blade failure could result in an engine shutdown and damage to the airplane. Therefore, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in fewer than 30 days. Comments Invited This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2008-0664; Directorate Identifier 2008-NE-04-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments. We will post all comments we receive, without change, to *http://www.regulations.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this AD. 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. 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: **2008-13-16 Pratt & Whitney Canada Corp. (P&WC) (Formerly Pratt & Whitney Canada, Inc.)** : Amendment 39-15579.; Docket No. FAA-2008-0664; Directorate Identifier 2008-NE-04-AD. Effective Date
(a)This airworthiness directive
(AD)becomes effective July 10, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to P&WC models PW305A and PW305B turbofan engines that have a serial number
(SN)listed in Table 1 of this AD. These engines are installed on, but not limited to, Bombardier Learjet M60 and Hawker Beechcraft 1000 series airplanes. Table 1.—Affected Engines by SN CA0192 CA0195 CA0197 CA0199 CA0200 CA0202 CA0203 CA0204 CA0206 CA0207 CA0208 CA0209 CA0210 CA0211 CA0212 CA0213 CA0214 CA0215 CA0216 CA0217 CA0218 CA0220 CA0221 CA0223 CA0228 CA0231 CA0232 CA0234 CA0235 CA0240 CA0241 CA0243 CA0244 CA0246 CA0247 CA0257 CA0259 CA0260 CA0280 CA0300 Reason
(d)There have been two incidents of fan blade dislodgements due to blade fracture on relatively hi-time PW305 engines (over 5000 Hrs). The blade dislodgement in both cases was contained. However, engine installations sustained considerable collateral damage. The root cause of fan blade fracture was determined to be the under-minimum material condition at the fracture location. This AD requires actions that are intended to address the unsafe condition described in the MCAI, which could result in an engine shutdown and damage to the airplane. Actions and Compliance
(e)Unless already done, do the following actions on all affected engines as specified in the applicability section of this AD, accomplish in accordance with P&WC Alert Service Bulletin
(ASB)PW300-72-A24588, Revision 2, dated November 27, 2007:
(1)For engines with more than 5,000 hours of operating time, before next flight, inspect low-pressure
(LP)compressor fan blades and replace any blade that is found to be under-minimum material condition.
(2)For engines with 5,000 or less, but more than 4,000 hours of operating time, within 30 hours of operating time from the effective date of this AD, but not later than September 30, 2008, inspect LP compressor fan blades and replace any blade that is found to be under-minimum material condition.
(3)For engines with 4,000 or less, but more than 2,500 hours of operating time, no later than September 30, 2008, inspect LP compressor fan blades and replace any blade that is found to be under-minimum material condition, in accordance with one of the following schedules, whichever occurs first:
(i)At the next first stage high-pressure compressor rotor inspection (Ref 05-20-00 scheduled maintenance checks), or
(ii)At the next scheduled opportunity where the LP compressor fan is removed (Ref. Hot Section Inspection or Overhaul Shop Visit), or
(iii)Within 300 hours of operating time from August 24, 2007.
(4)For engines with 2,500 or less hours of operating time, before it accumulates 4,000 hours of operating time, but not later than September 30, 2008, inspect LP compressor fan blades and replace any blade that is found to be under-minimum material condition. Previous Credit
(f)Inspection of the fan blades for an under-minimum material condition done before the effective date of this AD that used P&WC ASB PW300-72-A24588, dated August 24, 2007; or Revision 1, dated October 26, 2007; or P&WC SB PW300-72-24595, dated October 26, 2007; or Revision 1, dated November 28, 2007, comply with the requirements specified in this AD. Other FAA AD Provisions
(g)The following provisions also apply to this AD:
(1)*Alternative Methods of Compliance (AMOCs):* The Manager, Engine Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19.
(2)*Special Flight Permits:* We are limiting Special Flight Permits to one repositioning maintenance flight to facilitate the subject inspection. Related Information
(h)Refer to Transport Canada Airworthiness Directive CF-2008-08R1, dated March 18, 2008; P&WC ASB PW300-72-A24588, Revision 2, dated November 27, 2007; and P&WC SB PW300-72-24595, Revision 1, dated November 28, 2007, for related information.
(i)Contact Ian Dargin, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; e-mail: *ian.dargin@faa.gov* ; telephone
(781)238-7178; fax
(781)238-7199, for more information about this AD. Material Incorporated by Reference
(j)You must use Pratt & Whitney Canada Corp. Alert Service Bulletin PW300-72-A24588, Revision 2, dated November 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 this service information under 5 U.S.C. 552(a) and 1 CFR part 51.
(2)For service information identified in this AD, contact Pratt & Whitney Canada Corp., 1000 Marie-Victorin, Longueuil, Quebec, Canada J4G 1A1, telephone:
(800)268-8000.
(3)You may review copies at the FAA, New England Region, 12 New England Executive Park, Burlington, MA; 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 Burlington, Massachusetts, on June 13, 2008. Peter A. White, Assistant Manager, Engine and Propeller Directorate, Aircraft Certification Service. [FR Doc. E8-13854 Filed 6-24-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0360; Directorate Identifier 2007-NM-368-AD; Amendment 39-15570; AD 2008-13-07] RIN 2120-AA64 Airworthiness Directives; Bombardier Model DHC-8-400 Series 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: Several production aircraft have been found with the elevator overload bungees installed in reverse orientation: i.e., larger end outboard rather than inboard. This bungee reversal does not impact normal operation of the elevator, and would not increase the probability of an elevator disconnect. However, if a bungee became disconnected at the inboard side, the corresponding side of the elevator may not center, and this could adversely affect the pitch control of the aircraft. Loss of elevator pitch control could result in reduced controllability of the airplane. We are issuing this AD to require actions to correct the unsafe condition on these products. DATES: This AD becomes effective July 30, 2008. The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of July 30, 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: Fabio Buttitta, Aerospace Engineer, Systems and Flight Test Branch, ANE-172, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone
(516)228-7303; fax
(516)794-5531. SUPPLEMENTARY INFORMATION: 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 28, 2008 (73 FR 16577). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states: Several production aircraft have been found with the elevator overload bungees installed in reverse orientation: i.e., larger end outboard rather than inboard. This bungee reversal does not impact normal operation of the elevator, and would not increase the probability of an elevator disconnect. However, if a bungee became disconnected at the inboard side, the corresponding side of the elevator may not center, and this could adversely affect the pitch control of the aircraft. Loss of elevator pitch control could result in reduced controllability of the airplane. Corrective action includes a visual inspection for correct installation of the elevator overload bungees, reinstallation if necessary, and installation of labels to the elevator overload bungees. 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 38 products of U.S. registry. We also estimate that it will take 1 work-hour 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 $36 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 $4,408, or $116 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: **2008-13-07 Bombardier, Inc. (Formerly de Havilland, Inc.):** Amendment 39-15570. Docket No. FAA-2008-0360; Directorate Identifier 2007-NM-368-AD. Effective Date
(a)This airworthiness directive
(AD)becomes effective July 30, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to Bombardier Model DHC-8-400, DHC-8-401, and DHC-8-402 airplanes; certificated in any category; having serial numbers 4003 and subsequent. Subject
(d)Air Transport Association
(ATA)of America Code 27: Flight controls. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: Several production aircraft have been found with the elevator overload bungees installed in reverse orientation: i.e., larger end outboard rather than inboard. This bungee reversal does not impact normal operation of the elevator, and would not increase the probability of an elevator disconnect. However, if a bungee became disconnected at the inboard side, the corresponding side of the elevator may not center, and this could adversely affect the pitch control of the aircraft. Loss of elevator pitch control could result in reduced controllability of the airplane. Corrective action includes a visual inspection for correct installation of the elevator overload bungees, reinstallation if necessary, and installation of labels to the elevator overload bungees. Actions and Compliance
(f)For airplanes having serial numbers 4003, 4004, 4006, and 4008 through 4159: unless already done, do the following actions.
(1)Within 5,000 flight hours after the effective date of this AD: Visually inspect both left and right elevator overload bungees, part number (P/N) FE289000000, to determine if they are correctly installed, in accordance with Bombardier Service Bulletin 84-27-30, Revision `C,' dated October 31, 2007. If any bungee is found installed incorrectly, remove the bungee and re-install it correctly before the next flight in accordance with the service bulletin.
(2)Within 5,000 flight hours after the effective date of this AD: Attach label, P/N FE289006200, to both left and right elevator overload bungees to show the correct orientation of the outboard end in accordance with Bombardier Service Bulletin 84-27-30, Revision `C,' dated October 31, 2007.
(3)Within 5,000 flight hours after the effective date of this AD: Re-identify the P/N to read “FE289000001” on the identification plate of both the left and right elevator overload bungees in accordance with Bombardier Service Bulletin 84-27-30, Revision `C,' dated October 31, 2007.
(4)Actions accomplished before the effective date of this AD in accordance with Bombardier Service Bulletin 84-27-27, dated May 24, 2005, are acceptable for compliance with the corresponding actions specified in paragraphs (f)(1), (f)(2), and (f)(3) of this AD.
(5)Actions accomplished before the effective date of this AD in accordance with Bombardier Service Bulletin 84-27-30, dated February 8, 2007; Revision `A,' dated March 2, 2007; or Revision `B,' dated May 3, 2007; are acceptable for compliance with the corresponding actions specified in this AD. Note 1: Paragraphs (f)(2) and (f)(3) of this AD constitute Modsum 4-113537.
(g)*For all airplanes:* As of the effective date of this AD, no replacement/spare elevator overload bungees, P/N FE289000000, are permitted to be installed on any airplane. Only elevator overload bungees identified with new P/N “FE289000001” on the identification plate are permitted to be installed. FAA AD Differences Note 2: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions
(h)The following provisions also apply to this AD:
(1)*Alternative Methods of Compliance (AMOCs):* The Manager, New York Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Fabio Buttitta, Aerospace Engineer, Systems and Flight Test Branch, ANE-172, FAA, New York ACO, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone
(516)228-7303; fax
(516)794-5531. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(2)*Airworthy Product:* For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3)*Reporting Requirements:* For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget
(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information
(i)Refer to MCAI Canadian Airworthiness Directive CF-2007-30, dated November 28, 2007; and Bombardier Service Bulletin 84-27-30, Revision `C,' dated October 31, 2007; for related information. Material Incorporated by Reference
(j)You must use Bombardier Service Bulletin 84-27-30, Revision `C,' dated October 31, 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 Bombardier, Inc., Bombardier Regional Aircraft Division, 123 Garratt Boulevard, Downsview, Ontario M3K 1Y5, Canada.
(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 7, 2008. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-13921 Filed 6-24-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0182; Directorate Identifier 2007-NM-262-AD; Amendment 39-15577; AD 2008-13-14] RIN 2120-AA64 Airworthiness Directives; Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model EMB-135ER, -135KE, -135KL, and -135LR Airplanes, and Model EMB-145, -145ER, -145MR, -145LR, -145XR, -145MP, and -145EP Airplanes AGENCY: Federal Aviation Administration (FAA), 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: Fuel system reassessment, performed according to RBHA-E88/SFAR-88 (Regulamento Brasileiro de Homologacao Aeronautica 88/Special Federal Aviation Regulation No. 88), requires the inclusion of new maintenance tasks in the Critical Design Configuration Control Limitations (CDCCL) and in the Fuel System Limitations (FSL), necessary to preclude ignition sources in the fuel system. * * * We are issuing this AD to require actions to correct the unsafe condition on these products. DATES: This AD becomes effective July 30, 2008. The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of July 30, 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: Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-1405; fax
(425)227-1149. SUPPLEMENTARY INFORMATION: Discussion We issued a supplemental notice of proposed rulemaking
(NPRM)to amend 14 CFR part 39 to include an AD that would apply to the specified products. That supplemental NPRM was published in the **Federal Register** on May 7, 2008 (73 FR 25609). That supplemental NPRM proposed to correct an unsafe condition for the specified products. The MCAI states: Fuel system reassessment, performed according to RBHA-E88/SFAR-88, requires the inclusion of new maintenance tasks in the Critical Design Configuration Control Limitations (CDCCL) and in the Fuel System Limitations (FSL), necessary to preclude ignition sources in the fuel system. * * * The corrective action is revising the Airworthiness Limitations Section
(ALS)of the Instructions for Continued Airworthiness
(ICA)to incorporate new limitations for fuel tank systems. 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 considered the comments received. Request To Revise Inspections ExpressJet requests that we revise two tasks, “28-41-01-720-001-A00 and 28-41-01-720-A00,” specified in Table 1 of the supplemental NPRM. The commenter states that these tasks are related to a functional check of the component rather than the aircraft system. The commenter suggests that we identify these two components by part number and require the inspections be done before the part accumulates 10,000 flight hours since new or 10,000 flight hours since the last functional check. We agree with the commenter that tasks 28-41-01-720-001-A00 and 28-41-04-720-001-A00 are related to a functional check of the component rather than the aircraft system (the commenter referred to task 28-41-01-720-A00, which is not listed in Table 1; we infer that the commenter intended to refer to task 28-41-04-720-001-A00). Prior to the commenter submitting its comment, the commenter raised the issue during a visit by the FAA. Since then we have discussed the issue with the manufacturer and with the Agência Nacional de Aviação Civil (ANAC), which is the aviation authority for Brazil. ANAC states that it intends to issue an airworthiness directive to address an inspection threshold for these tasks. Therefore, we have removed these tasks from Table 1 of this AD. We might consider further rulemaking once new actions and compliance times for these tasks are identified by ANAC or in absence of any new action from ANAC, we might consider unilateral rulemaking. Requests To Extend Compliance Times/Include Costs of Unscheduled Inspections ExpressJet and EMBRAER request that we extend the compliance times specified in Table 1 of the supplemental NPRM. ExpressJet states that the compliance times for the inspections specified in Table 1 of the supplemental NPRM are confusing. ExpressJet notes that the “Grace Period” is “Within 90 days after the effective date of this AD,” but the effective date of the AD is not stated and the compliance time for revising the ALS of the ICA is before December 16, 2008. ExpressJet recommends that we revise the “Grace Period” to within 90 days after December 16, 2008. EMBRAER states that the compliance time “within 90 days of the effective date of the AD” for airplanes with cycle totals above the thresholds would require airplanes to be removed from service for special inspections and that these inspections would require the fuel tanks to be drained and ventilated prior to inspection. EMBRAER states that requiring unscheduled tank inspections will increase the probability of maintenance error, which will result in an increase in the risk of ignition sources. EMBRAER believes that there is no special risk that justifies the compliance time of within 90 days from the effective date of the AD and suggests that the compliance time be revised to within 5,000 flight hours after the effective date of the AD. EMBRAER also requests that if the compliance time of within 90 days after the effective date of the AD is retained, we include the costs of unscheduled inspections. EMBRAER notes that the costs of unscheduled inspections would be higher than the estimate given in the promulgation of Special Federal Aviation Regulation No. 88 of between 60 and 330 work-hours for the inspection and between 36 and 96 hours for time out of service. We agree to extend the “Grace Period” specified in Table 1 of this AD. We agree with ExpressJet that the compliance time of within 90 days after December 16, 2008 is appropriate. We have determined that the new compliance time will ensure an acceptable level of safety. We have revised Table 1 of this AD accordingly. However, we do not agree with EMBRAER to defer the first mandatory inspections to within 5,000 flight hours after the effective date of the AD. In revising the appropriate compliance time for the inspections ( *i.e.* , extending the “Grace Period” to within 90 days after December 16, 2008), we considered the urgency associated with the subject unsafe condition, the availability of required parts, and the practical aspect of accomplishing the required inspections within a period of time that corresponds to the normal scheduled maintenance for most affected operators. If an operator decides that more time is needed to comply with the AD, the operator can request an alternative method of compliance
(AMOC)in accordance with the provisions of paragraph (g)(1) of the supplemental NPRM. As stated earlier, we have extended the compliance time and therefore the number of unscheduled inspections should be reduced. However, because operators' schedules vary substantially, it would be nearly impossible for us to accurately calculate all costs associated with unscheduled inspections. Therefore, we have not revised the Costs of Compliance section of this AD to reflect unscheduled inspections. However, we have revised the Costs of Compliance section of this AD to reflect a change in the number of airplanes affected by this AD from 704 (as specified in the supplemental NPRM) to 668 airplanes. Request To Clarify Actions ExpressJet notes that paragraph (f)(2) of the supplemental NPRM states “Before December 16, 2008, revise the ALS of the ICA * * *.” ExpressJet states that it assumes that this is referring to the operator's ICA. We infer that ExpressJet is requesting clarification of the actions in this AD. The wording that was used represents a standard approach and has been used for many years. The intent is to have all airworthiness limitations, regardless of whether imposed by original type certification or by a later AD, located in one immediately recognizable document. In 1980, the FAA identified the Airworthiness Limitations section of the Instructions for Continued Airworthiness as the appropriate document. We consider that not having all airworthiness limitations in one document could lead to confusion as to what is or what is not a mandatory maintenance action as identified in Federal Aviation Regulation, part 25, Appendix H, section H25.4. This is the basis of our requirement to have each operator maintain a current copy of the Airworthiness Limitations section. Concerning ExpressJet's statement that the AD is referring to the operator's ICA, we infer that the commenter is wondering if, after revising its copy of the Airworthiness Limitation section, there are other required actions such as ensuring that the operator's maintenance program is updated to incorporate the actions specified in the revised Airworthiness Limitations. Ensuring that operators' maintenance programs and the actions of its maintenance personnel are in accordance with the Airworthiness Limitations is required, but not by this AD. 14 CFR 91.403(c) specifies that no person may operate an aircraft for which airworthiness limitations have been issued unless those limitations have been complied with. Therefore, there is no need to further expand the requirements of the AD beyond that which was proposed because section 91.403(c) already imposes the appropriate required action after the airworthiness limitations are revised. We have not changed this AD in this regard. Conclusion We reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We determined that these changes will not increase the economic burden on any operator or increase the scope of the AD. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have required different actions in this AD from those in the MCAI in order to follow our FAA policies. Any such differences are highlighted in a Note within the AD. Costs of Compliance We estimate that this AD will affect 668 products of U.S. registry. We also estimate that it will take about 1 work- hour per product to comply with the basic requirements of this AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $53,440, or $80 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this AD: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone
(800)647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, 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: **2008-13-14 Empresa Brasileira de Aeronautica S.A. (EMBRAER):** Amendment 39-15577. Docket No. FAA-2008-0182; Directorate Identifier 2007-NM-262-AD. Effective Date
(a)This airworthiness directive
(AD)becomes effective July 30, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to EMBRAER Model EMB-135ER, -135KE, -135KL, and -135LR airplanes, and Model EMB-145, -145ER, -145MR, -145LR, -145XR, -145MP, and -145EP airplanes; certificated in any category; except for Model EMB-145LR airplanes modified according to Brazilian Supplemental Type Certificate 2002S06-09, 2002S06-10, or 2003S08-01. Note 1: This AD requires revisions to certain operator maintenance documents to include new inspections. Compliance with these inspections is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by these inspections, the operator may not be able to accomplish the inspections described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph
(g)of this AD. The request should include a description of changes to the required inspections that will ensure the continued operational safety of the airplane. Subject
(d)Air Transport Association
(ATA)of America Code 28: Fuel. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: Fuel system reassessment, performed according to RBHA-E88/SFAR-88, requires the inclusion of new maintenance tasks in the Critical Design Configuration Control Limitations (CDCCL) and in the Fuel System Limitations (FSL), necessary to preclude ignition sources in the fuel system. * * * The corrective action is revising the Airworthiness Limitations Section
(ALS)of the Instructions for Continued Airworthiness
(ICA)to incorporate new limitations for fuel tank systems. Actions and Compliance
(f)Unless already done, do the following actions.
(1)The term “MRBR,” as used in this AD, means the EMBRAER EMB135/ERJ140/EMB145 Maintenance Review Board Report
(MRBR)MRB-145/1150, Revision 11, dated September 19, 2007.
(2)Before December 16, 2008, revise the ALS of the ICA to incorporate Section A2.5.2, Fuel System Limitation Items, of Appendix 2 of the MRBR. For all tasks identified in Section A2.5.2 of Appendix 2 of the MRBR, the initial compliance times start from the applicable times specified in Table 1 of this AD; and the repetitive inspections must be accomplished thereafter at the interval specified in Section A2.5.2 of Appendix 2 of the MRBR, except as provided by paragraphs
(4)and
(g)of this AD. Table 1.—Initial Inspections Reference No. Description Compliance time (whichever occurs later) Threshold Grace period 28-11-00-720-001-A00 Functionally Check critical bonding integrity of selected conduits inside the wing tank, Fuel Pump and FQIS connectors at tank wall by conductivity measurements Before the accumulation of 30,000 total flight hours Within 90 days after December 16, 2008. 28-17-01-720-001-A00 Functionally Check critical bonding integrity of Fuel Pump, VFQIS and Low Level SW connectors at tank wall by conductivity measurements Before the accumulation of 30,000 total flight hours Within 90 days after December 16, 2008. 28-21-01-220-001-A00 Inspect Electric Fuel Pump Connector Before the accumulation of 10,000 total flight hours Within 90 days after December 16, 2008. 28-23-03-220-001-A00 Inspect Pilot Valve harness inside the conduit Before the accumulation of 20,000 total flight hours Within 90 days after December 16, 2008. 28-23-04-220-001-A00 Inspect Vent Valve harness inside the conduit Before the accumulation of 20,000 total flight hours Within 90 days after December 16, 2008. 28-27-01-220-001-A00 Inspect Electric Fuel Transfer Pump Connector Before the accumulation of 10,000 total flight hours Within 90 days after December 16, 2008. 28-41-03-220-001-A00 Inspect FQIS harness for clamp and wire jacket integrity Before the accumulation of 20,000 total flight hours Within 90 days after December 16, 2008. 28-41-07-220-001-A00 Inspect VFQIS and Low Level SW Harness for clamp and wire jacket integrity Before the accumulation of 20,000 total flight hours Within 90 days after December 16, 2008.
(3)Before December 16, 2008, or within 90 days after the effective date of this AD, whichever occurs first, revise the ALS of the ICA to incorporate items 1, 2, and 3 of Section A2.4, Critical Design Configuration Control Limitation (CDCCL), of Appendix 2 of the MRBR.
(4)After accomplishing the actions specified in paragraphs (f)(2) and (f)(3) of this AD, no alternative inspections, inspection intervals, or CDCCLs may be used unless the inspections, intervals, or CDCCLs are part of a later revision of Appendix 2 of the MRBR that is approved by the Manager, ANM-116, FAA, or ANAC (or its delegated agent); or unless the inspections, intervals, or CDCCLs are approved as an alternative method of compliance
(AMOC)in accordance with the procedures specified in paragraph
(g)of this AD. FAA AD Differences Note 2: This AD differs from the MCAI and/or service information as follows: The MCAI specifies a compliance date of “Before December 31, 2008” for doing the ALI revisions. We have already issued regulations that require operators to revise their maintenance/inspection programs to address fuel tank safety issues. The compliance date for these regulations is December 16, 2008. To provide for coordinated implementation of these regulations and this AD, we are using this same compliance date in this AD. Other FAA AD Provisions
(g)The following provisions also apply to this AD:
(1)Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-1405; fax
(425)227-1149. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(2)Airworthy Product: For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3)Reporting Requirements: For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget
(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information
(h)Refer to Brazilian Airworthiness Directive 2007-08-02, effective September 27, 2007; and Sections A2.5.2, Fuel System Limitation Items, and A2.4, Critical Design Configuration Control Limitation (CDCCL), of Appendix 2 of the MRBR; for related information. Material Incorporated by Reference
(i)You must use Sections A2.5.2, Fuel System Limitation Items, and A2.4, Critical Design Configuration Control Limitation (CDCCL), of Appendix 2 of EMBRAER EMB135/ERJ140/EMB145 Maintenance Review Board Report MRB-145/1150, Revision 11, dated September 19, 2007, to do the actions required by this AD, unless the AD specifies otherwise. This document contains the following effective pages: Pages Revision level Date List of Effective Pages: Pages A through L 11 September 19, 2007. (The revision level of this document is identified only on the title page of the document.)
(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 Empresa Brasileira de Aeronautica S.A. (EMBRAER), P.O. Box 343—CEP 12.225, Sao Jose dos Campos—SP, Brazil.
(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 13, 2008. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-13924 Filed 6-24-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0194; Directorate Identifier 2007-NM-263-AD; Amendment 39-15578; AD 2008-13-15] RIN 2120-AA64 Airworthiness Directives; Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model EMB-135BJ 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: Fuel system reassessment, performed according to RBHA-E88/SFAR-88 (Regulamento Brasileiro de Homologacao Aeronautica 88/Special Federal Aviation Regulation No. 88), requires the inclusion of new maintenance tasks in the Critical Design Configuration Control Limitations (CDCCL) and in the Fuel System Limitations (FSL), necessary to preclude ignition sources in the fuel system. * * * We are issuing this AD to require actions to correct the unsafe condition on these products. DATES: This AD becomes effective July 30, 2008. The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of July 30, 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: Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-1405; fax
(425)227-1149. SUPPLEMENTARY INFORMATION: Discussion We issued a supplemental notice of proposed rulemaking
(NPRM)to amend 14 CFR part 39 to include an AD that would apply to the specified products. That supplemental NPRM was published in the **Federal Register** on May 7, 2008 (73 FR 25606). That supplemental NPRM proposed to correct an unsafe condition for the specified products. The MCAI states: Fuel system reassessment, performed according to RBHA-E88/SFAR-88, requires the inclusion of new maintenance tasks in the Critical Design Configuration Control Limitations (CDCCL) and in the Fuel System Limitations (FSL), necessary to preclude ignition sources in the fuel system. * * * The corrective action is revising the Airworthiness Limitations Section
(ALS)of the Instructions for Continued Airworthiness
(ICA)to incorporate new limitations for fuel tank systems. 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 considered the comment received. Request To Extend Compliance Times/Include Costs of Unscheduled Inspections EMBRAER request that we extend the compliance times specified in Table 1 of the supplemental NPRM. EMBRAER states that the compliance time “within 90 days of the effective date of the AD” for airplanes with cycle totals above the thresholds would require airplanes to be removed from service for special inspections and that these inspections would require the fuel tanks to be drained and ventilated prior to inspection. EMBRAER states that requiring unscheduled tank inspections will increase the probability of maintenance error, which will result in an increase in the risk of ignition sources. EMBRAER believes that there is no special risk that justifies the compliance time of within 90 days from the effective date of the AD and suggests that the compliance time be revised to within 5,000 flight hours after the effective date of the AD. EMBRAER also requests that if the compliance time of within 90 days after the effective date of the AD is retained, we include the costs of unscheduled inspections. EMBRAER notes that the costs of unscheduled inspections would be higher than the estimate given in the promulgation of Special Federal Aviation Regulation No. 88 of between 60 and 330 work-hours for the inspection and between 36 and 96 hours for time out of service. We agree to extend the “Grace Period” specified in Table 1 of this AD. We have determined that a compliance time of within 90 days after December 16, 2008 is appropriate and will ensure an acceptable level of safety. We have revised Table 1 of this AD accordingly. We do not agree with EMBRAER to defer the first mandatory inspections to within 5,000 flight hours after the effective date of the AD. In revising the appropriate compliance time for the inspections (i.e., extending the “Grace Period” to within 90 days after December 16, 2008), we considered the urgency associated with the subject unsafe condition, the availability of required parts, and the practical aspect of accomplishing the required inspections within a period of time that corresponds to the normal scheduled maintenance for most affected operators. If an operator decides that more time is needed to comply with this AD, the operator can request an alternative method of compliance
(AMOC)in accordance with the provisions of paragraph (g)(1) of the supplemental NPRM. As stated earlier, we have extended the compliance time and therefore the number of unscheduled inspections should be reduced. However, because operators' schedules vary substantially, it would be nearly impossible for us to accurately calculate all costs associated with unscheduled inspections. Therefore, we have not revised the Costs of Compliance section of this AD to reflect unscheduled inspections. Explanation of Removal of Certain Tasks We have determined that tasks 28-41-01-720-001-A00 and 28-46-05-720-001-A00 in Table 1 of the supplemental NPRM are related to a functional check of the component rather than the aircraft system. We have discussed the issue with the manufacturer and with the Agência Nacional de Aviação Civil (ANAC), which is the aviation authority for Brazil. ANAC states that it intends to issue an airworthiness directive to address an inspection threshold for these tasks. Therefore, we have removed these tasks from Table 1 of this AD. We might consider further rulemaking once new actions and compliance times for these tasks are identified by ANAC or in the absence of any new action from ANAC, we might consider unilateral rulemaking. Revision to Costs of Compliance The number of airplanes on the U.S. Registry has changed since we issued the supplemental NPRM from 49 airplanes to 41 airplanes. We have revised the Costs of Compliance section of this AD accordingly. Conclusion We reviewed the available data, including the comment received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We determined that these changes will not increase the economic burden on any operator or increase the scope of the AD. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have required different actions in this AD from those in the MCAI in order to follow our FAA policies. Any such differences are highlighted in a NOTE within the AD. Costs of Compliance We estimate that this AD will affect 41 products of U.S. registry. We also estimate that it will take about 1 work-hour per product to comply with the basic requirements of this AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $3,280, or $80 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this AD: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone
(800)647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, 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: **2008-13-15 Empresa Brasileira de Aeronautica S.A. (EMBRAER):** Amendment 39-15578. Docket No. FAA-2008-0194; Directorate Identifier 2007-NM-263-AD. Effective Date
(a)This airworthiness directive
(AD)becomes effective July 30, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to all EMBRAER Model EMB-135BJ airplanes, certificated in any category. Note 1: This AD requires revisions to certain operator maintenance documents to include new inspections. Compliance with these inspections is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by these inspections, the operator may not be able to accomplish the inspections described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph
(g)of this AD. The request should include a description of changes to the required inspections that will ensure the continued operational safety of the airplane. Subject
(d)Air Transport Association
(ATA)of America Code 28: Fuel. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: Fuel system reassessment, performed according to RBHA-E88/SFAR-88, requires the inclusion of new maintenance tasks in the Critical Design Configuration Control Limitations (CDCCL) and in the Fuel System Limitations (FSL), necessary to preclude ignition sources in the fuel system. * * * The corrective action is revising the Airworthiness Limitations Section
(ALS)of the Instructions for Continued Airworthiness
(ICA)to incorporate new limitations for fuel tank systems. Actions and Compliance
(f)Unless already done, do the following actions.
(1)The term “MPG,” as used in this AD, means the EMBRAER Legacy BJ—Maintenance Planning Guide
(MPG)MPG-1483, Revision 5, dated March 22, 2007.
(2)Before December 16, 2008, revise the ALS of the ICA to incorporate Section A2.5.2, Fuel System Limitation Items, of Appendix 2 of the MPG. For all tasks identified in Section A2.5.2 of Appendix 2 of the MPG, the initial compliance times start from the applicable times specified in Table 1 of this AD; and the repetitive inspections must be accomplished thereafter at the interval specified in section A2.5.2 of Appendix 2 of the MPG, except as provided by paragraphs (f)(4) and
(g)of this AD. Table 1—Initial Inspections Reference number Description Compliance time (whichever occurs later) Threshold Grace period 28-11-00-720-001-A00 Functionally Check critical bonding integrity of selected conduits inside the wing tank, Fuel Pump and FQIS connectors at tank wall by conductivity measurements Before the accumulation of 30,000 total flight hours Within 90 days after December 16, 2008 28-13-01-720-002-A00 Functionally Check Aft Fuel tank critical bonding integrity of Fuel Pump, FQGS and Low Level SW connectors at tank wall by conductivity measurements Before the accumulation of 30,000 total flight hours Within 90 days after December 16, 2008 28-15-04-720-001-A00 Functionally Check Fwd Fuel tank critical bonding integrity of Fuel Pump, FQGS and Low Level SW connectors at tank wall by conductivity measurements Before the accumulation of 30,000 total flight hours Within 90 days after December 16, 2008 28-21-01-220-001-A00 Inspect Wing Electric Fuel Pump Connector Before the accumulation of 10,000 total flight hours Within 90 days after December 16, 2008D 28-23-03-220-001-A00 Inspect Pilot Valve harness inside the conduit Before the accumulation of 20,000 total flight hours Within 90 days after December 16, 2008 28-23-04-220-001-A00 Inspect Vent Valve harness inside the conduit Before the accumulation of 20,000 total flight hours Within 90 days after December 16, 2008 28-41-03-220-001-A00 Inspect FQIS harness for clamp and wire jacket integrity Before the accumulation of 20,000 total flight hours Within 90 days after December 16, 2008 28-46-02-220-001-A00 Aft Fuel Tank Internal Inspection: FQGS harness and Low Level SW harness for clamp and wire jacket integrity Before the accumulation of 20,000 total flight hours Within 90 days after December 16, 2008 28-46-04-220-001-A00 Fwd Fuel Tank Internal Inspection: FQGS harness and Low Level SW harness for clamp and wire jacket integrity Before the accumulation of 20,000 total flight hours Within 90 days after December 16, 2008
(3)Before December 16, 2008, or within 90 days after the effective date of this AD, whichever occurs first, revise the ALS of the ICA to incorporate items 1, 2, and 3 of Section A2.4, Critical Design Configuration Control Limitation (CDCCL), of Appendix 2 of the MPG.
(4)After accomplishing the actions specified in paragraphs (f)(2) and (f)(3) of this AD, no alternative inspections, inspection intervals, or CDCCLs may be used unless the inspections, intervals, or CDCCLs are part of a later revision of Appendix 2 of the MPG that is approved by the Manager, ANM-116, FAA, or ANAC (or its delegated agent); or unless the inspections, intervals, or CDCCLs are approved as an alternative method of compliance
(AMOC)in accordance with the procedures specified in paragraph
(g)of this AD. FAA AD Differences Note 2: This AD differs from the MCAI and/or service information as follows:
(1)The MCAI specifies a compliance date of “Before December 31, 2008” for doing the ALI revisions. We have already issued regulations that require operators to revise their maintenance/inspection programs to address fuel tank safety issues. The compliance date for these regulations is December 16, 2008. To provide for coordinated implementation of these regulations and this AD, we are using this same compliance date in this AD.
(2)The MCAI specifies a compliance time of 180 days to revise the ALS of the ICA to incorporate items 1, 2, and 3 of Section A2.4 of Appendix 2 of the MPG. This AD requires a compliance time of 90 days to do this revision. This difference has been coordinated with ANAC. Other FAA AD Provisions
(g)The following provisions also apply to this AD:
(1)*Alternative Methods of Compliance (AMOCs):* The Manager, International Branch, ANM-116, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-1405; fax
(425)227-1149. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(2)*Airworthy Product:* For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3)*Reporting Requirements:* For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget
(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information
(h)Refer to Brazilian Airworthiness Directive 2007-08-01, effective September 27, 2007; and Sections A2.5.2, Fuel System Limitation Items, and A2.4, Critical Design Configuration Control Limitation (CDCCL), of Appendix 2 of the MPG; for related information. Material Incorporated by Reference
(i)You must use Sections A2.5.2, Fuel System Limitation Items, and A2.4, Critical Design Configuration Control Limitation (CDCCL), of Appendix 2 of EMBRAER Legacy BJ—Maintenance Planning Guide MPG-1483, Revision 5, dated March 22, 2007, to do the actions required by this AD, unless the AD specifies otherwise. This document contains the following effective pages: Pages Revision level Date List of Effective Pages: Pages A through J 5 March 22, 2007. (The revision level of this document is identified only on the title page of the document.)
(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 Empresa Brasileira de Aeronautica S.A. (EMBRAER), P.O. Box 343—CEP 12.225, Sao Jose dos Campos—SP, Brazil.
(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 13, 2008. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-13926 Filed 6-24-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0493 Directorate Identifier 2008-CE-028-AD; Amendment 39-15581; AD 2008-13-18] RIN 2120-AA64 Airworthiness Directives; Pilatus Aircraft Ltd. PC-6 Series 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: This Airworthiness Directive
(AD)is prompted due to a potential problem with the tail landing gear locking mechanism of PC-6 series aircraft. Investigation, carried out after an incident report, determined that both screws of the tail-wheel locking mechanism had ruptured, rendering the mechanism inoperative. We are issuing this AD to require actions to correct the unsafe condition on these products. DATES: This AD becomes effective July 30, 2008. On July 30, 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: Doug Rudolph, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:
(816)329-4059; fax:
(816)329-4090. SUPPLEMENTARY INFORMATION: 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 May 1, 2008 (73 FR 23993). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states: This Airworthiness Directive
(AD)is prompted due to a potential problem with the tail landing gear locking mechanism of PC-6 series aircraft. Investigation, carried out after an incident report, determined that both screws of the tail-wheel locking mechanism had ruptured, rendering the mechanism inoperative. In order to address this situation, the present AD requires you replace the two bolts of the tail-wheel locking mechanism with new ones, having higher shear strength, and install a warning placard on the tail-wheel mudguard. The actions specified by this AD are intended to prevent, on take-off or landing runs, possible hazards associated with loss of directional control. 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 50 products of U.S. registry. We also estimate that it will take about 3 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 $120 per product. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $18,000 or $360 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: **2008-13-18 Pilatus Aircraft Ltd.:** Amendment 39-15581; Docket No. FAA-2008-0493; Directorate Identifier 2008-CE-028-AD. Effective Date
(a)This airworthiness directive
(AD)becomes effective July 30, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to Models PC-6, PC-6-H1, PC-6-H2, PC-6/350, PC-6/350-H1, PC-6/350-H2, PC-6/A, PC-6/A-H1, PC-6/A-H2, PC-6/B-H2, PC-6/B1-H2, PC-6/B2-H2, PC-6/B2-H4, PC-6/C-H2, and PC-6/C1-H2 airplanes, all serial numbers, certificated in any category. Note 1: These airplanes may also be identified as Fairchild Republic Company PC-6 airplanes, Fairchild Heli Porter PC-6 airplanes, or Fairchild-Hiller Corporation PC-6 airplanes. Subject
(d)Air Transport Association of America
(ATA)Code 32: Landing Gear. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: “This Airworthiness Directive
(AD)is prompted due to a potential problem with the tail landing gear locking mechanism of PC-6 series aircraft. Investigation, carried out after an incident report, determined that both screws of the tail-wheel locking mechanism had ruptured, rendering the mechanism inoperative. In order to address this situation, the present AD requires you replace the two bolts of the tail-wheel locking mechanism with new ones, having higher shear strength, and install a warning placard on the tail-wheel mudguard. The actions specified by this AD are intended to prevent, on take-off or landing runs, possible hazards associated with loss of directional control.” Actions and Compliance
(f)Unless already done, do the following actions:
(1)Within the next 100 hours time-in-service after July 30, 2008 (the effective date of this AD) or within the next 12 months after July 30, 2008 (the effective date of this AD), whichever occurs first:
(i)Replace the screws and nuts that attach the locking plate to the locking lever of the tail-wheel locking mechanism with steels screws and nuts following Pilatus Aircraft Ltd. Pilatus PC-6 Service Bulletin, 32-001, dated August 8, 2006.
(ii)Install the placard on the tail-wheel mudguard following Pilatus Aircraft Ltd. Pilatus PC-6 Service Bulletin, 32-001, dated August 8, 2006.
(2)As of July 30, 2008 (the effective date of this AD) do not install on any of the affected airplanes locking lever assemblies part number (P/N) 6403.0094.00 or P/N 114.45.06.077 or tail landing gear assemblies P/N 6403.0067.xx or P/N 114.45.06.050 unless they have been modified following the Accomplishment Instructions of Pilatus Aircraft Ltd. Pilatus PC-6 Service Bulletin, 32-001, dated August 8, 2006. Note 2: The letter “x” in P/N 6403.0067.xx stands for a numeral varying from 0 to 9. FAA AD Differences Note 3: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions
(g)The following provisions also apply to this AD:
(1)*Alternative Methods of Compliance (AMOCs):* The Manager, Standards Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Doug Rudolph, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:
(816)329-4059; fax:
(816)329-4090. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(2)*Airworthy Product:* For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3)*Reporting Requirements:* For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), the Office of Management and Budget
(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information
(h)Refer to MCAI European Aviation Safety Agency (EASA), AD No. 2008-0070, dated April 15, 2008; and Pilatus Aircraft Ltd. Pilatus PC-6 Service Bulletin 32-001, dated August 8, 2006, for related information. Material Incorporated by Reference
(i)You must use Pilatus Aircraft Ltd. Pilatus PC-6 Service Bulletin, 32-001, dated August 8, 2006, 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 Pilatus Aircraft Ltd., Customer Liaison Manager, CH-6371 STANS, Switzerland; telephone: +41 (0)41 619 65 80; fax: +41 (0)41 619 65 76; email: fodermatt@pilatus-aircraft.com.
(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 13, 2008. David R. Showers, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-14106 Filed 6-24-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF COMMERCE National Institute of Standards and Technology 15 CFR Part 296 [Docket No.: 071106659-8716-02] RIN 0693-AB59 Technology Innovation Program AGENCY: National Institute of Standards and Technology, United States Department of Commerce. ACTION: Final rule. SUMMARY: The Deputy Director of the National Institute of Standards and Technology (NIST), United States Department of Commerce, issues a final rule to implement the Technology Innovation Program (TIP). This rule prescribes the policies and procedures for the award of financial assistance (grants and/or cooperative agreements) under TIP. DATES: This rule is effective on June 25, 2008. FOR FURTHER INFORMATION CONTACT: Barbara Lambis, National Institute of Standards and Technology, Mail Stop 4700, Gaithersburg, MD 20899-8600, telephone number
(301)975-4447, e-mail *barbara.lambis@nist.gov* . Background The America Creating Opportunities to Meaningfully Promote Excellence in Technology, Education, and Science (COMPETES) Act, Public Law 110-69, was enacted on August 9, 2007, to invest in innovation through research and development and to improve the competitiveness of the United States. Section 3012 of the COMPETES Act established TIP for the purpose of assisting United States businesses and institutions of higher education or other organizations, such as national laboratories and nonprofit research institutions, to support, promote, and accelerate innovation in the United States through high-risk, high-reward research in areas of critical national need. High-risk, high-reward research is research that has the potential for yielding transformational results with far-ranging or wide-ranging implications; addresses areas of critical national need that support, promote, and accelerate innovation in the United States and is within NIST's areas of technical competence; and is too novel or spans too diverse a range of disciplines to fare well in the traditional peer review process. Section 3012(f) of the America COMPETES Act requires the NIST Director to promulgate regulations implementing the TIP. NIST published a notice of proposed rulemaking with a request for public comments in the **Federal Register** on March 7, 2008 (46 FR 12305) to seek public comment on proposed regulations implementing TIP, which included policies and procedures for the award of financial assistance (grants and/or cooperative agreements) under TIP. The notice specifically sought comment on how NIST should determine if “reasonable and thorough efforts have been made to secure funding from alternative funding sources and no other alternative funding sources are reasonably available.” In addition, the **Federal Register** notice informed the public that NIST was revising the heading of Subchapter K of its regulations to accurately reflect the current contents of that subchapter. The comment period closed on April 21, 2008. In response to the comment received regarding the ownership of invention rights in the course of a bankruptcy or dissolution, and also to correct the following typographical errors and inconsistencies and clarify terminology found in the proposed rule, NIST makes the following changes from the proposed rule: In the Table of Contents, the titles of section 296.11 and the title of Subpart C were revised to be consistent with the titles of that section and subpart within the body of the rule. The title of section 296.20 in both the Table of Contents and the body of the rule was changed to be consistent with the capitalization format used in the remainder of the rule. In paragraphs 296.2(f) and (z), the definitions of *critical national need* and *societal challenge* , respectively, the word “demands” was changed to “justifies” to better characterize the government's role in responding to societal challenges. In paragraph 296.4(c), the second sentence was corrected to reflect the fact that the referenced Procurement Standards are in part 14 of subtitle A of title 15. Paragraph 296.11(b)(4) was revised to clarify under what situations that paragraph applies. In section 296.22, the order of the award criteria found in paragraphs
(d)and
(e)was revised to be consistent with the order of the evaluation criteria found in section 296.21. In paragraph 296.21(b)(1), the first sentence was corrected by adding the word “knowledge” after “United States science and technology” to be consistent with newly redesignated paragraph 296.22(e). Summary of Public Comments Received by NIST in Response to the May 7, 2008, Proposed Regulations, and NIST's Response to Those Comments NIST received five responses to the request for comments. Two responses were from for-profit companies. One response was from a United States Senator. One response was from an individual. One response was from an industry association. A detailed analysis of the comments follows. General Comments *Comment:* One commenter expressed personal views about NIST. *Response:* This comment is outside the scope of this rulemaking. *Comment:* One commenter stated that they found it difficult to understand how NIST staff will identify areas that demand government attention. Another commenter highlighted their industry's commitment to high-risk, high-reward research, including a few example of their work to transform some of the Nation's major societal challenges. The commenter further stated that the examples provided amplify that their specific industry should be considered as an area of critical national need. *Response:* As indicated in the March 7, 2008 **Federal Register** notice, in determining which areas of critical national need will be addressed in a competition, TIP may solicit input from within NIST, from the TIP Advisory Board, and from the public. TIP may engage experts in scientific and technology policy to ensure that the areas of critical national need that will be considered are those that entail significant societal challenges that are not already being addressed by others and could be addressed through high-risk, high-reward research. Specific societal challenges within selected areas of critical national need will be the focus of TIP funding. *Comment:* One commenter raised a question about a business review indicating that the new legislation appears to remove the impetus and need to commercialize to capture the economic value potentially created. *Response:* The TIP legislation does not include a commercialization element; therefore, business review is not required. *Comment:* One commenter stated that a representative of their industry should be on the TIP Advisory Board. *Response:* This comment is outside the scope of this rulemaking. *Comment:* One commenter recommended that NIST clarify the ownership of invention rights in the course of a bankruptcy or dissolution. Specifically, the commenter suggested that in the course of a bankruptcy or dissolution of a joint venture, the last participant in a joint venture would determine whether to retain ownership or transfer a patent for an invention developed with TIP funds. The commenter provided an example where a company in bankruptcy could continue to exist and run its day-to-day operations and therefore, should be able to opt to retain or transfer such a patent for a TIP funded invention. *Response:* The TIP statute requires that intellectual property developed by a joint venture from assistance provided by TIP “shall not be transferred or passed, except to a participant in the joint venture, until the expiration of the first patent obtained in connection with such intellectual property.” (15 U.S.C. 278n(e)(1)). Section 296.11(b)(4) of the TIP rule contemplates the situation where all members of a joint venture cease to exist prior to the expiration of the first such patent. NIST has revised section 296.11(b)(4) of the rule to clarify that whenever the last existing participant in a joint venture ceases to exist prior to the expiration of the first patent obtained in connection with intellectual property developed by a joint venture from assistance under the TIP, title to any such patent must be transferred or passed to a United States entity that can commercialize the technology in a timely fashion. *Comment:* One commenter recommended that NIST clarify that contractors and subcontractors who have contributed to an invention should have ownership rights to the invention if contractually agreed upon by the participants in the joint venture. *Response:* The TIP statute specifies: “Title to any intellectual property developed by a joint venture from assistance provided under this section may vest in any participant in the joint venture, as agreed by the members of the joint venture, notwithstanding section 202(a) and
(b)of title 35, United States Code.” (15 U.S.C. 278n(e)(1)). This section of the TIP statute clearly means that the members of the joint venture must decide and set forth in their joint venture agreement how title to all intellectual property that arises from the project, including intellectual property developed by the members themselves and intellectual property created by contractors, will be owned. The decisions of the joint venture will be implemented through the contracts. Comments on the Selection Process *Comment:* Two commenters recommended that the reviewers demonstrate proven technical and industry sector expertise in the research proposed in order to effectively award scarce funds to appropriate and deserving applicants. *Response:* NIST intends to use qualified reviewers with requisite in-depth knowledge to evaluate proposals. *Comment:* One commenter recommended that their specific industry be represented on the TIP Evaluation Panel and that the Evaluation Panel members have in-depth knowledge of their specific private industry sector. *Response:* The composition and requisite expertise of the TIP Evaluation Panel will depend on the area(s) of critical national need selected for each competition. NIST intends to use qualified individuals to serve on the Evaluation Panel with requisite in-depth knowledge to evaluate proposals. *Comment:* One commenter asked what makes one eligible to participate in the Evaluation Panel and what is the overall make-up. *Response:* Since the Evaluation Panel(s) will be providing funding recommendations to the Selecting Official, to ensure compliance with the Federal Advisory Committee Act (5 U.S.C. App.), all members of the Evaluation Panel(s) will be federal employees. The Evaluation Panel may request individual technical reviews of proposals. The technical reviews will generally be conducted by federal employees. As stated in the response to the previous comment, the composition and requisite expertise of the TIP Evaluation Panel will depend on the area(s) of critical national need selected for each competition. NIST intends to use qualified individuals to serve on the Evaluation Panel with requisite in-depth knowledge to evaluate proposals. The make-up of the Evaluation Panel will be discussed in the notice announcing a competition and request for proposals. Comments on the Evaluation Criteria *Comment:* One commenter questioned, how is a proposing entity to provide a 50% matching, when a major premise of the process is that no alternative funding is available to support these developments? The commenter further stated that while a number of states might respond to this by creating specific matching funds for their companies, it could create an unnecessary burden on numerous underserved regions and benefit those that already have significant technology-based business infrastructures. *Response:* The 50% cost sharing requirement is statutorily mandated and cannot be changed in the rule. *Comment:* One commenter indicated that meeting “the second 50% of the evaluation criteria relating to demonstrating the potential magnitude of transformational results upon the Nation's capabilities in an area, the mechanism and timing for the translational effects to be useful to the Nation, and demonstrating the capacity and commitment of each award participant to enable or advance the transformation seems somewhat improbable and potentially impossible.” *Response:* TIP was established to fund research and development projects that will address areas of critical national need that demand government attention because the magnitude of the problem is large and the societal challenges that need to be overcome are not being addressed, but could be addressed through high-risk, high-reward research. NIST developed the evaluation criteria contained in the rule to ensure that projects funded by TIP meet the requirements sets forth in the authorizing legislation. The TIP Proposal Preparation Kit will provide guidance to potential proposers on how to address the TIP evaluation criteria. Comments on How NIST Should Determine if “Reasonable and Thorough Efforts Have Been Made To Secure Funding From Alternative Funding Sources and No Other Alternative Funding Sources Are Reasonably Available” *Comment:* One commenter suggested that any criteria set forth regarding the demonstration that reasonable and thorough efforts have been made to secure external funding “does not require exchange of detailed information that would be deemed to be confidential by the alternative funding sources.” The commenter indicated that in some cases, funding sources may deem that even the acknowledgement of consideration of funding is confidential and offerors may not be able to disclose details about the funding source and would therefore not meet award criteria. The commenter requested that the government consider the level of information that can be reasonably provided by the offeror depending upon the funding source as acceptable. *Response:* To the extent permitted by law, including the Freedom of Information Act (5 U.S.C. 552), NIST will protect confidential/proprietary information about business operations possessed by any organization and provided to NIST. Proposals are likely to be less competitive if significant details are omitted due to an organization's reluctance to reveal confidential/proprietary information. *Comment:* One commenter suggested that the regulations require applicants to provide evidence that their application has been rejected by at least two funding sources, including one private source, before they can be considered for federal funding, and that the application submitted to NIST must be identical to the application rejected twice previously. The commenter further suggests that applicants must demonstrate that they do not have the necessary financial resources to conduct the research themselves. *Response:* Due to the variety of types of organizations that may apply to TIP and the various types of funds available to different types of organizations and in different sectors, setting a minimum number of unsuccessful attempts to obtain funding seems to be inappropriate. Rather, NIST will require that each proposer, including each member of a joint venture, submit evidence documenting all of their unsuccessful attempts to obtain funding for the work described in the proposal, including internal funding, funding from external private sources, and other funding from government sources (federal, state and local). Based on all relevant factors, NIST will determine whether the unsuccessful attempts to obtain funding documented in each proposal are reasonable and thorough. *Comment:* One commenter recommended that NIST consider an applicant's previous efforts to raise funds, such as through public and private financing, to demonstrate “reasonable and thorough” efforts to secure alternative funds and to show that no other alternative sources are available. The commenter further recommended that NIST should examine the rationale behind a non-lead product failing to receive funding, which would allow companies to satisfy the requirement that no other alternative sources are reasonably available. The commenter provided the example that a company could submit as part of their proposal an attestation by the company's board, which would usually include key investors. Such attestation would state that the funds raised are for the more advanced lead products and that there was no alternative in the budget for the proposed project. *Response:* NIST will consider information provided in each proposal received to address the award criteria on a case by case basis. It would be premature to speculate on what documentation an applicant will submit to address the applicant's efforts to secure alternative funding and whether such documentation will be acceptable. The example provided by the commenter could be considered along with the documentary evidence of any efforts to secure alternative funding. Additional Information Executive Order 12866 This rulemaking is a significant regulatory action under sections 3(f)(3) and 3(f)(4) of Executive Order 12866, as it materially alters the budgetary impact of a grant program and raises novel policy issues. This rulemaking, however, is not an “economically significant” regulatory action under section 3(f)(1) of the Executive Order, as it does not have an effect on the economy of $100 million or more in any one year, and it does not have a material adverse effect on the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. Executive Order 13132 This rule does not contain policies with Federalism implications as defined in Executive Order 13132. Administrative Procedure Act Pursuant to 5 U.S.C. 553(a)(2), all matters related to agency management or personnel or to public property, loans, grants, benefits, or contracts are exempt from the rulemaking requirements of 5 U.S.C. 553, including the 30-day delay in effectiveness. This rule prescribes the policies and procedures for the award of financial assistance (grants and/or cooperative agreements) under the Technology Innovation Program. Because this rule concerns a grant program, this rule is not subject to the 30-day delay in effectiveness. Therefore, this final rule is made effective immediately upon publication. Regulatory Flexibility Act Because notice and comment are not required under 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ) are inapplicable. As such, a regulatory flexibility analysis is not required, and none has been prepared. Paperwork Reduction Act Notwithstanding any other provision of the law, no person is required to, nor shall any person be subject to 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 Office of Management and Budget
(OMB)Control Number. This rule does not contain collection of information requirements subject to review and approval by OMB under the Paperwork Reduction Act (PRA). The TIP Proposal Preparation Kit, which contains all necessary forms and information requirements, was submitted to OMB and approved. The OMB Control Number for the information collection requirements is 0693-0050 and will be published in all **Federal Register** notices soliciting proposals under the Program. National Environmental Policy Act This rule will not significantly affect the quality of the human environment. Therefore, an environmental assessment or Environmental Impact Statement is not required to be prepared under the National Environmental Policy Act of 1969. List of Subjects in 15 CFR Part 296 Business and industry; Grant programs—science and technology; Inventions and patents; Reporting and recordkeeping requirements; Research; Science and technology. Dated: June 16, 2008. James M. Turner, Deputy Director. For the reasons set forth in the preamble, Title 15 of the Code of Federal Regulations is amended as follows: Subchapter K—NIST Extramural Programs 1. The heading of chapter II, subchapter K is revised to read as set forth above. 2. In 15 CFR chapter II, subchapter K, add a new part 296 as follows: PART 296—TECHNOLOGY INNOVATION PROGRAM Subpart A—General Sec. 296.1 Purpose. 296.2 Definitions. 296.3 Types of assistance available. 296.4 Limitations on assistance. 296.5 Eligibility requirements for companies and joint ventures. 296.6 Valuation of transfers. 296.7 Joint venture registration. 296.8 Joint venture agreement. 296.9 Activities not permitted for joint ventures. 296.10 Third party in-kind contribution of research services. 296.11 Intellectual property rights and procedures. 296.12 Reporting and auditing requirements. Subpart B—The Competition Process 296.20 The selection process. 296.21 Evaluation criteria. 296.22 Award criteria. Subpart C—Dissemination of Program Results 296.30 Monitoring and evaluation. 296.31 Dissemination of results. 296.32 Technical and educational services. 296.33 Annual report. Authority: 15 U.S.C. 278n (Pub. L. 110-69 section 3012) Subpart A—General § 296.1 Purpose.
(a)The purpose of the Technology Innovation Program
(TIP)is to assist United States businesses and institutions of higher education or other organizations, such as national laboratories and nonprofit research institutes, to support, promote, and accelerate innovation in the United States through high-risk, high-reward research in areas of critical national need within NIST's areas of technical competence.
(b)The rules in this part prescribe policies and procedures for the award and administration of financial assistance (grants and/or cooperative agreements) under the TIP. While the TIP is authorized to enter into grants, cooperative agreements, and contracts to carry out the TIP mission, the rules in this part address only the award of grants and/or cooperative agreements. § 296.2 Definitions. *Award* means Federal financial assistance made under a grant or cooperative agreement. *Business or company* means a for-profit organization, including sole proprietors, partnerships, limited liability companies (LLCs), and corporations. *Contract* means a procurement contract under an award or subaward, and a procurement subcontract under a recipient's or subrecipient's contract. *Contractor* means the legal entity to which a contract is made and which is accountable to the recipient, subrecipient, or contractor making the contract for the use of the funds provided. *Cooperative agreement* refers to a Federal assistance instrument used whenever the principal purpose of the relationship between the Federal government and the recipient is to transfer something of value, such as money, property, or services to the recipient to accomplish a public purpose of support or stimulation authorized by Federal statute instead of acquiring (by purchase, lease, or barter) property or services for the direct benefit or use of the Federal government; and substantial involvement is anticipated between the Federal government and the recipient during performance of the contemplated activity. *Critical national need* means an area that justifies government attention because the magnitude of the problem is large and the societal challenges that need to be overcome are not being addressed, but could be addressed through high-risk, high-reward research. *Direct costs* means costs that can be identified readily with activities carried out in support of a particular final objective. A cost may not be allocated to an award as a direct cost if any other cost incurred for the same purpose in like circumstances has been assigned to an award as an indirect cost. Because of the diverse characteristics and accounting practices of different organizations, it is not possible to specify the types of costs which may be classified as direct costs in all situations. However, typical direct costs could include salaries of personnel working on the TIP project, travel, equipment, materials and supplies, subcontracts, and other costs not categorized in the preceding examples. NIST shall determine the allowability of direct costs in accordance with applicable Federal cost principles. *Director* means the Director of the National Institute of Standards and Technology (NIST). *Eligible company* means a small-sized or medium-sized business or company that satisfies the ownership and other requirements stated in this part. *Grant* means a Federal assistance instrument used whenever the principal purpose of the relationship between the Federal government and the recipient is to transfer something of value, such as money, property, or services to the recipient to accomplish a public purpose of support or stimulation authorized by Federal statute instead of acquiring (by purchase, lease, or barter) property or services for the direct benefit or use of the Federal government; and no substantial involvement is anticipated between the Federal government and the recipient during performance of the contemplated activity. *High-risk, high-reward research* means research that:
(1)Has the potential for yielding transformational results with far-ranging or wide-ranging implications;
(2)Addresses areas of critical national need that support, promote, and accelerate innovation in the United States and is within NIST's areas of technical competence; and
(3)Is too novel or spans too diverse a range of disciplines to fare well in the traditional peer-review process. *Indirect costs* means those costs incurred for common or joint objectives that cannot be readily identified with activities carried out in support of a particular final objective. A cost may not be allocated to an award as an indirect cost if any other cost incurred for the same purpose in like circumstances has been assigned to an award as a direct cost. Because of diverse characteristics and accounting practices it is not possible to specify the types of costs which may be classified as indirect costs in all situations. However, typical examples of indirect costs include general administration expenses, such as the salaries and expenses of executive officers, personnel administration, maintenance, library expenses, and accounting. NIST shall determine the allowability of indirect costs in accordance with applicable Federal cost principles. *Institution of higher education* means an educational institution in any State that—(1) Admits as regular students only persons having a certificate of graduation from a school providing secondary education, or the recognized equivalent of such a certificate;
(2)Is legally authorized within such State to provide a program of education beyond secondary education;
(3)Provides an educational program for which the institution awards a bachelor's degree or provides not less than a 2-year program that is acceptable for full credit toward such a degree;
(4)Is a public or other nonprofit institution; and
(5)Is accredited by a nationally recognized accrediting agency or association, or if not so accredited, is an institution that has been granted preaccreditation status by such an agency or association that has been recognized by the Secretary of Education for the granting of preaccreditation status, and the Secretary of Education has determined that there is satisfactory assurance that the institution will meet the accreditation standards of such an agency or association within a reasonable time (20 U.S.C. 1001). For the purpose of this paragraph
(l)only, the term *State* includes, in addition to the several States of the United States, the Commonwealth of Puerto Rico, the District of Columbia, Guam, American Samoa, the United States Virgin Islands, the Commonwealth of the Northern Mariana Islands, and the Freely Associated States. The term *Freely Associated States* means the Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of Palau. *Intellectual property* means an invention patentable under title 35, United States Code, or any patent on such an invention, or any work for which copyright protection is available under title 17, United States Code. *Joint venture* means a business arrangement that:
(1)Includes either:
(i)At least two separately owned companies that are both substantially involved in the project and both of which are contributing to the cost-sharing required under the TIP statute, with the lead company of the joint venture being an eligible company; or
(ii)At least one eligible company and one institution of higher education or other organization, such as a national laboratory, governmental laboratory (not including NIST), or nonprofit research institute, that are both substantially involved in the project and both of which are contributing to the cost-sharing required under the TIP statute, with the lead entity of the joint venture being either the eligible company or the institution of higher education; and
(2)May include additional for-profit companies, institutions of higher education, and other organizations, such as national laboratories and nonprofit research institutes, that may or may not contribute non-Federal funds to the project. *Large-sized business* means any business, including any parent company plus related subsidiaries, having annual revenues in excess of the amount published by the Program in the relevant **Federal Register** notice of availability of funds in accordance with § 296.20. In establishing this amount, the Program may consider the dollar value of the total revenues of the 1000th company in Fortune magazine's Fortune 1000 listing. *Matching funds* or *cost sharing* means that portion of project costs not borne by the Federal government. Sources of revenue to satisfy the required cost share include cash and third party in-kind contributions. Cash may be contributed by any non-Federal source, including but not limited to recipients, state and local governments, companies, and nonprofits (except contractors working on a TIP project). Third party in-kind contributions include but are not limited to equipment, research tools, software, supplies, and/or services. The value of in-kind contributions shall be determined in accordance with § 14.23 of this title and will be prorated according to the share of total use dedicated to the TIP project. NIST shall determine the allowability of matching share costs in accordance with applicable Federal cost principles. *Medium-sized business* means any business that does not qualify as a *small-sized business* or a *large-sized business* under the definitions in this section. *Member* means any entity that is identified as a joint venture member in the award and is a signatory on the joint venture agreement required by § 296.8. *Nonprofit research institute* means a nonprofit research and development entity or association organized under the laws of any state for the purpose of carrying out research and development. *Participant* means any entity that is identified as a recipient, subrecipient, or contractor on an award to a joint venture under the Program. *Person* will be deemed to include corporations and associations existing under or authorized by the laws of the United States, the laws of any of the Territories, the laws of any State, or the laws of any foreign country. *Program* or *TIP* means the Technology Innovation Program. *Recipient* means an organization receiving an award directly from NIST under the Program. *Small-sized business* means a business that is independently owned and operated, is organized for profit, has fewer than 500 employees, and meets the other requirements found in 13 CFR part 121. *Societal challenge* means a problem or issue confronted by society that when not addressed could negatively affect the overall function and quality of life of the Nation, and as such justifies government attention. *State,* except for the limited purpose described in paragraph
(l)of this section, means any of the several States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States, or any agency or instrumentality of a State exclusive of local governments. The term does not include any public and Indian housing agency under the United States Housing Act of 1937. *Subaward* means an award of financial assistance made under an award by a recipient to an eligible subrecipient or by a subrecipient to a lower tier subrecipient. The term includes financial assistance when provided by any legal agreement, even if the legal agreement is called a contract, but does not include procurement of goods and services. *Subrecipient* means the legal entity to which a subaward is made and which is accountable to the recipient for the use of the funds provided. *Transformational results* means potential project outcomes that enable disruptive changes over and above current methods and strategies. Transformational results have the potential to radically improve our understanding of systems and technologies, challenging the status quo of research approaches and applications. *United States owned company* means a for-profit organization, including sole proprietors, partnerships, limited liability companies (LLCs), and corporations, that has a majority ownership by individuals who are citizens of the United States. § 296.3 Types of assistance available. Subject to the limitations of this section and § 296.4, assistance under this part is available to eligible companies or joint ventures that request either of the following:
(a)Single Company Awards: No award given to a single company shall exceed a total of $3,000,000 over a total of 3 years.
(b)Joint Venture Awards: No award given to a joint venture shall exceed a total of $9,000,000 over a total of 5 years. § 296.4 Limitations on assistance.
(a)The Federal share of a project funded under the Program shall not be more than 50 percent of total project costs.
(b)Federal funds awarded under this Program may be used only for direct costs and not for indirect costs, profits, or management fees.
(c)No large-sized business may receive funding as a recipient or subrecipient of an award under the Program. When procured in accordance with procedures established under the Procurement Standards required by part 14 of Subtitle A of this title, recipients may procure supplies and other expendable property, equipment, real property and other services from any party, including large-sized businesses.
(d)If a project ends before the completion of the period for which an award has been made, after all allowable costs have been paid and appropriate audits conducted, the unspent balance of the Federal funds shall be returned by the recipient to the Program. § 296.5 Eligibility requirements for companies and joint ventures. Companies and joint ventures must be eligible in order to receive funding under the Program and must remain eligible throughout the life of their awards.
(a)A company shall be eligible to receive an award from the Program only if:
(1)The company is a small-sized or medium-sized business that is incorporated in the United States and does a majority of its business in the United States; and
(2)Either
(i)The company is a United States owned company; or
(ii)The company is owned by a parent company incorporated in another country and the Program finds that:
(A)The company's participation in TIP would be in the economic interest of the United States, as evidenced by investments in the United States in research, development, and manufacturing (including, for example, the manufacture of major components or subassemblies in the United States); significant contributions to employment in the United States; and agreement with respect to any technology arising from assistance provided by the Program to promote the manufacture within the United States of products resulting from that technology, and to procure parts and materials from competitive United States suppliers; and
(B)That the parent company is incorporated in a country which affords to United States-owned companies opportunities, comparable to those afforded to any other company, to participate in any joint venture similar to those authorized to receive funding under the Program; affords to United States-owned companies local investment opportunities comparable to those afforded to any other company; and affords adequate and effective protection for the intellectual property rights of United States-owned companies.
(b)NIST may suspend a company or joint venture from continued assistance if it determines that the company, the country of incorporation of the company or a parent company, or any member of the joint venture has failed to satisfy any of the criteria contained in paragraph
(a)of this section, and that it is in the national interest of the United States to do so.
(c)Members of joint ventures that are companies must be incorporated in the United States and do a majority of their business in the United States and must comply with the requirements of paragraph (a)(2) of this section. For a joint venture to be eligible for assistance, it must be comprised as defined in § 296.2. § 296.6 Valuation of transfers.
(a)This section applies to transfers of goods, including computer software, and services provided by the transferor related to the maintenance of those goods, when those goods or services are transferred from one joint venture member to another separately-owned joint venture member.
(b)The greater amount of the actual cost of the transferred goods and services as determined in accordance with applicable Federal cost principles, or 75 percent of the best customer price of the transferred goods and services, shall be deemed to be allowable costs. Best customer price means the GSA schedule price, or if such price is unavailable, the lowest price at which a sale was made during the last twelve months prior to the transfer of the particular good or service. § 296.7 Joint venture registration. Joint ventures selected for assistance under the Program must notify the Department of Justice and the Federal Trade Commission under section 6 of the National Cooperative Research Act of 1984, as amended (15 U.S.C. 4305). No funds will be released prior to receipt by the Program of copies of such notification. § 296.8 Joint venture agreement. NIST shall not issue a TIP award to a joint venture and no costs shall be incurred under a TIP project by the joint venture members until such time as a joint venture agreement has been executed by all of the joint venture members and approved by NIST. § 296.9 Activities not permitted for joint ventures. The following activities are not permissible for TIP-funded joint ventures:
(a)Exchanging information among competitors relating to costs, sales, profitability, prices, marketing, or distribution of any product, process, or service that is not reasonably required to conduct the research and development that is the purpose of such venture;
(b)Entering into any agreement or engaging in any other conduct restricting, requiring, or otherwise involving the marketing, distribution, or provision by any person who is a party to such joint venture of any product, process, or service, other than the distribution among the parties to such venture, in accordance with such venture, of a product, process, or service produced by such venture, the marketing of proprietary information, such as patents and trade secrets, developed through such venture, or the licensing, conveying, or transferring of intellectual property, such as patents and trade secrets, developed through such venture; and
(c)Entering into any agreement or engaging in any other conduct:
(1)To restrict or require the sale, licensing, or sharing of inventions or developments not developed through such venture; or
(2)To restrict or require participation by such party in other research and development activities, that is not reasonably required to prevent misappropriation of proprietary information contributed by any person who is a party to such venture or of the results of such venture. § 296.10 Third party in-kind contribution of research services. NIST shall not issue a TIP award to a single recipient or joint venture whose proposed budget includes the use of third party in-kind contribution of research as cost share, and no costs shall be incurred under such a TIP project, until such time as an agreement between the recipient and the third party contributor of in-kind research has been executed by both parties and approved by NIST. § 296.11 Intellectual property rights and procedures.
(a)*Rights in Data* . Except as otherwise specifically provided for in an award, authors may copyright any work that is subject to copyright and was developed under an award. When claim is made to copyright, the applicable copyright notice of 17 U.S.C. 401 or 402 and acknowledgment of Federal government sponsorship shall be affixed to the work when and if the work is delivered to the Federal government, is published, or is deposited for registration as a published work in the U.S. Copyright Office. The copyright owner shall grant to the Federal government, and others acting on its behalf, a paid up, nonexclusive, irrevocable, worldwide license for all such works to reproduce, publish, or otherwise use the work for Federal purposes.
(b)*Invention Rights* .
(1)Ownership of inventions developed from assistance provided by the Program under § 296.3(a) shall be governed by the requirements of chapter 18 of title 35 of the United States Code.
(2)Ownership of inventions developed from assistance provided by the Program under § 296.3(b) may vest in any participant in the joint venture, as agreed by the members of the joint venture, notwithstanding section 202(a) and
(b)of title 35, United States Code. Title to any such invention shall not be transferred or passed, except to a participant in the joint venture, until the expiration of the first patent obtained in connection with such invention. In accordance with § 296.8, joint ventures will provide to NIST a copy of their written agreement that defines the disposition of ownership rights among the participants of the joint venture, including the principles governing the disposition of intellectual property developed by contractors and subcontractors, as appropriate, and that complies with these regulations.
(3)The United States reserves a nonexclusive, nontransferable, irrevocable paid-up license, to practice or have practiced for or on behalf of the United States any inventions developed using assistance under this section, but shall not in the exercise of such license publicly disclose proprietary information related to the license. Nothing in this subsection shall be construed to prohibit the licensing to any company of intellectual property rights arising from assistance provided under this section.
(4)Should the last existing participant in a joint venture cease to exist prior to the expiration of the first patent obtained in connection with any invention developed from assistance provided under the Program, title to such patent must be transferred or passed to a United States entity that can commercialize the technology in a timely fashion.
(c)*Patent Procedures* . Each award by the Program will include provisions assuring the retention of a governmental use license in each disclosed invention, and the government's retention of march-in rights. In addition, each award by the Program will contain procedures regarding reporting of subject inventions by the recipient through the Interagency Edison extramural invention reporting system (iEdison), including the subject inventions of recipients, including members of the joint venture (if applicable), subrecipients, and contractors of the recipient or joint venture members. § 296.12 Reporting and auditing requirements. Each award by the Program shall contain procedures regarding technical, business, and financial reporting and auditing requirements to ensure that awards are being used in accordance with the Program's objectives and applicable Federal cost principles. The purpose of the technical reporting is to monitor “best effort” progress toward overall project goals. The purpose of the business reporting is to monitor project performance against the Program's mission as required by the Government Performance and Results Act
(GPRA)mandate for program evaluation. The purpose of the financial reporting is to monitor the status of project funds. The audit standards to be applied to TIP awards are the “Government Auditing Standards”
(GAS)issued by the Comptroller General of the United States and any Program-specific audit guidelines or requirements prescribed in the award terms and conditions. To implement paragraph
(f)of § 14.25 of this title, audit standards and award terms may stipulate that “total Federal and non-Federal funds authorized by the Grants Officer” means the total Federal and non-Federal funds authorized by the Grants Officer annually. Subpart B—The Competition Process § 296.20 The selection process.
(a)To begin a competition, the Program will solicit proposals through an announcement in the **Federal Register** , which will contain information regarding that competition, including the areas of critical national need that proposals must address. An Evaluation Panel(s) will be established to evaluate proposals and ensure that all proposals receive careful consideration.
(1)A preliminary review will be conducted to determine whether the proposal:
(i)Is in accordance with § 296.3;
(ii)Complies with either paragraph
(a)or paragraph
(c)of § 296.5;
(iii)Addresses the award criteria of paragraphs
(a)through
(c)of § 296.22;
(iv)Was submitted to a previous TIP competition and if so, has been substantially revised; and
(v)Is complete.
(2)Complete proposals that meet the preliminary review requirements described in paragraphs (b)(1)(i) through
(v)of this section will be considered further. Proposals that are incomplete or do not meet any one of these preliminary review requirements will normally be eliminated.
(c)The Evaluation Panel(s) will then conduct a multi-disciplinary peer review of the remaining proposals based on the evaluation criteria listed in § 296.21 and the award criteria listed in § 296.22. In some cases NIST may conduct oral reviews and/or site visits. The Evaluation Panel(s) will present funding recommendations to the Selecting Official in rank order for further consideration. The Evaluation Panel(s) will not recommend for further consideration any proposal determined not to meet all of the eligibility and award requirements of this part and the **Federal Register** notice announcing the availability of funds.
(d)In making final selections, the Selecting Official will select funding recipients based upon the Evaluation Panel's rank order of the proposals and the following selection factors: assuring an appropriate distribution of funds among technologies and their applications, availability of funds, and/or Program priorities. The selection of proposals by the Selecting Official is final.
(e)NIST reserves the right to negotiate the cost and scope of the proposed work with the proposers that have been selected to receive awards. This may include requesting that the proposer delete from the scope of work a particular task that is deemed by NIST to be inappropriate for support against the evaluation criteria. NIST also reserves the right to reject a proposal where information is uncovered that raises a reasonable doubt as to the responsibility of the proposer. The final approval of selected proposals and award of assistance will be made by the NIST Grants Officer as described in the **Federal Register** notice announcing the competition. The award decision of the NIST Grants Officer is final. § 296.21 Evaluation criteria. A proposal must be determined to be competitive against the Evaluation Criteria set forth in this section to receive funding under the Program. Additionally, no proposal will be funded unless the Program determines that it has scientific and technical merit and that the proposed research has strong potential for meeting identified areas of critical national need. (a)(1) The proposer(s) adequately addresses the scientific and technical merit and how the research may result in intellectual property vesting in a United States entity including evidence that:
(i)The proposed research is novel;
(ii)The proposed research is high-risk, high-reward;
(iii)The proposer(s) demonstrates a high level of relevant scientific/technical expertise for key personnel, including contractors and/or informal collaborators, and have access to the necessary resources, for example research facilities, equipment, materials, and data, to conduct the research as proposed;
(iv)The research result(s) has the potential to address the technical needs associated with a major societal challenge not currently being addressed; and
(v)The proposed research plan is scientifically sound with tasks, milestones, timeline, decision points and alternate strategies.
(2)Total weight of (a)(1)(i) through
(v)is 50%. (b)(1) The proposer(s) adequately establishes that the proposed research has strong potential for advancing the state-of-the-art and contributing significantly to the United States science and technology knowledge base and to address areas of critical national need through transforming the Nation's capacity to deal with a major societal challenge(s) that is not currently being addressed, and generate substantial benefits to the Nation that extend significantly beyond the direct return to the proposer including an explanation in the proposal:
(i)Of the potential magnitude of transformational results upon the Nation's capabilities in an area;
(ii)Of how and when the ensuing transformational results will be useful to the Nation; and
(iii)Of the capacity and commitment of each award participant to enable or advance the transformation to the proposed research results (technology).
(2)Total weight of (b)(1)(i) through
(iii)is 50%. § 296.22 Award criteria. NIST must determine that a proposal successfully meets all of the Award Criteria set forth in this section for the proposal to receive funding under the Program. The Award Criteria are:
(a)The proposal explains why TIP support is necessary, including evidence that the research will not be conducted within a reasonable time period in the absence of financial assistance from TIP;
(b)The proposal demonstrates that reasonable and thorough efforts have been made to secure funding from alternative funding sources and no other alternative funding sources are reasonably available to support the proposal;
(c)The proposal explains the novelty of the research (technology) and demonstrates that other entities have not already developed, commercialized, marketed, distributed, or sold similar research results (technologies);
(d)The proposal has scientific and technical merit and may result in intellectual property vesting in a United States entity that can commercialize the technology in a timely manner;
(e)The proposal establishes that the research has strong potential for advancing the state-of-the-art and contributing significantly to the United States science and technology knowledge base; and
(f)The proposal establishes that the proposed transformational research (technology) has strong potential to address areas of critical national need through transforming the Nation's capacity to deal with major societal challenges that are not currently being addressed, and generate substantial benefits to the Nation that extend significantly beyond the direct return to the proposer. Subpart C—Dissemination of Program Results § 296.30 Monitoring and evaluation. The Program will provide monitoring and evaluation of areas of critical national need and its investments through periodic analyses. It will develop methods and metrics for assessing impact at all stages. These analyses will contribute to the establishment and adoption of best practices. § 296.31 Dissemination of results. Results stemming from the analyses required by § 296.30 will be disseminated in periodic working papers, fact sheets, and meetings, which will address the progress that the Program has made from both a project and a portfolio perspective. Such disseminated results will serve to educate both external constituencies as well as internal audiences on research results, best practices, and recommended changes to existing operations based on solid analysis. § 296.32 Technical and educational services.
(a)Under the Federal Technology Transfer Act of 1986, NIST has the authority to enter into cooperative research and development agreements with non-Federal parties to provide personnel, services, facilities, equipment, or other resources except funds toward the conduct of specified research or development efforts which are consistent with the missions of the laboratory. In turn, NIST has the authority to accept funds, personnel, services, facilities, equipment and other resources from the non-Federal party or parties for the joint research effort. Cooperative research and development agreements do not include procurement contracts or cooperative agreements as those terms are used in sections 6303, 6304, and 6305 of title 31, United States Code.
(b)In no event will NIST enter into a cooperative research and development agreement with a recipient of an award under the Program which provides for the payment of Program funds from the award recipient to NIST.
(c)From time to time, TIP may conduct public workshops and undertake other educational activities to foster the collaboration of funding Recipients with other funding resources for purposes of further development and diffusion of TIP-related technologies. In no event will TIP provide recommendations, endorsements, or approvals of any TIP funding Recipients to any outside party. § 296.33 Annual report. The Director shall submit annually to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Science and Technology of the House of Representatives a report describing the Technology Innovation Program's activities, including a description of the metrics upon which award funding decisions were made in the previous fiscal year, any proposed changes to those metrics, metrics for evaluating the success of ongoing and completed awards, and an evaluation of ongoing and completed awards. The first annual report shall include best practices for management of programs to stimulate high-risk, high-reward research. [FR Doc. E8-14083 Filed 6-24-08; 8:45 am] BILLING CODE 3510-13-P DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT 24 CFR Part 242 [Docket No. FR-4927-F-03] RIN 2502-A122 Revisions to the Hospital Mortgage Insurance Program: Technical and Clarifying Amendments AGENCY: Office of Assistant Secretary for Housing—Federal Housing Commissioner, HUD. ACTION: Final rule. SUMMARY: On November 28, 2007, HUD published a final rule revising HUD's regulations on mortgage insurance for hospitals. This publication corrects certain non-substantive errors and omissions that occurred in the final rule, as well as makes certain additional amendments designed to enhance clarity of certain of the rule's provisions. DATES: *Effective Date:* July 25, 2008. FOR FURTHER INFORMATION CONTACT: Roger E. Miller, Director, Office of Insured Health Care Facilities, Office of Housing, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 9224, Washington, DC 20410-8000; telephone
(202)708-0599 (this is not a toll-free number). Hearing- and speech-impaired persons may access this number through TTY by calling the Federal Information Relay Service at
(800)877-8339 (this is a toll-free number). SUPPLEMENTARY INFORMATION: I. Background On November 28, 2007 (72 FR 67524), HUD published a final rule revising its regulations governing mortgage insurance for hospitals. This final rule followed a January 10, 2005 (70 FR 1750), proposed rule and took into consideration public comment submitted on the proposed rule. The November 2007 final rule made certain changes in response to public comment and became effective on January 28, 2008. HUD's regulations promulgated by the November 2007 final rule implement section 242 of the National Housing Act (12 U.S.C. 1715z-7), and are codified at 24 CFR part 242. II. Technical and Clarifying Amendments Following publication of the November 2007 final rule, it was brought to HUD's attention that certain provisions of the regulatory text contained technical errors. In addition, upon reviewing the final rule in response to notification of technical errors, HUD identified other provisions in the regulatory text that HUD determined should be revised to improve clarity. The correction of these errors and the clarifying amendments made to the November 2007 final rule by this rule are as follows: • Authority. The main authority for hospital mortgage insurance, section 242 of the National Housing Act (12 U.S.C. 1715z-7) was inadvertently omitted. This technical correction makes the appropriate revision to the authority citation. • 24 CFR 242.1 (Definitions). The definition in the rule of “chronic convalescent and rest” refers to “rehabilitation services.” This element is not required by statute. This technical correction removes this term from the definition. A comment submitted on the proposed rule requested that HUD remove from the definition of “chronic convalescent and rest” the following terms: “respite care services,” “hospice services,” and “rehabilitation services.” HUD responded to the comment citing the statutory definition of “chronic convalescent and rest” as the reason for not removing these terms. However, while the terms “respite care services” and “hospice services” are part of the definition of “chronic convalescent and rest,” the term “rehabilitation services” is not part of the definition. (See 72 FR 67526-67527.) Accordingly, reference to “rehabilitation services” is removed from the definition of “chronic convalescent and rest.” This rule also amends the definition of “mortgagee or lender” because the rule used the term “mortgagee” to refer to the applicant as well as the original lender. Therefore, a definition of “mortgagee” will clarify any possible ambiguity regarding to whom “mortgagee” refers. The definition of “construction” inadvertently omitted reference to “substantial rehabilitation”. As is made clear in other parts of the rule, including in the definition of “project,” substantial rehabilitation such as additions and renovations are supported by the program. However, to remove any possible ambiguity, the phrase “or the substantial rehabilitation of an existing facility” is being added to the definition of “construction”. With respect to the definition of “surplus cash,” it was the intent of the final rule that “surplus cash” includes cash from prior periods. This statement was made in the preamble of the final rule in response to public comments. (See 72 FR 67529.) This technical correction adds language to make this explicit in the definition of “surplus cash”. • 24 CFR 242.10 (Eligible Mortgagors). This final rule amends the second sentence of this section because HUD discovered a possible unintended contradiction between § 242.10 and § 242.72. Section 242.10 provides that the mortgagor “shall possess the powers necessary and incidental to operating a hospital”. Under normal circumstances, that is indeed a requirement. However, § 242.72 creates a contradiction by permitting leasing arrangements to comply with certain state laws that prohibit public hospitals from mortgaging their property. Under such arrangements, the mortgagor of record is an entity (which may be created solely for the purpose of enabling the financing to take place) that does not “possess the powers necessary and incidental to operating a hospital”. The mortgagor simply serves as the owner, and it is the lessee-operator who possesses those powers. This amendment therefore removes any possible contradiction. • 24 CFR 242.23 (Maximum Mortgage Amounts and Cash Equity Requirements). Where excess cash equity is needed, section 242(d)(6) of the National Housing Act (12 U.S.C. 1715z-7(d)(6)), entitles the mortgagor to fund the excess with a letter of credit at the option of the mortgagee. This is the mortgagee's option, not an option of HUD, but the November 28, 2007, final rule inadvertently presents this option as HUD's option. This rule corrects that error. • 24 CFR 242.23, 242.35, 242.52, and 242.90 (Reference to “Rehabilitation”). The rule contains several references to the term “rehabilitation.” The program insures “substantial rehabilitation” in addition to new construction and, therefore, references to the term “rehabilitation” are generally in the context of “substantial rehabilitation.” Therefore, to avoid any possible ambiguity where the term “rehabilitation” is used alone, the term “substantial” has been added to precede this term wherever it appears. • 24 CFR 242.33 (Covenant for Malpractice, Fire, and Other Hazard Insurance). Section 242.33 requires that the hospital have insurance coverage “acceptable to the mortgagee and HUD.” The amendment removes the word “and” from this phrase and substitutes the word “or.” The final rule did not intend to place the evaluation of acceptable insurance solely on the mortgagee. This amendment therefore provides the mortgagee with the option of assuming responsibility to determine the adequacy of insurance coverage, or leaving such determination to HUD. • 24 CFR 50 (Funds and Finances: Off-Site Utilities and Streets). The November 2007 final rule inadvertently omitted “letter of credit” and use of a letter of credit has been a longstanding practice in this program. This rule corrects that omission. • 24 CFR 242.56 (Form of Regulation). HUD amends this section to add a new sentence at the section's end which would restore a provision consistent with longstanding practice. This amendment relates to the issue of leasing, which is addressed in §§ 242.10 and 242.72. When leasing is permitted under § 242.72, it is the lessee that operates the hospital and whose financial results determine whether or not there is an insurance claim. HUD's established practice, prior to the final rule, has been to have the lessee, as well as the mortgagor of record, sign the Regulatory Agreement and be governed by its provisions. HUD did not intend for the revisions to §§ 242.10 and 242.72 to cause a departure from established practice. • 24 CFR 242.58 (Books, Accounts, and Financial Statements). Paragraph
(c)of this regulatory section describes the organizations that are subject to audit. While paragraph (c)(1) references not-for-profit organizations, this paragraph inadvertently omits reference to state and local governments, which have long been among those organizations that are audited in accordance with the Consolidated Audit Guide for Audits of HUD Programs and OMB Circular A-133, which authorities are referenced in paragraph (c)(1). This rule corrects that omission. Additionally, a new paragraph
(h)is added for the same reasons provided in the amendment to § 242.56. • 24 CFR 242.61 (Management). Section 242.61(a) requires HUD's written approval before a mortgagor can execute a contract for management of the hospital. This technical correction makes explicit that this approval requirement refers to the management of the hospital, not to management of specific components of the hospital such as the pharmacy, cafeteria, etc. Findings and Certifications Justification for Final Rulemaking In general, the Department publishes a rule for public comment before issuing a rule for effect, in accordance with its own regulations on rulemaking, 24 CFR part 10. However, part 10 does provide for exceptions from that general rule where the agency finds good cause to omit advance notice and public participation. The good cause requirement is satisfied when prior public procedure is “impracticable, unnecessary, or contrary to the public interest” (24 CFR 10.1). In this case, public comment is unnecessary because HUD is making only technical corrections and clarifying amendments to a previously published final rule. Regulatory Flexibility Act The undersigned, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed and approved this rule, and in so doing certified that this rule will not have a significant economic impact on a substantial number of small entities. This rule only makes technical corrections and clarifying amendments to a previously published final rule. Environmental Impact A Finding of No Significant Impact with respect to the environment was made in connection with this rulemaking in accordance with HUD regulations at 24 CFR part 50, which implement section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)). The Finding of No Significant Impact remains applicable, and is available for public inspection between 8 a.m. and 5 p.m. weekdays in the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 10276, Washington, DC 20410-5000. Executive Order 13132, Federalism Executive Order 13132 (entitled “Federalism”) prohibits, to the extent practicable and permitted by law, an agency from promulgating a regulation that has federalism implications and either imposes substantial direct compliance costs on state and local governments and is not required by statute, or preempts state law, unless the relevant requirements of section 6 of the Executive Order are met. This final rule does not have federalism implications and does not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive Order. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
(UMRA)establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments, and on the private sector. This final rule does not impose any federal mandates on any state, local, or tribal government, or on the private sector, within the meaning of UMRA. List of Subjects in 24 CFR Part 242 Hospitals, Mortgage insurance, Reporting and recordkeeping requirements. Accordingly, for the reasons described in the preamble, HUD amends 24 CFR part 242 to read as follows: PART 242—MORTGAGE INSURANCE FOR HOSPITALS 1. The authority citation is revised to read: Authority: 12 U.S.C. 1709, 1710, 1715b, 1715u, and 1715z-7; 42 U.S.C. 3535d. Subpart A—General Eligibility Requirements 2. Amend § 242.1 by revising the definitions of “chronic convalescent and rest,” “construction,” “mortgagee or lender” and first sentence of the definition of “surplus cash,” to read as follows: § 242.1 Definitions. *Chronic convalescent and rest* means skilled nursing services, intermediate care services, respite care services, hospice services, and other services of a similar nature. *Construction* means the creation of a new or replacement hospital facility, or the substantial rehabilitation of an existing facility. The cost of acquiring new or replacement equipment may be included in the cost of construction. * * * *Mortgagee or lender* means the applicant for insurance or the original lender under a mortgage. * * * *Surplus Cash* means any cash remaining after all of the following conditions have been met: 3. Revise the second sentence of § 242.10 as follows: § 242.10 Eligible mortgagors. * * * The mortgagor shall be approved by HUD and, except in those cases where the hospital is leased as permitted in § 242.72, shall possess the powers necessary and incidental to operating a hospital. * * * Subpart B—Application Procedures and Commitments 4. Revise § 242.23(a) and the last sentence of paragraph
(c)to read as follows: § 242.23 Maximum mortgage amounts and cash equity requirements.
(a)*Adjusted mortgage amount-rehabilitation projects.* A mortgage financing the substantial rehabilitation of an existing hospital shall be subject to the following limitations, in addition to those set forth in § 242.7:
(1)*Property held unencumbered.* If the mortgagor is the fee simple owner of the property and the property is not encumbered by an outstanding indebtedness, the mortgage shall not exceed 100 percent of HUD's estimate of the cost of the proposed substantial rehabilitation.
(2)*Property subject to existing mortgage.* If the mortgagor owns the property subject to an outstanding indebtedness, which is to be refinanced with part of the insured mortgage, the mortgage shall not exceed the total of the following:
(i)The Commissioner's estimate of the cost of substantial rehabilitation, plus
(ii)Such portion of the outstanding indebtedness as does not exceed 90 percent of HUD's estimate of the fair market value of such land and improvements prior to substantial rehabilitation.
(3)*Property to be acquired.* If the property is to be acquired by the mortgagor and the purchase price is to be financed with a part of the insured mortgage, the mortgage shall not exceed 90 percent of the total of the following:
(i)The Commissioner's estimate of the cost of substantial rehabilitation, plus
(ii)The actual purchase price of the land and improvements or HUD's estimate (prior to substantial rehabilitation) of the fair market value of such land and improvements, whichever is the lesser. * * *
(c)*Cash equity.* * * *. A private nonprofit or public mortgagor, but not a proprietary mortgagor, at the mortgagee's option and subject to 24 CFR 242.49, may provide any such required equity in the form of a letter of credit. Subpart C—Mortgage Requirements 5. Revise § 242.33 to read as follows: § 242.33 Covenant for malpractice, fire, and other hazard insurance. The mortgage shall contain a covenant binding the mortgagor to maintain adequate liability, fire, and extended coverage insurance on the property. The mortgage shall also contain a covenant binding the mortgagor to maintain adequate malpractice coverage. All coverage shall be acceptable to the mortgagee or HUD. 6. Revise § 242.35(d) to read as follows: § 242.35 Mortgage lien certifications.
(d)The mortgagor has notified HUD in writing of all unpaid obligations in connection with the mortgage transaction, the purchase of the mortgaged property, the construction or substantial rehabilitation of the project, or the purchase of the equipment financed with mortgage proceeds. Subpart E—Construction 7. Revise the second sentence of § 242.50 to read as follows: § 242.50 Funds and finances: off-site utilities and streets. * * * Where such assurance is required, it shall be in the form of a cash escrow deposit, a letter of credit, the retention of a specified amount of mortgage proceeds by the mortgagee, or a combination thereof. 8. Revise § 242.52(a) to read as follows: § 242.52 Construction contracts.
(a)*Awarding of contract.* A contract for the construction or substantial rehabilitation of a hospital shall be entered into by a mortgagor, with a builder selected by a competitive bidding procedure acceptable to HUD. Subpart G—Regulatory Agreement, Accounting and Reporting, and Financial Requirements 9. Amend § 242.56 by adding a new sentence at the end of the section to read as follows: § 242.56 Form of regulation. * * * In those cases in which the hospital facility is leased as permitted by § 242.72, the provisions of this section also shall apply to the lessee. 10. Revise § 242.58(c)(1) and add a new paragraph
(h)to read as follows: § 242.58 Books, accounts, and financial statements.
(c)* * *
(1)Not-for-profit and state and local governments shall conduct audits in accordance with the Consolidated Audit Guide for Audits of HUD Programs (Handbook 2000.04) and OMB Circular A-133 (Audits of states, local governments, and nonprofit organizations). * * *
(h)In those cases in which the hospital facility is leased as permitted by § 242.72, the requirements pertaining to the mortgagor in § 242.58
(a)through
(g)also shall pertain to the lessee. 11. Revise § 242.61(a) to read as follows: § 242.61 Management. * * *
(a)*Contract Management of Hospital.* The mortgagor shall not execute a management agreement or any other contract for management of the hospital without HUD's prior written approval. (Management of the hospital, which requires HUD's prior written approval, refers to management of the hospital not management of components within the hospital such as the hospital cafeteria or hospital pharmacy.) Any management agreement or contract for management of the hospital shall contain a provision that it shall be subject to termination without penalty and with or without cause, upon written request by HUD addressed to the mortgagor and management agent. Subpart H—Miscellaneous Requirements 12. Revise § 242.90(a) to read as follows: § 242.90 Eligibility of mortgages covering hospitals in certain neighborhoods.
(a)A mortgage financing the repair, substantial rehabilitation, or construction of a hospital located in an older declining urban area shall be eligible for insurance under this subpart, subject to compliance with the additional requirements of this section. Dated: June 16, 2008. Brian D. Montgomery, Assistant Secretary for Housing-Federal Housing Commissioner. [FR Doc. E8-14131 Filed 6-24-08; 8:45 am] BILLING CODE 4210-67-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [Docket No. USCG-2008-0163] RIN 1625-AA08 Special Local Regulations for Marine Events; Marine Events in San Diego Harbor AGENCY: Coast Guard, DHS. ACTION: Notice of enforcement of regulation. SUMMARY: The Coast Guard will enforce the special local regulations in 33 CFR 100.1101 during the Coronado 4th of July Fireworks Display, to be held 8:30 p.m. to 10 p.m. on July 4, 2008, on the waters of San Diego Bay, San Diego, California. These special local regulations are necessary to provide for the safety of the participants, crew, spectators, sponsor vessels of the race, and general users of the waterway. Persons and vessels are prohibited from entering into, transiting through, or anchoring within this safety zone unless authorized by the Captain of the Port, or his designated representative. DATES: 33 CFR 100.1101 will be enforced on July 4, 2008 from 8:30 p.m. until 10 p.m. FOR FURTHER INFORMATION CONTACT: Petty Officer Kristen Beer, USCG, c/o U.S. Coast Guard Captain of the Port, at
(619)278-7277. SUPPLEMENTARY INFORMATION: The Coast Guard will enforce special local regulations
(SLR)on the navigable waters of Glorietta Bay in support of the Coronado July 4th Fireworks Show on July 4, 2008, from 8:30 p.m. until 10 p.m. These SLR will encompass a 100-foot radius around and under each fireworks barge while the fireworks barge is towed to its firing position. Once the barge is in position for the fireworks show, the SLR will be increased to a 500-yard radius around the barge. In order to ensure the safety of participants, spectators and transiting vessels, 33 CFR 100.1101 will be enforced for the duration of the event. Under provisions of 33 CFR 100.1101, vessels would be prohibited from entering into, transiting through or anchoring within the SLR without permission of the Coast Guard Patrol Commander. In addition to this notice, the maritime community will be provided extensive advance notification via the Local Notice to Mariners allowing mariners to adjust their plans accordingly. Dated: June 10, 2008. C.V. Strangfeld, Captain, U.S. Coast Guard, Captain of the Port, Sector San Diego. [FR Doc. E8-14351 Filed 6-24-08; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2008-0463] RIN 1625-AA00 Safety Zone: Founder's Day Fireworks Event, Chesapeake Bay, Hampton, VA AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is establishing a 350-foot radius safety zone on the Chesapeake Bay in Hampton, VA, to support the Founder's Day Fireworks Event. This action is intended to restrict vessel traffic movement to protect mariners from the hazards associated with fireworks displays. DATES: This rule is effective from 9 p.m. to 10 p.m. on July 9, 2008. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket USCG-2008-0463 and are available online at *www.regulations.gov* . They are also available for inspection or copying in two locations: The Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays; and the Sector Hampton Roads, Norfolk Federal Building, 200 Granby St., 7th Floor, Norfolk, VA 23510 between 9 a.m. and 2 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: If you have questions on this temporary rule, call LT Bill Clark, Chief Waterways Management Division, Sector Hampton Roads at
(757)668-5580. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826. SUPPLEMENTARY INFORMATION: Regulatory Information The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act
(APA)(5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking
(NPRM)with respect to this rule because any delay encountered in this regulation's effective date by publishing a NPRM would be contrary to public interest since immediate action is needed to provide for the safety of life and property on navigable waters. Additionally, this temporary safety zone will only be enforced for 1 hour on July 09, 2008, and should have minimal impact on vessel transits due to the fact that vessels can safely transit through the zone when authorized by the Captain of the Port or his Representative and that they are not precluded from using any portion of the waterway except the safety zone area itself. For the same reasons above, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the **Federal Register** . Background and Purpose On July 09, 2008, the City of Hampton, VA, will sponsor a fireworks display on the Chesapeake Bay shoreline centered on position 37°02′23.27″ N/076°17′22.54″ W (NAD 1983). Due to the need to protect mariners and spectators from the hazards associated with the fireworks display, access will be temporarily restricted within 350 feet of the fireworks launch site. Discussion of Rule The Coast Guard is establishing a safety zone on the navigable waters of the Chesapeake Bay within 350 feet of position 37°02′23.27″ N/076°17′22.54″ W (NAD 1983). This safety zone will be established in the vicinity of the Buckroe Beach Park, Pier One in Hampton, VA, from 9 p.m. to 10 p.m. on July 9, 2008. In the interest of public safety, access within the safety zone will be restricted during the specified date and times. Except for participants and vessels authorized by the Coast Guard Captain of the Port or his representative, no person or vessel may enter or remain in the regulated area. Regulatory Analyses We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders. Regulatory Planning and Review This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. Although this regulation restricts access to the safety zone, the effect of this rule will not be significant because:
(i)The safety zone will be in effect for a limited duration;
(ii)the safety zone if of limited size; and
(iii)the Coast Guard will make notifications via maritime advisories so mariners can adjust their plans accordingly. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in this portion of the Chesapeake Bay between 9 p.m. and 10 p.m. on July 9, 2008. The safety zone will not have a significant economic impact on a substantial number of small entities because the zone will only be enforced for limited times and is of limited size. Additionally, vessel traffic can pass safely around the zone. Before the effective period, maritime advisories will be issued and made widely available to waterway users. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have concluded, under the instruction that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. A final environmental analysis checklist and a final categorical exclusion determination will be available in the docket where indicated under ADDRESSES . List of Subjects 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, and Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6 and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1 2. Add temporary § 165.T05-0463, to read as follows: § 165.T05-0463 Safety Zone: Founder's Day Fireworks Event, Chesapeake Bay, Hampton, VA.
(a)Location. The following area is a safety zone: All navigable waters of the Captain of the Port Sector Hampton Roads zone, as defined in 33 CFR 3.25-10, in the vicinity of Buckroe Beach Pier One located in Hampton, VA, within 350 feet of position 37°02′23.27″ N/076°17′22.54″ W (NAD 1983).
(b)Definition:
(1)As used in this section; Captain of the Port Representative means any U.S. Coast Guard commissioned, warrant or petty officer who has been authorized by the Captain of the Port Hampton Roads, Virginia to act on his behalf.
(c)Regulation:
(1)In accordance with the general regulations in § 165.23 of this part, entry into this zone is prohibited unless authorized by the Captain of the Port Hampton Roads or his designated representatives.
(2)The operator of any vessel in the immediate vicinity of this safety zone shall:
(i)Stop the vessel immediately upon being directed to do so by any commissioned, warrant or petty officer on shore or on board a vessel that is displaying a U.S. Coast Guard Ensign.
(ii)Proceed as directed by any commissioned, warrant or petty officer on shore or on board a vessel that is displaying a U.S. Coast Guard Ensign.
(3)The Captain of the Port Hampton Roads and the Sector Duty Officer at Sector Hampton Roads in Portsmouth, Virginia can be contacted at telephone number
(757)668-5555 or
(757)484-8192.
(4)The Captain of the Port Representative enforcing the safety zone can be contacted on VHF-FM marine band radio, channel 13 (156.65 Mhz) and channel 16 (156.8 Mhz).
(d)Enforcement Period: This regulation will be enforced from 9 p.m. to 10 p.m. on July 9, 2008. Dated: June 13, 2008. Patrick B. Trapp, Captain, U.S. Coast Guard, Captain of the Port Hampton Roads. [FR Doc. E8-14350 Filed 6-24-08; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2008-0065] RIN 1625-AA00 Safety Zone: Stars and Stripes Fourth of July Fireworks Event, Nansemond River, Suffolk, VA AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is establishing a safety zone on the Nansemond River in Suffolk, VA in support of the Stars and Stripes Fourth of July Fireworks event. This action is intended to restrict vessel traffic movement on the Nansemond River to protect mariners from the hazards associated with fireworks displays. DATES: This rule is effective from 9 p.m. until 10 p.m. on July 4, 2008. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket USCG-2008-0065 and are available online at *www.regulations.gov* . They are also available for inspection or copying in two locations: the Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays; and the Sector Hampton Roads, Norfolk Federal Building, 200 Granby St., 7th Floor, Norfolk, VA 23510 between 9 a.m. and 2 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: If you have questions on this temporary rule, call LT Bill Clark, Chief Waterways Management Division, Sector Hampton Roads at
(757)668-5580. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826. SUPPLEMENTARY INFORMATION: Regulatory Information On March 31, 2008, we published a notice of proposed rulemaking
(NPRM)entitled Safety Zone: Stars and Stripes Fourth of July Fireworks Event, Nansemond River, Suffolk, VA in the **Federal Register** (73 FR 16809). We received no comments on the proposed rule. No public meeting was requested, and none was held. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the **Federal Register** . Delaying the effective date of this rule would be contrary to public interest since immediate action is needed to provide for the safety of life and property on navigable waters. Additionally, this temporary safety zone will only be enforced for a limited time and is of a limited size, the zone should have minimal impact on the public due to the fact that vessels can safely transit through the zone when authorized by the Captain of the Port or his Representative, the public is not precluded from using any portion of the waterway except the safety zone area itself. Background and Purpose On July 04, 2008, Suffolk Parks and Recreation will sponsor a fireworks display along the shoreline in position 36°44′27.3″N/76°34′42″ W (NAD 1983). Due to the need to protect the maritime public from the hazards associated with the fireworks display, access will be temporarily restricted within 600 feet of the fireworks launch site. Discussion of Rule The Coast Guard is establishing a safety zone on specified waters of the Nansemond River in the vicinity of Constant's Wharf in Suffolk, VA. This safety zone will encompass all navigable waters within 600 feet of the fireworks barge located in position 36°-44′-27.3″N/076°-34′-42″ W (NAD 1983). This regulated area will be established in the interest of public safety during the Stars and Stripes spectacular event and will be enforced from 9 p.m. to 10 p.m. on July 04, 2008. Access within the safety zone will be restricted during the specified date and times. Except for those authorized by the Coast Guard Captain of the Port or his representative, no person or vessel may enter or remain in the regulated area. Discussion of Comments and Changes No comments were received for this proposed rule. Two changes were made from the original proposal. These changes reduce the time that this regulated area will be enforced by three hours and expands the size of the zone by 100 feet. Regulatory Analyses We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders. Regulatory Planning and Review This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. Although this regulation restricts access to the safety zone, the effect of this rule will not be significant because:
(i)The safety zone will be in effect for a limited duration;
(ii)the zone is of limited size; and
(iii)the Coast Guard will make notifications via maritime advisories so mariners can adjust their plans accordingly. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in the specified zone area during the enforcement period. The safety zone will not have a significant economic impact on a substantial number of small entities because the zone will only be enforced for limited times and is of limited size. Additionally, vessel traffic can pass safely around the zone. Before the effective period, maritime advisories will be issued and made widely available to waterway users. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), in the NPRM we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. A final environmental analysis checklist and a final categorical exclusion determination are available in the docket where indicated under ADDRESSES . List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, and Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6 and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. Add temporary § 165.T05-0065, to read as follows: § 165.T05-0065 Safety Zone: Stars and Stripes Fourth of July Fireworks Event, Nansemond River, Suffolk, VA.
(a)Location. The following area is a safety zone: All navigable waters of the Nansemond River, located within 600 feet of position 36°-44′-27.3″ N/076°-34′-42″ W (NAD 1983) in the vicinity of Constant's Wharf, Suffolk, VA in the Captain of the Port Sector Hampton Roads zone as defined in 33 CFR 3.25-10.
(b)Definition:
(1)As used in this section; Captain of the Port Representative means any U.S. Coast Guard commissioned, warrant or petty officer who has been authorized by the Captain of the Port Hampton Roads, Virginia to act on his behalf.
(c)Regulation:
(1)In accordance with the general regulations in § 165.23 of this part, entry into this zone is prohibited unless authorized by the Captain of the Port Hampton Roads or his designated representatives.
(2)The operator of any vessel in the immediate vicinity of this safety zone shall:
(i)Stop the vessel immediately upon being directed to do so by any commissioned, warrant or petty officer on shore or on board a vessel that is displaying a U.S. Coast Guard Ensign.
(ii)Proceed as directed by any commissioned, warrant or petty officer on shore or on board a vessel that is displaying a U.S. Coast Guard Ensign.
(3)The Captain of the Port Hampton Roads and the Sector Duty Officer at Sector Hampton Roads in Portsmouth, Virginia can be contacted at telephone number
(757)668-5555 or
(757)484-8192.
(4)The Captain of the Port Representative enforcing the safety zone can be contacted on VHF-FM marine band radio, channel 13 (156.65 MHz) and channel 16 (156.8 MHz).
(d)Effective Period: This regulation will be effective from 9 p.m. to 10 p.m. on July 4, 2008. Dated: June 13, 2008. Patrick B. Trapp, Captain, U.S. Coast Guard, Captain of the Port, Hampton Roads. [FR Doc. E8-14348 Filed 6-24-08; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2008-0449] RIN 1625-AA00 Safety Zone; Paradise Point Resort 4th of July Display; Mission Bay, San Diego, CA. AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is establishing a temporary safety zone on the navigable waters of Mission Bay in support of the Paradise Point Resort 4th of July Display. The safety zone is necessary to provide for the safety of the crew, spectators, participants of the event, participating vessels and other vessels and users of the waterway. Persons and vessels are prohibited from entering into, transiting through, or anchoring within this safety zone unless authorized by the Captain of the Port, or his designated representative. DATES: This rule is effective from 8:30 p.m. until 10 p.m. on July 3, 2008. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket USCG-2008-0449 and are available online at *www.regulations.gov* . They are also available for inspection or copying two locations: The Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays, and at Coast Guard Sector San Diego, 2710 N. Harbor Drive, San Diego, CA 92101-1064 between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Petty Officer Kristen Beer, Waterways Management, U.S. Coast Guard Sector San Diego, CA at telephone
(619)278-7233. SUPPLEMENTARY INFORMATION: Regulatory Information We did not publish a notice of proposed rulemaking
(NPRM)for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Final approval and permitting of this event were not issued in time to engage in full notice and comment rulemaking. Publishing an NPRM and delaying the effective date would be contrary to the public interest since the event would occur before the rulemaking process was complete. Under 5 U.S.C. 553(d)(3), the Coast Guard also finds that good cause exists for making this rule effective less than 30 days after publication in the **Federal Register** . In addition, it would be contrary to the public interest not to publish this rule because the event has been permitted and participants and the public require protection. Background and Purpose The Coast Guard is establishing, pursuant to 33 U.S.C. 1225, a temporary safety zone in support of the Paradise Point Resort 4th of July Display, near the navigation channel of Mission Bay off of Paradise Point. The safety zone is comprised of a 450 foot radius located around an anchored firing barge. This temporary safety zone is necessary to provide for the safety of the show's crew, spectators, participants of the event, participating vessels and other vessels and users of the waterway. Persons and vessels are prohibited from entering into, transiting through, or anchoring within this safety zone unless authorized by the Captain of the Port, or his designated representative. Discussion of Rule The Coast Guard establishes this temporary rule, pursuant to 33 U.S.C. 1225, to provide for the safety of the participants, spectators and other users of the waterways. This safety zone will be effective from 8:30 p.m. until 10 p.m. on July 3, 2008. This temporary safety zone is necessary to ensure the safety of participants and spectators of the Paradise Point Resort 4th of July Display. The duration of the display is expected to be approximately 15-20 minutes. The event involves one anchored barge, which will be used as a platform for launching of fireworks. The limits of this temporary safety zone include all areas within a 450 feet radius of the firing barge's location. The barge will be located approximately 450 feet southwest of Paradise Point in Mission Bay. This temporary safety zone is necessary to provide for the safety of the crews, spectators, participants of the event, participating vessels and other vessels and users of the waterway. Persons and vessels are prohibited from entering into, transiting through, or anchoring within this safety zone unless authorized by the Captain of the Port, or his designated representative. U.S. Coast Guard personnel will enforce this safety zone. Other Federal, State, or local agencies may assist the Coast Guard, including the Coast Guard Auxiliary. Section 165.23 of Title 33, Code of Federal Regulations, prohibits any unauthorized person or vessel from entering or remaining in a safety zone. Vessels or persons violating this section will be subject to the penalties set forth in 33 U.S.C. 1232. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. Due to the temporary safety zone's short duration of one and a half hours, its limited scope of implementation, and because vessels will have an opportunity to request authorization to transit through the zone or the vessels may safely travel around the zone, the Coast Guard expects the economic impact of this rule to be so minimal that full regulatory evaluation under paragraph 10(e) of the regulatory policies and procedures of the DHS is unnecessary. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in a portion of Mission Bay from 8:30 p.m. to 10 p.m. on July 3, 2008. This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: The safety zone only encompasses a small portion of the waterway, it is short in duration at a late hour when commercial traffic is low, vessels may safely travel around the safety zone, and the Captain of the Port may authorize entry into the zone, if necessary. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. If your small business or organization is affected by this rule and you have questions concerning its provisions or options for compliance, please contact Petty Officer Kristen Beer, U.S. Coast Guard Sector San Diego at
(619)278-7233. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have concluded, under the Instruction, that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation because it establishes a safety zone. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES . List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, and waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for Part 165 continues to read as follows: Authority: 33 U.S.C. 1225, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. Add § 165.T11-044 to read as follows: § 165.T11-044 Safety Zone; the Paradise Point Resort 4th of July Display; Mission Bay, CA.
(a)*Location.* The limits of the temporary safety zones include all areas within an 450 feet radius located around an anchored barge. The barge will be anchored approximately 450 feet southwest of Paradise Point in Mission Bay.
(b)*Effective Period.* This safety zone will be in effect from 8:30 p.m. until 10 p.m. on July 3, 2008. If the display concludes prior to the scheduled termination time, the Captain of the Port or his designated representative will cease enforcement of this safety zone and will announce that fact via Broadcast Notice to Mariners.
(c)*Regulations.* In accordance with the general regulations in § 165.23 of this part, entry into, transit through, or anchoring within this zone by all vessels is prohibited, unless authorized by the Captain of the Port, or his designated representative. Mariners requesting permission to transit through the safety zone may request authorization to do so from the U.S. Coast Guard Patrol Commander. The U.S. Coast Guard Patrol Commander may be contacted via VHF-FM Channel 16.
(d)*Enforcement.* All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated on-scene patrol personnel. Patrol personnel can be comprised of commissioned, warrant, and petty officers of the Coast Guard onboard Coast Guard, Coast Guard Auxiliary, local, state, and federal law enforcement vessels. Upon being hailed by U.S. Coast Guard patrol personnel by siren, radio, flashing light, or other means, the operator of a vessel shall proceed as directed. The Coast Guard may be assisted by other federal, state, or local agencies. Dated: June 10, 2008. C.V. Strangfeld, Captain, U.S. Coast Guard, Captain of the Port. [FR Doc. E8-14364 Filed 6-24-08; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2008-0472] RIN 1625-AA00 Safety Zone: Fourth of July Fireworks Event, Pagan River, Smithfield, VA AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is establishing a 420 foot radius safety zone on the Pagan River in Smithfield, VA in support of the Fourth of July Fireworks event. This action is intended to restrict vessel traffic movement to protect mariners from the hazards associated with fireworks displays. DATES: This rule is effective from 9 p.m. to 10 p.m. on July 3, 2008. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket USCG-2008-0472 and are available online at *www.regulations.gov* . They are also available for inspection or copying in two locations: The Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays; and the Sector Hampton Roads, Norfolk Federal Building, 200 Granby St., 7th Floor, Norfolk, VA 23510 between 9 a.m. and 2 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: If you have questions on this temporary rule, call LT Bill Clark, Chief Waterways Management Division, Sector Hampton Roads at
(757)668-5580. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826. SUPPLEMENTARY INFORMATION: Regulatory Information The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act
(APA)(5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking
(NPRM)with respect to this rule because any delay encountered in this regulation's effective date by publishing a NPRM would be contrary to public interest since immediate action is needed to provide for the safety of life and property on navigable waters. Additionally, this temporary safety zone will only be enforced for 1 hour on July 03, 2008 and should have minimal impact on vessel transits due to the fact that vessels can safely transit through the zone when authorized by the Captain of the Port or his Representative and that they are not precluded from using any portion of the waterway except the safety zone area itself. For the same reasons above, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the **Federal Register** . Background and Purpose On July 3, 2008, the Isle of Wight County, VA will sponsor a fireworks display on the Pagan River shoreline centered on position 36°59′18.26″ N/076°37′44.74″ W (NAD 1983). Due to the need to protect mariners and spectators from the hazards associated with the fireworks display, vessel traffic will be temporarily restricted within 420 feet of the fireworks launch site. Discussion of Rule The Coast Guard is establishing a safety zone on the navigable waters of the Pagan River within the area bounded by a 420 foot radius circle centered on position 36°59′18.26″ N/076°37″44.74″ W (NAD 1983). This safety zone will be established in the vicinity of Smithfield, VA from 9 p.m. to 10 p.m. on July 3, 2008. In the interest of public safety, general navigation within the safety zone will be restricted during the specified date and times. Except for participants and vessels authorized by the Coast Guard Captain of the Port or his representative, no person or vessel may enter or remain in the regulated area. Regulatory Analyses We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders. Regulatory Planning and Review This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. Although this regulation restricts access to the safety zone, the effect of this rule will not be significant because:
(i)The safety zone will be in effect for a limited duration;
(ii)the zone is of limited size; and
(iii)the Coast Guard will make notifications via maritime advisories so mariners can adjust their plans accordingly. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in a portion of the Pagan River between 9 p.m. and 10 p.m. on July 3, 2008. The safety zone will not have a significant economic impact on a substantial number of small entities because the zone will only be enforced for limited times and is of limited size. Additionally, vessel traffic can pass safely around the zone. Before the effective period, maritime advisories will be issued and made widely available to waterway users. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. A final environmental analysis checklist and a final categorical exclusion determination will be available in the docket where indicated under ADDRESSES . List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, and Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6 and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. Add temporary § 165.T05-0472, to read as follows: § 165.T05-0472 Safety Zone: Fourth of July Fireworks Event, Pagan River, Smithfield, VA.
(a)Location. The following area is a safety zone: All navigable waters of the Captain of the Port Hampton Roads zone, as defined in 33 CFR 3.25-10, in the vicinity of Clontz Park in Smithfield, VA, and within 420 feet of position 36°59′18.26″ N/076°37′44.74″ W (NAD 1983).
(b)Definition:
(1)As used in this section; Captain of the Port Representative means any U.S. Coast Guard commissioned, warrant or petty officer who has been authorized by the Captain of the Port Hampton Roads, Virginia to act on his behalf.
(c)Regulation:
(1)In accordance with the general regulations in § 165.23 of this part, entry into this zone is prohibited unless authorized by the Captain of the Port Hampton Roads or his designated representatives.
(2)The operator of any vessel in the immediate vicinity of this safety zone shall:
(i)Stop the vessel immediately upon being directed to do so by any commissioned, warrant or petty officer on shore or on board a vessel that is displaying a U.S. Coast Guard Ensign.
(ii)Proceed as directed by any commissioned, warrant or petty officer on shore or on board a vessel that is displaying a U.S. Coast Guard Ensign.
(3)The Captain of the Port Hampton Roads and the Sector Duty Officer at Sector Hampton Roads in Portsmouth, Virginia can be contacted at telephone number
(757)668-5555 or
(757)484-8192.
(4)The Captain of the Port Representative enforcing the safety zone can be contacted on VHF-FM marine band radio, channel 13 (156.65 MHz) and channel 16 (156.8 MHz).
(d)Effective Period: This regulation will be effective from 9 p.m. to 10 p.m. on July 3, 2008. Dated: June 13, 2008. Patrick B. Trapp, Captain, U.S. Coast Guard, Captain of the Port, Hampton Roads. [FR Doc. E8-14365 Filed 6-24-08; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2008-0471] RIN 1625-AA00 Safety Zone: 31st Annual Virginia Lakes Festival Fireworks Event, John H. Kerr Lake, Clarksville, VA AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is establishing a 700-foot radius safety zone on John H. Kerr Lake in the vicinity of the Highway 58 Business Bridge in Clarksville, VA in support of the 31st Annual Virginia Lakes Festival Fireworks Display. This action is intended to restrict vessel traffic movement to protect mariners from the hazards associated with the fireworks display. DATES: This rule is effective from 9 p.m. to 10 p.m. on July 19, 2008. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket USCG-2008-0471 and are available online at *www.regulations.gov* . They are also available for inspection or copying in two locations: The Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays; and the Sector Hampton Roads, Norfolk Federal Building, 200 Granby St., 7th Floor, Norfolk, VA 23510 between 9 a.m. and 2 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: If you have questions on this temporary rule, call LT Bill Clark, Chief Waterways Management Division, Sector Hampton Roads at
(757)668-5580. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826. SUPPLEMENTARY INFORMATION: Regulatory Information The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act
(APA)(5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking
(NPRM)with respect to this rule because any delay encountered in this regulation's effective date by publishing a NPRM would be contrary to public interest since immediate action is needed to provide for the safety of life and property on navigable waters. Additionally, this temporary safety zone will only be enforced for 1 hour on July 19, 2008 and should have minimal impact on vessel transits due to the fact that vessels can safely transit through the zone when authorized by the Captain of the Port or his representative and that they are not precluded from using any portion of the waterway except the safety zone area itself. For the same reasons above, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the **Federal Register** . Background and Purpose On July 19, 2008, Clarksville Lake County Chamber of Commerce of Clarksville, VA will sponsor a fireworks display centered on the Highway 58 Bridge in Clarksville, VA in position 36°37′51″ N/078°32′50″ W (NAD 1983). Due to the need to protect mariners and spectators from the hazards associated with the fireworks display, vessel traffic will be temporarily restricted within 700-feet of the fireworks launch site. Discussion of Rule The Coast Guard is establishing a safety zone on specified waters of John H. Kerr Lake within the area bounded by a 700-foot radius circle centered on position 36°37′51″ N/078°32′50″ W (NAD 1983) in the vicinity of Highway 58 Business Bridge in Clarksville, VA. This safety zone will be established in the interest of public safety during the 31st Annual Virginia Lakes Festival Fireworks event and will be enforced from 9 p.m. to 10 p.m. on July 19, 2008. General navigation within the safety zone will be restricted during the specified date and times. Except for participants and vessels authorized by the Coast Guard Captain of the Port or his representative, no person or vessel may enter or remain in the regulated area. Regulatory Analyses We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders. Regulatory Planning and Review This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. Although this regulation restricts access to the safety zone, the effect of this rule will not be significant because:
(i)The safety zone will be in effect for a limited duration; and
(ii)the Coast Guard will make notifications via maritime advisories so mariners can adjust their plans accordingly. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in this portion of John H. Kerr Lake between 9 p.m. and 10 p.m. on July 19, 2008. The safety zone will not have a significant economic impact on a substantial number of small entities because the zone will only be enforced for limited times and is of limited size. Additionally, vessel traffic can pass safely around the zone. Before the effective period, maritime advisories will be issued and made widely available to waterway users. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have concluded, under the instruction, that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. A final environmental analysis checklist and a final categorical exclusion determination will be available in the docket where indicated under ADDRESSES . List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, and Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6 and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. Add temporary § 165.T05-0471, to read as follows: § 165.T05-0471 Safety Zone: John H. Kerr Lake, Clarksville, VA.
(a)*Location.* The following area is a safety zone: All navigable waters of the Captain of the Port Sector Hampton Roads zone, as defined in 33 CFR 3.25-10, within 700 feet of position 36°37′51″ N/078°32′50″ W (NAD 1983) on John H. Kerr Lake near Clarksville, VA.
(b)*Definition:*
(1)As used in this section; Captain of the Port Representative means any U.S. Coast Guard commissioned, warrant or petty officer who has been authorized by the Captain of the Port Hampton Roads, Virginia to act on his behalf.
(c)*Regulation:*
(1)In accordance with the general regulations in § 165.23 of this part, entry into this zone is prohibited unless authorized by the Captain of the Port Hampton Roads or his designated representatives.
(2)The operator of any vessel in the immediate vicinity of this safety zone shall:
(i)Stop the vessel immediately upon being directed to do so by any commissioned, warrant or petty officer on shore or on board a vessel that is displaying a U.S. Coast Guard Ensign.
(ii)Proceed as directed by any commissioned, warrant or petty officer on shore or on board a vessel that is displaying a U.S. Coast Guard Ensign.
(3)The Captain of the Port Hampton Roads and the Sector Duty Officer at Sector Hampton Roads in Portsmouth, Virginia can be contacted at telephone number
(757)668-5555 or
(757)484-8192.
(4)The Captain of the Port Representative enforcing the safety zone can be contacted on VHF-FM marine band radio, channel 13 (156.65 MHz) and channel 16 (156.8 MHz).
(d)Enforcement Period: This regulation will be enforced from 9 p.m. to 10 p.m. on July 19, 2008. Dated: June 13, 2008. Patrick B. Trapp, Captain, U.S. Coast Guard, Captain of the Port, Hampton Roads. [FR Doc. E8-14366 Filed 6-24-08; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2008-0269] RIN 1625-AA00 Safety Zone; Mission Bay Yacht Club 4th of July Display; Mission Bay, San Diego, CA AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is establishing a temporary safety zone on the navigable waters of Mission Bay in support of the Mission Bay Yacht Club 4th of July Display near the navigation channel in the vicinity of Santa Clara Point. The safety zone is necessary to provide for the safety of the crew, spectators, and participants of the event, participating vessels and other vessels and users of the waterway. Persons and vessels are prohibited from entering into, transiting through, or anchoring within this safety zone unless authorized by the Captain of the Port, or his designated representative. DATES: This rule is effective from 8:30 p.m. until 10 p.m. on July 4, 2008. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket USCG-2008-0269 and are available online at *www.regulations.gov* . They are also available for inspection or copying two locations: The Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays, and at Coast Guard Sector San Diego, 2710 N. Harbor Drive, San Diego, CA 92101-1064 between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Petty Officer Kristen Beer, Waterways Management, U.S. Coast Guard Sector San Diego, CA at telephone
(619)278-7233. SUPPLEMENTARY INFORMATION: Regulatory Information We did not publish a notice of proposed rulemaking
(NPRM)for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Final approval and permitting of this event were not issued in time to engage in full notice and comment rulemaking. Publishing an NPRM and delaying the effective date would be contrary to the public interest since the event would occur before the rulemaking process was complete. Under 5 U.S.C. 553(d)(3), the Coast Guard also finds that good cause exists for making this rule effective less than 30 days after publication in the **Federal Register** . In addition, it would be contrary to the public interest not to publish this rule because the event has been permitted and participants and the public require protection. Background and Purpose The Coast Guard is establishing a temporary safety zone on the navigable waters of Mission Bay in support of the Mission Bay Yacht Club 4th of July Display. The safety zone is comprised of an 800-foot radius located around an anchored firing barge. This temporary safety zone is necessary to provide for the safety of the show's crew, spectators, and participants of the event, participating vessels and other vessels and users of the waterway. Persons and vessels are prohibited from entering into, transiting through, or anchoring within this safety zone unless authorized by the Captain of the Port or his designated representative. Discussion of Rule The Coast Guard establishes this temporary rule, pursuant to 33 U.S.C. 1225, to provide for the safety of the participants, spectators and other users of the waterways. This safety zone will be effective from 8 p.m. to 10 p.m. on July 4, 2008. This temporary safety zone is necessary to ensure the safety of participants and spectators of the Mission Bay Yacht Club 4th of July Display. The duration of the show is expected to be approximately 20-25 minutes. The event involves one anchored barge, which will be used as a platform for launching of fireworks. The limits of the temporary safety zones include all areas within an 800-foot radius around an anchored barge. The barge will be anchored at a location approximately 600 feet east of the Santa Clara Point. This temporary safety zone is necessary to provide for the safety of the crews, spectators, participants of the event, participating vessels and other vessels and users of the waterway. Persons and vessels are prohibited from entering into, transiting through, or anchoring within this safety zone unless authorized by the Captain of the Port, or his designated representative. U.S. Coast Guard personnel will enforce this safety zone. Other Federal, State, or local agencies may assist the Coast Guard, including the Coast Guard Auxiliary. § 165.23 of Title 33, Code of Federal Regulations, prohibits any unauthorized person or vessel from entering or remaining in a safety zone. Vessels or persons violating this section will be subject to the penalties set forth in 33 U.S.C. 1232. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. Due to the temporary safety zone's short duration of one and a half hours, its limited scope of implementation, and because vessels will have an opportunity to request authorization to transit through the zone or the vessels may safely travel around the zone, the Coast Guard expects the economic impact of this rule to be so minimal that full regulatory evaluation under paragraph 10(e) of the regulatory policies and procedures of the DHS is unnecessary. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in a portion of Mission Bay from 8:30 p.m. to 10 p.m. on July 4, 2008. This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: The safety zone only encompasses a small portion of the waterway, it is short in duration at a late hour when commercial traffic is low, vessels may safely travel around the safety zone, and the Captain of the Port may authorize entry into the zone, if necessary. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. If your small business or organization is affected by this rule and you have questions concerning its provisions or options for compliance, please contact Petty Officer Kristen Beer, U.S. Coast Guard Sector San Diego at
(619)278-7233. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have concluded, under the Instruction, that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation because it establishes a safety zone. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES . List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, and Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1225, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. Add § 165.T11-045 to read as follows: § 165.T11-045 Safety Zone: Mission Bay Yacht Club 4th of July Display; Mission Bay, San Diego, CA.
(a)*Location.* The limits of the temporary safety zones include all areas within an 800-foot radius around an anchored barge. The barge will be anchored at a location approximately 600 feet east of the Santa Clara Point.
(b)*Effective Period.* This safety zone will be in effect from 8:30 p.m. until 10 p.m. on July 4, 2008. If the display concludes prior to the scheduled termination time, the Captain of the Port or his designated representative will cease enforcement of this safety zone and will announce that fact via Broadcast Notice to Mariners.
(c)*Regulations.* In accordance with the general regulations in § 165.23 of this part, entry into, transit through, or anchoring within this zone by all vessels is prohibited, unless authorized by the Captain of the Port or his designated representative. Mariners requesting permission to transit through the safety zone may request authorization to do so from the U.S. Coast Guard Patrol Commander. The U.S. Coast Guard Patrol Commander may be contacted via VHF-FM Channel 16.
(d)*Enforcement.* All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated on-scene patrol personnel. Patrol personnel can be comprised of commissioned, warrant, and petty officers of the Coast Guard onboard Coast Guard, Coast Guard Auxiliary, local, state, and federal law enforcement vessels. Upon being hailed by U.S. Coast Guard patrol personnel by siren, radio, flashing light, or other means, the operator of a vessel shall proceed as directed. The Coast Guard may be assisted by other federal, state, or local agencies. Dated: June 10, 2008. C.V. Strangfeld, Captain, U.S. Coast Guard, Captain of the Port San Diego. [FR Doc. E8-14370 Filed 6-24-08; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2008-0164] RIN 1625-AA00 Safety Zones; Big Bay July 4th Fireworks Show; San Diego Bay, San Diego, CA AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is establishing four
(4)temporary safety zones on the navigable waters of San Diego Bay in support of the North San Diego Bay July 4th Fireworks Show. These safety zones are necessary to provide for the safety of the crews, spectators, participants of the event, participating vessels and other vessels and users of the waterway. Persons and vessels are prohibited from entering into, transiting through, or anchoring within these safety zones unless authorized by the Captain of the Port, or his designated representative. DATES: This rule is effective from 8 p.m. until 10 p.m. on July 4, 2008. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket USCG-2008-0164 and are available online at *www.regulations.gov* . They are also available for inspection or copying two locations: the Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays, and at Coast Guard Sector San Diego, 2710 N. Harbor Drive, San Diego, CA 92101-1064 between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Petty Officer Kristen Beer, Waterways Management, U.S. Coast Guard Sector San Diego, CA at telephone
(619)278-7233. SUPPLEMENTARY INFORMATION: Regulatory Information We did not publish a notice of proposed rulemaking
(NPRM)for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Final approval and permitting of this event were not issued in time to engage in full notice and comment rulemaking. Publishing an NPRM and delaying the effective date would be contrary to the public interest since the event would occur before the rulemaking process was complete. Under 5 U.S.C. 553(d)(3), the Coast Guard also finds that good cause exists for making this rule effective less than 30 days after publication in the **Federal Register** . In addition, it would be contrary to the public interest not to publish this rule because the event has been permitted and participants and the public require protection. Background and Purpose The Coast Guard is establishing four
(4)temporary safety zones on the navigable waters of San Diego Bay in support of the North San Diego Bay July 4th Fireworks Show. These temporary safety zones are necessary to provide for the safety of the crews, spectators, participants of the event, participating vessels and other vessels and users of the waterway. Persons and vessels are prohibited from entering into, transiting through, or anchoring within these safety zones unless authorized by the Captain of the Port, or his designated representative. Discussion of Rule The Coast Guard establishes this temporary rule, pursuant to 33 U.S.C. 1225, to provide for the safety of the participants, spectators and other users of the waterways. These safety zones will be effective from 8 p.m. to 10 p.m. on July 4, 2008. These four temporary safety zones are necessary to ensure the safety of participants and spectators of the North San Diego Bay July 4th Fireworks Show. The duration of the show is expected to be approximately 20-25 minutes. The event involves four
(4)anchored barges, which will be used as platforms for the launching of fireworks. The limits of the temporary safety zones include all areas within a 1200 foot radius around the firing locations at the following points: 32-42.83′ N, 117-13.20′ W (in vicinity of Shelter Island), 32-43.33′ N, 117-12.00′ W (in vicinity of Harbor Island), 32-43.00′ N, 117-10.80′ W (in vicinity of North Embarcadero), and 32-43.23′ N, 117-10.05′ W (in vicinity of Seaport Village/Coronado Landing). These temporary safety zones are necessary to provide for the safety of the crews, spectators, participants of the event, participating vessels and other vessels and users of the waterway. Persons and vessels are prohibited from entering into, transiting through, or anchoring within these safety zones unless authorized by the Captain of the Port, or his designated representative. U.S. Coast Guard personnel will enforce this safety zone. Other Federal, State, or local agencies may assist the Coast Guard, including the Coast Guard Auxiliary. § 165.23 of Title 33, Code of Federal Regulations, prohibits any unauthorized person or vessel from entering or remaining in a safety zone. Vessels or persons violating this section will be subject to the penalties set forth in 33 U.S.C. 1232. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. Due to the temporary rule's short duration of two hours, its limited scope of implementation, and because vessels will have an opportunity to request authorization to transit through the zone or the vessels may safely travel around the zone, the Coast Guard expects the economic impact of this rule to be so minimal that full regulatory evaluation under paragraph 10(e) of the regulatory policies and procedures of the DHS is unnecessary. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in a portion of North San Diego Bay from 8 p.m. to 10 p.m. on July 4, 2008. This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: The safety zone only encompasses a small portion of the waterway, it is short in duration at a late hour when commercial traffic is low, vessels may safely travel around the safety zone, and the Captain of the Port may authorize entry into the zone, if necessary. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. If your small business or organization is affected by this rule and you have questions concerning its provisions or options for compliance, please contact Petty Officer Kristen Beer, U.S. Coast Guard Sector San Diego at
(619)278-7233. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have concluded, under the Instruction, that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation because it establishes a safety zone. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES . List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, and Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1225, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. Add § 165.T11-042 to read as follows: § 165.T11-042 Safety Zone: Big Bay July 4th Fireworks Show; San Diego Bay, San Diego, CA.
(a)*Location.* The limits of the temporary safety zones include all areas within a 1200 foot radius around the firing locations at the following points: 32-42.83′ N, 117-13.20′ W (in vicinity of Shelter Island), 32-43.33′ N, 117-12.00′ W (in vicinity of Harbor Island), 32-43.00′ N, 117-10.80′ W (in vicinity of North Embarcadero), and 32-43.23′ N, 117-10.05′ W (in vicinity of Seaport Village/Coronado Landing).
(b)*Effective Period.* This safety zone will be in effect from 8 p.m. until 10 p.m. on July 4, 2008. If the event concludes prior to the scheduled termination time, the Captain of the Port will cease enforcement of this safety zone and will announce that fact via Broadcast Notice to Mariners.
(c)*Regulations.* In accordance with the general regulations in § 165.23 of this part, entry into, transit through, or anchoring within this zone by all vessels is prohibited, unless authorized by the Captain of the Port, or his designated representative. Mariners requesting permission to transit through the safety zone may request authorization to do so from the designated representative. The designated representative may be contacted via VHF-FM channel 16.
(d)*Enforcement.* All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated on-scene patrol personnel. Patrol personnel can be comprised of commissioned, warrant, and petty officers of the Coast Guard onboard Coast Guard, Coast Guard Auxiliary, Local, State, and Federal law enforcement vessels. Upon being hailed by U.S. Coast Guard patrol personnel by siren, radio, flashing light, or other means, the operator of a vessel shall proceed as directed. The Coast Guard may be assisted by other federal, state, or local agencies. Dated: June 10, 2008. C.V. Strangfeld, Captain, U.S. Coast Guard, Captain of the Port San Diego. [FR Doc. E8-14353 Filed 6-24-08; 8:45 am] BILLING CODE 4910-15-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 63 [EPA-HQ-OAR-2006-0406, FRL-8684-8] RIN 2060-AM74 National Emission Standards for Hazardous Air Pollutants for Source Category: Gasoline Dispensing Facilities AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. SUMMARY: EPA is taking direct final action on certain amendments to the National Emission Standards for Hazardous Air Pollutants for Source Category: Gasoline Dispensing Facilities, which EPA promulgated on January 10, 2008, and amended on March 7, 2008. The January 10, 2008 rule established national emission standards for hazardous air pollutants for the facilities in the gasoline distribution (Stage I) area source category. This action only affects area source gasoline dispensing facilities with a monthly throughput of 100,000 gallons of gasoline or more. In this action, EPA is amending the pressure and vacuum vent valve cracking pressure and leak rate requirements for vapor balance systems used to control emissions from gasoline storage tanks at gasoline dispensing facilities. Newly constructed or reconstructed gasoline dispensing facilities must comply with the requirements of these amendments by the effective date of the amendments, or upon start-up, whichever is later. We are not modifying the compliance date for existing sources with a monthly throughput of 100,000 gallons of gasoline or more. DATES: This direct final rule is effective on September 23, 2008 without further notice, unless EPA receives adverse comment by August 11, 2008. If we receive adverse comment, we will publish a timely withdrawal in the **Federal Register** informing the public that this rule, or the relevant section of this rule, will not take effect. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2006-0406, by one of the following methods: • *http://www.regulations.gov.* Follow the online instructions for submitting comments. • *E-mail: a-and-r-Docket@epa.gov.* • *Fax:*
(202)566-9744. • *Mail:* Air and Radiation Docket, Environmental Protection Agency, Mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460. Please include a total of two copies. • *Hand Delivery:* In person or by courier, deliver your comments to: Air and Radiation Docket, Public Reading Room, EPA West Building, Room 3334, 1301 Constitution Ave., NW., Washington, DC 20004. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. Please include a total of two copies. We request that a separate copy also be sent to the contact persons listed below (see FOR FURTHER INFORMATION CONTACT ). *Instructions:* Direct your comments to Docket ID No. EPA-HQ-OAR-2006-0406. 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. For additional information about EPA's public docket, visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm.* *Docket:* All documents in the docket are listed in the *http://www.regulations.gov* docket 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 and Radiation Docket, EPA West Building, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is
(202)566-1744, and the telephone number for the Air and Radiation Docket is
(202)566-1742. FOR FURTHER INFORMATION CONTACT: General and Technical Information: Mr. Stephen Shedd, Office of Air Quality Planning and Standards, Sector Policies and Programs Division, Coatings and Chemicals Group (E143-01), EPA, Research Triangle Park, NC 27711, telephone:
(919)541-5397, facsimile number:
(919)685-3195, e-mail address: *shedd.steve@epa.gov.* Compliance Information: Ms. Maria Malave, Office of Compliance, Air Compliance Branch (2223A), EPA, Ariel Rios Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, telephone:
(202)564-7027, facsimile number:
(202)564-0050, e-mail address: *malave.maria@epa.gov.* SUPPLEMENTARY INFORMATION: EPA is publishing this rule without prior proposal because we view this as a noncontroversial action and anticipate no adverse comment. The amendments being implemented revise certain technical requirements in 40 CFR part 63, Subpart CCCCCC. However, in the “Proposed Rules” section of this **Federal Register** , we are publishing a separate document that will serve as the proposed rule for these amendments if adverse comments are received on this direct final rule. If EPA receives adverse comment on all or a distinct portion of this rule, we will publish a timely withdrawal in the **Federal Register** informing the public that some of or this entire direct final rule will not take effect. The rule provisions that are not withdrawn will become effective on the date set out above, notwithstanding adverse comment on any other provision, unless we determine that it would not be appropriate to promulgate those provisions due to their being affected by the provision for which we receive adverse comments. We would address all public comments in any subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see the ADDRESSES section of this document. *Submitting CBI.* Do not submit this information to EPA through *http://www.regulations.gov* or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information on a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. *Regulated Entities.* Categories and entities potentially regulated by this action include: Category NAICS * Examples of regulated entities Industry 447110 Operations at area source gasoline dispensing facilities. 447190 Federal/State/local/tribal governments * North American Industry Classification System. This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this final rule. To determine whether your facility is regulated by this action, you should examine the applicability criteria in 40 CFR part 63, subpart CCCCCC. If you have any questions regarding the applicability of this final rule to a particular entity, consult either the air permit authority for the entity or your EPA regional representative as listed in 40 CFR 63.13. *Worldwide Web (WWW).* In addition to being available in the docket, an electronic copy of this final rule is also available on the WWW through the Technology Transfer Network (TTN). Following signature, a copy of this final rule will be posted on the TTN's policy and guidance page for newly proposed or promulgated rules at the following address: *http://www.epa.gov/ttn/oarpg.* The TTN provides information and technology exchange in various areas of air pollution control. *Outline:* The information presented in this preamble is organized as follows: I. Background II. Summary of These Final Rule Amendments III. Rationale For These Final Rule Amendments IV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act I. Background On January 10, 2008 (73 FR 1916), EPA issued a final rule that established national emission standards for hazardous air pollutants (NESHAP) for the facilities in the gasoline distribution (Stage I 1 ) area source category. These facilities include bulk distribution facilities, i.e., gasoline distribution bulk terminals, bulk plants, and pipeline facilities, and gasoline dispensing facilities (GDF), as defined in 40 CFR 63.11100 and 63.11132. EPA subsequently identified certain cross-referencing errors in the final rule. On March 7, 2008 (73 FR 12275), EPA promulgated a technical corrections notice and corrected those errors. As explained below, this action amends certain requirements of the January 10, 2008 final rule that apply to GDF with a monthly throughput of 100,000 gallons or more. 1 Stage 1 refers to here, the entire gasoline distribution system that includes all facilities from and including the refinery to the end user, except for vehicle refueling (so called Stage II). II. Summary of These Final Rule Amendments The January 10, 2008, final rule requires installation of vapor balance systems between the delivery tank truck and the storage tank at GDF with a monthly throughput of 100,000 gallons of gasoline or more. Facilities can satisfy the vapor balance system requirements by complying with the listed applicability criteria and management practices in Table 1 to subpart CCCCCC of 40 CFR part 63. 2 Entry 1.(g) in Table 1 to subpart CCCCCC requires the installation of pressure/vacuum
(PV)vent valves with specific cracking pressure and leak rate settings on the storage tank vent pipes at affected GDF. As explained below, PV vent valves are integral to the functionality of the vapor balance system; however, after promulgation, we discovered that PV vent valves with the specific pressure, deviations, and leak rate settings required in the January 10, 2008, final rule are no longer manufactured. These final rule amendments change those specific pressure and leak rate settings for PV vent valves so that GDFs may obtain and install PV vent valves and thus operate a functioning vapor balance system. The amended PV vent valve settings are: 2 Subpart CCCCCC also provides two additional methods for complying with the vapor balancing requirements. See §§ 63.11118(b)(2) and 63.11120(b). “A positive pressure setting of 2.5 to 6.0 inches of water and a negative pressure setting of 6.0 to 10.0 inches of water. The total leak rate of all PV vent valves at an affected facility, including connections, shall not exceed 0.17 cubic foot per hour at a pressure of 2.0 inches of water and 0.63 cubic foot per hour at a vacuum of 4 inches of water.” New or reconstructed affected GDF, as defined in § 63.11112 of Subpart CCCCCC, that have a monthly throughput of 100,000 gallons of gasoline or more must comply with the revised vapor balance system requirements, set forth in Table 1 of these amendments, by September 23, 2008, or upon startup, whichever is later. The compliance date for existing GDF to install vapor balance systems with a monthly throughput of 100,000 gallons of gasoline or more is January 10, 2011, which is the same date specified in the January 10, 2008, final rule. We are not modifying this date because existing sources will have sufficient time to comply with the revised vapor balance system requirements in revised Table 1 by that date. The compliance dates for all other requirements in the rule remain as promulgated in the January 10, 2008, final rule, as those requirements are not the subject of this direct final rule. III. Rationale for These Final Rule Amendments Following issuance of the January 10, 2008, final rule, EPA received several inquiries from stakeholders and regulatory agencies concerning the PV vent valve requirements for vapor balance systems. A vapor balance system is a combination of equipment (connectors, piping, storage tank, hoses, PV vent valves, gaskets, and the tank truck). These equipment, taken together, work as a system to route the vapors displaced from the storage tank back into the delivery tank truck. If the PV vent valves, which are an integral part of the vapor balance system, are not installed, the vapors would escape into the atmosphere through the storage tank vent instead of being routed back into the delivery tank truck and the source would not be in compliance with the requirement to have a functioning vapor balance system. Those who contacted EPA concerning the PV vent valve requirements reported that the PV vent valve specifications in the final rule are not commercially available because manufacturers are no longer making PV vent valves with these specifications; therefore, facilities cannot currently comply with the requirements in the January 10, 2008, final rule. In entry 1.(g) of Table 1 to Subpart CCCCCC of Part 63, “Applicability Criteria and Management Practices for Gasoline Dispensing Facilities With Monthly Throughput of 100,000 Gallons of Gasoline or More,” we specified:
(g)Pressure/vacuum vent valves shall be installed on the storage tank vent pipes. For systems where vapors from vehicle refueling operations are not recovered, the positive cracking pressure shall be 13.8 inches of water and the negative cracking pressure shall be 6.9 inches of water. For systems where vapors from vehicle refueling operations are recovered (Stage II controls), the positive cracking pressure shall be 3 inches of water and the negative cracking pressure shall be 8 inches of water. Deviations of within ±0.5 inches of the specified positive cracking pressures and ±2.0 inches of the negative pressure are acceptable. The leak rates for pressure/vacuum valves, including connections, shall be less than or equal to 0.17 cubic foot per hour at a pressure of 2.0 inches of water and 0.21 cubic foot per hour at a vacuum of 4 inches of water. The first set of cracking pressure settings (positive and negative cracking pressure of 13.8 and 6.9 inches of water, respectively) are from guidance provided for vapor balancing systems installed in the 1970s. The second set of cracking pressure settings (positive and negative cracking pressure of 3 and 8 inches of water, respectively), and deviation and leak rate settings are based on the PV vent valve cracking pressure setting requirements in the 2005 California Air Resources Board
(CARB)Vapor Recovery Certification Procedure (CP-201). All of these PV vent valve settings were in the draft rule in the docket when we proposed the rules for this source category on November 9, 2006; however, we did not receive any public comments on this portion of the draft rule. After the final rule was promulgated, interested stakeholders contacted EPA and stated that the PV vent valve settings specified in the final rule are not being used on GDF storage tanks because manufacturers are not making PV vent valves with these settings. In response to these inquiries, EPA contacted the two major PV vent valve manufacturers and received confirmation that neither manufacturer offers a PV vent valve with the settings specified in the January 10, 2008, final rule nor do they recommend those settings for any vapor balance systems, with or without vehicle refueling vapor recovery systems. EPA also contacted CARB representatives to discuss the issue of the PV vent valve settings. The CARB representatives stated that the PV vent valve settings in CP-201 apply to vapor balance systems, Stage I only and Stage I with Stage II. 3 With regard to the PV vent valve cracking pressure settings, the CARB representatives explained that CP-201 was amended on May 25, 2006. The 2006 CP-201 specifies acceptable ranges for the positive (2.5 to 6.0 inches of water) and negative (6.0 to 10.0 inches of water) cracking pressures, rather than the single values with allowable deviations, which was the format used in the January 10, 2008, EPA final rule. The CARB representatives also informed EPA that the allowable PV vent valve leak rates in CP-201 were also amended on May 25, 2006. The 2006 CP-201 new allowable leak rates are less than or equal to 0.17 cubic foot per hour at a pressure of 2.0 inches of water and 0.63 cubic foot per hour at a vacuum of 4.0 inches of water. According to CARB representatives, CARB's certification testing (using test procedure TP-201.1) demonstrates that Stage I and Stage II systems, alone or together, achieve CARB's 98-percent efficiency requirement using the 2006 CP-201 PV vent valve settings. 3 A vapor balance system at GDF is divided into two types. Vapor balancing between the delivery tank truck and the storage tank is referred to as Stage I or Phase I vapor balance systems. Vapor balancing between the storage tank and the vehicle being refueled is referred to as Stage II or Phase II vapor balance systems. Among other things, the January 10, 2008 final rule requires installation of Stage I vapor balance systems at GDF with monthly throughput of 100,000 gallons of gasoline or more. Stage II controls are not required by subpart CCCCCC. In evaluating how to revise the PV vent valve settings in Table 1, we considered if other types of vapor balance systems using the 2006 CP-201 PV vent valve settings provide emission controls at least equivalent to the performance levels of vapor balance systems that follow the requirements in Table 1 of the January 10, 2008, final rule. Specifically, under the January 10, 2008, final rule, facilities using vapor balance systems other than those meeting the management practices specified in Table 1 to subpart CCCCCC must demonstrate equivalency using the procedures in 40 CFR 63.11120(b)(1) through (3). The procedure in § 63.11120(b)(1) requires that vapor balance systems be tested using CARB test procedure TP-201.1 to demonstrate that the system achieves at least a level of 95 percent control. As noted above, CARB's amended 2006 CP-201 PV vent valve settings provide a level of emissions control that is at least equivalent to the level required by § 63.11120(b)(1). Based on the above information and our own analysis, we agree with the stakeholders who contacted EPA following issuance of the final rule in January 2008. Specifically, we agree that PV vent valves with the settings specified in the January 10, 2008, final rule are not currently available for purchase from manufacturers so that GDFs choosing to comply with the vapor balance system requirement in Table 1 of Subpart CCCCCC cannot currently comply with this requirement. Therefore, given the equal or better control from the amended 2006 CARB CP-201 settings, and the fact that PV vent valves meeting these specifications are currently available, which is not the case for the settings specified in the January 10, 2008, final rule, EPA is taking this final action and adopting the following new requirements for PV vent valve specifications in entry 1.(g) of Table 1 to subpart CCCCCC of 40 CFR part 63:
(g)Pressure/vacuum
(PV)vent valves shall be installed on the storage tank vent pipes. The pressure specifications for PV vent valves shall be: a positive pressure setting of 2.5 to 6.0 inches of water and a negative pressure setting of 6.0 to 10.0 inches of water. The total leak rate of all PV vent valves at an affected facility, including connections, shall not exceed 0.17 cubic foot per hour at a pressure of 2.0 inches of water and 0.63 cubic foot per hour at a vacuum of 4 inches of water. Because we are modifying the PV vent valve setting requirements of Table 1, it is appropriate to address the date by which new and existing sources must comply with these new requirements. As explained above, the PV vent valve settings are an integral part of enabling the vapor balance system to function properly. Without the PV vent valves, the vapors escape into the atmosphere rather than being rerouted into the tank truck. As also explained above, the PV vent valve settings in the January 10, 2008, final rule are not available so owners and operators of new and reconstructed GDF cannot currently comply with the vapor balance system requirements in subpart CCCCCC. Owners or operators of new or reconstructed GDF, as defined in § 63.11112 of Subpart CCCCCC, must comply with the new vapor balance system requirements specified in Table 1 of these amendments by September 23, 2008, or upon startup, whichever is later. Because these new PV vent valve settings are off-the-shelf items that are easy to install, and because of the 3-year compliance period for existing sources specified in the January 10, 2008, final rule, we have not extended the compliance date of January 10, 2011, for existing GDF. We believe that existing GDF can meet the new requirements in Table 1 of this direct final rule by January 10, 2011, which is the compliance date specified in the January 10, 2008, rule. 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 12866 (58 FR 51735, October 4, 1993) and is, therefore, not subject to review under the Executive Order. B. Paperwork Reduction Act This action does not impose any new information collection burden. The final amendments clarify, but do not add requirements increasing the collection burden. The information collection requirements contained in the existing regulations at 40 CFR part 63, subpart CCCCCC have been sent to the Office of Budget and Management
(OMB)for approval under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501, *et seq.* OMB will assign an OMB control number when the information collection requirements are approved. The OMB control numbers for EPA 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 rule on small entities, a small entity is defined as:
(1)A small business whose parent company has less than $25 million in revenue (NAICS 447110, Gasoline Stations with Convenience Stores), and less than $8.0 million in revenue (NAICS 447190, Other Gasoline Stations), and any other 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; or
(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 final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This final rule will not impose any new requirement on small entities since we are replacing one specification for PV vent valves with another readily available specification for PV vent valves. 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 us 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 us 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 we establish any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, we 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. This final rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, or tribal governments or the private sector. These final rule amendments correct a technical error in the rule text for a rule EPA determined not to include a Federal mandate that may result in an estimated cost of $100 million or more (73 FR 1916, January 10, 2008). These amendments do not change the level or cost of the standard. Thus, these final rule amendments are not subject to the requirements of section 202 and 205 of the UMRA. EPA has determined that this rule contains no regulatory requirement that might significantly or uniquely affect small governments. These final rule amendments update PV vent valve settings in the vapor balance system requirements in the rule text; thus, the amendments should not affect small governments. 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 final rule 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. These final rule amendments update the PV vent valve settings in the vapor balance system requirements in the rule text. These amendments do not modify existing or create new responsibilities among EPA Regional Offices, States, or local enforcement agencies. Thus, Executive Order 13132 does not apply to this rule. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled “Consultation and Coordination With Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This final rule does not have tribal implications, as specified in Executive Order 13175. It 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. Thus, Executive Order 13175 does not apply to this rule. G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it is based solely on technology performance. H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. I. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards
(VCS)in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. VCS are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by VCS bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable VCS. This action does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standard. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. These final rule amendments do not relax the control measures on sources regulated by the rule and, therefore, will not cause emissions increases from these sources. 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 the final rule amendments and other required information to the United States Senate, the United States House of Representatives, and the Comptroller General of the United States prior to publication of the final rule amendments 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). These final rule amendments will be effective on September 23, 2008. List of Subjects in 40 CFR Part 63 Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Reporting and recordkeeping requirements. Dated: June 19, 2008. Stephen L. Johnson, Administrator. For the reasons set out in the preamble, title 40, chapter I, part 63 of the Code of Federal Regulations is amended as follows: PART 63—[AMENDED] 1. The authority citation for part 63 continues to read as follows: Authority: 42 U.S.C. 7401, *et seq.* Subpart CCCCCC—[Amended] 2. Section 63.11113 is amended by revising paragraph
(a)introductory text and by adding paragraph
(d)to read as follows: § 63.11113 When do I have to comply with this subpart?
(a)If you have a new or reconstructed affected source, you must comply with this subpart according to paragraphs (a)(1) and
(2)of this section, except as specified in paragraph
(d)of this section.
(d)If you have a new or reconstructed affected source and you are complying with Table 1 to this subpart, you must comply according to paragraphs (d)(1) and
(2)of this section.
(1)If you start up your affected source from November 9, 2006 to September 23, 2008, you must comply no later than September 23, 2008.
(2)If you start up your affected source after September 23, 2008, you must comply upon startup of your affected source. 3. Table 1 to Subpart CCCCCC of Part 63 is amended by revising entry 1.(g) to read as follows: Table 1 to Subpart CCCCCC of Part 63.—Applicability Criteria and Management Practices for Gasoline Dispensing Facilities With Monthly Throughput of 100,000 Gallons of Gasoline or More If you own or operate . . . Then you must . . . * * * * * * * 1. A new, reconstructed, or existing GDF subject to § 63.11118
(g)Pressure/vacuum
(PV)vent valves shall be installed on the storage tank vent pipes. The pressure specifications for PV vent valves shall be: a positive pressure setting of 2.5 to 6.0 inches of water and a negative pressure setting of 6.0 to 10.0 inches of water. The total leak rate of all PV vent valves at an affected facility, including connections, shall not exceed 0.17 cubic foot per hour at a pressure of 2.0 inches of water and 0.63 cubic foot per hour at a vacuum of 4 inches of water. * * * * * * * * * * * * [FR Doc. E8-14377 Filed 6-24-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 261 [FRL-8684-9] IBM Semiconductor Manufacturing Facility in Essex Junction, VT, Under Project XL AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: The Environmental Protection Agency
(EPA)is withdrawing a final rule published on September 12, 2000 which modified the regulations under the Resource, Conservation and Recovery Act
(RCRA)to enable the implementation of the International Business Machines Corporation
(IBM)Copper Metallization project that was developed under EPA's Project eXcellence in Leadership (Project XL) program. Project XL was a national pilot program that allowed state and local governments, businesses and federal facilities to work with EPA to develop more cost-effective ways of achieving environmental and public health protection. In exchange, EPA provided regulatory, policy or procedural flexibilities to conduct the pilot experiments. DATES: The final rule is effective July 25, 2008. FOR FURTHER INFORMATION CONTACT: Sandra Panetta, Mail Code 1870T, U.S. Environmental Protection Agency, Office of Policy, Economics and Innovation, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. Ms. Panetta's telephone number is
(202)566-2184 and her e-mail address is *panetta.sandra@epa.gov.* Further information on today's action may also be obtained on the internet at *http://www.epa.gov/projectxl/ibm2/index.htm.* SUPPLEMENTARY INFORMATION: EPA is withdrawing the final rule which was published on September 12, 2000 (65 FR 54955) in response to IBM's request to discontinue the XL project. The final rule granted IBM an exemption under Project XL from the F006 hazardous listing for sludge generated from the treatment of copper electroplating rinsewaters. IBM has implemented a new process step that has caused the wastewater treatment sludge to once again become F006 listed hazardous waste and is complying with the Vermont Department of Environmental Conservation requirements for this listed waste. Discontinuing the XL project will have no environmental impact. All reporting requirements in 40 CFR 261.4(b)(16) are discontinued. Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making today's rule final without prior proposal and opportunity for comment because EPA is withdrawing a rule that no longer applies to the company and the company has notified us that the project has terminated. The removal of the rule has no legal effect. Notice and public procedure would serve no useful purpose and is thus unnecessary. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(B). Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the Executive Order. B. Paperwork Reduction Act This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.,* because it is withdrawing a rule that was not implemented and does not impose any new requirements. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. C. Regulatory Flexibility Act Today's final rule is not subject to the Regulatory Flexibility Act (RFA), which generally requires an agency to prepare a regulatory flexibility analysis for any rule that will have a significant economic impact on a substantial number of small entities. The RFA applies only to rules subject to notice and comment rulemaking requirements under the Administrative Procedure Act
(APA)or any other statute. This rule is not subject to notice and comment requirements under the APA or any other statute because it withdraws a rule that applied to only one facility and does not impose any new requirements. Because the agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute [see SUPPLEMENTARY INFORMATION section], it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). 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. Today's rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, or tribal governments or the private sector. The rule imposes no enforceable duty on any State, local or tribal governments or the private sector. ( *Note:* The term “enforceable duty” does not include duties and conditions in voluntary federal contracts for goods and services.) Because the agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute [see SUPPLEMENTARY INFORMATION section], it is not subject to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995
(UMRA)(Pub. L. 104-4). 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 final rule 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 rule withdraws a rule that was specific to one facility. Thus, Executive Order 13132 does not apply to this rule. F. Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments) Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This final rule does not have tribal implications, as specified in Executive Order 13175. This final rule withdraws a rule that was not implemented. Thus, Executive Order 13175 does not apply to this rule. G. Executive Order 13045: “Protection of Children From Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that:
(1)Is determined to be “economically significant” as defined under Executive Order 12866, and
(2)concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks. H. Executive Order 13211 (Energy Effects) 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 Advancement Act As noted in the proposed rule, Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( *e.g.* , materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This action does not involved technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards. J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898 (59 FR 7629 (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 final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This rule applies to one facility and withdraws a rule that was not implemented. K. The Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 804 exempts from section 801 the following types of rules
(1)rules of particular applicability;
(2)rules relating to agency management or personnel; and
(3)rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding today's action under section 801 because it is a rule of particular applicability and does not impose any new requirements. List of Subjects in 40 CFR Part 261 Environmental protection, Hazardous waste, Recycling, Waste treatment and disposal, Recycling. Dated: June 19, 2008. Stephen L. Johnson, Administrator. For the reasons set forth in the preamble, parts 261 of chapter I of title 40 of the Code of Federal Regulations are amended as follows: PART 261—IDENTIFICATION AND LISTING OF HAZARDOUS WASTE 1. The authority citation for part 261 continues to read as follows: Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y) and 6938. 2. Section 261.4 paragraph (b)(16) is removed and reserved. [FR Doc. E8-14403 Filed 6-24-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 1051 [EPA-HQ-OAR-2008-0124; FRL-8684-6] RIN 2060-A088 Exhaust Emission Standards for 2012 and Later Model Year Snowmobiles AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. SUMMARY: In a November 2002 final rule, we established the first U.S. emission standards for new snowmobiles. Subsequent litigation regarding that final rule resulted in a court decision which requires us to: remove the oxides of nitrogen (NO <sup>X</sup> ) component from the Phase 3 snowmobile standards set to take effect in 2012, and; clarify the evidence and analysis upon which the Phase 3 carbon monoxide
(CO)and hydrocarbon
(HC)standards were based. In this action, we are removing the NO <sup>X</sup> component from the Phase 3 emission standard calculation. We are deferring action on the 2012 CO and HC emission standards portion of the court's remand to a separate rulemaking action. DATES: This rule is effective on August 25, 2008 without further notice, unless EPA receives adverse comment by July 25, 2008 or a request for a public hearing by July 15, 2008. If a hearing is requested by this date, it will be held at a time and place to be published in the **Federal Register** . After the hearing, the docket for this rulemaking will remain open for an additional 30 days to receive comments. If a hearing is held, EPA will publish a document in the **Federal Register** extending the comment period for 30 days after the hearing. If EPA receives adverse comments or a request for public hearing, it will publish a timely withdrawal of the direct final rule in **Federal Register** and inform the public that the rule will not take effect. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ- OAR-2008-0124, 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, Mail Code: 6102T, 1200 Pennsylvania Ave., NW., Washington, DC, 20460. Please include two copies. • *Hand Delivery:* EPA Docket Center (Air Docket), U.S. Environmental Protection Agency, EPA West Building, 1301 Constitution Avenue, NW., Room: 3334 Mail Code: 6102T, 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-2008-0124. 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 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. For additional information about EPA's public docket visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm.* *Docket:* All documents in the docket are listed in the *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 EPA Docket Center, EPA/DC, EPA West, Room 3334, 1301 Constitution Avenue, NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is
(202)566-1744, and the telephone number for the Air Docket is
(202)566-1742. *Public Hearing:* To request a public hearing, contact John Mueller at
(734)214-4275 or *mueller.john@epa.gov.* If a public hearing is held, persons wishing to testify must submit copies of their testimony to the docket and to John Mueller at the address below, no later than 10 days prior to the hearing. FOR FURTHER INFORMATION CONTACT: John Mueller, Assessment and Standards Division, Office of Transportation and Air Quality, 2000 Traverwood Drive, Ann Arbor, MI 48105; telephone number:
(734)214-4275; fax number:
(734)214-4050; e-mail address: *mueller.john@epa.gov.* SUPPLEMENTARY INFORMATION: I. Why Is EPA Using a Direct Final Rule? We are publishing this as a direct final rule because we view this as a noncontroversial action. We are simply removing the NO <sup>X</sup> component from the Phase 3 snowmobile emission standard equation as required by the court decision. 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 consider adoption of the provisions in this direct final rule if adverse comments or a request for a public hearing are received on this action. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see the ADDRESSES section of this document. If EPA receives adverse comment or a request for a public hearing, we will publish a timely withdrawal in the **Federal Register** informing the public that this direct final rule will not take effect. We would address all public comments in any subsequent final rule based on the proposed rule. II. Does This Action Apply to Me? This action will affect companies that manufacture, sell, or import into the United States new snowmobiles and new spark-ignition engines for use in snowmobiles. This action may also affect companies and persons that rebuild or maintain these engines. Affected categories and entities include the following: Category NAICS code a Examples of potentially affected entities Industry 333618 Manufacturers of new nonroad spark-ignition engines. Industry 336999 Snowmobile manufacturers. Industry 811310 Engine repair and maintenance. Industry 421110 Independent commercial importers of vehicles and parts. a North American Industry Classification System (NAICS). This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. To determine whether particular activities may be affected by this action, you should carefully examine the regulations. You may direct questions regarding the applicability of this action as noted in FOR FURTHER INFORMATION CONTACT . III. What Should I Consider as I Prepare My Comments for EPA? A. *Submitting CBI.* Do not submit Confidential Business Information
(CBI)to EPA through *http://www.regulations.gov* or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR Part 2. *B. Tips for Preparing Your Comments.* When submitting comments, remember to: • Identify the rulemaking by docket number and other identifying information (subject heading, **Federal Register** date and page number). • 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. • Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. • Describe any assumptions and provide any technical information and/or data that you used. • If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. • Provide specific examples to illustrate your concerns, and suggest alternatives. • Explain your views as clearly as possible, avoiding the use of profanity or personal threats. • Make sure to submit your comments by the comment period deadline identified. IV. Summary of Rule In November 2002, we adopted emission standards for new snowmobiles. 1 The program contained three phases of standards. The Phase 1 standards, effective with the 2006 model year, and the Phase 2 standards, effective with the 2010 model year, contained limits for CO and HC emissions. The Phase 3 standards, effective with the 2012 model year, also contained a NO <sup>X</sup> component in addition to CO and HC components, effectively creating separate HC+NO <sup>X</sup> and CO emission standards for 2012 and later model years. Each set of these standards permits emissions averaging among a manufacturer's engine families. 1 “Control of Emissions from Nonroad Large Spark-Ignition Engines; and Recreational Engines (Marine and Land-Based); Final Rule,” 67 FR 68242, November 8, 2002. The form of the Phase 3 standards also differed from the Phase 1 and 2 standards. While the Phase 1 and 2 standards simply contained numerical limits for CO and HC, the Phase 3 standards were in the form of an equation, as follows: ER25JN08.004 The two main advanced technologies we anticipated being used to meet the Phase 3 standards (direct or semi-direct injection 2-stroke engines, and 4-stroke engines) tend to have rather different emissions profiles, and the equation was designed to allow manufacturers to use varying mixes of these technologies as the market would allow, while still achieving substantial emission reductions. The Phase 3 standard equation in essence requires nominal 50 percent reductions in CO and HC compared to uncontrolled levels, which are 150 g/kW-hr for HC and 400 g/kW-hr for CO. However, the equation is structured such that mixes of CO and HC reductions can be used. In conjunction with a straight HC limit of 75 g/kW-hr (ensuring at least 50 reduction in HC) and a corporate average CO standard that could not exceed 275 g/kW-hr (ensuring at least approximately 30 reduction in CO), the equation allows up to 70 percent reductions of HC and 30 percent reductions of CO, as long as the percentage reduction of both pollutants combined is at least 100 percent. As previously mentioned, the Phase 3 equation also contained a NO <sup>X</sup> component. We did not want the anticipated increased use of 4-stroke engines (which tend to have higher NO <sup>X</sup> emissions as compared to 2-stroke engines) to result in fleet average increases in snowmobile NO <sup>X</sup> emissions. Thus, we included in the Phase 3 equation a NO <sup>X</sup> term that was intended to cap NO <sup>X</sup> emissions, and a “−15” term that was intended to account for NO <sup>X</sup> emissions from existing 4-stroke engines. See 67 FR 68272-68275. Following the promulgation of the November 2002 final rule, Bluewater Network, Environmental Defense and the International Snowmobile Manufacturers Association petitioned for review of the rule in the Court of Appeals for the District of Columbia. The court upheld much of the rule and rationale, but made two determinations requiring further action by EPA. See *Bluewater Network* v. *EPA,* 370 F. 3d 1 (D.C.Cir 2004) First, the court vacated the NO <sup>X</sup> portion of the Phase 3 standards, stating that EPA did not have authority to adopt NO <sup>X</sup> standards for snowmobiles under the section 214(a)(4) of the Clean Air Act. Second, the court remanded the CO and HC portions of the Phase 3 standards for us to clarify the evidence and analysis upon which the standards are based. Today's action pertains to the first portion of the court's ruling. In contrast to today's action, addressing the remand of the 2012 CO and HC emission standards will require more deliberate study. Thus, we will be addressing those standards in a separate rulemaking action; we are not addressing them here. Our intention is to release a Notice of Proposed Rulemaking in the 2009 timeframe, with a Final Rule in the 2010 timeframe. Today's action consists of modifications to the Phase 3 emission standard equation shown above. In that equation (40 CFR 1051.103), we are removing both the component requiring addition of NO <sup>X</sup> emissions to HC emissions (the HC component remains) and the component reducing that sum by 15, to read as follows: ER25JN08.005 We note that by removing both the “NO <sup>X</sup> ” and the “−15” terms we are effectively maintaining the stringency of the HC and CO limits relative to baseline levels (nominal 50 percent reductions of HC and CO, or up to 70 percent reductions of HC and 30 percent reductions of CO) as they were originally promulgated. V. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the Executive Order. This direct final rule merely removes the NO <sup>X</sup> component from the snowmobile Phase 3 emission standards equation, as directed by the court's ruling. There are no new costs associated with this rule. B. Paperwork Reduction Act This action does not impose any new information collection burden. This direct final rule merely revises the snowmobile Phase 3 emissions equation by removing the NO <sup>X</sup> component. However, the Office of Management and Budget
(OMB)has previously approved the information collection requirements contained in the existing regulations [40 CFR part 1051] under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* and has assigned OMB control number 2060-0338, EPA ICR number 1695. A copy of the OMB approved Information Collection Request
(ICR)may be obtained from Susan Auby, Collection Strategies Division; U.S. Environmental Protection Agency (2822T); 1200 Pennsylvania Ave., NW., Washington, DC 20460 or by calling
(202)566-1672. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. C. 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 final rule on small entities, a small entity is defined as:
(1)A small business that meets the definition for business based on SBA size standards 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 final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the rule on small entities.” 5 U.S.C. 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule. This direct final rule merely removes the NO <sup>X</sup> component from the snowmobile Phase 3 regulations. We have therefore concluded that today's final rule will not affect regulatory burden for all affected small entities. 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 to 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 of why such an alternative was 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. This rule contains no federal mandates for state, local, or tribal governments, or the private sector as defined by the provisions of Title II of the UMRA. The rule imposes no enforceable duties on any of these governmental entities. This rule contains no regulatory requirements that would significantly or uniquely affect small governments. EPA has determined that this rule contains no federal mandates that may result in expenditures of more than $100 million to the private sector in any single year. This direct final rule merely removes the NO <sup>X</sup> component from the snowmobile Phase 3 regulations. This rule is not subject to the requirements of sections 202 and 205 of UMRA. 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” are 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.” Under section 6 of Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law, unless the agency consults with State and local officials early in the process of developing the regulation. Section 4 of the Executive Order contains additional requirements for rules that preempt State or local law, even if those rules do not have federalism implications (i.e., the rules 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). Those requirements include providing all affected State and local officials notice and an opportunity for appropriate participation in the development of the regulation. If the preemption is not based on express or implied statutory authority, EPA also must consult, to the extent practicable, with appropriate State and local officials regarding the conflict between State law and Federally protected interests within the agency's area of regulatory responsibility. This rule 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 direct final rule merely removes the NO <sup>X</sup> component from the snowmobile Phase 3 regulations. 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” (59 FR 22951, 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.” “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 rule does not have tribal implications. It 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. This rule does not uniquely affect the communities of Indian Tribal Governments. Further, no circumstances specific to such communities exist that would cause an impact on these communities beyond those discussed in the other sections of this rule. This direct final rule merely removes the NO <sup>X</sup> component from the snowmobile Phase 3 regulations. Thus, Executive Order 13175 does not apply to this rule. G. Executive Order 13045: Protection of Children From Environmental Health 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, section 5-501 of the Order directs the Agency to 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. This rule is not subject to the Executive Order because it is not economically significant as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. This direct final rule merely removes the NO <sup>X</sup> component from the snowmobile Phase 3 regulations. H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution or use of energy. This direct final rule merely removes the NO <sup>X</sup> component from the snowmobile Phase 3 regulations. I. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless doing so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (such as materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This direct final rule does not involve technical standards. This direct final rule merely removes the NO <sup>X</sup> component from the snowmobile Phase 3 regulations. Therefore, EPA did not consider the use of any voluntary consensus standards. J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA has determined that this rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This direct final rule merely removes the NO <sup>X</sup> component from the snowmobile Phase 3 regulations. K. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq.,* as amended 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 Congress and the Comptroller General of the United States. We 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 before 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 direct final rule is effective on August 25, 2008. L. Statutory Authority The statutory authority for this action comes from section 213 of the Clean Air Act as amended (42 U.S.C. 7547). This action is a rulemaking subject to the provisions of Clean Air Act section 307(d). See 42 U.S.C. 7607(d). List of Subjects in 40 CFR Part 1051 Environmental protection, Administrative practice and procedure, Air pollution control, Confidential business information, Imports, Penalties, Reporting and recordkeeping requirements, Warranties. Dated: June 19, 2008. Stephen L. Johnson, Administrator. For the reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is amended as follows: PART 1051—CONTROL OF EMISSIONS FROM RECREATIONAL ENGINES AND VEHICLES 1. The authority citation for part 1051 continues to read as follows: Authority: 42 U.S.C. 7401-7671q. 2. Section 1051.103 is amended by revising paragraphs (a)(1) including Table 1 and (a)(2) to read as follows: § 1051.103 What are the exhaust emission standards for snowmobiles?
(a)* * *
(1)Follow Table 1 of this section for exhaust emission standards. You may generate or use emission credits under the averaging, banking, and trading
(ABT)program for HC and CO emissions, as described in subpart H of this part. This requires that you specify a family emission limit for each pollutant you include in the ABT program for each engine family. These family emission limits serve as the emission standards for the engine family with respect to all required testing instead of the standards specified in this section. An engine family meets emission standards even if its family emission limit is higher than the standard, as long as you show that the whole averaging set of applicable engine families meets the applicable emission standards using emission credits, and the vehicles within the family meet the family emission limit. The phase-in values specify the percentage of your U.S.-directed production that must comply with the emission standards for those model years. Calculate this compliance percentage based on a simple count of your U.S.-directed production units within each certified engine family compared with a simple count of your total U.S.-directed production units. Table 1 also shows the maximum value you may specify for a family emission limit, as follows: Table 1 of § 1051.103.—Exhaust Emission Standards for Snowmobiles (g/kW-hr) Phase Model year Phase-in (percent) Emission standards HC CO Maximum allowable family emission limits HC CO Phase 1 2006 50 100 275 Phase 1 2007-2009 100 100 275 Phase 2 2010 and 2011 100 75 275 Phase 3 2012 and later 100 ( 1 ) ( 1 ) 150 400 1 See § 1051.103(a)(2).
(2)For Phase 3, the HC and CO standards are defined by a functional relationship. Choose your corporate average HC and CO standards for each year according to the following criteria:
(i)Prior to production, select the HC standard and CO standard (specified as g/kW-hr) so that the combined percent reduction from baseline emission levels is greater than or equal to 100 percent; that is, that the standards comply with the following equation: ER25JN08.006
(ii)Your corporate average HC standard may not be higher than 75 g/kW-hr.
(iii)Your corporate average CO standard may not be higher than 275 g/kW-hr.
(iv)You may use the averaging and banking provisions of subpart H of this part to show compliance with these HC and CO standards at the end of the model year under paragraph (a)(2)(i) of this section. You must comply with these final corporate average emission standards. 3. Section 1051. 740 is amended by revising paragraph (b)(4) to read as follows: § 1051.740 Are there special averaging provisions for snowmobiles?
(b)* * *
(4)For generating early Phase 3 credits, you may generate credits for HC or CO separately as described:
(i)To determine if you qualify to generate credits in accordance with paragraphs (b)(1) through
(3)of this section, you must meet the credit trigger level. For HC this value is 75 g/kW-hr. For CO this value is 200 g/kW-hr.
(ii)HC and CO credits for Phase 3 are calculated relative to 75 g.kW-hr and 200 g/kW-hr values, respectively. [FR Doc. E8-14411 Filed 6-24-08; 8:45 am] BILLING CODE 6560-50-P GENERAL SERVICES ADMINISTRATION 41 CFR Parts 301-11 and 302-17 [FTR Amendment 2008-04; FTR Case 2008-303; Docket 2008-0002, Sequence 2] RIN 3090-AI50 Federal Travel Regulation; Relocation Allowances; Relocation Income Tax
(RIT)Allowance Tax Tables AGENCY: Office of Governmentwide Policy, General Services Administration (GSA). ACTION: Final rule. SUMMARY: The General Services Administration
(GSA)has determined that it will no longer publish the Federal, State, and Puerto Rico tax tables needed for calculating the relocation income tax
(RIT)allowance in the **Federal Register** . These tax tables, for use in calculating the annual RIT allowance to be paid to relocating Federal employees, will be treated like changes to other tables of rates that implement long-standing policies, such as the domestic per diems, relocation mileage, and travel mileage rates, and be posted in a Federal Travel Regulation
(FTR)bulletin. GSA will continue to publish policy changes in the **Federal Register** as amendments to the Federal Travel Regulation. DATES: *Effective Date* : June 25, 2008. FOR FURTHER INFORMATION CONTACT: For clarification of content, contact Mr. Ed Davis, Office of Governmentwide Policy (M), Office of Travel, Transportation and Asset Management (MT), General Services Administration at
(202)208-7638 or e-mail at *ed.davis@gsa.gov* . For information pertaining to status or publication schedules, contact the Regulatory Secretariat (VPR), Room 4041, GS Building, Washington, DC 20405,
(202)501-4755. Please cite FTR Amendment 2008-04; FTR Case 2008-303. SUPPLEMENTARY INFORMATION: A. Background In previous years, the General Services Administration (GSA), Office of Governmentwide Policy published the annual tax tables for Federal, State, and Puerto Rico used for calculating the RIT allowance to be paid to relocating Federal employees, in the **Federal Register** . These tax tables have been located in 41 CFR part 302-17 as Appendices A through D. This final rule informs Government agencies that the Federal, State, and Puerto Rico tax tables (41 CFR part 302-17, Appendices A through D) will no longer appear in the **Federal Register** or in 41 CFR part 302-17. From now on, these tax tables will be published similar to other tables of rates that implement long-standing policies, such as the domestic per diems, relocation mileage, and travel mileage rates, and appear as Federal Travel Regulation
(FTR)bulletins. You may find the FTR bulletins with the annual RIT allowances at *www.gsa.gov/ftrbulletin* . The tax table will also be published at *www.gsa.gov/relo* . This final rule removes Appendices A through D of 41 CFR part 302-17, adds a new section to that part that will provide a cross reference to the tax tables, and amends references to part 302-17 Appendices A through D in applicable sections of the FTR. These tax tables are developed from several sources of information ( *e.g.* , the IRS, individual state taxing authorities, and the Commonwealth of Puerto Rico Department of the Treasury). GSA has determined that publishing these tax tables annually in the **Federal Register** is a time consuming and costly process that will no longer be needed when this same information is posted as FTR bulletins. As a result of the newly implemented process, the information will be available to the agency and relocating employees in a more timely manner. As part of GSA mission to serve its Federal customers as quickly as permitted, this change in delivering the RIT Allowance Tables is now implemented by this final rule. B. Summary of the Issues Involved This final rule is a response to agency personnel who process relocation vouchers and must delay the reimbursements because they are waiting for the most current RIT Allowance Tables to be published. By moving to the FTR bulletin process, this information will be available for the calculation of reimbursements much earlier in the calendar year and will therefore benefit both agencies and their relocating employees. C. Changes to Current FTR This final rule removes Appendices A through D of 41 CFR part 302-17 and adds a new section 302-17.14 to that part which will serve as a cross-reference to the location of the calendar 2008 RIT Tables and all subsequent changes to the RIT Allowance Tables in FTR bulletins. This information will be able to be accessed at both *www.gsa.gov/ftrbulletin* and *www.gsa.gov/relo* . This final rule also amends numerous sections in FTR part 301-11, 302-17.5, 302-17.8, and 302-17.10. D. Executive Order 12866 This final rule is excepted from the definition of “regulation” or “rule” under Section 3(d)(3) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993 and, therefore, was not subject to review under Section 6(b) of that executive order. E. Regulatory Flexibility Act This final rule is not required to be published in the **Federal Register** for notice and comment; therefore, the Regulatory Flexibility Act, 5 U.S.C. 601, *et seq.* , does not apply. F. Paperwork Reduction Act The Paperwork Reduction Act does not apply because the changes to the FTR do not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, *et seq.* G. Small Business Regulatory Enforcement Fairness Act This final rule is also exempt from congressional review prescribed under 5 U.S.C. 801 since it relates solely to agency management and personnel. List of Subjects in 41 CFR Parts 301-11 and 302-17 Government Employees, Relocation, Travel and Transportation Expenses. Dated: May 5, 2008. David L. Bibb, Acting Administrator of General Services. For the reasons set out in the preamble, 41 CFR parts 301-11 and 302-17 are amended as set forth below: PART 301-11—PER DIEM EXPENSES 1. The authority citation for 41 CFR part 301-11 continues to read as follows: Authority: 5 U.S.C. 5707. § 301-11.524 [Amended] 2. Amend § 301-11.524 by removing from paragraph
(a)the words “Appendices A, B, C, and D to part 302-11 of this title” and adding the words “the appropriate RIT tax table(s) located at *www.gsa.gov/ftrbulletin* ” in its place. § 301-11.532 [Amended] 3. Amend § 301-11.532 by removing the words “Appendices A, B, C, and D to part 302-11 of this title” and adding the words “the appropriate RIT tax table(s) located at *www.gsa.gov/ftrbulletin* ” in its place. § 301-11.535 [Amended] 4. Amend § 301-11.535 by— a. Removing from paragraph (a)(1) the words “Appendices A, B, C, and D to part 302-11 of this title” and adding the words “the appropriate RIT tax table(s) located at *www.gsa.gov/ftrbulletin* ” in its place; and b. Removing from paragraph
(b)the words “Appendix B to part 302-11 of this title” and adding the words “the state RIT tax table(s) located at *www.gsa.gov/ftrbulletin* ” in its place. § 301-11.624 [Amended] 5. Amend § 301-11.624 by removing from paragraph
(a)the words “Appendices A, B, C, and D to part 302-11 of this title” and adding the words “the appropriate RIT tax table(s) located at *www.gsa.gov/ftrbulletin* ” in its place. § 301-11.632 [Amended] 6. Amend § 301-11.632 by removing the words “Appendices A, B, C, and D to part 302-11 of this title” and adding the words “the appropriate RIT tax table(s) located at *www.gsa.gov/ftrbulletin* ” in its place. § 301-11.635 [Amended] 7. Amend § 301-11.635 by— a. Removing from paragraph
(a)the words “Appendices A, B, C, and D to part 302-11 of this title” and adding the words “the appropriate RIT tax table(s) located at *www.gsa.gov/ftrbulletin* ” in its place; and b. Removing from paragraph
(b)the words “Appendix B to part 302-11 of this title” and adding the words “the state RIT tax table(s) located at *www.gsa.gov/ftrbulletin* ” in its place. PART 302-17—RELOCATION INCOME TAX
(RIT)ALLOWANCE 8. The authority citation for 41 CFR part 302-17 is amended to read as follows: Authority: 5 U.S.C. 5738; 20 U.S.C. 905(a); E.O. 11609, as amended, 36 FR 13747, 3 CFR, 1971-1975 Comp., p. 586. § 302-17.5 [Amended] 9. Amend § 302-17.5 by removing from the second sentence of paragraph
(i)the words “provided in appendices A through D of this part” and adding the words “located at *www.gsa.gov/ftrbulletin* (see § 302-17.14)” in its place. 10. Amend § 302-17.8 by— a. Removing from the last sentence of paragraph (a), the words “in Appendices A, B, and C of this part” and adding the words “in an annual Federal Travel Regulation
(FTR)Bulletin (located at *www.gsa.gov/ftrbulletin* )” in its place; b. Removing from the first sentence of paragraph (e)(1) the words “contained in appendices A and C of this part” and adding the words “located at *www.gsa.gov/ftrbulletin* ” in its place; removing from the second sentence the words “(see appendix A of this part)” and adding the words “(see the appropriate RIT tax table(s) located at *www.gsa.gov/ftrbulletin* )” in its place; also, removing from the second sentence the words “(see appendix C of this part)” and adding the words “(see the appropriate RIT tax table(s) located at *www.gsa.gov/ftrbulletin* )” in its place; and removing from the fifth sentence the words “appendices A and C of this part” and adding the words “the appropriate RIT tax table(s) located at *www.gsa.gov/ftrbulletin* ” in its place; c. Removing from the first sentence of paragraph (e)(2)(i) the words “in appendix B of this part” and adding the words “located at *www.gsa.gov/ftrbulletin* ” in its place; d. Removing from the first sentence of paragraph (e)(2)(ii) the words “in appendix B of this part” and adding the words “located at *www.gsa.gov/ftrbulletin* ” in its place and removing from the third sentence of paragraph (e)(2)(ii) the words “appendix B of this part” and adding the words “located at *www.gsa.gov/ftrbulletin* ” in its place; e. Removing from the last sentence of paragraph (e)(4)(i)(A) the words “contained in Appendix D of this part” and adding the words “located at *www.gsa.gov/ftrbulletin* ” in its place; and f. Removing from the third sentence of paragraph (e)(5) the words “prescribed in appendix B of this part” and adding the words “located at *www.gsa.gov/ftrbulletin* ” in its place. § 302-17.10 [Amended] 11. Amend § 302-17.10 by removing from paragraph
(a)the words “appendices A, B, and C of 41 CFR Part 302-17” and adding the words “the appropriate RIT tax table(s) located at *www.gsa.gov/ftrbulletin* ” in its place. 12. Add § 302-17.14 to read as follows. § 302-17.14 Where can I find the tax tables used for calculating the relocation income tax
(RIT)allowances? The annual tax tables for Federal, State, and Puerto Rico needed for calculating RIT allowance are published annually as an FTR Bulletin. These Bulletins are located at *www.gsa.gov/ftrbulletin* . A notice announcing each new Bulletin will be published in the **Federal Register** . Appendices A through D to part 302-17 [Removed] 13. Remove Appendices A through D to Part 302-17. [FR Doc. E8-14276 Filed 6-24-08; 8:45 am] BILLING CODE 6820-14-S DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 67 Final Flood Elevation Determinations AGENCY: Federal Emergency Management Agency, DHS. ACTION: Final rule. SUMMARY: Base (1% annual chance) Flood Elevations
(BFEs)and modified BFEs are made final for the communities listed below. The BFEs and modified BFEs are the basis for the floodplain management measures that each community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). DATES: The date of issuance of the Flood Insurance Rate Map
(FIRM)showing BFEs and modified BFEs for each community. This date may be obtained by contacting the office where the maps are available for inspection as indicated on the table below. ADDRESSES: The final BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below. FOR FURTHER INFORMATION CONTACT: William R. Blanton, Jr., Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472,
(202)646-3151. SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency
(FEMA)makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety
(90)days have elapsed since that publication. The Assistant Administrator of the Mitigation Directorate has resolved any appeals resulting from this notification. This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60. Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community. The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown. *National Environmental Policy Act.* This final rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared. *Regulatory Flexibility Act.* As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required. *Regulatory Classification.* This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735. *Executive Order 13132, Federalism.* This final rule involves no policies that have federalism implications under Executive Order 13132. *Executive Order 12988, Civil Justice Reform.* This final rule meets the applicable standards of Executive Order 12988. List of Subjects in 44 CFR Part 67 Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements. Accordingly, 44 CFR part 67 is amended as follows: PART 67—[AMENDED] 1. The authority citation for part 67 continues to read as follows: Authority: 42 U.S.C. 4001 *et seq.;* Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376. § 67.11 [Amended] 2. The tables published under the authority of § 67.11 are amended as follows: Flooding source(s) Location of referenced elevation * Elevation in feet
(NGVD)+ Elevation in feet
(NAVD)# Depth in feet above ground Modified Communities affected Sonoma County, California and Incorporated Areas Docket No.: FEMA-B-7751 and FEMA-D-7644 Mount Hood Creek Approximately 0.38 mile downstream of Sonoma Highway (State Route 12) +468 City of Santa Rosa. At Sonoma Highway (State Route 12) +495 Petaluma River Approximately 400 feet south of the intersection of South McDowell Boulevard and Cader Lane +9 City of Petaluma. Laguna de Santa Rosa Creek At downstream side of Redwood Highway South (US Route 101) +97 City of Rohnert Park. Approximately 0.80 mile upstream of Redwood Highway South +100 Russian River (Area behind Railroad Avenue/Kelly Road levees) Approximately 1.5 miles downstream of Crocker Road +285 Unincorporated Areas of Sonoma County. Approximately 1,550 feet downstream of Crocker Road +300 # Depth in feet above ground. + North American Vertical Datum. * National Geodetic Vertical Datum. ADDRESSES City of Petaluma Maps are available for inspection at Petaluma City Hall, 11 English Street, Petaluma, California. City of Rohnert Park Maps available for inspection at the Rohnert Park City Public Works Department, 6750 Commerce Boulevard, Rohnert Park, California. City of Santa Rosa Maps are available for inspection at Santa Rosa City Hall, 100 Santa Rosa Avenue, Santa Rosa, California. Unincorporated Areas of Sonoma County Maps are available for inspection at Sonoma County Engineering Division, 2550 Ventura Avenue, Santa Rosa, California. Avery County, North Carolina and Incorporated Areas Docket No.: FEMA-D-7676, FEMA-D-7808, FEMA-B-7746, FEMA-B-7763 Anthony Creek Approximately 140 feet upstream of Anthony Creek Road (SR 1362) +1,720 Avery County (Unincorporated Areas). Approximately 1,100 feet upstream of Anthony Creek Road (SR 1362) +1,753 Beech Creek At the confluence with Watauga River +2,444 Unincorporated Areas of Avery County. Approximately 1,100 feet upstream of the confluence of Buckeye Creek +2,776 Bill White Creek At the confluence with Linville River +3,274 Avery County (Unincorporated Areas). Approximately 1.2 miles upstream of the confluence with Linville River +3,331 Brushy Creek At the confluence with North Toe River +2,622 Unincorporated Areas of Avery County. Approximately 2.0 miles upstream of the confluence with North Toe River +2,792 Buckeye Creek At the confluence with Beech Creek +2,731 Unincorporated Areas of Avery County. Approximately 950 feet upstream of the confluence of Clingman Mine Branch +2,940 Cary Flat Branch At the confluence with Wilson Creek +2,047 Avery County (Unincorporated Areas). Approximately 720 feet upstream of the confluence with Wilson Creek +2,057 Clark Branch At the confluence with Mill Timber Creek +3,325 Avery County (Unincorporated Areas). Approximately 0.7 mile upstream of East Crossnore Drive +3,362 Clear Creek At the confluence with North Toe River +2,776 Unincorporated Areas of Avery County. Approximately 1,300 feet upstream of the confluence with North Toe River +2,816 Cranberry Creek At the confluence with Elk River +2,898 Unincorporated Areas of Avery County. Approximately 0.5 mile upstream of Substation Road +3,113 Crossnore Creek At the confluence with Mill Timber Creek +3,323 Avery County (Unincorporated Areas), Town of Crossnore. Approximately 60 feet downstream of Henson Street +3,408 Curtis Creek At the confluence with Elk River +3,036 Unincorporated Areas of Avery County. Approximately 170 feet downstream of Alton Palmer Road (State Road 1324) +3,249 Elk River At the North Carolina/Tennessee state boundary +2,693 Unincorporated Areas of Avery County, Town of Banner Elk. Approximately 0.5 mile downstream of Glove Factory Lane +3,673 Elk River Tributary 1 At the North Carolina/Tennessee state boundary +2,772 Unincorporated Areas of Avery County. Approximately 0.7 mile upstream of North Carolina/Tennessee State boundary +3,198 Fall Creek At the confluence with Elk River +2,713 Unincorporated Areas of Avery County. Approximately 0.8 mile upstream of the confluence with Elk River +3,174 Gragg Prong Creek At the confluence with Lost Cove Creek +1,707 Unincorporated Areas of Avery County. Approximately 1,350 feet upstream of the confluence with Webb Creek +2,199 Hanging Rock Creek At the confluence with Elk River +3,658 Unincorporated Areas of Avery County, Town of Banner Elk. Approximately 160 feet downstream of Dobbins Road (State Road 1337) +3,848 Harper Creek At the Avery/Caldwell County boundary +1,800 Avery County (Unincorporated Areas). At the confluence of South Harper and North Harper Creeks +1,816 Henson Creek At the confluence with North Toe River +2,838 Unincorporated Areas of Avery County. Approximately 700 feet upstream of Henson Creek Road (State Road 1126) +3,351 Horney Creek At the confluence with Elk River +3,391 Unincorporated Areas of Avery County, Town of Banner Elk. Approximately 1,620 feet upstream of Banner Elk Highway/US-194 +3,586 Horse Bottom Creek At the confluence with Hanging Rock Creek +3,686 Unincorporated Areas of Avery County, Town of Banner Elk. Approximately 650 feet upstream of Guignard Lane +3,774 Hull Branch At the confluence of South Harper Creek +2,279 Avery County (Unincorporated Areas). Approximately 450 feet upstream of the confluence with South Harper Creek +2,285 Kentucky Creek At the confluence with North Toe River +3,590 Unincorporated Areas of Avery County, Town of Newland. Approximately 0.5 mile upstream of Damon Vance Lane +3,762 Linville River (downstream) Approximately 0.3 mile downstream of the Avery/Burke County boundary +3,206 Avery County (Unincorporated Areas). Approximately 1.1 miles upstream of River Road +3,573 Linville River (upstream) Approximately 50 feet downstream of Highland Mist Road +3,695 Avery County (Unincorporated Areas), Village of Grandfather Village. At the confluence of Big Grassy Creek +3,834 Little Elk Creek At the confluence with Elk River +2,865 Unincorporated Areas of Avery County, Town of Elk Park. Approximately 0.8 mile upstream of Little Elk Road (State Road 1173) +3,716 Little Elk Creek Tributary 1 At the confluence with Little Elk Creek +2,897 Unincorporated Areas of Avery County, Town of Elk Park. Approximately 140 feet upstream of Brooks Shell Road (State Road 1171) +3,564 Little Elk Creek Tributary 1A At the confluence with Little Elk Creek Tributary 1 +3,098 Unincorporated Areas of Avery County, Town of Elk Park. Approximately 1,420 feet upstream of Brooks Shell Road (State Road 1171) +3,445 Little Elk Creek Tributary 2 At the confluence with Little Elk Creek +3,037 Unincorporated Areas of Avery County, Town of Elk Park. Approximately 260 feet upstream of Cliff Taylor Lane +3,146 Lost Cove Creek At the Avery/Caldwell County boundary +1,580 Avery County (Unincorporated Areas). Approximately 2.1 miles upstream of the confluence with Gragg Prong Creek +1,947 Mill Timber Creek At the confluence with Linville River +3,315 Avery County (Unincorporated Areas). Approximately 150 feet downstream of U.S. 221 +3,362 North Toe River Approximately 1.3 miles downstream of the confluence of Brushy Creek +2,604 Unincorporated Areas of Avery County, Town of Newland. At the confluence of Hickorynut Branch +3,770 Plumtree Creek At the confluence with North Toe River +2,865 Unincorporated Areas of Avery County. Approximately 1.0 mile upstream of US-19 +2,957 Roaring Creek At the confluence with North Toe River +2,966 Unincorporated Areas of Avery County. Approximately 2.7 miles upstream of Roaring Creek Road (State Road 1132) +4,240 Rockhouse Creek At the confluence with Lost Cove Creek +1,580 Avery County (Unincorporated Areas). Approximately 0.5 mile upstream of the Avery/Caldwell County boundary +1,639 Shawneehaw Creek Approximately 300 feet upstream of the confluence with Elk River +3,644 Unincorporated Areas of Avery County, Town of Banner Elk. Approximately 270 feet upstream of Gualtney Road (State Road 1335) +3,962 Shawneehaw Creek Tributary 1 At the confluence with Shawneehaw Creek +3,813 Unincorporated Areas of Avery County, Town of Banner Elk. Approximately 880 feet upstream of Balm Highway/US-194 +3,871 Shoemaker Creek At the confluence with Shawneehaw Creek +3,796 Unincorporated Areas of Avery County, Town of Banner Elk. Approximately 400 feet upstream of Shoemaker Road +3,882 South Harper Creek At the confluence with Harper Creek +1,816 Avery County (Unincorporated Areas). Approximately 320 feet upstream of the confluence of Hull Branch +2,284 Stamey Branch At the confluence with Linville River +3,263 Avery County (Unincorporated Areas). Approximately 0.6 mile upstream of the confluence with Linville River +3,281 Sugar Creek Approximately 150 feet upstream of the confluence with Elk River +3,681 Unincorporated Areas of Avery County, Town of Banner Elk. Approximately 1,250 feet upstream of Mac Lane +3,727 Threemile Creek At the confluence with North Toe River +2,756 Unincorporated Areas of Avery County. Approximately 0.8 mile upstream of Greenway Lane +2,853 Trivett Branch At the North Carolina/Tennessee state boundary +2,644 Unincorporated Areas of Avery County. Approximately 700 feet upstream of the confluence with Trivett Branch Tributary 3 +2,995 Trivett Branch Tributary 1 At the North Carolina/Tennessee state boundary +2,633 Unincorporated Areas of Avery County. Approximately 700 feet upstream of the confluence of Trivett Branch Tributary 1A +2,841 Trivett Branch Tributary 1A At the confluence with Trivett Branch Tributary 1 +2,760 Unincorporated Areas of Avery County. Approximately 720 feet upstream of the confluence with Trivett Branch Tributary 1 +2,890 Trivett Branch Tributary 2 At the confluence with Trivett Branch +2,650 Unincorporated Areas of Avery County. Approximately 1,150 feet upstream of the confluence with Trivett Branch +2,754 Trivett Branch Tributary 3 At the confluence with Trivett Branch +2,968 Unincorporated Areas of Avery County. Approximately 370 feet upstream of Dark Ridge Road (State Road 1310) +2,998 Watauga River At the North Carolina/Tennessee state boundary +2,142 Unincorporated Areas of Avery County. At the confluence of Beech Creek +2,446 Webb Creek At the confluence with Gragg Prong Creek +2,172 Avery County (Unincorporated Areas). Approximately 475 feet upstream of Webb Creek Road +2,396 Whitehead Creek At the confluence with Elk River +3,404 Unincorporated Areas of Avery County, Town of Banner Elk, Approximately 100 feet upstream of Tumbling Brook Drive +3,764 West Fork Linville River Approximately 670 feet upstream of Joe Hartley Road +3,684 Avery County (Unincorporated Areas). Approximately 0.4 mile upstream of Joe Hartley Road +3,712 Wilson Creek At the Avery/Caldwell County boundary +1,670 Avery County (Unincorporated Areas). Approximately 500 feet upstream of the confluence with Cary Flat Branch +2,056 + North American Vertical Datum. * National Geodetic Vertical Datum. # Depth in feet above ground. ADDRESSES Avery County (Unincorporated Areas) Maps are available for inspection at the Avery County Courthouse, 100 Montezuma Street, Newland, North Carolina. Town of Banner Elk Maps are available for inspection at the Banner Elk Town Hall, 200 Park Avenue, Banner Elk, North Carolina. Town of Crossnore Maps are available for inspection at the Crossnore Town Hall, 1 Circle Drive, Crossnore, North Carolina. Town of Elk Park Maps are available for inspection at the Elk Park Town Hall, 169 Winters Street, Elk Park North Carolina. Town of Newland Maps are available for inspection at the Newland Town Hall, 301 Cranberry Street, Newland, North Carolina. (Catalog of Federal Domestic Assistance No. 97.022, “Flood Insurance.”) Dated: June 17, 2008. David I. Maurstad, Federal Insurance Administrator of the National Flood Insurance Program, Department of Homeland Security, Federal Emergency Management Agency. [FR Doc. E8-14326 Filed 6-24-08; 8:45 am] BILLING CODE 9110-12-P DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 67 Final Flood Elevation Determinations AGENCY: Federal Emergency Management Agency, DHS. ACTION: Final rule. SUMMARY: Base (1% annual chance) Flood Elevations
(BFEs)and modified BFEs are made final for the communities listed below. The BFEs and modified BFEs are the basis for the floodplain management measures that each community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). DATES: The date of issuance of the Flood Insurance Rate Map
(FIRM)showing BFEs and modified BFEs for each community. This date may be obtained by contacting the office where the maps are available for inspection as indicated on the table below. ADDRESSES: The final BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below. FOR FURTHER INFORMATION CONTACT: William R. Blanton, Jr., Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472,
(202)646-3151. SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency
(FEMA)makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety
(90)days have elapsed since that publication. The Assistant Administrator of the Mitigation Directorate has resolved any appeals resulting from this notification. This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60. Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community. The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown. *National Environmental Policy Act* . This final rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared. *Regulatory Flexibility Act* . As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required. *Regulatory Classification* . This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735. *Executive Order 13132, Federalism* . This final rule involves no policies that have federalism implications under Executive Order 13132. *Executive Order 12988, Civil Justice Reform* . This final rule meets the applicable standards of Executive Order 12988. List of Subjects in 44 CFR Part 67 Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements. Accordingly, 44 CFR part 67 is amended as follows: PART 67—[AMENDED] 1. The authority citation for part 67 continues to read as follows: Authority: 42 U.S.C. 4001 *et seq.* ; Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376. § 67.11 [Amended] 2. The tables published under the authority of § 67.11 are amended as follows: State City/town/county Source of flooding Location * Elevation in feet
(NGVD)+ Elevation in feet
(NAVD)# Depth in feet above ground Modified City of Sacramento, California Docket No.: FEMA-B-7753 California City of Sacramento Natomas Basin Area West of Natomas East Main Drainage Canal * 33 Area North of American River * 33 Area East of Sacramento River * 33 * National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES City of Sacramento Maps are available for inspection at Stormwater Management Program, 1395 35th Avenue, Sacramento, CA 95822. Unincorporated Areas of Sacramento County, California Docket No.: FEMA-B-7753 California Unincorporated Areas of Sacramento County Natomas Basin Area West of Natomas East Main Drainage Canal * 33 Area North of American River * 33 Area East of Sacramento River * 33 * National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES Unincorporated Areas of Sacramento County Maps are available for inspection at Municipal Services Agency, Department of Water Resources, 827 7th Street, Room 301, Sacramento, CA 95814. (Catalog of Federal Domestic Assistance No. 97.022, “Flood Insurance.”) Dated: June 17, 2008. David I. Maurstad, Federal Insurance Administrator of the National Flood Insurance Program, Department of Homeland Security, Federal Emergency Management Agency. [FR Doc. E8-14327 Filed 6-24-08; 8:45 am] BILLING CODE 9110-12-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 46 CFR Part 31 [USCG-2008-0394] RIN 1625-ZA18 Shipping; Technical, Organizational, and Conforming Amendments AGENCY: Coast Guard, DHS. ACTION: Final rule. SUMMARY: This rule makes non-substantive changes to Title 46, part 31 of the Code of Federal Regulations. The purpose of this rule is to make conforming amendments and technical corrections to Coast Guard shipping regulations. Specifically, this final rule updates 46 CFR 31.10-16 concerning inspection and certification of shipboard cargo gear. This rule will have no substantive effect on the regulated public. DATES: This final rule is effective June 25, 2008. ADDRESSES: Comments and material received from the public, as well as documents mentioned in this preamble as being available in the docket, are part of docket USCG-2008-0394 and are available for inspection or copying at the Docket Management Facility, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket on the Internet at *http://www.regulations.gov* . FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, call LCDR Reed Kohberger, CG-5232, Coast Guard, telephone 202-372-1471. If you have questions on viewing the docket, call Ms. Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826. SUPPLEMENTARY INFORMATION: Table of Contents for Preamble I. Regulatory History II. Background and Purpose III. Discussion of Rule IV. Regulatory Analyses A. Regulatory Planning and Review B. Small Entities C. Collection of Information D. Federalism E. Unfunded Mandates Reform Act F. Taking of Private Property G. Civil Justice Reform H. Protection of Children I. Indian Tribal Governments J. Energy Effects K. Technical Standards L. Environment I. Regulatory History We did not publish a notice of proposed rulemaking
(NPRM)for this regulation. Under both 5 U.S.C. 553(b)(A) and (b)(B), the Coast Guard finds this rule is exempt from notice and comment rulemaking requirements because these changes involve agency organization and practices, and good cause exists for not publishing an NPRM for all revisions in the rule because they are all non-substantive changes. This rule consists only of corrections and editorial, organizational, and conforming amendments. These changes will have no substantive effect on the public; therefore, it is unnecessary to publish an NPRM. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that, for the same reasons, good cause exists for making this rule effective less than 30 days after publication in the **Federal Register** . II. Background and Purpose The Coast Guard periodically makes technical amendments to Title 46 of the Code of Federal Regulations. This rule, which becomes effective June 25, 2008, updates 46 CFR 31.10-16 concerning inspection and certification of shipboard cargo gear. This rule does not create any substantive requirements. III. Discussion of Rule This rule adds the National Cargo Bureau, Inc.
(NCB)to 46 CFR 31.10-16(e) as an organization authorized by the Coast Guard to perform inspections of shipboard cargo gear. In a letter dated March 28, 2007, the Chief of the Office of Vessel Activities, U.S. Coast Guard, confirmed that the NCB is authorized to perform such inspections, and has been since 1960. In a **Federal Register** notice dated December 24, 1960, the Coast Guard announced that valid current certificates and/or registers issued by the NCB may be accepted as *prima facie* evidence of the condition of such gear. 25 FR 13730. The letter and notice are available under docket number USCG-2008-0394 where indicated under the ADDRESSES section of this preamble. This technical amendment will afford the public appropriate notice of the NCB's existing authorization to conduct shipboard cargo gear inspections. IV. Regulatory Analyses We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analysis based on 12 of these statutes or executive orders. A. Regulatory Planning and Review This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. As this rule involves internal agency practices and procedures and non-substantive changes, it will not impose any costs on the public. B. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. This rule does not require a general NPRM and, therefore, is exempt from the requirements of the Regulatory Flexibility Act. The Coast Guard certifies under 5 U.S.C. 605(b) that this final rule will not have a significant economic impact on a substantial number of small entities. C. Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). D. Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. E. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. F. Taking of Private Property This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. G. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. H. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children. I. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. J. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. K. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. L. Environment We have analyzed this rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraphs (34)(a) and
(b)of the Instruction, from further environmental documentation because this rule involves editorial, procedural, and internal agency functions. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES . List of Subjects in 46 CFR Part 31 Cargo vessels, Marine safety, Reporting and recordkeeping requirements. For the reasons discussed in the preamble, the Coast Guard amends 46 CFR part 31 as follows: PART 31—INSPECTION AND CERTIFICATION 1. The authority citation for part 31 continues to read as follows: Authority: 33 U.S.C. 1321(j); 46 U.S.C. 2103, 3205, 3306, 3307, 3703; 46 U.S.C. Chapter 701; 49 U.S.C. 5103, 5106; E.O. 12234, 45 FR 58801, 3 CFR, 1980 Comp., p. 277; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; Department of Homeland Security Delegation No. 0170.1. Section 31.10-21 also issued under the authority of Sect. 4109, Pub. L. 101-380, 104 Stat. 515. 2. In § 31.10-16, revise paragraph
(e)to read as follows: § 31.10-16 Inspection and certification of cargo gear-TB/ALL.
(e)The authorization for organizations to perform the required inspection is granted by the Chief, Office of Vessel Activities, Commandant (CG-543), and will continue until superseded, canceled, or modified. The following organizations are currently recognized by the Commandant (CG-543) as having the technical competence to handle the required inspection:
(1)National Cargo Bureau, Inc., with home offices at 17 Battery Place, Suite 1232, New York, NY 10004.
(2)The International Cargo Gear Bureau, Inc., with home office at 321 West 44th Street, New York, NY 10036. Dated: June 19, 2008. Stefan G. Venckus, Chief, Office of Regulations and Administrative Law, United States Coast Guard. [FR Doc. E8-14293 Filed 6-24-08; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF TRANSPORTATION Office of the Secretary 49 CFR Part 40 [Docket No. OST-2003-15245] RIN 2105-AD55 Procedures for Transportation Workplace Drug and Alcohol Testing Programs AGENCY: Office of the Secretary, DOT. ACTION: Final rule. SUMMARY: The Department of Transportation is amending certain provisions of its drug and alcohol testing procedures to change instructions to collectors, laboratories, medical review officers, and employers regarding adulterated, substituted, diluted, and invalid urine specimen results. These changes are intended to create consistency with specimen validity requirements established by the U.S. Department of Health and Human Services and to clarify and integrate some measures taken in two of our own Interim Final Rules. This Final Rule makes specimen validity testing mandatory within the regulated transportation industries. DATES: This rule is effective August 25, 2008. FOR FURTHER INFORMATION CONTACT: Jim L. Swart, Acting Director (S-1), U.S. Department of Transportation, Office of Drug and Alcohol Policy and Compliance, 1200 New Jersey Avenue, SE., Washington, DC 20590; telephone number
(202)366-3784 (voice),
(202)366-3897 (fax), or *jim.swart@dot.gov* (e-mail). SUPPLEMENTARY INFORMATION: Background The Omnibus Transportation Employee Testing Act of 1991, 49 U.S.C. 31300, *et seq.* , 49 U.S.C. 20100, *et seq.* , 49 U.S.C. 5330, *et seq.* , and 49 U.S.C. 45100, *et seq.* (the Omnibus Act), requires the U.S. Department of Transportation
(DOT)to use the laboratories certified by, and testing procedures of, the U.S. Department of Health and Human Services
(HHS)to ensure “the complete reliability and accuracy of controlled substances tests.” Since Congress specifically limited the scientific testing methodology upon which the DOT can rely in making its drug and alcohol testing regulations, we follow the HHS scientific and technical guidelines, including the amendments to their Mandatory Guidelines. In its final rule of December 2000 [65 FR 79526], the U.S. Department of Transportation
(DOT)made specimen validity testing
(SVT)mandatory for the transportation industry contingent upon the HHS publishing its Mandatory Guidelines on SVT. DOT anticipated that HHS would, sometime in 2001, amend its Mandatory Guidelines to establish SVT requirements for HHS-certified laboratories. When it appeared that HHS would not establish final SVT requirements in 2001, we amended 49 CFR part 40 (part 40) to remove the mandatory requirement. We believed it advisable to wait until HHS completed its amendment before making SVT mandatory throughout the transportation industries for all DOT specimens. On August 9, 2001, the DOT amended part 40 [66 FR 41952] to remove the mandatory requirement because HHS had not finalized its Mandatory Guidelines regarding SVT. SVT would remain authorized but not required. The DOT issued a May 28, 2003 interim final rule (2003 IFR) [68 FR 31626] in response to scientific and medical information suggesting we modify testing criteria for some specimens that had been considered to be substituted and ultimately were treated as refusals to test. The 2003 IFR modified how the medical review officer
(MRO)would deal with any substituted result with creatinine concentrations equal to or greater than 2, but less than or equal to 5 mg/dL [hereafter, “2-5 mg/dL range”]. It did not change the HHS substitution criteria that we had used. On April 13, 2004, the HHS published a **Federal Register** notice revising its Mandatory Guidelines [69 FR 19644] with an effective date of November 1, 2004. Among the revisions contained in the HHS Mandatory Guidelines were requirements that laboratories modify substituted and diluted specimen testing procedures and reporting criteria. The HHS also revised laboratory requirements for adulterated specimen testing and made SVT mandatory for Federal employee testing under the HHS Federal Workplace Drug Testing Program. In an IFR (2004 IFR) [69 FR 64865] published on November 9, 2004, the DOT changed a number of items in part 40 to make them consistent with the HHS Mandatory Guidelines. We did this to avoid conflicting requirements that implementation of both rules would have had on laboratories and MROs. While the HHS Mandatory Guidelines' approach to substituted test results allowed DOT to simplify its guidance to MROs on how to deal with those results, there were several important differences between the 2004 IFR and the HHS Guidelines. The most important among them was the fact that SVT, though authorized by part 40 and the 2004 IFR, was not yet required. In the 2004 IFR, we indicated that we intended to fully address all aspects of the HHS changes to their Mandatory Guidelines in a notice of proposed rulemaking (NPRM). We also said that we would take into consideration any subsequent HHS materials (e.g., HHS MRO Manual) and would update our cost figures for SVT in the context of making SVT mandatory. Subsequently, the DOT published—on October 31, 2005—an NPRM [70 FR 62276] responding to comments made to the 2003 IFR and to the 2004 IFR. The NPRM also proposed making SVT mandatory and included a number of other proposed technical changes, mostly clarifying the procedures related to testing and reporting of adulterated, substituted, and invalid specimens. Summary of NPRM Comments A total of 27 commenters responded to the 2005 NPRM, making 234 separate comments. Eight commenters were individuals with no known affiliations; seven were MROs representing themselves or their organizations; two were employers; one was a Third-Party Administrator (TPA); four represented associations; four represented labor unions; and one represented a drug testing laboratory. Eleven commenters expressed general support for the DOT effort to establish clear requirements for SVT that were consistent with the HHS procedures. Of these eleven, one individual thought the SVT rules should be more rigorous; four others commended the DOT in its efforts; one TPA thought the effort admirable; two labor unions commended and supported the DOT's efforts; one association applauded the effort; and one laboratory supported DOT efforts to bring more consistency on SVT with the HHS. Six commenters specifically supported making SVT mandatory and five specifically opposed this proposal. Several stated that authorizing SVT is sufficient to address adulteration and substitution issues. A number of commenters provided numerous technical suggestions, supported most of the proposed changes or additions, and were interested in establishing relevant procedures to address the various issues of adulterated, substituted, and invalid test results. A number of commenters were concerned about the current state of science related to SVT testing as compared to that of drug testing. At least two commenters believed the DOT needed to require laboratories to utilize two separate methodologies for certain SVT. However, this would require laboratories to change testing protocols that the HHS does not mandate. A number of commenters supported the DOT's proposal to rectify past problems related to substituted specimens and suggested a number of options and recommendations. We appreciate the input from the commenters and considered their comments in the Informational Notice Regarding Certain Substituted Specimens published in the **Federal Register** on September 11, 2007 [72 51887]. Because we addressed those issues in that notice, we will not deal with them in this final rule. A number of commenters raised part 40 issues unrelated to the proposed SVT issues. We have not addressed these unrelated items in this preamble because they are outside the scope of the NPRM. Finally, the NPRM proposed or asked a number of major policy questions relevant to SVT. We specifically address major policy issues in a separate section and address the others in section-by-section discussions. Principal Policy Issues Mandatory Specimen Validity Testing The DOT proposed making SVT mandatory, as in the current HHS Federal employee testing program. Most commenters concurred with DOT's proposal to make SVT mandatory. Some commenters acknowledged this was necessary because the increase in products designed to adulterate specimens has made tampering with specimens more prevalent. The commenters also supported mandatory SVT because it would bring better control over the SVT process. A number of commenters expressed concern that the science of SVT has yet to evolve to the same level of accuracy, reliability, and defensibility as the science of drug testing. Some of these commenters recommended that SVT should remain elective. Several commenters believed that the DOT should require all laboratories to employ two separate SVT methodologies for adulterants because this would ensure more confirmed adulteration results. The commenters reasoned that laboratories would be more likely to report invalid results if they only used one SVT methodology. Other comments on mandatory SVT included concerns about costs and the extent of adulterant testing. Some commenters believed the DOT's cost estimates for SVT were low. They requested clarification on the anticipated costs of initiating mandatory testing. Commenters also expressed concerns that laboratories were not testing for all adulterants. DOT Response The DOT continues to believe that mandatory testing for specimen validity is an appropriate response to the use of adulterants and attempts to subvert the collection and testing process. The HHS Mandatory Guidelines established SVT requirements with which laboratories must comply in order to become and remain HHS-certified. The HHS has stated that its SVT standards are designed to produce the most accurate, reliable, and correctly interpreted test results. Currently, when DOT specimens are tested for validity, the HHS procedural standards apply. There is no reason to presume that these standards are scientifically insufficient. Therefore, we will require that urine specimens tested under the DOT-industry programs will be subject to the HHS procedural standards for SVT. We will continue to utilize HHS instructions to laboratories for establishing cutoffs and directing laboratory analysis regarding creatinine levels. Within part 40, we added procedures to allow an employee to provide evidence to the MRO that he or she can produce a urine specimen below the 2.0 mg/dL cutoff. We created this procedural safeguard in the 2000 regulation because a small number of employees assert they may be capable of providing urine specimens with creatinine levels below 2.0 mg/dL, and that such low creatinine levels are not the result of tampering with their specimens. By adding an evidentiary process for results below the 2.0 mg/dL cutoff, we believe that we have created sufficient safeguards to protect employees from being wrongfully accused of tampering with their specimens. The DOT shares the commenters' concerns about laboratories choosing to use one adulterant testing methodology because using one methodology instead of two may result in obtaining invalid results rather than confirmed adulterated results. However, HHS mandates all scientific and procedural requirements for drug testing at HHS-certified laboratories. HHS provides guidance to the laboratories on use of a secondary confirmatory methodology when a laboratory performs confirmatory adulteration testing. HHS authorizes, but does not require, laboratories to perform confirmatory adulteration testing. The Omnibus Act requires the DOT to incorporate the HHS scientific and technical guidelines, and we do not have the authority to impose additional scientific and technical requirements upon the laboratories. While current laboratory testing data show a slight rise in invalid results and a slight decline in adulterated results over previous years, we do not have data based solely upon implementation of full SVT because the DOT has not required full implementation. As a consequence, the DOT will initiate permanent 6-month reviews of laboratory data on DOT-regulated specimens to obtain more specific information about this issue now that SVT will be mandatory for all DOT-regulated specimens. We will look at the reasons drug test results are classified as invalid versus adulterated to determine if use of one methodology instead of two is likely to cause more invalid results and fewer confirmed adulterated results. Part 40 requires laboratories to submit to DOT specific information regarding their SVT following full implementation. The regulatory text requiring this information is at § 40.111; and the required data are listed at Appendix C. We will use this information in our continuing discussions with HHS and others regarding SVT. We also want the information so that we can know the full scope of laboratory data on DOT-regulated tests. The DOT cost estimates for full SVT and for laboratory data collections are in the regulatory analyses and notices section of this preamble. Requirement for Laboratories To Contact MROs Before Reporting Invalid Results The DOT asked if we should continue to require laboratories to contact MROs before reporting invalid results. Several commenters, mostly MROs, responded to this question and generally indicated that laboratories are not routinely contacting them about invalid results as required by HHS and DOT. Some commenters were concerned that the rule text does not specify whether the MRO or the laboratory has the final decision on the disposition of the specimen. Also, the commenters expressed concern about whether the employer would be required to pay for sending the specimen to another laboratory. One commenter pointed out that DOT is requiring the MRO to discuss the result with “the certifying scientist” while HHS requires the MRO to discuss the result with the “laboratory.” Some laboratory personnel other than a certifying scientist, for example the Responsible Person (RP), may discuss invalids with the MRO. This commenter supported having the MRO talk with “a certifying scientist.” DOT Response The rule continues to require laboratories to contact the MRO prior to reporting an invalid result, a requirement which mirrors the current HHS Mandatory Guidelines. The fact that some laboratories may not be following this requirement is not sufficient reason to suspend or disregard this procedure. The HHS identifies 12 separate criteria for identifying a specimen as invalid. Of these 12, the first three do not require laboratory contact with MROs. It is entirely possible that many of the invalid results fall under these three criteria and may explain the reason that contact between the laboratories and the MROs appears lacking. These three criteria are: 1. Inconsistent creatinine concentration and specific gravity results; 2. The pH is greater than or equal to 3 and less than 4.5, or greater than or equal to 9 and less than 11; or 3. The nitrite concentration is greater than or equal to 200 mcg/mL, but less than 500 mcg/mL. As indicated before, some laboratory testing methodologies may differ. If the invalid result is related to the criteria listed in the HHS Mandatory Guidelines—under sections 2.4(7),
(iv)through (xii), the MRO and laboratory might conclude it is beneficial to conduct another test at a different laboratory to obtain a result that is not invalid. This would require a certifying scientist and the MRO to discuss the benefit of sending the specimen to another laboratory and to determine which laboratory would be able to conduct the appropriate test. A few commenters requested that DOT specify whether the MRO or a certifying scientist would make the determination to send a specimen to another laboratory. The DOT believes this is a mutual decision to be made by both the MRO and a certifying scientist. Regarding payment for additional testing, the DOT's position is similar to our stance on paying for split specimen testing. Regardless of who pays or how, it is the employer's responsibility to ensure that procedures are in place to accomplish the additional testing. We believe the cost of any additional tests would be less than the subsequent cost of recollecting under direct observation when the first laboratory reported the result as invalid. One commenter said that the NPRM's reference to the MRO's conferring with “the certifying scientist” should remain “a certifying scientist”—as it is in the current rule text. We agree, and our regulation reflects this. HHS Blind Specimen Certification Criteria The DOT proposed to adopt the HHS blind specimen certification criteria. HHS provides technical oversight to the laboratories, and quality control is part of that very important oversight. We did not receive comments regarding this proposal. Therefore, the DOT has adopted the HHS criteria for blind specimen certification. Recollection Under Direct Observation When Creatinine Is in the 2-5 mg/dL Range The DOT proposed adopting the 2004 IFR's approach to the treatment of negative-dilute specimens with creatinine in the 2-5 mg/dL range, which requires recollection under direct observation. The DOT requested comments about continuing this requirement. The majority of commenters supported the proposal to require recollections under direct observation for negative-dilute results with creatinine in the 2-5 mg/dL range. Several commenters indicated that there was an increase in positive results from the directly observed recollections, while others stated the results were mostly negative. Most of these commenters provided anecdotal information. However, one commenter's data showed that a significant number of the directly observed recollections produced non-negative results. DOT Response The DOT will continue to require the MRO to direct employers to conduct immediate recollections under direct observation when the original specimen is reported with a creatinine concentration in the 2-5 mg/dL range. We think the number of non-negatives produced during directly observed recollections is significant and justifies continuing the recollection requirement. Although a few individuals claim the ability to produce urine specimens with this concentration of creatinine, there has been no conclusive evidence that this is a common occurrence. Concentration of creatinine at these levels is not the norm. In the interest of public safety, the DOT believes that a recollection under direct observation is a reasonable requirement. HHS Requirement That an MRO Report a Negative Result When a Medical Explanation for a Substituted Specimen Appears Legitimate The DOT proposed not adopting the HHS MRO Manual guidance for an MRO to report a negative result if the MRO believed there was a legitimate medical explanation for the substituted specimen. There were no comments related to this item. DOT Response Under part 40, the MRO will continue to have the ability to verify substituted specimens with medical explanations as cancelled tests. Because there are virtually no medical explanations for substituted results, the MRO must continue to report to DOT the medical basis for canceling the test. Section-by-Section Discussion The following part of the preamble discusses each of the final rule's sections, including responses to comments on each section. Index The DOT proposed to modify some existing section headings and add two new section headings to reflect regulation text changes. Seven section headings have been modified or added. Two commenters responded to this proposal and both supported it. Section 40.3 What do the terms in this regulation mean? In order to align more closely the definitions in § 40.3 with definitions contained in the HHS Mandatory Guidelines, the DOT proposed modifying some existing definitions and adding several new ones. Commenters supported this proposal and responded by making suggested additions or changes to this section. Several commenters, especially MROs, recommended adoption of the term “hyperdilute” or “superdilute” to distinguish references to those negative-dilute specimens with creatinine concentrations in the 2-5 mg/dL range. They recommended that positive specimens the MROs downgrade to negatives be recollected if they are dilute with creatinine concentrations in the 2-5 mg/dL range. Additionally, the terms “cancelled-invalid” and “confirmatory creatinine and specific gravity tests” are used in the text. Commenters asked if these should be included in the definitions. The DOT will modify eight definitions and add five new ones. We will include a definition of the term “aliquot” as defined in the HHS Mandatory Guidelines. For the term “Oxidizing adulterant” we did provide HHS' examples of these agents. We will not use of the term “hyperdilute” or “superdilute” to describe a dilute specimen with creatinine concentrations in the 2-5 mg/dL range. Laboratories do not report specimens with creatinine concentrations in the 2-5 mg/dL range as “hyperdilute” or “superdilute” but rather as dilute with a numerical value. To require the use of this term in the reporting process would require laboratories to change their reporting format and the DOT will not direct them to do that. Additionally, some MROs may think that the use of this term would somehow make it easier for them to report these results to the designated employer representative (DER). However, even if we adopted this term, the DERs would still have to be told that the reason for the test result being “hyperdilute” or “superdilute” is that the creatinine concentration fell in the 2-5 mg/dL range. The DOT does not think that adding a different name to a test result would in any way improve laboratory and MRO procedures. We also proposed to use the term “cancelled-invalid” in the NPRM. However, we will not include this term in the text since laboratories will not report tests as being “cancelled-invalid.” In addition, current requirements call for the MRO to check the cancelled box on the Federal Drug Testing Custody and Control Form
(CCF)and, on the remarks line, write that the reason is an invalid result. We think this is sufficiently clear in describing the test outcome. We will not add another term to the current lexicon of drug testing results. We use the term “cancelled” in the rule text rather than “cancelled-invalid.” One commenter asked if a definition should be developed to describe what is meant by a confirmatory creatinine and specific gravity test. The DOT believes that the terms “confirmatory creatinine test” and “confirmatory specific gravity test” are self-explanatory and do not need more specific definitions. A confirmatory specimen validity test is just that, a test on a separate aliquot to confirm the results of an initial specimen validity test. Section 40.89 What is specimen validity testing, and are laboratories required to conduct it? The DOT will make SVT mandatory by removing the option to conduct SVT and adding text requiring SVT. This proposal had a majority of favorable comments. Specific discussion of this item is listed under Principal Policy Issues. Section 40.95 What are the adulterant cutoff concentrations for initial and confirmation tests? Section 40.96 What criteria do laboratories use to establish that a specimen is invalid? The DOT proposed adding two tables (one at the existing § 40.95, the other at a new § 40.96) to inform MROs and others about the cutoffs and the procedures HHS directs laboratories to use in reporting adulterated and invalid test results. We sought comments on whether this information would be helpful to MROs and others, or would have too much information and be too complicated to add value. Most commenters supported the proposal to include two tables related to adulterant and invalid testing cutoffs. The DOT, however, did not include these tables because we are concerned that including such tables could provide information useful in developing adulterants to circumvent the testing process. Moreover, the inclusion of these tables would not clarify for laboratories what they are currently required to report by the HHS Mandatory Guidelines nor would it add to the effectiveness of the MRO verification process. Since the cutoff levels are mandated by the HHS, duplicating them in the rule text does not add any value or streamline the overall procedures required by part 40. Therefore, we have indicated in the rule text that laboratories will be required to use cutoff levels for adulterated and invalid urine specimens that are directed by the HHS. One commenter stated that an invalid report due to abnormal pH is reported only as “abnormal pH” per HHS direction. For the MRO to find out if it was abnormally high or low, the MRO must contact the laboratory. The commenter suggested that DOT direct laboratories to report either high pH or low pH or the actual pH numbers. This would be consistent with § 40.96(d) which directs laboratories to report the reason a test is invalid and would remove the need for the MRO to call the laboratory on these results. We agree with the comment that the use of the term abnormal pH creates a requirement for the MRO to contact the laboratory, and we will therefore, direct laboratories to report the actual numerical value for pH. Finally, one commenter suggested that we clearly point out that the confirmation test is one that uses a different chemical methodology than the initial test on a second aliquot of the specimen. The definition of “confirmatory validity test” clearly states that a confirmation test is performed on a different aliquot of the original specimen. Section 40.97 What do laboratories report and how do they report it? Laboratories are reporting and MROs are reviewing a variety of test results, including multiple test results for the same testing event. The DOT proposed using categories to make it easier to understand what laboratories and MROs are to report. Of the commenters who responded to this proposal, some addressed only the question of categories, while others addressed issues related to multiple reporting. Several commenters agreed that understanding the myriad of results is a difficult situation and supported the DOT's attempt to simplify it through the use of identifying categories. Some concerns centered on the complexities of reporting multiple results of two separate collections from the same collection event. These commenters were troubled about how the overall process would work—for example, if two CCFs were produced on a collection, what would the MRO do with them and how would the MRO report the results? Additionally, the issue of cost per test to the employer was raised and the difficulty of billing with no documentation (i.e., no CCF for the test not reported). In any situation where the tests are reported negative and non-negative—in any order of collection—commenters agreed that the non-negative test should be the result of record reported by the MRO for the testing event. These MRO issues are addressed in the discussion of § 40.162. Some commenters supported the use of categories and some did not. A number believed that laboratories would not use the categories, but would continue to use specific test results because these are more descriptive and useful. A commenter felt that the terms “negative” and “non-negative” are very simple and descriptive and much more useful than a category list. The DOT never intended for laboratories to report results as “Category 1” or “Category 2” or “Category 3.” In the NPRM, we merely said that a laboratory's specimen testing result would fall into one of three distinct and separate categories—negative; non-negative; and rejected for testing—and we described them as Categories 1 through 3. We agree with those commenters who said this delineation made it easier for them to understand that the results reported would fall into one of those three categories. Therefore, we will keep the three separate categories for results being reported with the understanding that laboratories are not to report a result as being in a specific category (i.e., Category 1, Category 2, or Category 3; or non-negative), but must report a specific result. Section 40.133 Under what circumstances may the MRO verify a test result as positive, or as a refusal to test because of adulteration or substitution, or as cancelled because the specimen was invalid, without interviewing the employee? MROs have situations in which neither they nor the employers are able to contact employees to complete the interview process for invalid results. The DOT proposed to modify § 40.133 so that invalids would be handled parallel to part 40's directives on positive, adulterated, and substituted specimens when the employee cannot be interviewed. Four commenters responded to this proposal, and all supported the proposed procedure for resolving invalid test results without interviewing the employee. Based on the comments, the DOT will adopt the proposal in § 40.133 with one modification: To refer to this result as a cancelled test due to an invalid result, instead of a cancelled-invalid. Section 40.159 What does the MRO do when a drug test is invalid? The DOT made a number of proposals trying to close the potential endless loop of observed collections that could result when the specimen result of a directly observed recollection, following a first invalid (and in some cases, a second or third observed collection), is again invalid. If the second invalid result was for the same reason as the first invalid, we proposed having the MRO cancel the test. One commenter wished to call this a negative test. The DOT believes it would be inappropriate for the MRO to call this a negative test. Therefore, we will have the MRO cancel the test if the observed recollection is invalid for the same reason as the first invalid. This is consistent with the HHS guidance to MROs. In addition, in § 40.160 (see below), we have provided a way for MROs to obtain negative results for invalids when employees require negative results for pre-employment, return-to-duty, and follow-up testing. If the second invalid result was for a different reason than the first invalid, the DOT proposed having the MRO verify the result as a refusal to test. We did this to harmonize with the HHS guidance to MROs. We also proposed adding this to the list of refusals at § 40.191. Many of the commenters said that calling this an automatic refusal to test is problematic—especially if this were allowed without MRO review. The DOT agrees with these commenters. We have decided not to adopt the proposal to add this to the list of refusals at § 40.191. We will consider this an invalid result requiring another immediate recollection under direct observation—and we will not require the MRO to first contact the employee to discuss the result. The DOT also proposed that when the MRO reports multiple non-negative results and one of them is invalid, the MRO would not be required to report an “invalid result” if the MRO verified any of the other non-negative results—for example, a positive result. A number of commenters supported this proposal, but one did not understand what DOT wanted the MRO to do about the invalid result. The DOT believes that § 40.159(f) is clear: When the MRO verifies multiple non-negative results and one of them is invalid, the MRO would report all but the invalid result. The invalid result simply will not be reported and the test would not be cancelled because there would actually be at least one reportable non-negative result. For instance, if a laboratory reported a test result as being positive for phencyclidine
(PCP)and invalid, the MRO would conduct an MRO review for both the PCP positive and the invalid. The MRO would verify the PCP positive and report it to the employer. Even if the employee had no medical explanation for the invalid result, the MRO would not report it to the employer unless the employee requests to have his or her split specimen tested for PCP and the split fails to reconfirm. The MRO would then cancel both tests, report them to the DER, and direct an immediate recollection under direct observation because the primary specimen had also been invalid. The same would hold true for invalid specimens whose splits failed to reconfirm for adulterants and substitutions. We also proposed to have MROs contact collection sites to confirm that collectors had properly observed the collections. We agree with the majority of commenters who said that having MROs confirm that collections had been directly observed is labor intensive and of little value, especially if CCFs indicate that observed collections were conducted. Therefore, we will not require the MRO to contact the collector. Finally, if the employee admits to using drugs to the MRO during the invalid result interview, the MRO must report the admission to the DER for additional action under applicable DOT Agency and United States Coast Guard regulations. Section 40.160 What does the MRO do when a valid test result cannot be produced and a negative result is required? The DOT proposed adding a new § 40.160 to address procedures when a negative result is required but a valid test result cannot be produced because of an individual's legitimate, albeit rare, medical condition. In such rare circumstances, we will require the MRO to determine if there is clinical evidence that the individual is an illicit drug user. The evaluation requirements in this section will be parallel to existing requirements at § 40.195—when a permanent or long-term medical condition precludes the employee from providing a sufficient amount of urine and a negative result is needed. If the medical evaluation reveals no clinical evidence of drug use, the MRO would report the result to the employer as a negative test with written notations regarding the medical examination. The same procedures would be used when the primary specimen is reported as invalid and the individual has a legitimate medical explanation. The DOT also requested comments about findings of illicit drug use during these medical evaluations. Currently, a finding of illicit drug use during the medical evaluation under § 40.195 causes the test to be cancelled. We asked for comments on whether the DOT should continue to require cancellation or treat such findings as positive test results. Most commenters stated that findings of illicit drug use during the medical evaluation should be considered a positive result. Two commenters felt they should be reported as a refusal. One commenter stated that if the examination discloses evidence of current illicit drug use, this should be reported as a positive result. Another commenter was concerned that this evaluation may identify past drug use and may not provide the employee with due process. One commenter stated that a blood test would be far superior to a medical examination in determining evidence of substance abuse. Although a number of these commenters believe that a finding of illegal drug use during the medical evaluation should be considered a positive or a refusal, the DOT will require that in these cases, MROs will cancel the test, parallel to the existing procedures for insufficient urine in § 40.195. The Omnibus Transportation Employees Testing Act of 1991 provides only one way to determine that an employee has tested positive for illicit drug use—a drug test confirmed by an HHS-certified laboratory using HHS scientific and testing protocols and verified by an MRO. Therefore, we will continue to cancel these results if there are medical signs and symptoms of illicit drug use. The individual will not be able to perform safety-sensitive duties because a negative result is needed. The MROs, under their authority at § 40.327, must continue to report safety and medical qualification concerns to appropriate parties, such as the employer and the physician or health care provider responsible for determining medical qualifications of the employee. In response to the commenter who thought a blood test far superior to a medical examination for determining substance abuse, we would remind everyone that as part of this medical evaluation, the evaluating physician may conduct other testing to determine whether the employee shows clinical evidence of drug abuse, including, but not limited to, blood testing. Section 40.162 What must MROs do with multiple verified results for the same testing event? The DOT requested comments to proposed procedures addressing how the MRO would report multiple verified results from one testing event—either multiple results from a single specimen or multiple results from more than one specimen collected during one event. Regarding multiple results from more than one specimen, we asked if it was sensible to require collectors to continue to send two separate specimen collections ( *e.g.* , a specimen that showed signs of tampering and the subsequent observed collection) to laboratories. In other words, should we continue requiring collectors to send the observed collection but not the specimen that appeared to show signs of tampering? Most commenters appreciated the fact that DOT had articulated what MROs are to report after verifying multiple results for the same testing event. Some commenters correctly noted some of the problems associated with multiple specimens collected during the same testing event. For example, these multiple specimens pose administrative difficulties: Tying together two collections and two laboratory results and simultaneously reporting the two verified results. In addition, some commenters noted that testing a second specimen imposes additional cost. None of the comments included credible evidence to show that the results of the observed collections were always non-negative. Therefore, we will continue to require that collectors send both the specimen suspected of adulteration or substitution and the directly observed specimen on for laboratory testing. At § 40.67(f), collectors are already directed to identify and link both specimens in the Remarks section of the CCFs. When the collector follows the required procedures, and the MRO reviews the MRO copies of CCFs before reporting results, the MRO will know that the specimen appeared to show signs of tampering and that specimen is connected to another specimen taken under direct observation. MROs should have procedures in place to identify and connect these linked specimens. We will modify the section to authorize MROs to “hold” the result of the first laboratory specimen result received if it is negative until the MRO receives the result of a second specimen. If the first result is non-negative, the MRO reports it immediately. The MRO would then follow the required reporting procedures. Section 40.171 How does an employee request a test of a split specimen? The DOT proposed amending § 40.171 to state clearly that there is no split specimen testing for an invalid result. This is consistent with current part 40 split request procedures and with the HHS MRO Manual. Most commenters who responded to this item supported it. We will retain it as written in the NPRM. Section 40.177 What does the second laboratory do with the split specimen when it is tested to reconfirm the presence of a drug or drug metabolite? Section 40.179 What does the second laboratory do with the split specimen when it is tested to reconfirm an adulterated test result? Section 40.181 What does the second laboratory do with the split specimen when it is tested to reconfirm a substituted test result? These sections concern the DOT's decision to provide authorization for the split laboratory to send the split specimen or an aliquot of it to another HHS-certified laboratory if the split fails to reconfirm the primary specimen's results. The DOT proposed amending §§ 40.177, 40.179, and 40.181 so that a provision currently contained only in § 40.177 for drug testing would be added to the adulterated and substituted split sections. The DOT sought comment on whether providing authorization to the split laboratory would be sufficient, or whether we should require laboratories to send the split specimen or an aliquot. Several commenters opposed making it mandatory to send the specimen to another laboratory but believed that providing authorization to do so would be sufficient. One commenter wondered if the term “you may” send a specimen to a third laboratory would become “routine” practice and something that all laboratories would then do. This commenter recommended that Laboratory B send the split to a third laboratory only under special circumstances that are documented and have been discussed with the MRO. The DOT has amended §§ 40.177, 40.179, and 40.181. We continue to authorize the split laboratory to send the split specimen or an aliquot of it to another HHS-certified laboratory to reconfirm the presence of drugs/drug metabolites. We also authorize the same for adulterated specimens. Because the testing procedures for identifying substituted specimens are the same at each laboratory, there would be no reason to send the split to a third laboratory if it failed to reconfirm at a second laboratory. We will not require a discussion between the MRO and laboratory. The longstanding requirements at § 40.177 on sending the split specimen to another laboratory, which did not make MRO discussion with the laboratory mandatory, have not appeared to cause problems. We agree with the commenter who said that sending split specimens to a third laboratory should not be routine. Therefore, a split specimen should only be sent to a second laboratory when it is likely that doing so will confirm the criteria that were reported in the primary specimen. Several commenters asked for clarification of § 40.181(b), which stated, “if the test fails to reconfirm the validity criteria reported in the primary specimen, the second laboratory may transmit the specimen or an aliquot to another HHS-certified laboratory that has the capability to conduct another reconfirmation test.” These commenters asked whether “another reconfirmation test” is a requirement to conduct a different, more specific, test method. With regard to the language proposed in the NPRM at 40.181(b), we are removing the paragraph because all laboratories use the same confirmation methodologies for creatinine and specific gravity. We intend § 40.179(b) to provide an option for using another laboratory to make it more likely to reconfirm the adulterated criteria reported for the primary specimen. In writing § 40.179(b), we used the language currently at § 40.177 that addresses the use of another laboratory to confirm the split specimen. We are retaining the word “another” in § 40.179(b), to require the second split laboratory to use a different confirmation test than the one used by the first split laboratory. In the case of pH, all laboratories use the same test methodologies, so this would not apply to pH. However, for other adulterants, we think another confirmation test would be suitable if it is likely to confirm the adulteration criteria reported in the primary specimen. If the first split laboratory is unable to confirm the adulteration criteria of the specimen, a second split laboratory, using a different confirmation procedure, may be able to confirm the test result. Therefore, the DOT will retain most of the specific language proposed in the NPRM at § 40.179(b). Section 40.187 What does the MRO do with split specimen laboratory results? The DOT proposed to divide the split results into five distinct categories to make it easier for MROs to understand their responsibilities in cases where they receive any of the more complicated split result possibilities. The majority of commenters supported this proposal. One commenter suggested that these categories would lend themselves to a table. The DOT will retain the five categories of split results as proposed in the NPRM. We will not include a table, since the description of the five categories in the rule text is specific and self-explanatory. Section 40.197 What happens when an employer receives a report of a dilute specimen? The DOT did not propose any changes to the employer policy providing the option for recollection of negative-dilute specimens at § 40.197(b)(2), although we added additional rule text to clarify procedures. Several commenters supported this. One commenter suggested that the rules for dilute specimens should be more rigorous. Another commenter suggested that if the DOT believes it appropriate to recollect a negative dilute, the DOT should require that all results of this type be recollected without giving the employer a choice in the matter. The DOT will not make any changes in this area, other than to revise paragraph § 40.197(c)(3), re-designate paragraph (c)(4) as (c)(5), and add paragraph (c)(4). Negative specimens that are also dilute will continue to be viewed as negative specimens, but with the option for employer policies to determine if there is to be a recollection. This is in keeping with the current regulation for which there have been no significant issues raised. Section 40.201 What problems always cause a drug test to be cancelled and may result in a requirement for another collection? The DOT proposed changes for splits that are reported as invalid. Commenters who responded to this item supported the proposed rule language. We also proposed changes for a situation in which there is no split laboratory available to test the split specimen. One commenter, an MRO, supported this proposal. We will amend this section by revising paragraphs (c), (d), and
(e)and maintain the changes as proposed in the NPRM. Section 40.207 This section was amended by changing the references in the paragraph. Appendices Appendix B As proposed, the DOT will modify the semi-annual laboratory report to employers so that it has the same information required by the HHS Mandatory Guidelines. The three proposed changes, while not dramatic, will help laboratories avoid following different report formats for DOT and HHS. Appendix C As discussed earlier, we will also add Appendix C requiring laboratories to provide the Department semi-annual data about their DOT-mandated testing. Appendix D We will also modify Appendix D to show DOT's new mailing address and electronic-entry address. Appendix F DOT will also amend some Appendix F citations to accurately reflect text changes. Comments Related to Other NPRM Issues and Questions The DOT asked a number of other questions related to several issues. Most of these have been addressed in other portions of the preamble. The following issues were not addressed and are discussed below: We wanted to know if it would be appropriate to require that observers check for realistic-looking prosthetic devices by having employees lower their pants and underwear just before observed collections take place. Most commenters did not support this proposal on the basis that it was too invasive and that most observers can be trained in ensuring that the urine specimen actually comes from the individual. One commenter indicated that if there is any suspicion during collection, one method that could be used was a one-handed collection (for males) since most devices have a valve that needs to be released and this cannot be done if the donor is holding the collection cup in one hand (with the other hand behind his back). One association said this proposal would be totally inappropriate since most of their members are female. One TPA and one MRO stated that checks for prosthetic devices should be allowed, but not mandatory, since trained collectors should be expected to know when these checks are needed. Another association supported this proposal and indicated that the Olympic model could be used, where the donors raise their shirts to the chest line and lower their underwear to the knees for initial inspections. We are also aware that the Omnibus Employee Testing Act of 1991 directed the DOT to utilize procedures that “promoted, to the maximum extent practicable, individual privacy in the collection of specimen samples.” We believe that, with the current proliferation of adulteration products, checking for devices prior to observed collections provide individual privacy “to the maximum extent practicable.” In the early 1990's, adulteration was not a significant problem and the current wide variety of products for adulteration of urine were not available. However, because these products and various mechanical devices are now readily available to individuals who want to adulterate or substitute their urine specimen during a drug testing collection, we believe that the measure of what is the maximum extent of privacy has shifted somewhat. Checking for devices prior to observed collections is the most effective way to ensure the integrity of the testing process while providing individual privacy as much as practicable. We would also point out that employees who may be required to undergo a directly observed collection have provided reasons to necessitate this procedure by providing specimens that: Showed signs of tampering; were invalid with no legitimate medical explanation for the result; or demonstrated a negative and dilute specimen with creatinine concentration in the 2 to 5 mg/dL range, which made the specimen suspect of adulteration or tampering. Some of these employees may have already violated the testing regulations and are having a return-to-duty or follow-up test. Based on these facts, the DOT will require employees who are undergoing directly observed collections to raise their shirts, blouses, or dresses/skirts, as appropriate, above the waist and lower their pants and underpants to show the observer, by turning around, that they do not have a prosthetic device on their person. After this is done, they may return their clothing to its proper position and contribute a specimen in such manner that the observer can see the urine exiting directly from the individual into the collection container, as required under current regulations. We will also require direct observation collections for all return-to-duty and follow-up drug tests. We are amending § 40.67 to reflect this procedure and this requirement for return-to-duty and follow-up drug tests. We also asked for comments regarding the consequence when a realistic-looking prosthetic device is found. Eight commenters responded. Seven commenters indicated that this should definitely be treated as a refusal to test. One association stated that this should be considered on a case-by-case basis and that the collector should request the donor to remove the device and then proceed with the collection. If the donor fails to remove the device, the collector should document this as a refusal to test. The DOT agrees with the majority of commenters that the use of realistic-looking prosthetic devices to circumvent the urine specimen collection process is a significant and grievous action, in most cases related to an individual attempting to hide drug use; and it is a deliberate attempt to thwart the testing process. We believe that this action is no different than an individual refusing to cooperate or participate in a specimen collection process. The end result of failure to cooperate is a refusal to test. We believe trying to subvert the collection process using a prosthetic device is as serious an offense and will consider this as a refusal to test. We said so in the July 2006 Questions and Answers guidance; and we will add it to the list in Section 40.191 as constituting a refusing to test. Also, in the July 2006 Questions and Answers that appear on our Web site, we added to the examples of refusals to test at the collection site an individual refusing to wash his or her hands and an individual admitting to adulterating or substituting a specimen. We will add these two examples to the list in Section 40.191 as constituting a refusal to test. In addition, we will add an employee's refusal to allow the observer to check for devices prior to undergoing an observed collection. Editorial Comments There were 17 comments (some duplicates) that addressed editorial changes and included typographical errors. We appreciate these comments and included most of them. Regulatory Analyses and Notices The statutory authority for this rule derives from the Omnibus Transportation Employee Testing Act of 1991 (49 U.S.C. 102, 301, 322, 5331, 20140, 31306, and 45101 *et seq.* ) and the Department of Transportation Act (49 U.S.C. 322). Executive Order 12866 This rule has been designated as significant by the Office of Management and Budget for purposes of Executive Order 12866 or the DOT's regulatory policies and procedures, because of potential policy interest to Congress, affected industries, and the public. It is a modification to our overall part 40 procedures and is intended to further align our laboratory and MRO procedures with those requirements that are being directed by HHS. Their economic effects will be very small. Consequently, the DOT certifies, under the Regulatory Flexibility Act, that this rule will not have a significant economic impact on a substantial number of small entities. In the 2000 part 40 final rule, we estimated that approximately 80% of industry specimens were being tested for SVT and that the costs associated with making SVT mandatory would be about $1.4 million annually—for the 20% that we estimated were not being tested. One commenter misinterpreted our data, thinking that the cost was for testing of the current 80%, and asked for clarification of how the DOT arrived at these figures. Another commenter questioned the accuracy of our more current information, pointing out that at the time the NPRM was published, complete data for 2005 were not available. The HHS laboratory data for 2006 are available and show the actual number of Federal tests performed was 7.54 million—7.32 million of which were DOT tests. An estimated 98 to 99% of these DOT tests were tested for SVT. The number of tests not being tested for SVT in 2006 is estimated to be 200,000. A review of laboratory costs for SVT from a number of HHS-certified laboratories indicated an average additional cost of 75 cents to $1.25 per specimen. Using the 2006 data, the cost of SVT would then only increase the cost of DOT-mandated testing by about $200,000. This figure is far less than the $1.4 million amount estimated and approved for SVT in the 2000 final rule. Information on SVT from the DOT Federal employee drug testing program and from another Federal agency's program revealed that they experienced no increased laboratory costs for drug testing when they implemented SVT. The DOT believes that $200,000 is a reasonable cost for the mandatory SVT and should have minimal impact on employers. In fact, it is far less than the 2000 final rule estimate for mandatory SVT. Executive Order 12372 (Intergovernmental Review) Executive Order 12372 requires intergovernmental consultation with state and local officials that would provide the non-Federal funds for, or that would be directly affected by, proposed Federal financial assistance or direct Federal development. The rule would not affect state and local entities in a way that would warrant such consultation. Unfunded Mandates Reform Act of 1995 This rule would not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995, 109 Stat. 48). 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 (2 U.S.C. § 1532). Executive Order 13132 (Federalism) This rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). This notice does not include requirements that
(1)has substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government,
(2)imposes substantial direct compliance costs on State and local governments, or
(3)preempts state law. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply. Executive Order 13084 This rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13084 (“Consultation and Coordination with Indian Tribal Governments”). Because none of the provisions of the rule would significantly or uniquely affect the communities of the Indian tribal governments or impose substantial direct compliance costs on them, the funding and consultation requirements of Executive Order 13084 do not apply. Paperwork Reduction Act DOT invites public comment about our intention to request the Office of Management and Budget's
(OMB)approval for a new information collection, which is summarized below. We will subsequently publish a **Federal Register** notice concerning this proposed collection. We would add a requirement that all HHS-certified laboratories provide testing data to the DOT on a semi-annual basis. This is data readily available in laboratory computer systems—information they provide routinely to HHS. They provide similar company-specific information to employers on a semi-annual basis. We estimate that these semi-annual reports to DOT will take a total of six hours for all the laboratories to complete, at a cost of approximately $162 to all laboratories, or less than $4 annually for each laboratory. List of Subjects in 49 CFR Part 40 Administrative practice and procedures, Alcohol abuse, Alcohol testing, Drug abuse, Drug testing, Laboratories, Reporting and recordkeeping requirements, Safety, Transportation. Dated: June 11, 2008. Mary E. Peters, Secretary of Transportation. 49 CFR Subtitle A—Authority and Issuance For reasons discussed in the preamble, the Department of Transportation is amending part 40 of Title 49 Code of Federal Regulations, as follows: PART 40—PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL TESING PROGRAMS 1-2. The authority citation for 49 CFR Part 40 continues to read as follows: Authority: 40 U.S.C. 102, 301, 322, 5331, 20140, 31306, and 54101 *et seq.* 3. Section 40.3 is amended by revising the definitions of “adulterated specimen,” “confirmation (or confirmatory) drug test,” “confirmation (or confirmatory) validity test,” “dilute specimen,” “initial drug test,” “initial validity test,” “invalid result,” and “substituted specimen” and adding definitions for “aliquot,” “limit of detection,” “non-negative specimen,” “oxidizing adulterant,” and “screening test” in alphabetical order, all to read as follows: § 40.3 What do the terms in this regulation mean? *Adulterated specimen* . A urine specimen containing a substance that is not a normal constituent or containing an endogenous substance at a concentration that is not a normal physiological concentration. *Aliquot* . A fractional part of a specimen used for testing. It is taken as a sample representing the whole specimen. *Confirmatory drug test* . A second analytical procedure to identify the presence of a specific drug or metabolite which is independent of the initial test and which uses a different technique and chemical principle from that of the initial test in order to ensure reliability and accuracy. (Gas chromatography/mass spectrometry (GC/MS) is the only authorized confirmation method for cocaine, marijuana, opiates, amphetamines, and phencyclidine). *Confirmatory validity test* . A second test performed on a different aliquot of the original urine specimen to further support a validity test result. *Dilute specimen* . A urine specimen with creatinine and specific gravity values that are lower than expected for human urine. *Initial drug test* (also known as a Screening drug test). An immunoassay test to eliminate “negative” urine specimens from further consideration and to identify the presumptively positive specimens that require confirmation or further testing. *Initial validity test* . The first test used to determine if a urine specimen is adulterated, diluted, or substituted. *Invalid result* . The result reported by a laboratory for a urine specimen that contains an unidentified adulterant, contains an unidentified interfering substance, has an abnormal physical characteristic, or has an endogenous substance at an abnormal concentration that prevents the laboratory from completing testing or obtaining a valid drug test result. *Limit of Detection* (LOD). The lowest concentration at which an analyte can be reliably shown to be present under defined conditions. *Non-negative specimen* . A urine specimen that is reported as adulterated, substituted, positive (for drug(s) or drug metabolite(s)), and/or invalid. *Oxidizing adulterant* . A substance that acts alone or in combination with other substances to oxidize drugs or drug metabolites to prevent the detection of the drug or drug metabolites, or affects the reagents in either the initial or confirmatory drug test. *Screening drug test* . See Initial drug test definition above. *Substituted specimen* . A urine specimen with creatinine and specific gravity values that are so diminished or so divergent that they are not consistent with normal human urine. 4. Section 40.23 is amended by revising paragraph
(f)introductory text and adding paragraph (f)(5), to read as follows: § 40.23 What actions do employers take after receiving verified test results?
(f)As an employer who receives a drug test result indicating that the employee's urine specimen test was cancelled because it was invalid and that a second collection must take place under direct observation—
(5)You must ensure that the collector conducts the collection under direct observation. 5. Section 40.67 is amended by revising paragraph b); redesignating paragraphs (i), (j), (k), (l), and
(m)as (j), (k), (l), (m), and
(n)respectively, and adding a new paragraph
(i)to read as follows: § 40.67 When and how is a directly observed collection conducted?
(b)As an employer, you must direct a collection under direct observation of an employee if the drug test is a return-to-duty test or a follow-up test.
(i)As the observer, you must request the employee to raise his or her shirt, blouse, or dress/skirt, as appropriate, above the waist; and lower clothing and underpants to show you, by turning around, that they do not have a prosthetic device. After you have determined that the employee does not have such a device, you may permit the employee to return clothing to its proper position for observed urination. 6. Section 40.83 is amended by revising paragraph (g)(2) to read as follows: § 40.83 How do laboratories process incoming specimens?
(g)* * *
(2)If the problem(s) is not corrected, you must reject the test and report the result in accordance with § 40.97(a)(3). 7-8. Section 40.89 is amended by revising paragraph
(b)to read as follows: § 40.89 What is validity testing, and are laboratories required to conduct it?
(b)As a laboratory, you must conduct validity testing. 9. Section 40.95 is revised to read as follows: § 40.95 What are the adulterant cutoff concentrations for initial and confirmation tests?
(a)As a laboratory, you must use the cutoff concentrations for the initial and confirmation adulterant testing as required by the HHS Mandatory Guidelines and you must use two separate aliquots—one for the initial test and another for the confirmation test.
(b)As a laboratory, you must report results at or above the cutoffs (or for pH, at or above or below the values, as appropriate) as adulterated and provide the numerical value that supports the adulterated result. 10. A new section 40.96 is added to read as follows: § 40.96 What criteria do laboratories use to establish that a specimen is invalid?
(a)As a laboratory, you must use the invalid test result criteria for the initial and confirmation testing as required by the HHS Mandatory Guidelines, and you must use two separate aliquots—one for the initial test and another for the confirmation test.
(b)As a laboratory, for a specimen having an invalid result for one of the reasons outlined in the HHS Mandatory Guidelines, you must contact the MRO to discuss whether sending the specimen to another HHS certified laboratory for testing would be useful in being able to report a positive or adulterated result.
(c)As a laboratory, you must report invalid results in accordance with the invalid test result criteria as required by the HHS Guidelines and provide the numerical value that supports the invalid result, where appropriate, such as pH.
(d)As a laboratory, you must report the reason a test result is invalid. 11. Section 40.97 is amended by adding the words, “and Rejected for Testing” between “Non-negative” and “results” in paragraph (b)(2) and by revising paragraph
(a)to read as follows: § 40.97 What do laboratories report and how do they report it?
(a)As a laboratory, you must report the results for each primary specimen. The result of a primary specimen will fall into one of the following three categories. However, as a laboratory, you must report the actual results (and not the categories):
(1)Category 1: Negative Results. As a laboratory, when you find a specimen to be negative, you must report the test result as being one of the following, as appropriate:
(i)Negative, or
(ii)Negative-dilute, with numerical values for creatinine and specific gravity.
(2)Category 2: Non-negative Results. As a laboratory, when you find a specimen to be non-negative, you must report the test result as being one or more of the following, as appropriate:
(i)Positive, with drug(s)/metabolite(s) noted;
(ii)Positive-dilute, with drug(s)/ metabolite(s) noted, with numerical values for creatinine and specific gravity;
(iii)Adulterated, with adulterant(s) noted, with confirmatory test values (when applicable), and with remark(s);
(iv)Substituted, with confirmatory test values for creatinine and specific gravity; or
(v)Invalid result, with remark(s). Laboratories will report actual values for pH results.
(3)Category 3: Rejected for Testing. As a laboratory, when you reject a specimen for testing, you must report the result as being Rejected for Testing, with remark(s). 12. Section 40.103 is amended by removing the word “blank” and adding in its place the word “negative” in paragraph
(c)introductory text, by revising paragraphs (c)(1) through (5), and removing paragraph (c)(6) to read as follows: § 40.103 What are the requirements for submitting blind specimens to a laboratory?
(c)* * *
(1)All negative, positive, adulterated, and substituted blind specimens you submit must be certified by the supplier and must have supplier-provided expiration dates.
(2)Negative specimens must be certified by immunoassay and GC/MS to contain no drugs.
(3)Drug positive blind specimens must be certified by immunoassay and GC/MS to contain a drug(s)/ metabolite(s) between 1.5 and 2 times the initial drug test cutoff concentration.
(4)Adulterated blind specimens must be certified to be adulterated with a specific adulterant using appropriate confirmatory validity test(s).
(5)Substituted blind specimens must be certified for creatinine concentration and specific gravity to satisfy the criteria for a substituted specimen using confirmatory creatinine and specific gravity tests, respectively. 13. Section 40.105(c) is revised to read as follows: § 40.105 What happens if the laboratory reports a result different from that expected for a blind specimen?
(c)If the unexpected result is a false positive, adulterated, or substituted result, you must provide the laboratory with the expected results (obtained from the supplier of the blind specimen), and direct the laboratory to determine the reason for the discrepancy. You must also notify ODAPC of the discrepancy by telephone (202-366-3784) or e-mail (addresses are listed on the ODAPC Web site, *http://www.dot.gov/ost/dapc* ). ODAPC will notify HHS who will take appropriate action. 14. Section 40.111 is amended by adding a new paragraph
(d)to read as follows: § 40.111 When and how must a laboratory disclose statistical summaries and other information it maintains?
(d)As a laboratory, you must transmit an aggregate statistical summary of the data listed in Appendix C to this part to DOT on a semi-annual basis. The summary must be sent by January 31 of each year for July 1 through December 31 of the prior year; it must be sent by July 31 of each year for January 1 through June 30 of the current year. 15. Section 40.129 is amended by revising the section heading and paragraph (a)(5) to read as follows: § 40.129 What are the MRO's functions in reviewing laboratory confirmed non-negative drug test results?
(a)* * *
(5)Verify the test result, consistent with the requirements of §§ 40.135 through 40.145, 40.159, and 40.160, as:
(i)Negative; or
(ii)Cancelled; or
(iii)Positive, and/or refusal to test because of adulteration or substitution. 16. Section 40.131 is amended by revising the section heading to read as follows: § 40.131 How does the MRO or DER notify an employee of the verification process after receiving laboratory confirmed non-negative drug test results? 17. Section 40.133 is amended by revising the section heading, redesignating paragraphs
(b)and
(c)as
(c)and (d), respectively, revising them, and adding new paragraph
(b)to read as follows: § 40.133 Without interviewing the employee, under what circumstances may the MRO verify a test result as positive, or as a refusal to test because of adulteration or substitution, or as cancelled because the test was invalid?
(b)As the MRO, you may verify an invalid test result as cancelled (with instructions to recollect immediately under direct observation) without interviewing the employee, as provided at § 40.159:
(1)If the employee expressly declines the opportunity to discuss the test with you;
(2)If the DER has successfully made and documented a contact with the employee and instructed the employee to contact you and more than 72 hours have passed since the time the DER contacted the employee; or
(3)If neither you nor the DER, after making and documenting all reasonable efforts, has been able to contact the employee within ten days of the date on which you received the confirmed invalid test result from the laboratory.
(c)As the MRO, after you verify a test result as a positive or as a refusal to test under this section, you must document the date and time and reason, following the instructions in § 40.163. For a cancelled test due to an invalid result under this section, you must follow the instructions in § 40.159(a)(5).
(d)As the MRO, after you have verified a test result under this section and reported the result to the DER, you must allow the employee to present information to you within 60 days of the verification to document that serious illness, injury, or other circumstances unavoidably precluded contact with the MRO and/or DER in the times provided. On the basis of such information, you may reopen the verification, allowing the employee to present information concerning whether there is a legitimate medical explanation of the confirmed test result. 18. Section 40.149(a) introductory text and (a)(1) are revised to read as follows: § 40.149 May the MRO change a verified drug test result?
(a)As the MRO, you may change a verified test result only in the following situations:
(1)When you have reopened a verification that was done without an interview with an employee (see § 40.133(d)). 19. Section 40.155 is amended by adding paragraph
(d)to read as follows: § 40.155 What does the MRO do when a negative or positive test result is also dilute?
(d)If the employee's recollection under direct observation, in paragraph
(c)of this section, results in another negative-dilute, as the MRO, you must:
(1)Review the CCF to ensure that there is documentation that the recollection was directly observed.
(2)If the CCF documentation shows that the recollection was directly observed as required, report this result to the DER as a negative-dilute result.
(3)If CCF documentation indicates that the recollection was not directly observed as required, do not report a result but again explain to the DER that there must be an immediate recollection under direct observation. 20. Section 40.159 is amended by revising paragraphs (a)(1) through (3), adding paragraph (a)(4)(iii), and adding paragraphs
(d)through
(g)to read as follows: § 40.159 What does the MRO do when a drug test is invalid?
(a)* * *
(1)Discuss the laboratory results with a certifying scientist to determine if the primary specimen should be tested at another HHS certified laboratory. If the laboratory did not contact you as required by §§ 40.91(e) and 40.96(c), you must contact the laboratory.
(2)If you and the laboratory have determined that no further testing is necessary, contact the employee and inform the employee that the specimen was invalid. In contacting the employee, use the procedures set forth in § 40.131.
(3)After explaining the limits of disclosure (see §§ 40.135(d) and 40.327), you must determine if the employee has a medical explanation for the invalid result. You must inquire about the medications the employee may have taken.
(4)* * *
(iii)If a negative test result is required and the medical explanation concerns a situation in which the employee has a permanent or long-term medical condition that precludes him or her from providing a valid specimen, as the MRO, you must follow the procedures outlined at § 40.160 for determining if there is clinical evidence that the individual is an illicit drug user.
(d)If the employee admits to using a drug, you must, on the same day, write and sign your own statement of what the employee told you. You must then report that admission to the DER for appropriate action under DOT Agency regulations. This test will be reported as cancelled with the reason noted.
(e)If the employee's recollection (required at paragraph (a)(5) of this section) results in another invalid result for the same reason as reported for the first specimen, as the MRO, you must:
(1)Review the CCF to ensure that there is documentation that the recollection was directly observed.
(2)If the CCF review indicates that the recollection was directly observed as required, document that the employee had another specimen with an invalid result for the same reason.
(3)Follow the recording and reporting procedures at (a)(4)(i) and
(ii)of this section.
(4)If a negative result is required (i.e., pre-employment, return-to-duty, or follow-up tests), follow the procedures at § 40.160 for determining if there is clinical evidence that the individual is an illicit drug user.
(5)If the recollection was not directly observed as required, do not report a result but again explain to the DER that there must be an immediate recollection under direct observation.
(f)If the employee's recollection (required at paragraph (a)(5) of this section) results in another invalid result for a different reason than that reported for the first specimen, as the MRO, you must:
(1)Review the CCF to ensure that there is documentation that the recollection was directly observed.
(2)If the CCF review indicates that the recollection was directly observed as required, document that the employee had another specimen with an invalid result for a different reason.
(3)As the MRO, you should not contact the employee to discuss the result, but rather direct the DER to conduct an immediate recollection under direct observation without prior notification to the employee.
(4)If the CCF documentation indicates that the recollection was not directly observed as required, do not report a result but again explain to the DER that there must be an immediate recollection under direct observation.
(g)If, as the MRO, you receive a laboratory invalid result in conjunction with a positive, adulterated, and/or substituted result and you verify any of those results as being a positive and/or refusal to test, you do not report the invalid result unless the split specimen fails to reconfirm the result(s) of the primary specimen. 21. Section 40.160 is added to read as follows: § 40.160 What does the MRO do when a valid test result cannot be produced and a negative result is required?
(a)If a valid test result cannot be produced and a negative result is required, (under § 40.159 (a)(5)(iii) and (e)(4)), as the MRO, you must determine if there is clinical evidence that the individual is currently an illicit drug user. You must make this determination by personally conducting, or causing to be conducted, a medical evaluation. In addition, if appropriate, you may also consult with the employee's physician to gather information you need to reach this determination.
(b)If you do not personally conduct the medical evaluation, as the MRO, you must ensure that one is conducted by a licensed physician acceptable to you.
(c)For purposes of this section, the MRO or the physician conducting the evaluation may conduct an alternative test (e.g., blood) as part of the medically appropriate procedures in determining clinical evidence of drug use.
(d)If the medical evaluation reveals no clinical evidence of drug use, as the MRO, you must report this to the employer as a negative test result with written notations regarding the medical examination. The report must also state why the medical examination was required (i.e., either the basis for the determination that a permanent or long-term medical condition exists or because the recollection under direct observation resulted in another invalid result for the same reason, as appropriate) and for the determination that no signs and symptoms of drug use exist.
(1)Check “Negative” (Step 6) on the CCF.
(2)Sign and date the CCF.
(e)If the medical evaluation reveals clinical evidence of drug use, as the MRO, you must report the result to the employer as a cancelled test with written notations regarding the results of the medical examination. The report must also state why the medical examination was required (i.e., either the basis for the determination that a permanent or long-term medical condition exists or because the recollection under direct observation resulted in another invalid result for the same reason, as appropriate) and state the reason for the determination that signs and symptoms of drug use exist. Because this is a cancelled test, it does not serve the purpose of an actual negative test result (i.e., the employer is not authorized to allow the employee to begin or resume performing safety-sensitive functions, because a negative test result is needed for that purpose). 22. Section 40.162 is added to read as follows: § 40.162 What must MROs do with multiple verified results for the same testing event?
(a)If the testing event is one in which there was one specimen collection with multiple verified non-negative results, as the MRO, you must report them all to the DER. For example, if you verified the specimen as being positive for marijuana and cocaine and as being a refusal to test because the specimen was also adulterated, as the MRO, you should report the positives and the refusal to the DER.
(b)If the testing event was one in which two separate specimen collections (e.g., a specimen out of temperature range and the subsequent observed collection) were sent to the laboratory, as the MRO, you must:
(1)If both specimens were verified negative, report the result as negative.
(2)If either of the specimens was verified negative and the other was verified as one or more non-negative(s), report the non-negative result(s) only. For example, if you verified one specimen as negative and the other as a refusal to test because the second specimen was substituted, as the MRO you should report only the refusal to the DER.
(i)If the first specimen is reported as negative, but the result of the second specimen has not been reported by the laboratory, as the MRO, you should hold—not report—the result of the first specimen until the result of the second specimen is received.
(ii)If the first specimen is reported as non-negative, as the MRO, you should report the result immediately and not wait to receive the result of the second specimen.
(3)If both specimens were verified non-negative, report all of the non-negative results. For example, if you verified one specimen as positive and the other as a refusal to test because the specimen was adulterated, as the MRO, you should report the positive and the refusal results to the DER.
(c)As an exception to paragraphs
(a)and
(b)of this section, as the MRO, you must follow procedures at § 40.159(f) when any verified non-negative result is also invalid. 23. Section 40.171 is amended by revising paragraph
(a)to read as follows: § 40.171 How does an employee request a test of a split specimen?
(a)As an employee, when the MRO has notified you that you have a verified positive drug test and/or refusal to test because of adulteration or substitution, you have 72 hours from the time of notification to request a test of the split specimen. The request may be verbal or in writing. If you make this request to the MRO within 72 hours, you trigger the requirements of this section for a test of the split specimen. There is no split specimen testing for an invalid result. 24. Section 40.177 is amended by revising paragraph
(d)to read as follows: § 40.177 What does the second laboratory do with the split specimen when it is tested to reconfirm the presence of a drug or drug metabolite?
(d)In addition, if the test fails to reconfirm the presence of the drug(s)/ drug metabolite(s) reported in the primary specimen, you may send the specimen or an aliquot of it for testing at another HHS-certified laboratory that has the capability to conduct another reconfirmation test. 25. Section 40.179 is revised to read as follows: § 40.179 What does the second laboratory do with the split specimen when it is tested to reconfirm an adulterated test result?
(a)As the laboratory testing the split specimen, you must test the split specimen for the adulterant detected in the primary specimen, using the confirmatory test for the adulterant and using criteria in § 40.95 and confirmatory cutoff levels required by the HHS Mandatory Guidelines.
(b)In addition, if the test fails to reconfirm the adulterant result reported in the primary specimen, you may send the specimen or an aliquot of it for testing at another HHS-certified laboratory that has the capability to conduct another reconfirmation test. 26. Section 40.181 is revised to read as follows: § 40.181 What does the second laboratory do with the split specimen when it is tested to reconfirm a substituted test result? As the laboratory testing the split specimen, you must test the split specimen using the confirmatory tests for creatinine and specific gravity, and using the confirmatory criteria set forth in § 40.93(b). 27. Section 40.183 amended by revising paragraph (a), removing paragraph (b), and re-designating paragraph
(c)as paragraph (b). § 40.183 What information do laboratories report to MROs regarding split specimen results?
(a)As the laboratory responsible for testing the split specimen, you must report split specimen test results by checking the “Reconfirmed” box and/or the “Failed to Reconfirm” box (Step 5(b)) on Copy 1 of the CCF, as appropriate, and by providing clarifying remarks using current HHS Mandatory Guidelines requirements. 28. Section 40.187 is revised to read as follows: § 40.187 What does the MRO do with split specimen laboratory results? As the MRO, the split specimen laboratory results you receive will fall into five categories. You must take the following action, as appropriate, when a laboratory reports split specimen results to you.
(a)*Category 1:* The laboratory reconfirmed one or more of the primary specimen results. As the MRO, you must report to the DER and the employee the result(s) that was/were reconfirmed.
(1)In the case of a reconfirmed positive test(s) for drug(s) or drug metabolite(s), the positive is the final result.
(2)In the case of a reconfirmed adulterated or substituted result, the refusal to test is the final result.
(3)In the case of a combination positive and refusal to test results, the final result is both positive and refusal to test.
(b)*Category 2:* The laboratory failed to reconfirm all of the primary specimen results because, as appropriate, drug(s)/drug metabolite(s) were not detected; adulteration criteria were not met; and/or substitution criteria were not met. As the MRO, you must report to the DER and the employee that the test must be cancelled.
(1)As the MRO, you must inform ODAPC of the failure to reconfirm using the format in Appendix D to this part.
(2)In a case where the split failed to reconfirm because the substitution criteria were not met and the split specimen creatinine concentration was equal to or greater than 2mg/dL but less than or equal to 5mg/dL, as the MRO, you must, in addition to step (b)(1) of this paragraph, direct the DER to ensure the immediate collection of another specimen from the employee under direct observation, with no notice given to the employee of this collection requirement until immediately before the collection.
(3)In a case where the split failed to reconfirm and the primary specimen's result was also invalid, direct the DER to ensure the immediate collection of another specimen from the employee under direct observation, with no notice given to the employee of this collection requirement until immediately before the collection.
(c)*Category 3:* The laboratory failed to reconfirm all of the primary specimen results, and also reported that the split specimen was invalid, adulterated, and/or substituted.
(1)In the case where the laboratory failed to reconfirm all of the primary specimen results and the split was reported as invalid, as the MRO, you must:
(i)Report to the DER and the employee that the test must be cancelled and the reason for the cancellation.
(ii)Direct the DER to ensure the immediate collection of another specimen from the employee under direct observation, with no notice given to the employee of this collection requirement until immediately before the collection.
(iii)Inform ODAPC of the failure to reconfirm using the format in Appendix D to this part.
(2)In the case where the laboratory failed to reconfirm any of the primary specimen results, and the split was reported as adulterated and/or substituted, as the MRO, you must:
(i)Contact the employee and inform the employee that the laboratory has determined that his or her split specimen is adulterated and/or substituted, as appropriate.
(ii)Follow the procedures of § 40.145 to determine if there is a legitimate medical explanation for the laboratory finding of adulteration and/or substitution, as appropriate.
(iii)If you determine that there is a legitimate medical explanation for the adulterated and/or substituted test result, report to the DER and the employee that the test must be cancelled; and inform ODAPC of the failure to reconfirm using the format in Appendix D to this part.
(iv)If you determine that there is not a legitimate medical explanation for the adulterated and/or substituted test result, you must take the following steps:
(A)Report the test to the DER and the employee as a verified refusal to test. Inform the employee that he or she has 72 hours to request a test of the primary specimen to determine if the adulterant found in the split specimen is also present in the primary specimen and/or to determine if the primary specimen meets appropriate substitution criteria.
(B)Except when the request is for a test of the primary specimen and is being made to the laboratory that tested the primary specimen, follow the procedures of §§ 40.153, 40.171, 40.173, 40.179, 40.181, and 40.185, as appropriate.
(C)As the laboratory that tests the primary specimen to reconfirm the presence of the adulterant found in the split specimen and/or to determine that the primary specimen meets appropriate substitution criteria, report your result to the MRO on a photocopy (faxed, mailed, scanned, couriered) of Copy 1 of the CCF.
(D)If the test of the primary specimen reconfirms the adulteration and/or substitution finding of the split specimen, as the MRO you must report the result as a refusal to test as provided in paragraph (a)(2) of this section.
(E)If the test of the primary specimen fails to reconfirm the adulteration and/or substitution finding of the split specimen, as the MRO you must cancel the test, following procedures in paragraph
(b)of this section.
(d)*Category 4:* The laboratory failed to reconfirm one or more but not all of the primary specimen results, and also reported that the split specimen was invalid, adulterated, and/or substituted. As the MRO, in the case where the laboratory reconfirmed one or more of the primary specimen result(s), you must follow procedures in paragraph
(a)of this section and:
(1)Report that the split was also reported as being invalid, adulterated, and/or substituted (as appropriate).
(2)Inform the DER to take action only on the reconfirmed result(s).
(e)*Category 5:* The split specimen was not available for testing or there was no split laboratory available to test the specimen. As the MRO, you must:
(1)Report to the DER and the employee that the test must be cancelled and the reason for the cancellation;
(2)Direct the DER to ensure the immediate recollection of another specimen from the employee under direct observation, with no notice given to the employee of this collection requirement until immediately before the collection; and
(3)Notify ODAPC of the failure to reconfirm using the format in Appendix D to this part.
(f)For all split specimen results, as the MRO you must:
(1)Enter your name, sign, and date (Step 7) of Copy 2 of the CCF.
(2)Send a legible copy of Copy 2 of the CCF (or a signed and dated letter, see § 40.163) to the employer and keep a copy for your records. Transmit the document as provided in § 40.167. 29. Section 40.191 is amended by revising paragraph (a)(8) and adding paragraphs (a)(9),
(10)and
(11)to read as follows: § 40.191 What is a refusal to take a DOT drug test, and what are the consequences?
(a)* * *
(8)Fail to cooperate with any part of the testing process (e.g., refuse to empty pockets when directed by the collector, behave in a confrontational way that disrupts the collection process, fail to wash hands after being directed to do so by the collector).
(9)For an observed collection, fail to follow the observer's instructions to raise your clothing above the waist, lower clothing and underpants, and to turn around to permit the observer to determine if you have any type of prosthetic or other device that could be used to interfere with the collection process.
(10)Possess or wear a prosthetic or other device that could be used to interfere with the collection process.
(11)Admit to the collector or MRO that you adulterated or substituted the specimen. 30. Section 40.197 is amended by revising paragraph (c)(3), redesignating paragraph (c)(4) as (c)(5), and adding new paragraph (c)(4) to read as follows: § 40.197 What happens when an employer receives a report of a dilute specimen?
(c)* * *
(3)If the result of the test you directed the employee to take under paragraph (b)(1) of this section is also negative and dilute, you are not permitted to make the employee take an additional test because the result was dilute.
(4)If the result of the test you directed the employee to take under paragraph (b)(2) of this section is also negative and dilute, you are not permitted to make the employee take an additional test because the result was dilute. Provided, however, that if the MRO directs you to conduct a recollection under direct observation under paragraph (b)(1) of this section, you must immediately do so. 31. Section 40.201 is amended by revising paragraphs (c), (d), and
(e)to read as follows: § 40.201 What problems always cause a drug test to be cancelled and may result in a requirement for another collection?
(c)The laboratory reports that the split specimen failed to reconfirm all of the primary specimen results because the drug(s)/drug metabolite(s) were not detected; adulteration criteria were not met; and/or substitution criteria were not met. You must follow the applicable procedures in § 40.187(b)—no recollection is required in this case, unless the split specimen creatinine concentration for a substituted primary specimen was greater than or equal to 2mg/dL but less than or equal to 5mg/ dL, or the primary specimen had an invalid result which was not reported to the DER. Both these cases require recollection under direct observation.
(d)The laboratory reports that the split specimen failed to reconfirm all of the primary specimen results, and that the split specimen was invalid. You must follow the procedures in § 40.187(c)(1)—recollection under direct observation is required in this case.
(e)The laboratory reports that the split specimen failed to reconfirm all of the primary specimen results because the split specimen was not available for testing or there was no split laboratory available to test the specimen. You must follow the applicable procedures in § 40.187(e)—recollection under direct observation is required in this case. § 40.207 [Amended] 32. Section 40.207 is amended by removing, in paragraph (a)(3), the reference to “40.187(b)” and adding in its place “40.187(b)(2), (c)(1), and (e)”. 33. Appendix B to Part 40 is revised to read as follows: Appendix B to Part 40—DOT Drug Testing Semi-Annual Laboratory Report to Employers The following items are required on each report: Reporting Period: (inclusive dates) Laboratory Identification: (name and address) Employer Identification: (name; may include Billing Code or ID code) C/TPA Identification: (where applicable; name and address) 1. Specimen Results Reported (total number) By Type of Test
(a)Pre-employment (number)
(b)Post-Accident (number)
(c)Random (number)
(d)Reasonable Suspicion/Cause (number)
(e)Return-to-Duty (number)
(f)Follow-up (number)
(g)Type of Test Not Noted on CCF (number) 2. Specimens Reported
(a)Negative (number)
(b)Negative and Dilute (number) 3. Specimens Reported as Rejected for Testing (total number) By Reason
(a)Fatal flaw (number)
(b)Uncorrected Flaw (number) 4. Specimens Reported as Positive (total number) By Drug
(a)Marijuana Metabolite (number)
(b)Cocaine Metabolite (number)
(c)Opiates (number)
(1)Codeine (number)
(2)Morphine (number)
(3)6-AM (number)
(d)Phencyclidine (number)
(e)Amphetamines (number)
(1)Amphetamine (number)
(2)Methamphetamine (number) 5. Adulterated (number) 6. Substituted (number) 7. Invalid Result (number) 34. Appendix C to Part 40 is added to read as follows: Appendix C to Part 40—DOT Drug Testing Semi-Annual Laboratory Report to DOT Mail, fax, or e-mail to: U.S. Department of Transportation, Office of Drug and Alcohol Policy and Compliance, W62-300, 1200 New Jersey Avenue, SE., Washington, DC 20590, Fax:
(202)366-3897, E-mail: *ODAPCWebMail@dot.gov* . The following items are required on each report: Reporting Period: (inclusive dates) Laboratory Identification: (name and address) 1. DOT Specimen Results Reported (number) 2. Negative Results Reported (number) 3. Rejected for Testing Reported (number) By Reason (number) 4. Positive Results Reported (number) By Drug (number) 5. Adulterated Results Reported (number) By Reason (number) 6. Substituted Results Reported (number) 7. Invalid Results Reported (number) By Reason (number) 35. Appendix D to Part 40 is revised to read as follows: Appendix D to Part 40—Report Format: Split Specimen Failure To Reconfirm Mail, fax, or submit electronically to: U.S. Department of Transportation, Office of Drug and Alcohol Policy and Compliance, W62-300, 1200 New Jersey Avenue, SE., Washington, DC 20590, Fax:
(202)366-3897, Submit Electronically: *http://www.dot.gov/ost/dapc/mro_split.html* . The following items are required on each report: 1. MRO name, address, phone number, and fax number. 2. Collection site name, address, and phone number. 3. Date of collection. 4. Specimen I.D. number. 5. Laboratory accession number. 6. Primary specimen laboratory name, address, and phone number. 7. Date result reported or certified by primary laboratory. 8. Split specimen laboratory name, address, and phone number. 9. Date split specimen result reported or certified by split specimen laboratory. 10. Primary specimen results (e.g., name of drug, adulterant) in the primary specimen. 11. Reason for split specimen failure-to-reconfirm result (e.g., drug or adulterant not present, specimen invalid, split not collected, insufficient volume). 12. Actions taken by the MRO (e.g., notified employer of failure to reconfirm and requirement for recollection). 13. Additional information explaining the reason for cancellation. 14. Name of individual submitting the report (if not the MRO). Appendix F to Part 40 [Amended] 36. Appendix F to Part 40 is amended by removing the references to § 40.187(a)-(f) and adding in its place § 40.187(a) through (e). [FR Doc. E8-14218 Filed 6-24-08; 8:45 am] BILLING CODE 4910-9X-P DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration 49 CFR Parts 385 and 395 [Docket No. FMCSA-2004-19608] RIN 2126-AB14 Hours of Service of Drivers; Availability of Supplemental Documents AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Notice of availability of supplemental documents. SUMMARY: This notice advises the public that FMCSA is placing in the public docket four additional documents concerning hours of service
(HOS)for commercial motor vehicle
(CMV)drivers. FMCSA published an interim final rule
(IFR)on this issue on December 17, 2007. The Agency now dockets the supplemental documents. ADDRESSES: You may submit comments, identified by docket number FMCSA-2004-19608, by one of the following methods: Internet, facsimile, regular mail, or hand delivery. Please do not submit the same comments by more than one method. FMCSA encourages use of the Federal eRulemaking portal. It provides the most efficient and timely method of receiving and processing your comments. • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the online instructions for submitting comments. • *Fax:* 1-202-493-2251. • *Mail:* Docket Management Facility; U.S. Department of Transportation; 1200 New Jersey Avenue, SE., Washington, DC 20590-0001. • *Hand Delivery:* Ground floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., e.t., Monday through Friday, except Federal holidays. *Instructions:* All submissions must include the Agency name and docket number (FMCSA-2004-19608) or Regulatory Identification Number (RIN 2126-AB14) for this action. Note that all comments received will be posted without change to *http://www.regulations.gov,* including any personal information provided. Refer to the Privacy Act heading at *http://www.regulations.gov* for further information. *Privacy Act:* Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the Department of Transportation's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19476) or you may visit *http://DocketsInfo.dot.gov.* *Submitting Comments:* • You can find electronic submission and retrieval help and guidelines under the “help” section of the Web site. • For notification that FMCSA received your comments, please include a self-addressed, stamped envelope or postcard, or print the acknowledgement page that appears after submitting comments on line. • All comments received will be available for examination in the docket at the above address or on the Web site. • Comments received will be considered to the extent practicable. FMCSA will continue to put relevant information in the docket as it becomes available and interested persons should continue to examine the docket for new material. FOR FURTHER INFORMATION CONTACT: Mr. Thomas Yager, Chief, FMCSA Driver and Carrier Operations. Telephone
(202)366-4325 or E-mail *MCPSD@dot.gov.* Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: On August, 25, 2005, FMCSA published a final HOS rule (“2005 rule”) (70 FR 49978). On July 24, 2007, the DC Circuit Court vacated the 11-hour driving time and 34-hour restart provisions of the 2005 rule ( *Owner-Operator Independent Drivers Association, Inc.* v. *Federal Motor Carrier Safety Administration,* 494 F.3d 188 (DC Cir. 2007)). In response to the DC Circuit Court decision, FMCSA published an interim final rule
(IFR)on December 17, 2007 (72 FR 71247) that reinstated the two provisions vacated by the Court and sought further comments on those provisions. For a full background on this rulemaking, please see the preamble to the December 2007 HOS IFR. The docket for this rulemaking (FMCSA-2004-19608) contains all of the background information for this rulemaking, including comments. This notice advises of the availability of four additional documents. FMCSA remains committed to issuing a final rule in 2008 and any comments on the four documents should be submitted as soon as possible. *FMCSA is placing the following four documents in the docket:* • “Integrated Report: Peer Review of R. J. Hanowski *et al.* , “Analysis of Risk as a Function of Driving Hours: Assessment of Driving Hours 1 through 11.”” The separate reviews were conducted by D.A. Perrin (January 23, 2008), G. Belenky and L.J. Wu (February 6, 2008), and S.R. Hursh and J. Fanzone (February 7, 2008). This peer review was conducted at the request of FMCSA. • “Review of Hours of Service Regulatory Impact Analysis
(RIA)Report,” conducted by Linda Ng Boyle, Ron Knipling, and Greg Belenky, and dated December 27, 2007. This peer review was conducted at the request of FMCSA. • “Hours of Service Regulatory Impact Analysis: Peer Review Results and FMCSA Responses,” dated May 2008. This document was prepared in response to the requested peer review of the RIA that accompanied the 2007 HOS IFR. • “Analysis of Fatigue-Related Large Truck Crashes, the Assignment of Critical Reason, and Other Variables Using the Large Truck Crash Causation Study.” This analysis, dated May 30, 2008, was prepared by FMCSA. Issued on: June 20, 2008. John H. Hill, Administrator. [FR Doc. E8-14491 Filed 6-24-08; 8:45 am] BILLING CODE 4910-EX-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 Related Services—2008 Update AGENCY: Surface Transportation Board, DOT. ACTION: Stay of effective date. SUMMARY: This document contains corrections to the preamble of the Board's Final Rules, which was published in the **Federal Register** of Wednesday, June 18, 2008 (73 FR 34649). The Final Rules adopted the 2008 User Fee Update and revised the 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. After the rules were published, an inadvertent error involving the effective dates of the rules was noticed. The effective dates of these final rules are July 18, 2008, rather than June 18, 2008. DATES: The amendments to 49 CFR 1002.1
(a)through (e), (f)(1), and (g)(6), and 49 CFR 1002.2(f), published June 18, 2008 (73 FR 34649) are stayed until July 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: On June 18, 2008, the Board issued Final Rules in the above-docketed proceeding, *Regulations Governing Fees for Services Performed in Connection With Licensing Related Services—2008 Update,* 73 FR 34649 (June 18, 2008). After the rules were published, an inadvertent error involving the effective dates of the rules was noticed. The effective dates of the final rules are July 18, 2008, rather than June 18, 2008. Decided: June 20, 2008. By the Board, Joseph H. Dettmar, Acting Director, Office of Proceedings. Anne Quinlan, Acting Secretary. [FR Doc. E8-14346 Filed 6-24-08; 8:45 am] BILLING CODE 4915-01-P 73 123 Wednesday, June 25, 2008 Proposed Rules NATIONAL CREDIT UNION ADMINISTRATION 12 CFR Part 723 RIN 3133-AD42 Member Business Loans AGENCY: National Credit Union Administration (NCUA). ACTION: Advance notice of proposed rulemaking and request for comment (ANPR). SUMMARY: NCUA is considering amending its member business loans
(MBL)rule to clarify or revise current provisions including those related to: loan-to-value
(LTV)ratio requirements; collateral and security requirements; credit union service organization
(CUSO)involvement in the MBL process; MBL loan participation; and waivers. NCUA seeks comment on these issues and any others commenters think NCUA should consider. DATES: Comments must be received on or before August 25, 2008. ADDRESSES: You may submit comments by any of the following methods (Please send comments by one method only): • *Federal eRulemaking Portal: http://www.regulations.gov* . Follow the instructions for submitting comments. • *NCUA Web Site:* *http://www.ncua.gov/RegulationsOpinionsLaws/proposed_regs/proposed_regs.html* . Follow the instructions for submitting comments. • *E-mail:* Address to *regcomments@ncua.gov* . Include “[Your name]—Comments on Advanced Notice of Proposed Rulemaking for Part 723” in the e-mail subject line. • *Fax:*
(703)518-6319. Use the subject line described above for e-mail. • *Mail:* Address to Mary Rupp, Secretary of the Board, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314-3428. • *Hand Delivery/Courier:* Same as mail address. FOR FURTHER INFORMATION CONTACT: Frank Kressman, Staff Attorney, Office of General Counsel, at the above address or telephone:
(703)518-6540. SUPPLEMENTARY INFORMATION: A. Background In addition to making regulatory changes as the need arises, NCUA's policy is to review all of its existing regulations every three years. Interpretive Ruling and Policy Statement
(IRPS)87-2, Developing and Reviewing Government Regulations, (Sept. 18, 1987), as amended by IRPS 03-2 (May 29, 2003). This review is conducted on a rolling basis so that a third of the regulations is reviewed each year. This helps NCUA update its regulations to address current regulatory concerns. NCUA provides notice to the public of the regulations under review so the public has an opportunity to comment. This ANPR is the result of that process and comments received from the public and NCUA offices. Under Part 723, an MBL is any loan, line of credit, or letter of credit, where the proceeds will be used for a commercial, corporate, other business investment property or venture, or agricultural purpose. 12 CFR § 723.1. There are several exceptions to this general definition. The MBL rule contains statutory and regulatory requirements and limitations, such as collateral and security requirements, equity requirements, and loan limits. The potential amendments discussed below cover a wide variety of MBL issues. B. Discussion of MBL Issues 1. Loan-to-Value Ratio Requirements and Unsecured MBLs Generally, the MBL rule requires all MBLs to be secured by collateral. 12 CFR 723.7(a). The maximum LTV ratio permitted for all liens is 80% unless the amount in excess of 80% is covered by private mortgage insurance or is otherwise insured, guaranteed or subject to an advance commitment to purchase by certain government agencies. 12 CFR 723.7(a)(1). In any event, the LTV ratio may not exceed 95%. The MBL rule has various exceptions to the LTV requirement. One exception permits well capitalized natural person credit unions and corporate credit unions that maintain required minimum capital levels to make unsecured MBLs. 12 CFR 723.7(c)(1). Unsecured MBLs to any one member or group of associated members are limited to the lesser of $100,000 or 2.5% of a credit union's net worth and all unsecured MBLs may not exceed 10% of net worth. 12 CFR 723.7(c)(2) and (3). Another exception available under certain circumstances is that the requirements and limits in § 723.7 do not apply to credit card lines of credit offered to nonnatural person members. 12 CFR 723.7(d). Finally, a credit union can make vehicle MBLs, without being subject to LTV requirements, if the vehicle is a car, van, pick-up truck, or SUV and not part of a fleet. NCUA has received comments on several aspects of the LTV requirements. One commenter suggested lowering the borrower equity requirement for construction and development loans (C&D loans) from the current 25% to 20%. This translates to raising the maximum LTV limit for C&D loans from the current 75% to 80% and making it the same as the general LTV requirement. The commenter suggested this will make credit unions more competitive in this lending area. NCUA believes C&D loans are the riskiest of all MBLs and, therefore, require greater regulatory restrictions to ensure safe and sound lending. NCUA is willing, however, to consider comments in support of easing restrictions on C&D loans. Commenters should address the greater safety and soundness concerns of C&D loans. NCUA notes that credit unions can seek approval to waive the borrower equity requirement under the MBL rule's waiver provision. 12 CFR 723.10(c). If commenters support easing LTV requirements for C&D loans, they should address the sufficiency of the waiver provision. As noted below, NCUA is inviting comments generally on the sufficiency of the MBL rule's waiver provisions. Other comments have included a request to modify the LTV requirements for loans on fleet vehicles to make credit unions more competitive and a request for NCUA to narrow the definition of “fleet” from that articulated in OGC Legal Op. 05-1038 (December 8, 2005) so it would capture fewer business vehicles. *See, http://www.ncua.gov/RegulationsOpinionsLaws/opinion_letters/2005/05-1038.pdf* . NCUA would appreciate comments on this suggestion and asks commenters to address relevant safety and soundness ramifications. NCUA welcomes general comments on any aspect of the MBL LTV requirements and unsecured MBL exception including if there should be a regulatory credit limit placed on business credit cards. One commenter suggested the LTV limits should be raised or eliminated. Although it is unlikely NCUA would entirely eliminate LTV requirements for MBLs, commenters are encouraged to comment and provide suggestions on improving or clarifying these provisions. This includes comments on whether NCUA has clearly explained how a credit union is to establish the value of a property for purposes of calculating the LTV ratio, defined what costs and fees may properly be included in calculating a borrower's equity in a project, and how the unsecured MBL exception should be applied when a credit union is making an MBL under a Small Business Administration guaranteed loan program. NCUA also is interested in comments on whether the differences between various kinds of collateral would support using a tiered approach to LTV limits so that a loan secured by safer collateral would have a higher LTV limit. 2. Experience Requirement and CUSO Activities The MBL rule requires a credit union making MBLs to use the services of an individual with at least two years direct experience with the type of lending in which the credit union will engage. 12 CFR 723.5(a). The experience must provide the credit union with sufficient expertise given the complexity and risk exposure of the contemplated MBLs. *Id.* NCUA solicits comment on the adequacy of the two-year experience requirement. Also, there appears to be some confusion among credit unions regarding how this requirement can be met or is to be calculated using both in-house employees and third party contractors. Also, there appears to be confusion as to what role CUSOs may play in providing that expertise to non-owner credit unions and credit unions that wholly or partially own the CUSO. Additionally, credit unions appear uncertain on the application of the conflict of interest provision in the MBL rule to circumstances where a CUSO or other third party is used to meet the two-year experience requirement. 12 CFR 723.5(b). NCUA solicits comment on the need to clarify § 723.5 and, if commenters believe it needs clarification, NCUA welcomes specific suggestions for amending the regulation. For instance, it would be helpful to know if commenters think § 723.5 needs substantive revision or if adding specific examples in the regulatory text would be sufficient to clarify the standards. NCUA is also interested if commenters believe other aspects of CUSO involvement in the MBL process could be improved. 3. Loan Participations Credit unions are authorized to sell participation interests in their MBLs to the same extent as non-business loans. In noting many of the benefits of engaging in loan participations, NCUA stated: Specifically, engaging in loan participations is an effective tool for FCUs to manage liquidity and concentration risk. Loan participation is also a way for FCUs to comply with NCUA or self-imposed lending limits. Small FCUs are able to improve the diversification of their loan portfolios by participating in loans originated by larger FCUs that have the resources to underwrite a wider variety of loan types. 68 FR 75110 (December 30, 2003). NCUA's loan participation rule provides the basic regulatory requirements for all loan participations, including participations of MBL loans, and credit unions that purchase or sell MBL participations must comply with the loan participation rule requirements as well as the MBL rule. 12 CFR 701.22. The MBL rule specifically addresses MBL loan participations by instructing credit unions how they must account for MBL participations in member and non-member loans and how the participations will affect the credit union's aggregate limit on net member business loan balances. 12 CFR 723.1(d) and (e); § 723.16(b). NCUA believes some credit unions overlook the link between the MBL and loan participation rules and have had difficulty in accurately accounting for MBL participations. In addition, it appears some credit unions may not understand or be aware of the waiver process available where nonmember MBL participations may otherwise cause a credit union to exceed the aggregate limit on MBLs. Accordingly, NCUA would like comments to help it assess the degree to which credit unions need additional guidance in this respect and solicits suggestions for how best to address this. For example, NCUA would appreciate comments on the utility of including cross-references in § 701.22 and part 723 and revising existing regulatory provisions to enhance clarity. Specific suggestions and supporting rationales for those suggestions would be appreciated. 4. Waivers Section 723.10 enables credit unions to seek waivers from a variety of limitations and requirements in the MBL rule. While NCUA may not grant waivers from statutory provisions carried over into the MBL rule, the menu of available waivers is extensive. Despite this, it appears credit unions may not be taking full advantage of waiver opportunities. NCUA solicits comments on whether this is the case and, if so, why. Also, it would be helpful to know if this perceived issue is the result of a procedural problem and what NCUA can do to resolve it. 5. Degree of Regulatory Limits Some observers believe credit unions that are experienced business lenders are well equipped to manage the risks associated with making MBLs and should be given more flexibility with fewer regulatory restrictions. Others believe the increasing amount of MBL risk on credit union balance sheets is cause for concern and NCUA should impose greater regulatory restrictions to protect against the increased risk. One commenter suggested greater restrictions should include increasing the list of underwriting factors required by § 723.6(g). 12 CFR 723.6(g). NCUA would appreciate comments on whether part 723 would be a more effective regulation with more, less, or the current degree of regulatory limits. Commenters are reminded that some limitations in part 723 are required by statute and should take that into account when providing comments. C. Request for Comments The NCUA Board invites comment on any of the issues discussed above including if, and how, NCUA's regulations should be amended to address the issues discussed in this ANPR. Commenters should not feel constrained to limit their comments to the above issues. Rather, commenters are encouraged to discuss any other relevant MBL issues they believe NCUA should consider. By the National Credit Union Administration Board on June 19, 2008. Mary F. Rupp, Secretary of the Board. [FR Doc. E8-14294 Filed 6-24-08; 8:45 am] BILLING CODE 7535-01-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 23 [Docket No. CE287, Notice No. 23-08-04-SC] Special Conditions; Honda Aircraft Company, Model HA-420 HondaJet Airplane; Fire Extinguishing AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed special conditions. SUMMARY: This notice proposes special conditions for the Honda Aircraft Company, Model HA-420 HondaJet Airplane. This new airplane will have novel and unusual design features not typically associated with normal, utility, acrobatic, and commuter category airplanes. These design features include turbofan engines and engine location, for which the applicable regulations do not contain adequate or appropriate airworthiness standards. These proposed special conditions contain the additional airworthiness standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards. DATES: Comments must be received on or before July 25, 2008. ADDRESSES: Comments on this proposal may be mailed in duplicate to: Federal Aviation Administration, Regional Counsel, ACE-7, Attention: Rules Docket Clerk, Docket No. CE287, Room 506, 901 Locust, Kansas City, Missouri 64106. All comments must be marked: Docket No. CE287. Comments may be inspected in the Rules Docket weekdays, except Federal holidays, between 7:30 a.m. and 4 p.m. FOR FURTHER INFORMATION CONTACT: Leslie B. Taylor, Aerospace Engineer, Standards Office (ACE-110), Small Airplane Directorate, Aircraft Certification Service, Federal Aviation Administration, Room 301, 901 Locust Street, Kansas City, Missouri 64106; telephone
(816)329-4134, e-mail: *leslie.b.taylor@faa.gov.* SUPPLEMENTARY INFORMATION: Comments Invited Interested persons are invited to participate in the making of these special conditions by submitting such written data, views, or arguments as they may desire. Communications should identify the regulatory docket or notice number and be submitted in duplicate to the address specified above. All communications received on or before the closing date for comments will be considered by the Administrator. The proposals described in this notice may be changed in light of the comments received. All comments received will be available in the Rules Docket for examination by interested persons, both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerning this rulemaking will be filed in the docket. Persons wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must include with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. CE287.” The postcard will be date stamped and returned to the commenter. Background On October 11, 2006, Honda Aircraft Company; Greensboro, North Carolina, made an application to the FAA for a new Type Certificate for the Honda Model HA-420 HondaJet. The Honda Model HA-420 HondaJet is an all new very light jet, twin engine, high performance, low wing, aft overwing mounted turbofan engine powered aircraft in the Normal Category including flight into known icing conditions, Reduced Vertical Separation Minimum
(RVSM)and single pilot operations. The Model HA-420 HondaJet design criteria includes: 9963 pounds maximum gross weight, estimated maximum speed of 258 KIAS/0.72 Mach, cruise speed of 420 KTAS at 30,000 feet, and a 43,000 foot maximum altitude. Part 23 has historically addressed fire protection through prevention, identification, and containment. Prevention has been provided through minimizing the potential for ignition of flammable fluids and vapors. Identification has traditionally been provided by the location of the engines within the pilot's primary field of view and/or with the incorporation of fire detection systems. This philosophy has provided for both the rapid detection of a fire and confirmation when it has been extinguished. Containment has been provided through the isolation of designated fire zones through flammable fluid shutoff valves and firewalls. The containment philosophy also ensures that components of the engine control system will function effectively to permit a safe shutdown of the engine. However, containment has only been required to be demonstrated for 15 minutes. In the event of a fire in a traditional part 23 airplane, the corrective action is to land as soon as possible. For a small, simple aircraft originally envisioned by part 23, it is possible to descend the aircraft to a suitable landing site within 15 minutes. Thus, if the fire is not extinguished, the occupants can safely exit the aircraft prior to the firewall being breached. These simple and traditional aircraft normally have the engine located away from critical flight control systems and primary structure. This has ensured that throughout the fire event the pilot can continue safe flight and control and has made predicting the effects of a fire relatively easy. Other design features of these simple and traditional aircraft, such as low stall speeds and short landing distances, ensure that even in the event of an off field landing the potential for a catastrophic outcome has been minimized. While the certification basis for the Model HA-420 HondaJet does require that a fire detection system be installed due to the engine location, fire extinguishing is also considered a requirement. A sustained fire could result in loss of control of the airplane and damage to this primary structure before an emergency landing could be made. Type Certification Basis Under the provisions of 14 CFR, part 21, § 21.17, Honda Aircraft Company must show that the Model HA-420 HondaJet meets the applicable provisions of 14 CFR, part 23, effective February 1, 1965, as amended by Amendments 23-1 through Amendment 23-55, effective March 1, 2002; 14 CFR, part 36, effective December 1, 1969, through the amendment effective on the date of type certification; 14 CFR, part 34; exemptions, if any; and the special conditions adopted by this rulemaking action. If the Administrator finds that the applicable airworthiness regulations (i.e., part 23) do not contain adequate or appropriate safety standards for the HondaJet because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16. Discussion Special conditions, as appropriate, as defined in § 11.19, are issued in accordance with § 11.38, and become part of the type certification basis in accordance with § 21.17. Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, the special conditions would also apply to the other model under the provisions of § 21.101. Novel or Unusual Design Features The Honda Aircraft Company, Model HA-420 HondaJet will incorporate the following novel or unusual design features: Engines mounted on the top of the wings behind the pilot's field of view. Engine Fire Extinguishing System The Model HA-420 HondaJet design includes engines mounted on the top of the wings behind the pilot's field of view; therefore, early visual detection of engine fires is precluded. The applicable existing regulations do not require fire extinguishing systems for engines. Engine installations mounted behind the pilots field of view were not envisaged in the development of part 23; therefore, special conditions for a fire extinguishing system with the applicable agents, containers, and materials for the engines of the Model HA-420 HondaJet are appropriate. Applicability As discussed above, these special conditions are applicable to the Model HA-420 HondaJet. Should Honda Aircraft Company apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well under the provisions of § 21.101. Conclusion This action affects only certain novel or unusual design features on one model of airplane. It is not a rule of general applicability, and it affects only the applicant who applied to the FAA for approval of these features on the airplane identified. List of Subjects in 14 CFR Part 23 Aircraft, Aviation safety, Signs and symbols. Citation The authority citation for these special conditions is as follows: Authority: 49 U.S.C. 106(g); 40113 and 44701; 14 CFR 21.16 and 21.17; and 14 CFR 11.38 and 11.19. The Proposed Special Conditions Accordingly, the Federal Aviation Administration
(FAA)proposes the following special conditions as part of the type certification basis for the Honda Aircraft Company, Model HA-420 HondaJet airplane: *SC 23.1195, Fire extinguishing systems* —Add the requirements of § 23.1195 as modified below while deleting, “For commuter category airplanes.”
(a)Fire extinguishing systems must be installed and compliance must be shown with the following:
(1)Except for combustor, turbine, and tailpipe sections of turbine-engine installations that contain lines or components carrying flammable fluids or gases for which a fire originating in these sections is shown to be controllable, a fire extinguisher system must serve each engine compartment.
(2)The fire extinguishing system, the quantity of the extinguishing agent, the rate of discharge, and the discharge distribution must be adequate to extinguish fires. An individual “one shot” system may be used except for embedded engines where a “two-shot” system is required.
(3)The fire extinguishing system for a nacelle must be able to simultaneously protect each compartment of the nacelle for which protection is provided.
(b)If an auxiliary power unit is installed in any airplane certificated to this part, that auxiliary power unit compartment must be served by a fire extinguishing system meeting the requirements of paragraph (a)(2) of this section. *SC 23.1197, Fire extinguishing agents* —Add the requirement of § 23.1197 while deleting, “For commuter category airplanes.”
(a)Fire extinguishing agents must:
(1)Be capable of extinguishing flames emanating from any burning fluids or other combustible materials in the area protected by the fire extinguishing system; and
(2)Have thermal stability over the temperature range likely to be experienced in the compartment in which they are stored.
(b)If any toxic extinguishing agent is used, provisions must be made to prevent harmful concentrations of fluid or fluid vapors (from leakage during normal operation of the airplane or as a result of discharging the fire extinguisher on the ground or in flight) from entering any personnel compartment, even though a defect may exist in the extinguishing system. This must be shown by test except for built-in carbon dioxide fuselage compartment fire extinguishing systems for which:
(1)Five pounds or less of carbon dioxide will be discharged, under established fire control procedures, into any fuselage compartment; or
(2)Protective breathing equipment is available for each flight crewmember on flight deck duty. *SC 23.1199, Extinguishing agent containers* —Add the requirements of § 23.1199 while deleting, “For commuter category airplanes.”
(a)Each extinguishing agent container must have a pressure relief to prevent bursting of the container by excessive internal pressures.
(b)The discharge end of each discharge line from a pressure relief connection must be located so that discharge of the fire extinguishing agent would not damage the airplane. The line must also be located or protected to prevent clogging caused by ice or other foreign matter.
(c)A means must be provided for each fire extinguishing agent container to indicate that the container has discharged or that the charging pressure is below the established minimum necessary for proper functioning.
(d)The temperature of each container must be maintained, under intended operating conditions, to prevent the pressure in the container from—
(1)Falling below that necessary to provide an adequate rate of discharge; or
(2)Rising high enough to cause premature discharge.
(e)If a pyrotechnic capsule is used to discharge the extinguishing agent, each container must be installed so that temperature conditions will not cause hazardous deterioration of the pyrotechnic capsule. *SC 23.1201, Fire extinguishing systems materials* —Add the requirements of § 23.1201 while deleting. “For commuter category airplanes.” Fire extinguisher system materials must meet the following requirements:
(a)No material in any fire extinguishing system may react chemically with any extinguishing agent so as to create a hazard.
(b)Each system component in an engine compartment must be fireproof. Issued in Kansas City, Missouri on June 18, 2008. David R. Showers, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-14380 Filed 6-24-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0681; Directorate Identifier 2008-NE-13-AD] RIN 2120-AA64 Airworthiness Directives; Turbomeca S.A. Models Arriel 1E2, 1S, and 1S1 Turboshaft Engines AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for the products listed above. This proposed AD results from mandatory continuing airworthiness information
(MCAI)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: Turbomeca S.A. has informed EASA of a case of a “red disk” plug that has been actually installed on an engine which has been subsequently released for service operation. This engine experienced an in-service high pressure leak event (at the fuel pump outlet) due to cracking of this “red disk” plug. This leak could lead to in-flight flame-out and/or possibly a fire. We are proposing this AD to prevent fuel leaks, which could result in a fire and possible damage to the helicopter. DATES: We must receive comments on this proposed AD by July 25, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001. • *Hand Delivery:* Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. • *Fax:*
(202)493-2251. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone
(800)647-5527) is the same as the Mail address provided in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: James Lawrence, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; e-mail: *james.lawrence@faa.gov* ; telephone
(781)238-7176; fax
(781)238-7199. 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-2008-0681; Directorate Identifier 2008-NE-13-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments. We will post all comments we receive, without change, to *http://www.regulations.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2008-0014, dated January 17, 2008 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: A plug adapted for engine bench testing (called “red disk” plug) and not approved for service operation, could inadvertently be installed on the engine Fuel Control Unit 3-way union, instead of the sealed plug approved for service operation. Turbomeca S.A. has informed EASA of a case of a “red disk” plug that has been actually installed on an engine which has been subsequently released for service operation. This engine experienced an in-service high pressure leak event (at the fuel pump outlet) due to cracking of this “red disk” plug. This leak could lead to in-flight flame-out and/or possibly a fire. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information Turbomeca has issued Service Bulletin No. 292 73 0817, dated March 13, 2008. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of This Proposed AD This product has been approved by the aviation authority of France, and is approved for operation in the United States. Pursuant to our bilateral agreement with France, they have notified us of the unsafe condition described in the EASA AD and service information referenced above. We are proposing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. This proposed AD would require performing a onetime inspection of the correct reference of the plug installed on the FCU 3-way union (P/N 9 932 30 706 0) and verifying its torque. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 179 products installed on helicopters of U.S. registry. We also estimate that it would take about 0.5 work-hour per product to comply with this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $14 per product. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $9,666. Our cost estimate is exclusive of possible warranty coverage. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Turbomeca S.A.** Docket No. FAA-2008-0681; Directorate Identifier 2008-NE-13-AD. Comments Due Date
(a)We must receive comments by July 25, 2008. Affected Airworthiness Directives
(b)None. Applicability
(c)This AD applies to Turbomeca S.A. Models Arriel 1E2, 1S, and 1S1 turboshaft engines. These engines are installed on, but not limited to, Eurocopter Deutschland MBB-BK 117 series and Sikorsky S-76A series helicopters. Reason
(d)Turbomeca S.A. has informed EASA of a case of a “red disk” plug that has been actually installed on an engine which has been subsequently released for service operation. This engine experienced an in-service high pressure leak event (at the fuel pump outlet) due to cracking of this “red disk” plug. This leak could lead to in-flight flame-out and/or possibly a fire. We are issuing this AD to prevent fuel leaks, which could result in a fire and possible damage to the helicopter. Actions and Compliance
(e)Unless already done, do the following actions.
(1)Within 100 operating hours from effective date of this AD, perform a one-time inspection of the correct reference of the plug installed on the FCU 3-way union (9 932 30 706 0) and verify its torque to be set between 1.3 and 1.5 daN.m in accordance with Turbomeca Mandatory Service Bulletin 292 73 0817. Other FAA AD Provisions
(f)*Alternative Methods of Compliance (AMOCs):* The Manager, Engine Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Related Information
(g)Refer to MCAI EASA Airworthiness Directive 2008-0014, dated January 17, 2008, and Turbomeca Mandatory Service Bulletin No. 292 73 0817, Version C, dated March 13, 2008, for related information.
(h)Contact James Lawrence, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; e-mail: *james.lawrence@faa.gov* ; telephone
(781)238-7176; fax
(781)238-7199, for more information about this AD. Issued in Burlington, Massachusetts, on June 19, 2008. Diane Cook, Acting Manager, Engine and Propeller Directorate, Aircraft Certification Service. [FR Doc. E8-14321 Filed 6-24-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-0219; Directorate Identifier 2007-NE-46-AD] RIN 2120-AA64 Airworthiness Directives; Pratt & Whitney Canada PW206A, PW206B, PW206B2, PW206C, PW206E, PW207C, PW207D, and PW207E Turboshaft Engines AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for the products listed above. This proposed AD results from mandatory continuing airworthiness information
(MCAI)issued by the aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: PW206 and PW207 compressor turbine
(CT)disc bore areas may experience impact damage resulting from bending or fracture of the CT disc retaining nut. Damage of the CT disc bore area can reduce LCF capabilities of the CT disc, resulting in disc fracture. We are proposing this AD to prevent damage to the CT disc bore area, which could result in possible uncontained failure of the engine and damage to the helicopter. DATES: We must receive comments on this proposed AD by July 25, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001. • *Hand Delivery:* Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. • *Fax:*
(202)493-2251. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov;* or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone
(800)647-5527) is the same as the Mail address provided in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Ian Dargin, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; e-mail: *ian.dargin@faa.gov;* telephone
(781)238-7178; fax
(781)238-7199. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-0219; Directorate Identifier 2007-NE-46-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments. We will post all comments we receive, without change, to *http://www.regulations.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion Transport Canada, which is the aviation safety authority for Canada, has issued AD CF-2007-24R1, dated December 21, 2007, (referred to after this as “the MCAI”) to correct an unsafe condition for the specified products. The MCAI states: PW206 and PW207 compressor turbine
(CT)disc bore areas may experience impact damage resulting from bending or fracture of the CT disc retaining nut. Damage of the CT disc bore area can reduce LCF capabilities of the CT disc, resulting in disc fracture. Under high centrifugal loads, the CT disk retaining nut castellations might bend outward, then contact and mark the CT disk internal bore. Worldwide, a total of 5 events of CT nut damage and associated damage to the CT disk bore have been reported. A total of 195 out of 402 engines in the U.S. fleet have been inspected, with two cases of CT nut damage and no findings of disk damage, to date. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information PWC has issued Alert Service Bulletin
(ASB)PW200-72-A28280, Revision 4, dated August 28, 2007. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of This Proposed AD This product has been approved by the aviation authority of Canada, and is approved for operation in the United States. Pursuant to our bilateral agreement with Canada, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information provided by Canada and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. This proposed AD would require
(1)inspecting the CT disc bore area for damage and if any damage is noticed, replacing the CT disc before further flight; and
(2)replacing the existing CT disc retaining nut and associated hardware. Differences Between the Proposed AD and the MCAI Although the MCAI allows use of future revisions of PWC ASB PW200-72-A28280, we require the use of Revision 4 of that ASB. Although the MCAI has a March 21, 2008 compliance date, we have a December 21, 2008 compliance date, based on a review of the risk assessment and the fleet inspection results to date. Costs of Compliance We estimate that this proposed AD would affect 402 engines of U.S. registry. We also estimate that it would take 8 work-hours per product to comply with this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $500 per product. We expect that 1 disk on the remaining 207 engines will be replaced, at an estimated cost of $20,000. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $478,280. Our cost estimate is exclusive of possible warranty coverage. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Pratt & Whitney Canada:** Docket No. FAA-2007-0219; Directorate Identifier 2007-NE-46-AD. Comments Due Date
(a)We must receive comments by July 25, 2008. Affected ADs
(b)None. Applicability
(c)This airworthiness directive
(AD)applies to Pratt & Whitney Canada
(PWC)PW206A, PW206B, PW206B2, PW206C, PW206E, PW207C, PW207D, and PW207E turboshaft engines.
(d)These engines are installed on, but not limited to, MD Explorer, Agusta S.p.A. A109, A109E, A109S, Bell Helicopter Textron Canada Limited 427, Bell 429, and Eurocopter Deutschland GmbH EC135 P1, and EC135 P2 helicopters.
(e)For engines that have been converted from one model to another, see Effectivity paragraph 1.A. of PWC Alert Service Bulletin
(ASB)PW200-72-A28280, Revision 4, dated August 28, 2007. Reason
(f)Transport Canada AD CF-2007-24R1, dated December 21, 2007, states: PW206 and PW207 compressor turbine
(CT)disc bore areas may experience impact damage resulting from bending or fracture of the CT disc retaining nut. Damage of the CT disc bore area can reduce LCF capabilities of the CT disc, resulting in disc fracture. We are issuing this AD to prevent damage to the CT disc bore area, which could result in possible uncontained failure of the engine and damage to the helicopter. Actions and Compliance
(g)Unless already done, do the following actions:
(1)For engines that have never had a shop visit and have accumulated 4,000 CT cycles or more since new; or for engines that accumulated 2,700 CT cycles or more since last shop visit, last CT disc inspection, or incorporation of PWC SB PW200-72-28287; within 1,150 hours of engine operating time since April 28, 2006 (original issue date of Alert Service Bulletin
(ASB)PW200-72-A28280), but not later than December 21, 2008, whichever occurs first, accomplish the following in accordance with PWC ASB PW200-72-A28280, Revision 4, dated August 28, 2007:
(i)Inspect the CT disc bore area for damage and if any damage is noticed, replace the CT disc before further flight.
(ii)Replace the existing CT disc retaining nut and associated hardware.
(2)For engines that have never had a shop visit and have accumulated less than 4,000 CT cycles since new, before the engine reaches 4,000 CT cycles or by December 21, 2008, whichever occurs later, accomplish the following in accordance with PWC ASB PW200-72-A28280, Revision 4, dated August 28, 2007:
(i)Inspect the CT disc bore area for damage and if any damage is noticed, replace the CT disc before further flight.
(ii)Replace the existing CT disc retaining nut and associated hardware.
(3)For engines that have accumulated fewer than 2,700 CT cycles since last shop visit, last CT disc inspection, or incorporation of PWC SB PW200-72-28287; before the engine reaches 2,700 CT cycles or by December 21, 2008, whichever occurs later, accomplish the following in accordance with PWC ASB PW200-72-A28280, Revision 4, dated August 28, 2007:
(i)Inspect the CT disc bore area for damage and if any damage is noticed, replace the CT disc before further flight.
(ii)Replace the existing CT disc retaining nut and associated hardware. Previous Credit
(h)Inspection of the CT disc bore and replacement of the CT disc retaining nut using PWC ASB PW200-72-A28280, dated April 28, 2006, or Revision 1, dated May 11, 2006, or Revision 2, dated September 29, 2006, or Revision 3, dated December 11, 2006, before the effective date of this AD, meet the requirements of this AD.
(i)*Alternative Methods of Compliance (AMOCs):* The Manager, Engine Certification Office, FAA, may approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Related Information
(j)Refer to Transport Canada Airworthiness Directive 2007-24R1, dated December 21, 2007, for related information.
(k)Contact Ian Dargin, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park; Burlington, MA 01803; e-mail: *ian.dargin@faa.gov;* telephone
(781)238-7178; fax
(781)238-7199. Issued in Burlington, Massachusetts, on June 19, 2008. Diane Cook, Acting Manager, Engine and Propeller Directorate, Aircraft Certification Service. [FR Doc. E8-14320 Filed 6-24-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF JUSTICE Bureau of Prisons 28 CFR Part 552 [BOP-1146-P] RIN 1120-AB46 Use of Non-Lethal Force: Delegation AGENCY: Bureau of Prisons, Justice. ACTION: Proposed rule. SUMMARY: In this document, the Bureau of Prisons (Bureau) proposes to amend its regulation on the use of chemical agents and non-lethal force to clarify that the authority of the Warden to authorize the use of chemical agents or non-lethal weapons may not be delegated below the position of Lieutenant. DATES: Comments are due by August 25, 2008. ADDRESSES: Rules Unit, Office of General Counsel, Bureau of Prisons, 320 First Street, NW., Washington, DC 20534. FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General Counsel, Bureau of Prisons, phone
(202)307-2105. SUPPLEMENTARY INFORMATION: *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 *http://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. Discussion In this document, the Bureau proposes to amend its regulation on the use of chemical agents and non-lethal force to clarify that the authority of the Warden to authorize the use of chemical agents or non-lethal weapons may not be delegated below the position of Lieutenant. The current regulation states that the Warden may authorize the use of chemical agents or non-lethal weapons only when the situation is such that the inmate:
(1)Is armed and/or barricaded; or
(2)Cannot be approached without danger to self or others; and
(3)It is determined that a delay in bringing the situation under control would constitute a serious hazard to the inmate or others, or would result in a major disturbance or serious property damage. This revision resulted from a routine check of the Bureau's policies. The revised regulation will enable the Warden to further delegate the authority to make the determination that a situation warrants the use of chemical agents or non-lethal weapons to the senior facility supervisor on duty and physically present, but not below the position of Lieutenant. Currently, this regulation requires that such authority not be delegated below the level of Warden. We make this revision to expedite decision-making by qualified staff, as needed to ensure the safety, security, and good order of the institution and the protection of the public. *Executive Order 12866.* This regulation has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review” section 1(b), Principles of Regulation. This regulation has been determined to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, and accordingly this rule has been reviewed by the Office of Management and Budget. *Executive Order 13132.* This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, under Executive Order 13132, we determine that this regulation does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. *Regulatory Flexibility Act.* The Director of the Bureau of Prisons, under the Regulatory Flexibility Act (5 U.S.C. 605(b)), reviewed this regulation and by approving it certifies that it will not have a significant economic impact upon a substantial number of small entities for the following reasons: This regulation pertains to the correctional management of offenders committed to the custody of the Attorney General or the Director of the Bureau of Prisons, and its economic impact is limited to the Bureau's appropriated funds. *Unfunded Mandates Reform Act of 1995.* This regulation will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100,000,000 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. *Small Business Regulatory Enforcement Fairness Act of 1996.* This regulation is not a major rule as defined by § 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This regulation will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets. List of Subjects in 28 CFR Part 552 Prisoners. Harley G. Lappin, Director, Bureau of Prisons. Under rulemaking authority vested in the Attorney General in 5 U.S.C 301; 28 U.S.C. 509, 510 and delegated to the Director, Bureau of Prisons in 28 CFR 0.96, we propose to amend 28 CFR part 552 as follows. Subchapter C—Institutional Management PART 552—CUSTODY 1. The authority citation for 28 CFR part 552 continues to read as follows: Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4042, 4081, 4082 (Repealed in part as to offenses committed on or after November 1, 1987), 5006-5024 (Repealed October 12, 1984 as to offenses committed after that date), 5039; 28 U.S.C. 509, 510; 28 CFR 0.95-0.99. 2. Revise § 552.25 to read as follows: § 552.25 Use of chemical agents or non-lethal weapons.
(a)The Warden may authorize the use of chemical agents or non-lethal weapons only when the situation is such that the inmate:
(1)Is armed and/or barricaded; or
(2)Cannot be approached without danger to self or others; and
(3)It is determined that a delay in bringing the situation under control would constitute a serious hazard to the inmate or others, or would result in a major disturbance or serious property damage.
(b)The Warden may delegate the authority under this regulation to the senior facility supervisor on duty and physically present, but not below the position of Lieutenant. [FR Doc. E8-14363 Filed 6-24-08; 8:45 am] BILLING CODE 4410-05-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2008-0478] RIN 1625-AA09 Drawbridge Operation Regulation; LaLoutre Bayou, Yscloskey, LA AGENCY: Coast Guard, DHS. ACTION: Notice of proposed rulemaking. SUMMARY: The Coast Guard proposes to change the regulation governing the operation of the State Route 46 (LA 46) Bridge across LaLoutre Bayou, mile 22.9, at Yscloskey, St. Bernard Parish, Louisiana. Due to Hurricane Katrina, the Louisiana Department of Transportation and Development (LDOTD) has experienced a shortage of bridge tender personnel in the area where the bridge is located. This proposed rule change allows for more efficient use of personnel by requiring a two hour notice for night time openings. DATES: Comments and related material must reach the Coast Guard on or before August 25, 2008. ADDRESSES: You may submit comments identified by Coast Guard docket number USCG-2008-0478 to the Docket Management Facility at the U.S. Department of Transportation. To avoid duplication, please use only one of the following methods:
(1)*Online: http://www.regulations.gov* .
(2)*Mail:* Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.
(3)*Hand delivery:* Room W12-140 on the Ground Floor of the West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.
(4)*Fax:* 202-493-2251. FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed rule, call Kay Wade, Bridge Administration Branch, telephone 504-671-2128. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826. SUPPLEMENTARY INFORMATION: Public Participation and Request for Comments We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to *http://www.regulations.gov* and will include any personal information you have provided. We have an agreement with the Department of Transportation
(DOT)to use the Docket Management Facility. Please see DOT's “Privacy Act” paragraph below. Submitting Comments If you submit a comment, please include the docket number for this rulemaking (USCG-2008-0478), indicate the specific section of this document to which each comment applies, and give the reason for each comment. We recommend that you include your name and a mailing address, an e-mail address, or a phone number in the body of your document so that we can contact you if we have questions regarding your submission. You may submit your comments and material by electronic means, mail, fax, or delivery to the Docket Management Facility at the address under ADDRESSES ; but please submit your comments and material by only one means. If you submit them by mail or delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them. Viewing Comments and Documents To view comments, as well as documents mentioned in this preamble as being available in the docket, go to *http://www.regulations.gov* at any time. Enter the docket number for this rulemaking (USCG-2008-0478) in the Search box, and click “Go>>.” You may also visit either the Docket Management Facility in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays or the Bridge Administration Office in Room 1313 of the Hale Boggs Federal Building, 500 Poydras Street, New Orleans, LA 70130 between 7 a.m. and 3 p.m., Monday through Friday, except Federal holidays. Privacy Act Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the Department of Transportation's Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477), or you may visit *http://DocketsInfo.dot.gov* . Public Meeting We do not now plan to hold a public meeting. But you may submit a request for one to the Docket Management Facility at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the **Federal Register** . Background and Purpose Due to a personnel shortage, the bridge owner, LDOTD, has requested a change in the operating regulation of the LA 46 vertical lift span bridge across LaLoutre Bayou, mile 22.9 at Yscloskey, St. Bernard Parish, Louisiana, in order to make more efficient use of operating resources. The bridge has a horizontal clearance of 45 feet. It has a vertical clearance of 2 feet in the closed position and 53 feet in the open position. In accordance with 33 CFR 117.5, the bridge is required to open on signal for the passage of marine vessels. The LA 46 Bridge has been closed to marine traffic since August 2005, when it sustained damage during Hurricane Katrina. The Coast Guard has received no complaints about the bridge closure. The bridge has been repaired and will soon reopen to marine traffic. Discussion of Proposed Rule The bridge owner has requested a change in the operating regulation which would allow the draw of the LA 46 Bridge to open on signal; except that from 8 p.m. to 4 a.m., the draw would open on signal if at least two hours notice is given. The proposed rule change to 33 CFR 117.5 would reduce the hours the bridge must be manned between 8 p.m. and 4 a.m., making more efficient use of operating resources. The LDOTD believes the proposed operating regulation will accommodate vehicular traffic and meet the needs of navigation, while making the best use of available personnel to operate the bridge. We have already issued a Test Deviation to allow the LDOTD to test the proposed schedule and to obtain data and public comments. This document is available in the docket (see “Viewing comments and documents”). The test period will be in effect during the entire Notice of Proposed Rulemaking comment period. The Coast Guard will review the logs of the drawbridge and evaluate public comments from the Notice of Proposed Rulemaking and the above referenced Temporary Deviation to determine if a permanent special drawbridge operating regulation is warranted. Regulatory Analyses We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders. Regulatory Planning and Review This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary. There has been no waterway passage of marine vessels at the bridge site since August 2005. The proposed change will have little to no impact on the public. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. Although the change will require 2 hours advance notice for openings between 8 p.m. and 4 a.m., an alternate route, via Yscloskey Bayou, to the Mississippi River Gulf Outlet and Lake Borgne is available with no additional transit time. Additionally, most users of this waterway are able to give notice prior to transiting through the bridge. Before the effective period, we will issue maritime advisories widely available to users of the waterway. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the Eighth Coast Guard District Bridge Administration Branch at the address above. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This proposed rule would not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. Indian Tribal Governments This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this proposed rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is not likely to have a significant effect on the human environment because it simply promulgates the operating regulations or procedures for drawbridges. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule. List of Subjects in 33 CFR Part 117 Bridges. For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows: PART 117—DRAWBRIDGE OPERATION REGULATIONS 1. The authority citation for part 117 continues to read as follows: Authority: 33 U.S.C. 499; 33 CFR 1.05-1; Department of Homeland Security Delegation No. 0170.1. Add new § 117.468 to read as follows: § 117.468 LaLoutre Bayou. The draw of the LA 46 Bridge, mile 22.9, at Yscloskey, shall open on signal; except that from 8 p.m. to 4 a.m., the draw shall open on signal if at least two hours notice is given. Dated: June 16, 2008. J. R. Whitehead, Rear Admiral, U.S. Coast Guard Commander, Eighth Coast Guard District. [FR Doc. E8-14367 Filed 6-24-08; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2008-0451] RIN 1625-AA00 Safety Zone; Citron Energy Drink Offshore Challenge, Lake St. Clair, Harrison Township, MI AGENCY: Coast Guard, DHS. ACTION: Notice of proposed rulemaking. SUMMARY: The Coast Guard proposes establishing a temporary safety zone on Lake St. Clair, Harrison Township, Michigan. This zone is intended to restrict vessels from portions of Lake St. Clair during the Citron Energy Drink Offshore Challenge. This temporary safety zone is necessary to protect spectators and vessels from the hazards associated with powerboat races. DATES: Comments and related material must reach the Coast Guard on or before July 10, 2008. ADDRESSES: You may submit comments identified by Coast Guard docket number USCG-2008-0451 to the Docket Management Facility at the U.S. Department of Transportation. To avoid duplication, please use only one of the following methods:
(1)*Online: http://www.regulation.gov* .
(2)*Mail:* Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.
(3)*Hand delivery:* Room W12-140 on the Ground Floor of the West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.
(4)*Fax:* 202-493-2251. FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed rule, call LT Jeff Ahlgren, Waterways Management, U.S. Coast Guard Sector Detroit, 110 Mount Elliot Ave., Detroit, MI, 48207,
(313)568-9580. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826. Public Participation and Request for Comments We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to *http://www.regulations.gov* and will include any personal information you have provided. We have an agreement with the Department of Transportation
(DOT)to use the Docket Management Facility. Please see DOT's “Privacy Act” paragraph below. Submitting Comments If you submit a comment, please include the docket number for this rulemaking (USCG-2008-0451), indicate the specific section of this document to which each comment applies, and give the reason for each comment. We recommend that you include your name, mailing address, and an e-mail address or other contact information in the body of your document to ensure that you can be identified as the submitter. This also allows us to contact you in the event further information is needed or if there are questions. For example, if we cannot read your submission due to technical difficulties and you cannot be contacted; your submission may not be considered. You may submit your comments and material by electronic means, mail, fax, or delivery to the Docket Management Facility at the address under ADDRESSES ; but please submit your comments and material by only one means. If you submit them by mail or delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them. Viewing Comments and Documents To view comments, as well as documents mentioned in this preamble as being available in the docket, go to *http://www.regulations.gov* at any time. Enter the docket number for this rulemaking (USCG-2008-0451) in the search box, and click “go”. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays; or the U.S. Coast Guard Sector Detroit, 110 Mount Elliot Ave., Detroit, MI, 48207, between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays. Privacy Act Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the Department of Transportation's Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477), or you may visit *http://DocketsInfo.dot.gov* . SUPPLEMENTARY INFORMATION: Public Meeting We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to U.S. Coast Guard Sector Detroit at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the **Federal Register** . Background and Purpose This temporary safety zone is necessary to ensure the safety of vessels and spectators from hazards associated with a powerboat race. The Captain of the Port Detroit has determined powerboat races in close proximity to watercraft and infrastructure pose significant risk to public safety and property. The likely combination of large numbers of recreation vessels, powerboats traveling at high speeds, possible alcohol use, and large numbers of spectators in close proximity to the water could easily result in serious injuries or fatalities. Establishing a safety zone around the location of the race course will help ensure the safety of persons and property at these events and help minimize the associated risks. Discussion of Proposed Rule This proposed rule is intended to ensure safety of the public and vessels during the setup, course familiarization, testing and race in conjunction with the Citron Energy Drink Offshore Challenge. The powerboat race and associated testing will occur between 12 p.m., July 18, 2008 and 5 p.m., July 20, 2008. The safety zone will be effective from 12 p.m. to 4 p.m. on July 18 and 19, 2008, and from 12 p.m. to 5 p.m. on July 20, 2008. The safety zone will encompass all U.S. waters of Lake St. Clair, Harrison Township, MI, bound by a line extending from a point in Lake St. Clair located at position 082°48′45″ W; 42°34′05″ N, east to position 082°47′45″ W; 42°34′04″ N, southeast to position 082°47′03″ W; 42°33′38″ N, southwest to position 082°48′32″ W; 42°32′35″ N, south to position 082°49′53″ W; 42°32′08″ N, northwest to position 082°50′27″ W; 42°32′30″ N, and northeast to the point of origin at position 082°48′45″ W; 42°34′05″ N. (DATUM: NAD 83). The Captain of the Port will cause notice of enforcement of the safety zone established by this section to be made by all appropriate means to the affected segments of the public. Such means of notification will include, but are not limited to, Broadcast Notice to Mariners and Local Notice to Mariners. The Captain of the Port will issue a Broadcast Notice to Mariners notifying the public when enforcement of the safety zone is terminated. Regulatory Evaluation This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary. This determination is based on the minimal time that vessels will be restricted from the zone and the zone is an area where the Coast Guard expects insignificant adverse impact to mariners from the zone's activation. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in the above portion of Lake St. Clair between 12 p.m. and 4 p.m. on July 18 and 19, 2008, and between 12 p.m. and 5 p.m. on July 20, 2008. This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will be in effect for approximately four hours each day of testing and five hours the day of the race. In the event that this temporary safety zone affects shipping, commercial vessels may request permission from the Captain of the Port Detroit to transit through the safety zone. The Coast Guard will give notice to the public via a Broadcast Notice to Mariners that the regulation is in effect. Additionally, the COTP will suspend enforcement of the safety zone if the event for which the zone is established ends earlier than the expected time. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact LT Jeff Ahlgren, Waterways Management, U.S. Coast Guard Sector Detroit, 110 Mount Elliot Ave., Detroit, MI 48207;
(313)568-9580. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule would not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. Indian Tribal Governments The Coast Guard recognizes the treaty rights of Native American Tribes. Moreover, the Coast Guard is committed to working with Tribal Governments to implement local policies and to mitigate tribal concerns. We have determined that these regulations and fishing rights protection need not be incompatible. We have also determined that this Proposed Rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Nevertheless, Indian tribes that have questions concerning the provisions of this Proposed Rule or options for compliance are encouraged to contact the point of contact listed under FOR FURTHER INFORMATION CONTACT . Energy Effects We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this proposed rule under Commandant Instruction M16475.lD which guide the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is not likely to have a significant effect on the human environment. A preliminary “Environmental Analysis Check List” supporting this preliminary determination is available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from the proposed rule. List of Subjects in 33 CFR Part 165 Harbors, Marine Safety, Navigation (water), Reporting and record keeping requirements, Security measures, and Waterways. For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. Section 165.T09-0451 is added to read as follows: § 165.T09-0451 Safety Zone; Citron Energy Drink Offshore Challenge, Lake St. Clair, Harrison Township, MI.
(a)*Location.* The following area is a temporary safety zone: all U.S. waters of Lake St. Clair, Harrison Township, MI, bound by a line extending from a point in Lake St. Clair located at position 082°48′45″ W; 42°34′05″ N, east to position 082°47′45″ W; 42°34′04″ N, southeast to position 082°47′03″ W; 42°33′38″ N, southwest to position 082°48′32″ W; 42°32′35″ N, south to position 082°49′53″ W; 42°32′08″ N, northwest to position 082°50′27″ W; 42°32′30″ N, and northeast to the point of origin at position 082°48′45″ W; 42°34′05″ N. (DATUM: NAD 83).
(b)*Effective Period.* This regulation is effective from 12 p.m. on July 18, 2008 through 5 p.m. on July 20, 2008.
(c)*Regulations.*
(1)In accordance with the general regulations in section 165.23 of this part, entry into, transiting, or anchoring within this safety zone is prohibited unless authorized by the Captain of the Port Detroit, or his designated on-scene representative.
(2)This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Detroit or his designated on-scene representative.
(3)The “on-scene representative” of the Captain of the Port is any Coast Guard commissioned, warrant, or petty officer who has been designated by the Captain of the Port to act on his behalf. The on-scene representative of the Captain of the Port will be aboard either a Coast Guard or Coast Guard Auxiliary vessel. The Captain of the Port or his designated on scene representative may be contacted via VHF Channel 16.
(4)Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port Detroit or his on-scene representative to obtain permission to do so. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port or his on-scene representative. Dated: June 11, 2008. P.W. Brennan, Captain, U.S. Coast Guard, Captain of the Port Detroit. [FR Doc. E8-14372 Filed 6-24-08; 8:45 am] BILLING CODE 4910-15-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 63 [EPA-HQ-OAR-2006-0406, FRL-8684-7] RIN 2060-AM74 National Emission Standards for Hazardous Air Pollutants for Source Category: Gasoline Dispensing Facilities AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to amend the National Emission Standards for Hazardous Air Pollutants for Source Category: Gasoline Dispensing Facilities, which EPA promulgated on January 10, 2008, and amended on March 7, 2008. The January 10, 2008 rule established national emission standards for hazardous air pollutants for the facilities in the gasoline distribution (Stage I) area source category. This action only affects area source gasoline dispensing facilities with a monthly throughput of 100,000 gallons of gasoline or more. In this action, EPA is proposing to amend the pressure and vacuum vent valve cracking pressure and leak rate requirements for vapor balance systems used to control emissions from gasoline storage tanks at gasoline dispensing facilities. Newly constructed or reconstructed gasoline dispensing facilities must comply with the new vapor balance system requirements as explained in the parallel direct final rule published in today's Regulations and Rules section of this **Federal Register** . DATES: *Comments* . Written comments must be received on or before August 11, 2008. *Public Hearing* . If anyone contacts EPA requesting to speak at a public hearing by July 7, 2008, a public hearing will be held on July 10, 2008. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2006-0406, by mail to Air and Radiation Docket (2822T), 1200 Pennsylvania Avenue, NW., Washington, DC 20460. Please include a total of two copies. 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** . We request that you also send a separate copy of each comment to the contact persons listed below (see FOR FURTHER INFORMATION CONTACT ). FOR FURTHER INFORMATION CONTACT: *General and Technical Information:* Mr. Stephen Shedd, Office of Air Quality Planning and Standards, Sector Policies and Programs Division, Coatings and Chemicals Group (E143-01), EPA, Research Triangle Park, NC 27711, telephone:
(919)541-5397, facsimile number:
(919)685-3195, e-mail address: *shedd.steve@epa.gov* . *Compliance Information:* Ms. Maria Malave, Office of Compliance, Air Compliance Branch (2223A), EPA, Ariel Rios Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, telephone:
(202)564-7027, facsimile number:
(202)564-0050, e-mail address: *malave.maria@epa.gov.* SUPPLEMENTARY INFORMATION: *Why is EPA issuing this proposed rule?* This document proposes to take action on the National Emission Standards for Hazardous Air Pollutants for Source Category: Gasoline Dispensing Facilities. Based on our discussions with industry stakeholders, we have concluded that pressure and vacuum
(PV)vent valves capable of meeting the requirements in entry 1.(g) of Table 1 to subpart CCCCCC in the January 10, 2008 final rule (73 FR 1916) are not currently manufactured and thus are not available to affected sources. Therefore, we are proposing to amend the PV vent valve cracking pressure and leak rate requirements for vapor balance systems used to control emissions from gasoline storage tanks at gasoline dispensing facilities. We have published a parallel direct final rule in the Regulations and Rules 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. Newly constructed or reconstructed gasoline dispensing facilities are proposed to comply with the new vapor balance system requirements as explained in the parallel direct final rule. Existing sources must comply with the new vapor balance system requirements by the compliance date contained in the January 10, 2008 final rule, which is January 10, 2011. The compliance dates for all other requirements in the January 10, 2008 final rule remain unchanged for both new and existing sources. If we receive no adverse comment and no request for a public hearing on the parallel direct final rule, we will not take further action on this proposed rule. If we receive adverse comment on a distinct portion of the direct final rule, we will withdraw that portion of the rule and it will not take effect. In this instance, we would address all public comments in any subsequent final rule based on this proposed rule. If we receive adverse comment on a distinct provision of the direct final rule, we will publish a timely withdrawal in the **Federal Register** indicating which provisions we are withdrawing. The provisions that are not withdrawn will become effective on the date set out in the direct final rule, notwithstanding adverse comment on any other provision. 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. *Regulated Entities* . Categories and entities potentially regulated by this action include: Category NAICS * Examples of regulated entities Industry 447110 447190 Operations at area source gasoline dispensing facilities. Federal/State/local/tribal governments * North American Industry Classification System. This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. To determine whether your facility is regulated by this action, you should examine the applicability criteria in 40 CFR part 63, subpart CCCCCC. If you have any questions regarding the applicability of this action to a particular entity, consult either the air permit authority for the entity or your EPA regional representative as listed in 40 CFR 63.13. *Public Hearing* . Persons interested in presenting oral testimony or inquiring as to whether a hearing is to be held should contact Ms. Janet Eck, U.S. EPA, Office of Air Quality Planning and Standards, Sector Policies and Programs Division, Coatings and Chemicals Group (E143-01), Research Triangle Park, NC 27711; telephone number:
(919)541-7946, e-mail address: *eck.janet@epa.gov* , at least 2 days in advance of the potential date of the public hearing. If a public hearing is held, it will be held at 10 a.m. at EPA's Campus located at 109 T.W. Alexander Drive in Research Triangle Park, NC, or an alternate site nearby. If no one contacts EPA requesting to speak at a public hearing concerning this rule by July 7, 2008 this hearing will be cancelled without further notice. *Worldwide Web (WWW).* In addition to being available in the docket, an electronic copy of today's proposal will also be available through the WWW. Following the Administrator's signature, a copy of this action will be posted on EPA's Technology Transfer Network
(TTN)policy and guidance page for newly proposed or promulgated rules *http://www.epa.gov/ttn/oarpg/* . The TTN at EPA's Web site provides information and technology exchange in various areas of air pollution control. Statutory and Executive Order Reviews For a complete discussion of all of the administrative requirements applicable to this action, see the direct final rule in the Rules and Regulations section of this **Federal Register** . List of Subjects in 40 CFR Part 63 Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Reporting and recordkeeping requirements. Dated: June 19, 2008. Stephen L. Johnson, Administrator. [FR Doc. E8-14373 Filed 6-24-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 1051 [EPA-HQ-OAR-2008-0124; FRL-8684-5] Exhaust Emission Standards for 2012 and Later Model Year Snowmobiles AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: In a November 2002 final rule, we established the first U.S. emission standards for new snowmobiles. Subsequent litigation regarding that final rule resulted in a court decision which requires us to: Remove the oxides of nitrogen (NO <sup>X</sup> ) component from the Phase 3 snowmobile standards set to take effect in 2012, and; clarify the evidence and analysis upon which the Phase 3 carbon monoxide
(CO)and hydrocarbon
(HC)standards were based. In accordance with the court decision, we are proposing to remove the NO <sup>X</sup> component from the Phase 3 emission standard calculation. We are deferring action on the 2012 CO and HC emission standards portion of the court's remand to a separate rulemaking action. In the “Rules and Regulations” section of this **Federal Register** , we are making this revision 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. DATES: Written comments must be received by July 25, 2008, unless a public hearing is requested. If a public hearing is requested no later than July 15, 2008, it will be held at a time and place to be published in the **Federal Register** and a new deadline for comments will be provided. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2008-0124, by mail to Environmental Protection Agency, Mail Code: 6102T, 1200 Pennsylvania Ave., NW., Washington, DC, 20460. Please include two copies. Comments may also be submitted electronically or through hand delivery/courier, or a public hearing may be requested, 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: John Mueller, Assessment and Standards Division, Office of Transportation and Air Quality, 2000 Traverwood Drive, Ann Arbor, MI 48105; telephone number:
(734)214-4275; fax number:
(734)214-4050; e-mail address: *mueller.john@epa.gov.* SUPPLEMENTARY INFORMATION: I. Why Is EPA Issuing This Proposed Rule? This document proposes to remove the NO <sup>X</sup> component from the Phase 3 snowmobile emission standard equation as required by the court decision in *Bluewater Network* v. *EPA* , 370 F. 3d 1 (D.C.Cir 2004). We have published a direct final rule making this revision in the “Rules and Regulations” section of this **Federal Register** because we view this as a relatively noncontroversial action and anticipate no adverse comment. We have explained our reasons for this action in the preamble to the direct final rule. If we receive no adverse comment or a request for a public hearing, we will not take further action on this proposed rule. Otherwise, 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. Does This Action Apply to Me? This action will affect companies that manufacture, sell, or import into the United States new snowmobiles and new spark-ignition engines for use in snowmobiles. This action may also affect companies and persons that rebuild or maintain these engines. Affected categories and entities include the following: Category NAICS code a Examples of potentially affected entities Industry 333618 Manufacturers of new nonroad spark-ignition engines. Industry 336999 Snowmobile manufacturers. Industry 811310 Engine repair and maintenance. Industry 421110 Independent commercial importers of vehicles and parts. a North American Industry Classification System (NAICS). This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. To determine whether particular activities may be affected by this action, you should carefully examine the regulations. You may direct questions regarding the applicability of this action as noted in FOR FURTHER INFORMATION CONTACT . III. Summary of Rule This proposed rule would make a revision to the regulations to implement the following amendment: • Remove the NO <sup>X</sup> component from the Phase 3 snowmobile emission standard equation. For additional discussion of the proposed rule change, see the direct final rule EPA has published in the “Rules and Regulations” section of today's **Federal Register** . This proposal incorporates by reference all the reasoning, explanation, and regulatory text from the direct final rule. Furthermore, elsewhere in today's **Federal Register** , EPA is publishing an Advance Notice of Proposed Rulemaking which describes EPA's current thinking with regard to potential new requirements for C3 marine engines and identifies and discusses a number of important issues upon which EPA is seeking comment. IV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review This proposed rule is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the Executive Order. This proposed rule merely removes the NO <sup>X</sup> component from the snowmobile Phase 3 emission standards equation, as directed by the court's ruling. There are no new costs associated with this proposed rule. B. Paperwork Reduction Act This action does not impose any new information collection burden. This proposed rule merely removes the NO <sup>X</sup> component from the snowmobile Phase 3 emission standards equation, as directed by the court's ruling. However, the Office of Management and Budget
(OMB)has previously approved the information collection requirements contained in the existing regulations [40 CFR part 1051] under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* and has assigned OMB control number 2060-0388, EPA ICR number 1695. A copy of the OMB approved Information Collection Request
(ICR)may be obtained from Susan Auby, Collection Strategies Division; U.S. Environmental Protection Agency (2822T); 1200 Pennsylvania Ave., NW., Washington, DC 20460 or by calling
(202)566-1672. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. C. 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, a small entity is defined as:
(1)A small business that meet the definition for business based on SBA size standards 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 proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the rule on small entities.” 5 U.S.C. 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule. This proposed rule merely removes the NO <sup>X</sup> component from the snowmobile Phase 3 emission standards equation, as directed by the court's ruling. We have therefore concluded that today's proposed rule will not affect regulatory burden for all affected small entities. 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 This proposed rule contains no federal mandates for state, local, tribal governments, or the private sector as defined by the provisions of Title II of the UMRA. The proposed rule imposes no enforceable duties on any of these governmental entities. This proposed rule contains no regulatory requirements that would significantly or uniquely affect small governments. EPA has determined that this proposed rule contains no federal mandates that may result in expenditures of more than $100 million to the private sector in any single year. This proposed rule merely removes the NO <sup>X</sup> component from the snowmobile Phase 3 emission standards equation, as directed by the court's ruling. See the direct final rule EPA has published in the “Rules and Regulations” section of today's **Federal Register** for a more extensive discussion of UMRA policy. E. Executive Order 13132: Federalism This proposed rule 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 merely removes the NO <sup>X</sup> component from the snowmobile Phase 3 emission standards equation, as directed by the court's ruling. See the direct final rule EPA has published in the “Rules and Regulations” section of today's **Federal Register** for a more extensive discussion of Executive Order 13132. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments This proposed rule does not have tribal implications. It 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. This proposed rule does not uniquely affect the communities of Indian Tribal Governments. Further, no circumstances specific to such communities exist that would cause an impact on these communities beyond those discussed in the other sections of this rule. This proposed rule merely removes the NO <sup>X</sup> component from the snowmobile Phase 3 emission standards equation, as directed by the court's ruling. Thus, Executive Order 13175 does not apply to this rule. See the direct final rule EPA has published in the “Rules and Regulations” section of today's **Federal Register** for a more extensive discussion of Executive Order 13132. G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks This proposed rule is not subject to the Executive Order because it is not economically significant, and does not involve decisions on environmental health or safety risks that may disproportionately affect children. See the direct final rule EPA has published in the “Rules and Regulations” section of today's **Federal Register** for a more extensive discussion of Executive Order 13045. H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use This proposed rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution or use of energy. This proposed rule merely removes the NO <sup>X</sup> component from the snowmobile Phase 3 emission standards equation, as directed by the court's ruling. I. National Technology Transfer and Advancement Act This proposed rule does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards. This proposed rule merely removes the NO <sup>X</sup> component from the snowmobile Phase 3 emission standards equation, as directed by the court's ruling. Thus, we have determined that the requirements of the NTTAA do not apply. See the direct final rule EPA has published in the “Rules and Regulations” section of today's **Federal Register** for a more extensive discussion of NTTAA policy. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations 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. See the direct final rule EPA has published in the “Rules and Regulations” section of today's **Federal Register** for a more extensive discussion of Executive Order 13045. K. Statutory Authority The statutory authority for this action comes from section 213 of the Clean Air Act as amended (42 U.S.C. 7547). This action is a notice of proposed rulemaking subject to the provisions of Clean Air Act section 307(d). See 42 U.S.C. 7607(d). List of Subjects in 40 CFR Part 1051 Environmental protection, Administrative practice and procedure, Air pollution control, Confidential business information, Imports, Penalties, Reporting and recordkeeping requirements, Warranties. Dated: June 19, 2008. Stephen L. Johnson, Administrator. [FR Doc. E8-14414 Filed 6-24-08; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 67 [Docket No. FEMA-B-7787] Proposed Flood Elevation Determinations AGENCY: Federal Emergency Management Agency, DHS. ACTION: Proposed rule. SUMMARY: Comments are requested on the proposed Base (1 percent annual-chance) Flood Elevations
(BFEs)and proposed BFE modifications for the communities listed in the table below. The purpose of this notice is to seek general information and comment regarding the proposed regulatory flood elevations for the reach described by the downstream and upstream locations in the table below. The BFEs and modified BFEs are a part of the floodplain management measures that the community is required either to adopt or show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). In addition, these elevations, once finalized, will be used by insurance agents, and others to calculate appropriate flood insurance premium rates for new buildings and the contents in those buildings. DATES: Comments are to be submitted on or before September 23, 2008. ADDRESSES: The corresponding preliminary Flood Insurance Rate Map
(FIRM)for the proposed BFEs for each community are available for inspection at the community's map repository. The respective addresses are listed in the table below. You may submit comments, identified by Docket No. FEMA-B-7787, to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472,
(202)646-3151, or (e-mail) *bill.blanton@dhs.gov.* FOR FURTHER INFORMATION CONTACT: William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472,
(202)646-3151 or (e-mail) *bill.blanton@dhs.gov.* SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency
(FEMA)proposes to make determinations of BFEs and modified BFEs for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a). These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings. Comments on any aspect of the Flood Insurance Study and FIRM, other than the proposed BFEs, will be considered. A letter acknowledging receipt of any comments will not be sent. *Administrative Procedure Act Statement.* This matter is not a rulemaking governed by the Administrative Procedure Act (APA), 5 U.S.C. 553. FEMA publishes flood elevation determinations for notice and comment; however, they are governed by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and the National Flood Insurance Act of 1968, 42 U.S.C. 4001 *et seq.* , and do not fall under the APA. *National Environmental Policy Act.* This proposed rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared. *Regulatory Flexibility Act.* As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required. *Executive Order 12866, Regulatory Planning and Review.* This proposed rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866, as amended. *Executive Order 13132, Federalism.* This proposed rule involves no policies that have federalism implications under Executive Order 13132. *Executive Order 12988, Civil Justice Reform.* This proposed rule meets the applicable standards of Executive Order 12988. List of Subjects in 44 CFR Part 67 Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements. Accordingly, 44 CFR part 67 is proposed to be amended as follows: PART 67—[AMENDED] 1. The authority citation for part 67 continues to read as follows: Authority: 42 U.S.C. 4001 *et seq.* ; Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376. § 67.4 [Amended] 2. The tables published under the authority of § 67.4 are proposed to be amended as follows: Flooding source(s) Location of referenced elevation ** * Elevation in feet(NGVD) + Elevation in feet(NAVD) # Depth in feet above ground Effective Modified Communities affected McCreary County, Kentucky, and Incorporated Areas South Fork Cumberland River At confluence with Cooper Creek (At north western county boundary ) None +760 Unincorporated Areas of McCreary County. Approximately 8000 feet upstream Alum Creek None +760 * National Geodetic Vertical Datum. +North American Vertical Datum. #Depth in feet above ground. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the referenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472. ADDRESSES Unincorporated Areas of Mccreary County Maps are available for inspection at 1 N Main St, Whitley City, KY 42563. Iberia Parish, Louisiana, and Incorporated Areas Gulf of Mexico Base Flood Elevation changes ranging from 9 to 11 feet in the form of Coastal AE zones have been made +9-11 +9-11 Town of Delcambre. Gulf of Mexico Base Flood Elevations changes ranging from 9 to 15 feet in the form of AE and VE zones have been made +9-17 +9-15 Unincorporated Areas of Iberia Parish. * National Geodetic Vertical Datum. +North American Vertical Datum. #Depth in feet above ground. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the referenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472. ADDRESSES Town of Delcambre Maps are available for inspection at 107 North Railroad, Delcambre, LA 70528. Unincorporated Areas of Iberia Parish Maps are available for inspection at 209 W. Main Street, Suite 102, New Iberia, LA 70560. (Catalog of Federal Domestic Assistance No. 97.022, “Flood Insurance.”) Dated: June 17, 2008. David I. Maurstad, Federal Insurance Administrator of the National Flood Insurance Program, Department of Homeland Security, Federal Emergency Management Agency. [FR Doc. E8-14325 Filed 6-24-08; 8:45 am] BILLING CODE 9110-12-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 27, 74, 78, and 101 [WT Docket No. 07-195; WT Docket No. 04-356; FCC 08-158] Service Rules for Advanced Wireless Services in the 1915-1920 MHz, 1995-2000 MHz, 2155-2175 MHz, and 2175-2180 MHz Bands AGENCY: Federal Communications Commission. ACTION: Proposed rule. SUMMARY: In this document, we seek comment on service rules for licensed fixed and mobile services, including Advanced Wireless Services (AWS), in the 1915-1920 MHz, 1995-2000 MHz, 2155-2175 MHz, and 2175-2180 MHz bands. We seek comment on rules for licensing this newly designated spectrum in a manner that will permit it to be fully and promptly utilized to bring advanced wireless services to American consumers. Our objective is to allow for the most effective and efficient use of spectrum in this band, while also encouraging development of robust wireless broadband services. We propose to apply our flexible, market-oriented rules to the band in order to meet this objective. DATES: Comments must be filed on or before July 9, 2008, and reply comments must be filed on or before July 16, 2008. ADDRESSES: Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. You may submit comments, identified by WT Docket No. 07-195, by any of the following methods: • *Federal eRulemaking Portal:* *http://www.regulations.gov.* Follow the instructions for submitting comments. • *Federal Communications Commission's Web Site:* *http://www.fcc.gov/cgb/ecfs/.* Follow the instructions for submitting comments. • *People with Disabilities:* Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by e-mail: *FCC504@fcc.gov* or phone: 202-418-0530 or TTY: 202-418-0432. For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document. FOR FURTHER INFORMATION CONTACT: Peter Daronco Esq., or Paul Malmud Esq., at 202-418-2486. SUPPLEMENTARY INFORMATION: This is a summary of the Commission's *Further Notice of Proposed Rule Making (FNPRM),* released June 20, 2008. The complete text of this document, including attachments and related Commission documents, is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257), 445 12th Street, SW., Washington, DC 20554. The complete text of the *FNPRM* and related Commission documents may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room, CY-B402, Washington, DC 20554, telephone 202-488-5300, facsimile 202-488-5563, or you may contact BCPI at its web site *http://www.BCPIWEB.com.* When ordering documents from BCPI please provide the appropriate FCC document number, for example, FCC 07-38. The *FNPRM* is also available on the Commission's Web site: *http://wireless.fcc.gov/index.htm?job=headlines. * Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments on or before July 9, 2008, and reply comments must be filed on or before July 16, 2008. *Comments may be filed using:*
(1)The Commission's Electronic Comment Filing System (ECFS),
(2)the Federal Government's eRulemaking Portal, or
(3)by filing paper copies. *See Electronic Filing of Documents in Rulemaking Proceedings,* 63 FR 24121 (1998). • *Electronic Filers:* Comments may be filed electronically using the Internet by accessing the ECFS: *http://www.fcc.gov/cgb/ecfs/* or the Federal eRulemaking Portal: *http://www.regulations.gov.* Filers should follow the instructions provided on the Web site for submitting comments. • For ECFS filers, if multiple docket or rulemaking numbers appear in the caption of this proceeding, filers must transmit one electronic copy of the comments for each docket or rulemaking number referenced in the caption. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail to *ecfs@fcc.gov,* and include the following words in the body of the message, “get form.” A sample form and directions will be sent in response. • *Paper Filers:* Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. • The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of *before* entering the building. • Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. • U.S. Postal Service first-class, Express, and Priority mail should be addressed to 445 12th Street, SW., Washington DC 20554. People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail to *fcc504@fcc.gov* or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty). I. Summary of Notice of Proposed Rulemaking 1. In a In this Further Notice of Proposed Rule Making (FNPRM), we seek comment on proposed service rules for Advanced Wireless Service
(AWS)1 spectrum in the 1915-1920 MHz, 1995-2000 MHz, and 2155-2180 MHz bands, as set forth in Appendix A. In taking a further step towards adoption of service rules for these bands, our goal is to promote the deployment and ubiquitous availability of broadband services across the country and to facilitate the use of AWS spectrum for the benefit of consumers. 1 Advanced Wireless Services is the collective term we use for new and innovative fixed and mobile terrestrial wireless applications using bandwidth that is sufficient for the provision of a variety of applications, including those using voice and data (such as Internet browsing, message services, and full-motion video) content. Although AWS is commonly associated with so-called third generation
(3G)applications and has been predicted to build on the successes of such current-generation commercial wireless services as cellular and Broadband Personal Communications Services (PCS), the services ultimately provided by AWS licensees are limited only by the Fixed and Mobile designation of the spectrum we allocate for AWS and the service rules we ultimately adopt for the bands. 2. In a Notice of Proposed Rulemaking in WT Docket No. 04-356, the Commission sought comment on rules for AWS spectrum in the 1915-1920 MHz, 1995-2000 MHz, 2020-2025 MHz, and 2175-2180 MHz bands. 2 In a Notice of Proposed Rulemaking in WT Docket No. 07-195, we sought comment on rules for AWS spectrum in the 2155-2175 MHz band. 3 To further supplement these *Notices of Proposed Rulemaking* and the current extensive record in these proceedings, we are seeking expedited comment on a proposed set of rules for these bands. We will consider comments on these proposed rules in conjunction with the record developed in response to the various proposals set out in the earlier *NPRM's* . 2 Service Rules for Advanced Wireless Services in the 1915-1920 MHz, 1995-2000 MHz, 2020-2025 MHz and 2175-2180 MHz Bands, WT Docket No. 04-356, Service Rules for Advanced Wireless Services in the 1.7 GHz and 2.1 GHz Bands, WT Docket No. 02-353, *Notice of Proposed Rulemaking,* 19 FCC Rcd 19263
(2004)( *AWS-2 NPRM* ). 3 Service Rules for Advanced Wireless Services in the 2155-2175 MHz Band, WT Docket No. 07-195, *Notice of Proposed Rulemaking,* 22 FCC Rcd 17035
(2007)( *AWS-3 NPRM* ). 3. Specifically, we propose to adopt application, licensing, operating, and technical rules for the 2155-2180 MHz band (AWS-3 band), including rules that would: • Combine the 2155-2175 MHz band with the 2175-2180 MHz band in order to create a 25 megahertz block of spectrum. • Permit downlink and uplink transmissions throughout the entire 2155-2180 MHz band. • Adopt a single nationwide license for the 2155-2180 MHz band. • Adopt open eligibility for the 2155-2180 MHz band. • Require the licensee to provide free, two-way broadband Internet service including: ○ engineered data rates of at least 768 kbps downstream using up to 25 percent of the licensee's wireless network capacity. ○ o an “always on” network-based filtering mechanism. • Require the licensee to provide for open devices and open applications for its premium service and open devices for its free service. • Provide an initial license term of ten years and subsequent renewal terms of ten years. • Require the licensee to provide signal coverage and offer service to:
(1)At least 50 percent of the total population of the nation within four years of commencement of the license term and ( 2) at least 95 percent of the total population of the nation at the end of the 10-year license term. • Allow licensees to disaggregate, partition, and lease the spectrum. • Provide that mutually exclusive applications should be resolved through competitive bidding. • Require AWS-3 mobiles to attenuate out-of-band emissions
(OOBE)by 60 + 10log
(P)dB outside of the AWS-3 band, and establish a power limit for AWS-3 mobile devices of 23 dBm/MHz equivalent isotropically radiated power (EIRP). • Require an OOBE limit of 43 + 10 log
(P)dB for AWS-3 base and fixed downlink stations and a power limit of 1640 watts peak EIRP in non-rural areas and 3280 watts peak EIRP in rural areas. 4. We also propose to adopt application, licensing, operating, and technical rules for the 1915-1920 MHz and 1995-2000 MHz bands (H Block), including rules that would: • License the H Block using exclusive geographic area licensing on a Basic Trading Area
(BTA)basis. • Adopt open eligibility for the H Block. • Provide an initial license term of ten years and subsequent renewal terms of ten years. • Require an H Block licensee to provide signal coverage and offer service to:
(1)At least 35 percent of the population in each licensed area within four years and
(2)at least 70 percent of the population in each licensed area at the end of the license term. • Allow licensees to disaggregate, partition, and lease the spectrum. • Provide that mutually exclusive applications should be resolved through competitive bidding. • Require H Block licensees in the 1915-1920 MHz band to pay a *pro rata* share of expenses previously incurred by UTAM Inc. in clearing that band. • Adopt both relocation requirements for H Block entrants in the 1995-2000 MHz band and procedures for cost-sharing among other new entrants in the Broadcast Auxiliary Service band, including Sprint Nextel and Mobile Satellite Service entrants. • Prohibit base and fixed transmission in the 1915-1920 MHz band. • Require mobiles at 1915-1920 MHz to attenuate OOBE by 90 + 10log P dB within the PCS band (1930-1990 MHz band), and establish a power limit for mobiles of 23 dBm/MHz EIRP. • Prohibit mobile transmission in the 1995-2000 MHz band. • Adopt an OOBE limit of 43 + 10 log
(P)dB for base and fixed stations at 1995-2000 MHz and a power limit of 1640 watts peak EIRP in non-rural areas and 3280 watts peak EIRP in rural areas. 5. We seek comment on these proposed rules for the AWS-3 band and the H Block, as set forth in Appendix A. We note that combining the 2155-2175 MHz band with the 2175-2180 MHz band may allow an AWS-3 licensee to make more robust use of this spectrum block while meeting a stricter OOBE limit than traditionally applied in bands designated for flexible use, such as the AWS-1 and 700 MHz bands. 4 To the extent that commenters do not support combining the 2155-2175 MHz band with the 2175-2180 MHz band, they should indicate whether, in the alternative, a more traditional OOBE limit of 43+10log(P) dB would be appropriate for the 2155-2175 MHz band. 4 *See, e.g.* , 47 CFR 27.53(c)(1)(2), 27.53(h). Procedural Matters Ex Parte Rules—Permit-But-Disclose 6. This is a permit-but-disclose notice and comment rulemaking proceeding. Ex parte presentations are permitted, except during the Sunshine Agenda period, provided they are disclosed pursuant to the Commission's rules. 5 5 *See generally* 47 CFR 1.1202, 1.1203, 1.1206. Initial Paperwork Reduction Analysis 7. This document contains proposed new or modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget
(OMB)to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency comments are due 60 days after date of publication in the **Federal Register** . *Comments should address:*
(a)Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility;
(b)the accuracy of the Commission's burden estimates;
(c)ways to enhance the quality, utility, and clarity of the information collected; and
(d)ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, 6 we seek specific comment on how we might “further reduce the information collection burden for small business concerns with fewer than 25 employees.” 6 Public Law 107-198, *see* 44 U.S.C. 3506(c)(4). Supplemental Initial Regulatory Flexibility Analysis 8. As required by the Regulatory Flexibility Act of 1980 (RFA), 7 the Commission has prepared a Supplemental Initial Regulatory Flexibility Analysis
(IRFA)of the possible significant economic impact on small entities of the policies and rules proposed in the *FNPRM.* The analysis is found in the attached Appendix B of the FNPRM. We request written public comment on the analysis. Comments must be filed on or before July 9, 2008, and reply comments must be filed on or before July 16, 2008 and must have a separate and distinct heading designating them as responses to the Supplemental IRFA. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, will send a copy of this *FNPRM,* including the Supplemental IRFA, to the Chief Counsel for Advocacy of the Small Business Administration. 7 5 U.S.C. 603. A. Need for, and Objectives of, the Proposed Rules 9. The *FNPRM* contemplates service rules for licensed fixed and mobile services, including advanced wireless services (AWS), in the 1915-1920 MHz and 1995-2000 MHz bands (collectively the “H Block”) and the 2155-2175 MHz and 2175-2180 MHz bands (collectively the “AWS-3 band”). These service rules include application, licensing, operating and technical rules for the AWS-3 band and H Block. Consistent with the Commission's policy objective of affording licensees the flexibility to deploy new technologies, to implement service innovations, and to respond to market forces, the *FNPRM* proposes service rules that provide AWS-3 and H Block licensees with the flexibility to provide any fixed or mobile service, including advanced wireless services, which is consistent with the allocations for this spectrum. The market-oriented licensing framework for these bands would ensure that this spectrum is efficiently utilized and will foster the development of new and innovative technologies and services, as well as encourage the growth and development of broadband services, ultimately leading to greater benefits to consumers. 10. The *FNPRM* seeks to adopt rules that will reduce regulatory burdens, promote innovative services, and encourage flexible use of this spectrum. Such an approach opens up economic opportunities to a variety of spectrum users, which could include small businesses. 11. The *FNPRM* proposes combining the 2155-2175 MHz band with the 2175-2180 MHz band to form a 25 MHz block of spectrum. 12. In the *FNPRM,* the Commission also seeks comments on its proposal to permit both downlink and uplink transmissions throughout the entire AWS-3 band. 13. In the *FNPRM,* the Commission also seeks comments on its proposal to require an AWS-3 licensee to provide free, two-way broadband Internet service that includes engineered data rates of at least 768 kps downstream for the average user experience using up to 25 percent of the licensee's wireless network capacity and an “always on” network-based filtering mechanism. 14. In the *FNPRM,* the Commission seeks comments on its proposal to require the licensee to provide for open devices and open applications for its premium service and open devices for its free service. 15. In the *FNPRM,* the Commission seeks comments on its proposal to adopt a single nationwide license for the 2155-2180 MHz band. 16. In the *FNPRM,* the Commission seeks comments on its proposal to adopt open eligibility for the AWS-3 band. 17. In the *FNPRM,* the Commission seeks comments on its proposal to allow licensees to disaggregate, partition, and lease the spectrum. 18. In the *FNPRM,* the Commission seeks comments on its proposal to require AWS-3 licensees to provide signal coverage and offer service to:
(1)At least 50 percent of the total population of the nation within four years of commencement of the license term and
(2)at least 95 percent of the total population of the nation at the end of the 10-year license term. 19. In the *FNPRM,* the Commission seeks comments on its proposal to provide initial license term of ten years and subsequent renewal terms of ten years. 20. In the *FNPRM,* the Commission seeks comments on its proposal to provide that mutually exclusive applications should be resolved through competitive bidding. 21. In the *FNPRM,* the Commission seeks comments on its proposal to require AWS-3 mobiles to attenuate out-of-band emissions
(OOBE)by 60 + 10log
(P)dB outside of the AWS-3 band, and establish a power limit for AWS-3 mobile devices of 23 dBm/MHz equivalent isotropically radiated power (EIRP). 22. In the *FNPRM,* the Commission seeks comments on its proposal to require an OOBE limit of 43 + 10 log
(P)dB for AWS-3 base and fixed downlink stations and a power limit of 1640 watts peak EIRP in non-rural areas and 3280 watts peak EIRP in rural areas. 23. In the *FNPRM,* the Commission seeks comments on its proposal to license the H Block using exclusive geographic area licensing on a Basic Trading Area
(BTA)basis. 24. In the *FNPRM,* the Commission seeks comments on its proposal to adopt open eligibility for the H Block. 25. In the *FNPRM,* the Commission seeks comments on its proposal to allow licensees to disaggregate, partition, and lease the spectrum. 26. In the *FNPRM,* the Commission seeks comments on its proposal to require an H Block licensee to provide signal coverage and offer service to: 1) at least 35 percent of the population in each licensed area within four years and 2) at least 70 percent of the population in each licensed area at the end of the license term. 27. In the *FNPRM,* the Commission seeks comments on its proposal to provide an initial license term of ten years and subsequent renewal terms of ten years. 28. In the *FNPRM,* the Commission seeks comments on its proposal to provide that mutually exclusive applications should be resolved through competitive bidding. 29. In the *FNPRM,* the Commission seeks comments on its proposal to require H Block licensees in the 1915-1920 MHz band to pay a *pro rata* share of expenses previously incurred by UTAM Inc. in clearing that band. 30. In the *FNPRM,* the Commission seeks comments on its proposal to adopt both relocation requirements for H Block entrants in the 1995-2000 MHz band and procedures for cost-sharing among other new entrants in the Broadcast Auxiliary Service band, including Sprint Nextel and Mobile Satellite Service entrants. 31. In the *FNPRM,* the Commission seeks comments on its proposal to prohibit base and fixed transmission in the 1915-1920 MHz band. 32. In the *FNPRM,* the Commission seeks comments on its proposal to require mobiles at 1915-1920 MHz to attenuate OOBE by 90 + 10log P dB within the PCS band (1930-1990 MHz band), and establish a power limit for mobiles of 23 dBm/MHz EIRP. 33. In the *FNPRM,* the Commission seeks comments on its proposal to prohibit mobile transmission in the 1995-2000 MHz band. 34. In the *FNPRM,* the Commission seeks comments on its proposal to adopt an OOBE limit of 43 + 10 log
(P)dB for base and fixed stations at 1995-2000 MHz and a power limit of 1640 watts peak EIRP in non-rural areas and 3280 watts peak EIRP in rural areas. 35. Our actions today bring us closer to our goals of achieving the universal availability of broadband access and increasing competition in the provision of such broadband services both in terms of the types of services offered and in the technologies utilized to provide those services. The widespread deployment of broadband will bring new services to consumers, stimulate economic activity, improve national productivity, and advance many other objectives—such as improving education, and advancing economic opportunity for more Americans. By encouraging the growth and development of broadband, our actions today also foster the development of facilities-based competition. We achieve these objectives by taking a market-oriented approach to licensing this spectrum that provides greater certainty, minimal regulatory intervention, and leads to greater benefits to consumers. B. Legal Basis 36. The proposed action is authorized pursuant to Sections 1, 2, 4(i), 7, 10, 201, 214, 301, 302, 303, 307, 308, 309, 310, 319, 324, 332 and 333 of the Communications Act of 1934, 47 U.S.C. 151, 152, 154(i), 157, 160, 201, 214, 301, 302, 303, 307, 308, 309, 310, 319, 324, 332, 333. C. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply 37. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. 8 The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” 9 In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 10 A “small business concern” is one which:
(1)Is independently owned and operated;
(2)is not dominant in its field of operation; and
(3)satisfies any additional criteria established by the Small Business Administration (SBA). 11 8 5 U.S.C. 603(b)(3). 9 5 U.S.C. 601(6). 10 5 U.S.C. 601(3) (incorporating by reference the definition of “small-business concern” in the Small Business Act, 15 U.S.C. 632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a small business applies “unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the **Federal Register** .” 11 15 U.S.C. 632. 38. The Commission has not yet determined how many licenses will be awarded in the 1915-1920 MHz, 1995-2000 MHz, and 2155-2180 MHz bands. Moreover, the Commission does not yet know how many applicants or licensees in these bands will be small entities. Though the Commission does not know for certain which entities are likely to apply for these frequencies, we note that the H Block and AWS-3 band are comparable to cellular service and personal communications service. 12 Accordingly, we believe the following sorts of regulated entities might ultimately also be applicants or licensees in this context and thus might be directly affected by our contemplated rules. 12 *See, e.g., AWS-2 Service Rules NPRM; AWS-3 Service Rules NPRM.* 39. *Small Businesses.* Nationwide, there are a total of approximately 22.4 million small businesses, according to SBA data. 13 13 *See* SBA, Programs and Services, SBA Pamphlet No. CO-0028, at page 40 (July 2002). 40. *Small Organizations.* Nationwide, there are approximately 1.6 million small organizations. 14 14 Independent Sector, The New Nonprofit Almanac & Desk Reference (2002). 41. *Small Governmental Jurisdictions.* The term “small governmental jurisdiction” is defined as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” 15 As of 2002, there were approximately 87,525 governmental jurisdictions in the United States. 16 This number includes 38,967 county governments, municipalities, and townships, of which 37,373 (approximately 95.9%) have populations of fewer than 50,000, and of which 1,594 have populations of 50,000 or more. Thus, we estimate the number of small governmental jurisdictions overall to be 85,931 or fewer. 15 5 U.S.C. 601(5). 16 U.S. Census Bureau, Statistical Abstract of the United States: 2006, Section 8, pages 272-273, Tables 415 and 417. 42. *Wireless Telecommunications Carriers (except Satellite).* Since 2007, the Census Bureau has placed wireless firms within this new, broad, economic census category. 17 Prior to that time, such firms were within the now-superseded categories of “Paging” and “Cellular and Other Wireless Telecommunications.” 18 Under the present and prior categories, the SBA has deemed a wireless business to be small if it has 1,500 or fewer employees. 19 Because Census Bureau data are not yet available for the new category, we will estimate small business prevalence using the prior categories and associated data. For the category of Paging, data for 2002 show that there were 807 firms that operated for the entire year. 20 Of this total, 804 firms had employment of 999 or fewer employees, and three firms had employment of 1,000 employees or more. 21 For the category of Cellular and Other Wireless Telecommunications, data for 2002 show that there were 1,397 firms that operated for the entire year. 22 Of this total, 1,378 firms had employment of 999 or fewer employees, and 19 firms had employment of 1,000 employees or more. 23 Thus, we estimate that the majority of wireless firms are small. 17 U.S. Census Bureau, 2007 NAICS Definitions, “517210 Wireless Telecommunications Categories (Except Satellite)”; *http://www.census.gov/naics/2007/def/ND517210.HTM#N517210.* 18 U.S. Census Bureau, 2002 NAICS Definitions, “517211 Paging”; *http://www.census.gov/epcd/naics02/def/NDEF517.HTM.;* U.S. Census Bureau, 2002 NAICS Definitions, “517212 Cellular and Other Wireless Telecommunications”; *http://www.census.gov/epcd/naics02/def/NDEF517.HTM* . 19 13 CFR 121.201, NAICS code 517210 (2007 NAICS). The now-superseded, pre-2007 *CFR* citations were 13 CFR 121.201, NAICS codes 517211 and 517212 (referring to the 2002 NAICS). 20 U.S. Census Bureau, 2002 Economic Census, Subject Series: Information, “Establishment and Firm Size (Including Legal Form of Organization)” Table 5, NAICS code 517211 (issued Nov. 2005). 21 *Id.* The census data do not provide a more precise estimate of the number of firms that have employment of 1,500 or fewer employees; the largest category provided is for firms with “1000 employees or more.” 22 U.S. Census Bureau, 2002 Economic Census, Subject Series: Information, “Establishment and Firm Size (Including Legal Form of Organization)” Table 5, NAICS code 517212 (issued Nov. 2005). 23 *Id.* The census data do not provide a more precise estimate of the number of firms that have employment of 1,500 or fewer employees; the largest category provided is for firms with “1000 employees or more.” 43. *Wireless Telephony.* Wireless telephony includes cellular, personal communications services, and specialized mobile radio telephony carriers. As noted above, the SBA has developed a small business size standard for “Wireless Telecommunications Carriers (except Satellite)” services. 24 Under that SBA small business size standard, a business is small if it has 1,500 or fewer employees. 25 According to Commission data, 432 carriers reported that they were engaged in the provision of wireless telephony. 26 We have estimated that 221 of these are small under the SBA small business size standard. 24 13 CFR 121.201, NAICS code 517210. 25 13 CFR 121.201, NAICS code 517210. 26 FCC, Wireline Competition Bureau, Industry Analysis and Technology Division, “Trends in Telephone Service” at Table 5.3, page 5-5 (Feb. 2007). This source uses data that are current as of October 2005. 44. *Broadband Personal Communications Service.* The broadband personal communications services
(PCS)spectrum is divided into six frequency blocks designated A through F, and the Commission has held auctions for each block. The Commission has created a small business size standard for Blocks C and F as an entity that has average gross revenues of less than $40 million in the three previous calendar years. 27 For Block F, an additional small business size standard for “very small business” was added and is defined as an entity that, together with its affiliates, has average gross revenues of not more than $15 million for the preceding three calendar years. 28 These small business size standards, in the context of broadband PCS auctions, have been approved by the SBA. 29 No small businesses within the SBA-approved small business size standards bid successfully for licenses in Blocks A and B. There were 90 winning bidders that qualified as small entities in the Block C auctions. A total of 93 “small” and “very small” business bidders won approximately 40 percent of the 1,479 licenses for Blocks D, E, and F. 30 On March 23, 1999, the Commission reauctioned 155 C, D, E, and F Block licenses; there were 113 small business winning bidders. 31 27 *See* Amendment of parts 20 and 24 of the Commission's Rules—Broadband PCS Competitive Bidding and the Commercial Mobile Radio Service Spectrum Cap, *Report and Order,* 11 FCC Rcd 7824, 7850-7852, paras. 57-60 (1996); *see also* 47 CFR 24.720(b). 28 *See* Amendment of parts 20 and 24 of the Commission's Rules—Broadband PCS Competitive Bidding and the Commercial Mobile Radio Service Spectrum Cap, *Report and Order,* 11 FCC Rcd 7824, 7852, para. 60. 29 *See* Letter to Amy Zoslov, Chief, Auctions and Industry Analysis Division, Wireless Telecommunications Bureau, Federal Communications Commission, from Aida Alvarez, Administrator, Small Business Administration, dated December 2, 1998. 30 FCC News, “Broadband PCS, D, E and F Block Auction Closes,” No. 71744 (released January 14, 1997). 31 *See* “C, D, E, and F Block Broadband PCS Auction Closes,” *public notice,* 14 FCC Rcd 6688 (WTB 1999). 45. On January 26, 2001, the Commission completed the auction of 422 C and F Broadband PCS licenses in Auction No. 35. Of the 35 winning bidders in this auction, 29 qualified as “small” or “very small” businesses. 32 Subsequent events concerning Auction 35, including judicial and agency determinations, resulted in a total of 163 C and F Block licenses being available for grant. 32 *See* “C and F Block Broadband PCS Auction Closes; Winning Bidders Announced,” *public notice,* 16 FCC Rcd 2339 (2001). 46. *Cellular Licensees.* As noted, the SBA has developed a small business size standard for wireless firms within the broad economic census category “Wireless Telecommunications Carriers (except Satellite).” 33 Under this category, a wireless business is small if it has 1,500 or fewer employees. Also, as noted, using Commission data we have estimated that most of these entities are small. 33 13 CFR 121.201, NAICS code 517210. D. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements 47. The projected reporting, recordkeeping, and other compliance requirements resulting from the *FNPRM* will apply to all entities in the same manner. The Commission believes that applying the same rules equally to all entities in this context promotes fairness. The Commission does not believe that the costs and/or administrative burdens associated with the rules will unduly burden small entities. The revisions the Commission adopts should benefit small entities by giving them more information, more flexibility, and more options for gaining access to valuable wireless spectrum. 48. Applicants for AWS licenses in the H Block and AWS-3 band will be required to file license applications using the Commission's automated Universal Licensing System (ULS). ULS is an online electronic filing system that also serves as a powerful information tool that enables potential licensees to research applications, licenses, and antennae structures. It also keeps the public informed with weekly public notices, FCC rulemakings, processing utilities, and a telecommunications glossary. Applicants will be required to submit short-form auction applications using FCC Form 175. 34 In addition, winning bidders must submit long-form license applications through ULS using Form 601, 35 FCC Ownership Disclosure Information for the Wireless Telecommunications Services using FCC Form 602, and other appropriate forms. 36 34 *See generally,* 47 CFR 1.2105. 35 47 CFR 1.913(a)(1). 36 47 CFR 1.2107. E. Steps Taken To Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered 49. The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities;
(2)the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities;
(3)the use of performance rather than design standards; and
(4)an exemption from coverage of the rule, or any part thereof, for such small entities.” 37 37 5 U.S.C. 603(c)(1)-(c)(4). 50. Here, we propose service rules that are efficient and also fair to all entities, including small entities. We also note that, specifically to assist small businesses, the associated *AWS-2 NPRM* and the *AWS-3 NPRM* propose to establish small business size standards and associated small business bidding credits for the 1915-1920 MHz, 1995-2000 MHz, 2155-2175 MHz, and 2175-2180 MHz bands. 38 The *AWS-2 NPRM* and the *AWS-3 NPRM* propose to define a small business as an entity with average annual gross revenues for the preceding three years not exceeding $40 million, and a very small business as an entity with average annual gross revenues for the preceding three years not exceeding $15 million, if licenses are not nationwide. 39 The *AWS-2 NPRM* and the *AWS-3 NPRM* propose a bidding credit of 15 percent for small businesses and a bidding credit of 25 percent for very small businesses under certain circumstances. 40 38 *See AWS-2 NPRM,* 19 FCC Rcd at 19307-10 para 119-124; *AWS-3 NPRM,* 22 FCC Rcd at 17096-98 para 150-54. 39 *AWS-2 NPRM,* 19 FCC Rcd at 19308-09 para 122; *AWS-3 NPRM,* 22 FCC Rcd at 17097 para 152. 40 *AWS-2 NPRM,* 19 FCC Rcd at 19309-10 para 123-24; *AWS-3 NPRM,* 22 FCC Rcd at 17097-98 para 153-54. 51. The *AWS-2 NPRM* and the *AWS-3 NPRM* also solicit comment on a number of proposals and alternatives regarding the service rules for the 1915-1920 MHz, 1995-2000 MHz, 2155-2175 MHz, and 2175-2180 MHz bands. 41 The *AWS-2 NPRM* and the *AWS-3 NPRM* seek to adopt rules that will reduce regulatory burdens, promote innovate services and encourage flexible use of this spectrum. It opens up economic opportunities to a variety of spectrum users, which could include small businesses. The *AWS-2 NPRM* and the *AWS-3 NPRM* consider various proposals and alternatives partly because the Commission seeks to minimize, to the extent possible, the economic impact on small businesses. 42 41 *See generally AWS-2 NPRM; AWS-3 NPRM.* 42 *AWS-2 NPRM,* 19 FCC Rcd at 19325-26 para 26-31; *AWS-3 NPRM,* 22 FCC Rcd at 17106-08 para 21-25. 52. The *AWS-2 NPRM* and the *AWS-3 NPRM* invite comment on various alternative licensing and service rules and on a number of issues relating to how the Commission should craft service rules for this spectrum, which could have an impact on small entities. For example, the Commission seeks comment on the licensing approach for these frequencies and how the size of spectrum blocks would impact small entities. 43 The *AWS-2 NPRM* and the *AWS-3 NPRM* seek proposals for a geographic area approach to geographic areas as opposed to a station-defined licensing approach. 44 43 *See AWS-2 NPRM,* 19 FCC Rcd at 19272-77 para 21-31; *AWS-3 NPRM,* 22 FCC Rcd at 17106-08 para 34-38. 44 *See AWS-2 NPRM,* 19 FCC Rcd at 19271-72 para 18-20; *AWS-3 NPRM,* 22 FCC Rcd at 17050-51 para 31-33. 53. The regulatory burdens proposed in the *AWS-2 NPRM* and the *AWS-3 NPRM,* such as filing applications on appropriate forms, appear necessary in order to ensure that the public receives the benefits of innovative new services, or enhanced existing services, in a prompt and efficient manner. The Commission will continue to examine alternatives in the future with the objectives of eliminating unnecessary regulations and minimizing any significant economic impact on small entities. The Commission invites comment on any additional significant alternatives parties believe should be considered and on how the approach outlined in the *AWS-2 NPRM* and the *AWS-3 NPRM* will impact small entities, including small businesses and small government entities. 54. In addition, we seek comment on proposed rules that would permit licensees, including small entity licensees, to disaggregate, partition, and lease the spectrum. These options are helpful to small entities, and we seek comment on these proposals. F. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rules 55. None. Ordering Clauses 56. Pursuant to sections 1, 2, 4(i), 7, 10, 201, 214, 301, 302, 303, 307, 308, 309, 310, 319, 324, 332 and 333 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 157, 160, 201, 214, 301, 302, 303, 307, 308, 309, 310, 319, 324, 332, 333, that this *FNPRM* is hereby adopted. 57. Notice is given of the proposed regulatory changes described in this *FNPRM* , and that comment is sought on these proposals. 58. *It is further ordered* that the Supplemental Initial Regulatory Flexibility Analysis *is adopted.* 59. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. Federal Communications Commission. Marlene H. Dortch, Secretary. For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR parts 27, 74, 78 and 101 as follows: PART 27—MISCELLANEOUS WIRELESS COMMUNICATIONS SERVICES 1. The authority citation for part 27 continues to read as follows: Authority: 47 U.S.C. 154, 301, 302, 303, 307, 309, 332, 336, and 337 unless otherwise noted. 2. Section 27.1 is revised to read as follows: § 27.1 Basis and purpose. This section contains the statutory basis for this part of the rules and provides the purpose for which this part is issued.
(a)*Basis.* The rules for miscellaneous wireless communications services
(WCS)in this part are promulgated under the provisions of the Communications Act of 1934, as amended, that vest authority in the Federal Communications Commission to regulate radio transmission and to issue licenses for radio stations.
(b)*Purpose.* This part states the conditions under which spectrum is made available and licensed for the provision of wireless communications services in the following bands.
(1)2305-2320 MHz and 2345-2360 MHz.
(2)746-763 MHz, 775-793 MHz, and 805-806 MHz.
(3)698-746 MHz.
(4)1390-1392 MHz.
(5)1392-1395 MHz and 1432-1435 MHz.
(6)1670-1675 MHz.
(7)[Reserved]
(8)1710-1755 MHz and 2110-2155 MHz.
(9)2495-2690 MHz.
(10)2155-2180 MHz.
(11)1915-1920 MHz and 1995-2000 MHz.
(c)*Scope.* The rules in this part apply only to stations authorized under this part. 3. Section 27.4 is amended by adding the definitions for *“Downlink Fixed Station ” and “Uplink Fixed Station”* in alphabetical order to read as follows: § 27.4 Terms and definitions. *Downlink Fixed Station.* A fixed station employed by a carrier or licensee to transmit to an end user's fixed station. *Uplink Fixed Station.* A fixed station employed by an end user to transmit to a carrier's or licensee's fixed stations. 4. Section 27.5 is revised by adding paragraphs
(j)and
(k)to read as follows: § 27.5 Frequencies.
(j)*2155-2180 MHz band.* The 2155-2180 MHz band is available for assignment for Advanced Wireless Services.
(k)*The paired 1915-1920 MHz and 1995-2000 MHz.* The paired 1915-1920 MHz and 1995-2000 MHz bands are available for assignment for Advanced Wireless Services. Each winning bidder awarded a license in the initial AWS auction for spectrum authorizations in the 1915-1920 MHz band must reimburse UTAM, Inc. a *pro rata share* of the total expenses incurred by UTAM, Inc. as of the date that the new entrants gain access to the band. Specifically, AWS licensees in the 1915-1920 MHz band, which constitutes 25% of the 1910-1930 MHz band, shall, on a * pro rata* shared basis, reimburse 25% of the total relocation costs incurred by UTAM, Inc. in clearing the 1910-1930 MHz band of part 101 Fixed Microwave Service
(FS)links. We will require a winning bidder of an AWS H Block license (1915-1920 MHz; 1995-2000 MHz) to reimburse UTAM, Inc., pursuant to the following formula within 30 days of grant of their long-form application for the license. The amount owed will be determined by multiplying the net winning bid for an H Block license ( *i.e.* , an individual BTA) by $12,629,857 and then dividing by the sum of the net winning bids for all H Block licenses won in the initial auction. New entrants will be responsible for the actual costs associated with future relocation activities in their licensed spectrum, but will be entitled to seek reimbursement from UTAM, Inc. for the proportion of those band clearing costs that benefit users of the 1910-1915 MHz and 1920-1930 MHz band. Because the Commission's rules governing the relocation of FS licensees from this band and the right to compensation for costs associated with such relocation has already sunset on April 4, 2005, AWS licensees at 1915-1920 MHz are not responsible for reimbursing PCS entities for any costs incurred by PCS entities, other than those incurred by UTAM, Inc., as noted above, for the relocation of FS links that may otherwise have triggered a cost-sharing obligation absent the sunset date for those rules. 5. Section 27.6 is amending by paragraphs
(a)introductory text and
(h)to read as follows: § 27.6 Service areas.
(a)WCS and AWS service areas include Basic Trading Areas (as defined in § 24.202(b) of this chapter), Economic Areas (EAs), Major Economic Areas (MEAs), Regional Economic Area Groupings (REAGs), cellular markets comprising Metropolitan Statistical Areas
(MSAs)and Rural Service Areas (RSAs), and a nationwide area. MEAs and REAGs are defined in the Table immediately following paragraph (a)(1) of this section. Both MEAs and REAGs are based on the U.S. Department of Commerce's EAs. See 60 FR 13114 March 10, 1995. In addition, the Commission shall separately license Guam and the Northern Mariana Islands, Puerto Rico and the United States Virgin Islands, American Samoa, and the Gulf of Mexico, which have been assigned Commission-created EA numbers 173-176, respectively. The nationwide area is composed of the contiguous 48 states, Alaska, Hawaii, the Gulf of Mexico, and the U.S. territories. Maps of the EAs, MEAs, MSAs, RSAs, and REAGs and the **Federal Register** notice that established the 172 EAs are available for public inspection and copying at the Reference Information Center, Consumer and Governmental Affairs Bureau, Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554.
(h)*Advanced Wireless Services* ( *AWS* ). AWS service areas for the 1710-1755 MHz and 2110-2155 MHz, 1915-1920 MHz and 1995-2000 MHz, and 2155-2180 MHz bands are as follows:
(1)Service areas for Block A (1710-1720 MHz and 2110-2120 MHz) are based on cellular markets comprising Metropolitan Statistical Areas
(MSAs)and Rural Service Areas
(RSAs)as defined by Public Notice Report No. CL-92-40 “Common Carrier Public Mobile Services Information, Cellular MSA/RSA Markets and Counties,” dated January 24, 1992, DA 92-109, 7 FCC Rcd 742 (1992), with the following modifications:
(i)The service areas of cellular markets that border the U.S. coastline of the Gulf of Mexico extend 12 nautical miles from the U.S. Gulf coastline.
(ii)The service area of cellular market 306 that comprises the water area of the Gulf of Mexico extends from 12 nautical miles off the U.S. Gulf coast outward into the Gulf.
(2)Service areas for Blocks B (1720-1730 MHz and 2120-2130 MHz) and C (1730-1735 MHz and 2130-2135 MHz) are based on Economic Areas
(EAs)as defined in paragraph
(a)of this section.
(3)Service areas for blocks D (1735-1740 MHz and 2135-2140 MHz), E (1740-1745 MHz and 2140-2145 MHz) and F (1745-1755 MHz and 2145-2155 MHz) are based on Regional Economic Area Groupings (REAGs) as defined by paragraph
(a)of this section.
(4)The service areas for 1915-1920 and 1995-2000 MHz Service are based on Basic Trading Areas as defined in paragraph
(a)of this section.
(5)The service area for 2155-2180 MHz is nationwide as defined by paragraph
(a)of this section. 6. Section 27.11 is amended by adding paragraphs
(j)and
(k)to read as follows: § 27.11 Initial authorization.
(j)*2155-2180 MHz band.* Authorization for the 2155-2180 MHz band shall consist of a single 25 megahertz block of spectrum based on the geographic area specified in § 27.6(h).
(k)*The paired 1915-1920 MHz and 1995-2000 MHz bands.* Authorizations for the paired 1915-1920 MHz and 1995-2000 MHz bands shall consist of two paired channels of 5 megahertz each based on the geographic areas specified in § 27.6(h). 7. Section 27.13 is amended by adding paragraphs
(i)and
(j)to read as follows: § 27.13 License period.
(i)*2155-2180 MHz band.* Initial authorizations for the 2155-2180 MHz band will have a term not to exceed ten years from the date of initial issuance or renewal.
(j)*The paired 1915-1920 MHz and 1995-2000 MHz bands.* Initial authorizations for the paired 1915-1920 MHz and 1995-2000 MHz bands will have a term not to exceed ten years from the date of initial issuance or renewal. 8. Section 27.14 is revised to read as follows: § 27.14 Construction requirements; Criteria for renewal.
(a)AWS and WCS licensees, with the exception of WCS licensees holding authorizations for Block A in the 698-704 MHz and 728-734 MHz bands, Block B in the 704-710 MHz and 734-740 MHz bands, Block E in the 722-728 MHz band, Block C, C1, or C2 in the 746-757 MHz and 776-787 MHz bands, or Block D in the 758-763 MHz and 788-793 MHz bands, and with the exception of AWS licensees holding authorizations in the 1915-1920 MHz, 1995-2000 MHz, and 2155-2180 MHz bands, must, as a performance requirement, make a showing of “substantial service” in their license area within the prescribed license term set forth in § 27.13. “Substantial service” is defined as service which is sound, favorable and substantially above a level of mediocre service which just might minimally warrant renewal. Failure by any licensee to meet this requirement will result in forfeiture of the license and the licensee will be ineligible to regain it.
(b)A renewal applicant involved in a comparative renewal proceeding shall receive a preference, commonly referred to as a renewal expectancy, which is the most important comparative factor to be considered in the proceeding, if its past record for the relevant license period demonstrates that:
(1)The renewal applicant has provided “substantial” service during its past license term; and
(2)The renewal applicant has substantially complied with applicable FCC rules, policies and the Communications Act of 1934, as amended.
(c)In order to establish its right to a renewal expectancy, a WCS renewal applicant involved in a comparative renewal proceeding must submit a showing explaining why it should receive a renewal expectancy. At a minimum, this showing must include:
(1)A description of its current service in terms of geographic coverage and population served;
(2)An explanation of its record of expansion, including a timetable of new construction to meet changes in demand for service;
(3)A description of its investments in its WCS system; and
(4)Copies of all FCC orders finding the licensee to have violated the Communications Act or any FCC rule or policy; and a list of any pending proceedings that relate to any matter described in this paragraph.
(d)In making its showing of entitlement to a renewal expectancy, a renewal applicant may claim credit for any system modification applications that were pending on the date it filed its renewal application. Such credit will not be allowed if the modification application is dismissed or denied.
(e)Comparative renewal proceedings do not apply to AWS licensees holding authorizations in the 1915-1920 MHz, 1995-2000 MHz, and 2155-2180 MHz bands or to WCS licensees holding authorizations for Block A in the 698-704 MHz, 728-734 MHz bands, Block B in the 704-710 MHz and 734-740 MHz bands, Block C in the 710-716 MHz and 740-746 MHz bands, Block D in the 716-722 MHz band, Block E in the 722-728 MHz band, Block C, C1, or C2 in the 746-757 MHz and 776-787 MHz bands, or Block D in the 758-763 MHz and 788-793 MHz bands. Each of these licensees must file a renewal application in accordance with the provisions set forth in § 1.949 of this chapter, and must make a showing of substantial service, independent of its performance requirements, as a condition for renewal at the end of each license term.
(f)Comparative renewal proceedings do not apply to WCS licensees holding authorizations for the 698-746 MHz, 747-762 MHz, and 777-792 MHz bands. These licensees must file a renewal application in accordance with the provisions set forth in § 1.949 of this chapter.
(g)WCS licensees holding EA authorizations for Block A in the 698-704 MHz and 728-734 MHz bands, cellular market authorizations for Block B in the 704-710 MHz and 734-740 MHz bands, or EA authorizations for Block E in the 722-728 MHz band, if the results of the first auction in which licenses for such authorizations are offered satisfy the reserve price for the applicable block, shall provide signal coverage and offer service over at least 35 percent of the geographic area of each of their license authorizations no later than February 17, 2013 (or within four years of initial license grant if the initial authorization in a market is granted after February 17, 2009), and shall provide such service over at least 70 percent of the geographic area of each of these authorizations by the end of the license term. In applying these geographic benchmarks, licensees are not required to include land owned or administered by government as a part of the relevant service area. Licensees may count covered government land for purposes of meeting their geographic construction benchmark, but are required to add the covered government land to the total geographic area used for measurement purposes. Licensees are required to include those populated lands held by tribal governments and those held by the Federal Government in trust or for the benefit of a recognized tribe.
(1)If an EA or CMA licensee holding an authorization in these particular blocks fails to provide signal coverage and offer service over at least 35 percent of the geographic area of its license authorization by no later than February 17, 2013 (or within four years of initial license grant, if the initial authorization in a market is granted after February 17, 2009), the term of that license authorization will be reduced by two years and such licensee may be subject to enforcement action, including forfeitures. In addition, an EA or CMA licensee that provides signal coverage and offers service at a level that is below this interim benchmark may lose authority to operate in part of the remaining unserved areas of the license.
(2)If any such EA or CMA licensee fails to provide signal coverage and offer service to at least 70 percent of the geographic area of its license authorization by the end of the license term, that licensee's authorization will terminate automatically without Commission action for those geographic portions of its license in which the licensee is not providing service, and those unserved areas will become available for reassignment by the Commission. Such licensee may also be subject to enforcement action, including forfeitures. In addition, an EA or CMA licensee that provides signal coverage and offers service at a level that is below this end-of-term benchmark may be subject to license termination. In the event that a licensee's authority to operate in a license area terminates automatically without Commission action, such areas will become available for reassignment pursuant to the procedures in paragraph
(j)of this section.
(3)For licenses under paragraph
(g)of this section, the geographic service area to be made available for reassignment must include a contiguous area of at least 130 square kilometers (50 square miles), and areas smaller than a contiguous area of at least 130 square kilometers (50 square miles) will not be deemed unserved.
(h)WCS licensees holding REAG authorizations for Block C in the 746-757 MHz and 776-787 MHz bands or REAG authorizations for Block C2 in the 752-757 MHz and 782-787 MHz bands shall provide signal coverage and offer service over at least 40 percent of the population in each EA comprising the REAG license area no later than February 17, 2013 (or within four years of initial license grant, if the initial authorization in a market is granted after February 17, 2009), and shall provide such service over at least 75 percent of the population of each of these EAs by the end of the license term. For purposes of compliance with this requirement, licensees should determine population based on the most recently available U.S. Census Data.
(1)If a licensee holding a Block C authorization fails to provide signal coverage and offer service over at least 40 percent of the population in each EA comprising the REAG license area by no later than February 17, 2013 (or within four years of initial license grant if the initial authorization in a market is granted after February 17, 2009), the term of the license authorization will be reduced by two years and such licensee may be subject to enforcement action, including forfeitures. In addition, a licensee that provides signal coverage and offers service at a level that is below this interim benchmark may lose authority to operate in part of the remaining unserved areas of the license.
(2)If a licensee holding a Block C authorization fails to provide signal coverage and offer service over at least 75 percent of the population in any EA comprising the REAG license area by the end of the license term, for each such EA that licensee's authorization will terminate automatically without Commission action for those geographic portions of its license in which the licensee is not providing service. Such licensee may also be subject to enforcement action, including forfeitures. In the event that a licensee's authority to operate in a license area terminates automatically without Commission action, such areas will become available for reassignment pursuant to the procedures in paragraph
(j)of this section. In addition, a REAG licensee that provides signal coverage and offers service at a level that is below this end-of-term benchmark within any EA may be subject to license termination within that EA.
(3)For licenses under paragraph
(h)of this section, the geographic service area to be made available for reassignment must include a contiguous area of at least 130 square kilometers (50 square miles), and areas smaller than a contiguous area of at least 130 square kilometers (50 square miles) will not be deemed unserved.
(i)WCS licensees holding EA authorizations for Block A in the 698-704 MHz and 728-734 MHz bands, cellular market authorizations for Block B in the 704-710 MHz and 734-740 MHz bands, or EA authorizations for Block E in the 722-728 MHz band, if the results of the first auction in which licenses for such authorizations in Blocks A, B, and E are offered do not satisfy the reserve price for the applicable block, as well as EA authorizations for Block C1 in the 746-752 MHz and 776-782 MHz bands, are subject to the following:
(1)If a licensee holding a cellular market area or EA authorization subject to this paragraph
(i)fails to provide signal coverage and offer service over at least 40 percent of the population in its license area by no later than February 17, 2013 (or within four years of initial license grant, if the initial authorization in a market is granted after February 17, 2009), the term of that license authorization will be reduced by two years and such licensee may be subject to enforcement action, including forfeitures. In addition, such licensee that provides signal coverage and offers service at a level that is below this interim benchmark may lose authority to operate in part of the remaining unserved areas of the license. For purposes of compliance with this requirement, licensees should determine population based on the most recently available U.S. Census Data.
(2)If a licensee holding a cellular market area or EA authorization subject to this paragraph
(i)fails to provide signal coverage and offer service over at least 75 percent of the population in its license area by the end of the license term, that licensee's authorization will terminate automatically without Commission action for those geographic portions of its license in which the licensee is not providing service, and those unserved areas will become available for reassignment by the Commission. Such licensee may also be subject to enforcement action, including forfeitures. In the event that a licensee's authority to operate in a license area terminates automatically without Commission action, such areas will become available for reassignment pursuant to the procedures in paragraph
(j)of this section. In addition, such a licensee that provides signal coverage and offers service at a level that is below this end-of-term benchmark may be subject to license termination. For purposes of compliance with this requirement, licensees should determine population based on the most recently available U.S. Census Data.
(3)For licenses under this paragraph (i), the geographic service area to be made available for reassignment must include a contiguous area of at least 130 square kilometers (50 square miles), and areas smaller than a contiguous area of at least 130 square kilometers (50 square miles) will not be deemed unserved.
(j)In the event that a licensee's authority to operate in a license area terminates automatically under paragraphs (g), (h), (i),
(p)or
(q)of this section, such areas will become available for reassignment pursuant to the following procedures:
(1)The Wireless Telecommunications Bureau is delegated authority to announce by public notice that these license areas will be made available and establish a 30-day window during which third parties may file license applications to serve these areas. During this 30-day period, licensees that had their authority to operate terminate automatically for unserved areas may not file applications to provide service to these areas. Applications filed by third parties that propose areas overlapping with other applications will be deemed mutually exclusive, and will be resolved through an auction. The Wireless Telecommunications Bureau, by public notice, may specify a limited period before the filing of short-form applications (FCC Form 175) during which applicants may enter into a settlement to resolve their mutual exclusivity, subject to the provisions of § 1.935 of this chapter.
(2)Following this 30-day period, the original licensee and third parties can file license applications for remaining unserved areas where licenses have not been issued or for which there are no pending applications. If the original licensee or a third party files an application, that application will be placed on public notice for 30 days. If no mutually exclusive application is filed, the application will be granted, provided that a grant is found to be in the public interest. If a mutually exclusive application is filed, it will be resolved through an auction. The Wireless Telecommunications Bureau, by public notice, may specify a limited period before the filing of short-form applications (FCC Form 175) during which applicants may enter into a settlement to resolve their mutual exclusivity, subject to the provisions of § 1.935 of this chapter.
(3)The licensee will have one year from the date the new license is issued to complete its construction and provide signal coverage and offer service over 100 percent of the geographic area of the new license area. If the licensee fails to meet this construction requirement, its license will automatically terminate without Commission action and it will not be eligible to apply to provide service to this area at any future date.
(k)AWS and WCS licensees holding authorizations in the spectrum blocks enumerated in paragraphs (g), (h), (i), (p), or
(q)of this section, including any licensee that obtained its license pursuant to the procedures set forth in paragraph
(j)of this section, shall demonstrate compliance with performance requirements by filing a construction notification with the Commission, within 15 days of the expiration of the applicable benchmark, in accordance with the provisions set forth in § 1.946(d) of this chapter. The licensee must certify whether it has met the applicable performance requirements. The licensee must file a description and certification of the areas for which it is providing service. The construction notifications must include electronic coverage maps, supporting technical documentation and any other information as the Wireless Telecommunications Bureau may prescribe by public notice.
(l)AWS and WCS licensees holding authorizations in the spectrum blocks enumerated in paragraphs (g), (h), (i), (p), or
(q)of this section, excluding any licensee that obtained its license pursuant to the procedures set forth in paragraph
(j)of this section, shall file reports with the Commission that provide the Commission, at a minimum, with information concerning the status of their efforts to meet the performance requirements applicable to their authorizations in such spectrum blocks and the manner in which that spectrum is being utilized. The information to be reported will include the date the license term commenced, a description of the steps the licensee has taken toward meeting its construction obligations in a timely manner, including the technology or technologies and service(s) being provided, and the areas within the license area in which those services are available.
(1)Each WCS licensee holding an authorization in the spectrum blocks enumerated in paragraphs (g), (h), or
(i)of this section shall file its first report with the Commission no later than February 17, 2011 and no sooner than 30 days prior to this date. Each licensee that meets its interim benchmarks shall file a second report with the Commission no later than February 17, 2016 and no sooner than 30 days prior to this date. Each licensee that does not meet its interim benchmark shall file this second report no later than on February 17, 2015 and no sooner than 30 days prior to this date.
(2)Each AWS licensee holding an authorization in the spectrum blocks enumerated in paragraphs
(p)or
(q)of this section shall file its first report with the Commission no later than two years from the date on which the original license was issued and no sooner than 30 days prior to this date. Each licensee that meets its interim benchmarks shall file a second report with the Commission no later than seven years from the date on which the original license was issued and no sooner than 30 days prior to this date. Each licensee that does not meet its interim benchmark shall file this second report no later than six years from the date on which the original license was issued and no sooner than 30 days prior to this date.
(m)The WCS licensee holding the authorization for the D Block in the 758-763 MHz and 788-793 MHz bands (the Upper 700 MHz D Block licensee) shall comply with the following construction requirements.
(1)The Upper 700 MHz D Block licensee shall provide a signal coverage and offer service over at least 75 percent of the population of the nationwide Upper 700 MHz D Block license area within four years from February 17, 2009, 95 percent of the population of the nationwide license area within seven years, and 99.3 percent of the population of the nationwide license area within ten years.
(2)The Upper 700 MHz D Block licensee may modify, to a limited degree, its population-based construction benchmarks with the agreement of the Public Safety Broadband Licensee and the prior approval of the Commission, where such a modification would better serve to meet commercial and public safety needs.
(3)The Upper 700 MHz D Block licensee shall meet the population benchmarks based on a performance schedule specified in the Network Sharing Agreement, taking into account performance pursuant to § 27.1327 as appropriate under that rule, and using the most recently available U.S. Census Data. The network and signal levels employed to meet these benchmarks must be adequate for public safety use, as defined in the Network Sharing Agreement, and the services made available must include those appropriate for public safety entities that operate in those areas. The schedule shall include coverage for major highways and interstates, as well as such additional areas that are necessary to provide coverage for all incorporated communities with a population in excess of 3,000, unless the Public Safety Broadband Licensee and the Upper 700 MHz D Block licensee jointly determine, in consultation with a relevant community, that such additional coverage will not provide significant public benefit.
(4)The Upper 700 MHz D Block licensee shall demonstrate compliance with performance requirements by filing a construction notification with the Commission within 15 days of the expiration of the applicable benchmark, in accordance with the provisions set forth in § 1.946(d) of this chapter. The licensee must certify whether it has met the applicable performance requirement and must file a description and certification of the areas for which it is providing service. The construction notifications must include the following:
(i)Certifications of the areas that were scheduled for construction and service by that date under the Network Sharing Agreement for which it is providing service, the type of service it is providing for each area, and the type of technology it is utilizing to provide this service.
(ii)Electronic coverage maps and supporting technical documentation providing the assumptions used by the licensee to create the coverage maps, including the propagation model and the signal strength necessary to provide service.
(n)At the end of its license term, the Upper 700 MHz D Block licensee must, in order to renew its license, make a showing of its success in meeting the material requirements set forth in the Network Sharing Agreement as well as all other license conditions, including the performance benchmark requirements set forth in this section.
(p)AWS licensees holding authorizations in the 1915-1920 MHz and 1995-2000 MHz shall provide signal coverage and offer service to at least 35 percent of the population in each licensed area within four years of the date on which the original license was issued and at least 70 percent of the population in each licensed area at the end of the license term.
(1)If any AWS licensee holding an authorization in the 1915-1920 MHz and 1995-2000 MHz bands fails to provide signal coverage and offer service to at least 35 percent of the population in the licensed area within four years of the date on which the original license was issued, the term of that license authorization will be reduced by two years and such licensee may be subject to enforcement action, including forfeitures. In addition, the licensee may lose authority to operate in part of the remaining unserved areas of the license.
(2)If any AWS licensee holding an authorization in the 1915-1920 MHz and 1995-2000 MHz fails to provide signal coverage and offer service to at least 70 percent of the population in each licensed area at the end of the license term, that licensee's authorization will terminate automatically without Commission action for those geographic portions of its license in which the licensee is not providing service, and those unserved areas will become available for reassignment by the Commission. Such licensee may also be subject to enforcement action, including forfeitures. In addition, a licensee that provides signal coverage and offers service at a level that is below the end-of-term benchmark may be subject to license termination. In the event that a licensee's authority to operate in a license area terminates automatically without Commission action, such areas will become available for reassignment pursuant to the procedures in paragraph
(j)of this section.
(3)For licenses under paragraphs (g), (h), and (i), the geographic service area to be made available to new entrants must include a contiguous area of at least 130 square kilometers (50 square miles), and areas smaller than a contiguous area of at least 130 square kilometers (50 square miles) will not be deemed unserved.
(4)To demonstrate compliance with these performance requirements, licensees shall use the most recently available U.S. Census Data at the time of measurement and shall base their measurements of population served on areas no larger than the Census Tract level. The population within a specific Census Tract (or other acceptable identifier) will only be deemed served by the licensee if it provides signal coverage to and offers service within the specific Census Tract (or other acceptable identifier). To the extent the Census Tract (or other acceptable identifier) extends beyond the boundaries of a license area, a licensee with authorizations for such areas may only include the population within the Census Tract (or other acceptable identifier) towards meeting the performance requirement of a single, individual license.
(q)Any AWS licensee holding an authorization in the 2155-2180 MHz band shall provide signal coverage and offer service to at least 50 percent of the total U.S. population within four years of the date on which the original license was issued and at least 95 percent of the total U.S. population at the end of the license term. If any licensee in this band elects not to meet its performance requirements based on the percent of the U.S. population served, it shall provide signal coverage and offer service to at least 35 percent of the population in each Cellular Market Area
(CMA)or Economic Area
(EA)in its licensed area within four years and at least 70 percent of the population in each CMA or EA in its licensed area at the end of the license term.
(1)If any AWS licensee holding an authorization in the 2155-2180 MHz band fails to establish that it meets the applicable performance requirement within four years of the date on which the original license was issued, the term of that license authorization will be reduced by two years and such licensee may be subject to enforcement action, including forfeitures. In addition, the licensee may lose authority to operate in part of the remaining unserved areas of the license.
(2)If any AWS licensee holding an authorization in the 2155-2180 MHz band fails to establish that it meets the applicable performance requirement at the end of the license term, that licensee's authorization will terminate automatically without Commission action for those geographic portions of its license in which the licensee is not providing service, and those unserved areas will become available for reassignment by the Commission. Such licensee may also be subject to enforcement action, including forfeitures. In addition, a licensee that provides signal coverage and offers service at a level that is below the end-of-term benchmark may be subject to license termination. In the event that a licensee's authority to operate in a license area terminates automatically without Commission action, such areas will become available for reassignment pursuant to the procedures in paragraph
(j)of this section. 9. Section 27.15 is revised to read as follows: § 27.15 Geographic partitioning and spectrum disaggregation.
(a)*Eligibility.*
(1)Parties seeking approval for partitioning and disaggregation shall request from the Commission an authorization for partial assignment of a license pursuant to § 1.948 of this chapter.
(2)AWS and WCS licensees may apply to partition their licensed geographic service area or disaggregate their licensed spectrum at any time following the grant of their licenses.
(b)*Technical Standards:*
(1)Partitioning. In the case of partitioning, applicants and licensees must file FCC Form 603 pursuant to § 1.948 of this chapter and list the partitioned service area on a schedule to the application. The geographic coordinates must be specified in degrees, minutes, and seconds to the nearest second of latitude and longitude and must be based upon the 1983 North American Datum (NAD83).
(2)*Disaggregation.* Spectrum may be disaggregated in any amount.
(3)*Combined partitioning and disaggregation.* The Commission will consider requests for partial assignment of licenses that propose combinations of partitioning and disaggregation.
(4)*Signal levels.* For purposes of partitioning and disaggregation, part 27 systems must be designed so as not to exceed the signal level specified for the particular spectrum block in § 27.55 at the licensee's service area boundary, unless the affected adjacent service area licensees have agreed to a different signal level.
(c)*License term.* The license term for a partitioned license area and for disaggregated spectrum shall be the remainder of the original licensee's license term as provided for in § 27.13.
(d)*Compliance with construction requirements:*
(1)Partitioning.
(i)Except for AWS licensees in the 1915-1920 MHz, 1995-2000 MHz, and 2155-2180 MHz bands and WCS licensees holding authorizations for Block A in the 698-704 MHz and 728-734 MHz bands, Block B in the 704-710 MHz and 734-740 MHz bands, Block E in the 722-728 MHz band, Blocks C, C1, or C2 in the 746-757 MHz and 776-787 MHz bands, or Block D in the 758-763 MHz and 788-793 MHz bands, the following rules apply to WCS and AWS licensees holding authorizations for purposes of implementing the construction requirements set forth in § 27.14. Parties to partitioning agreements have two options for satisfying the construction requirements set forth in § 27.14. Under the first option, the partitioner and partitionee each certifies that it will independently satisfy the substantial service requirement for its respective partitioned area. If a licensee subsequently fails to meet its substantial service requirement, its license will be subject to automatic cancellation without further Commission action. Under the section option, the partitioner certifies that it has met or will meet the substantial service requirement for the entire, pre-partitioned geographic service area. If the partitioner subsequently fails to meet its substantial service requirement, only its license will be subject to automatic cancellation without further Commission action.
(ii)For AWS licensees in the 1915-1920 MHz, 1995-2000 MHz, and 2155-2180 MHz bands and WCS licensees holding authorizations for Block A in the 698-704 MHz and 728-734 MHz bands, Block B in the 704-710 MHz and 734-740 MHz bands, Block E in the 722-728 MHz band, or Blocks C, C1, and C2 in the 746-757 MHz and 776-787 MHz bands, the following rules apply for purposes of implementing the construction requirements set forth in § 27.14. Parties to partitioning agreements have two options for satisfying the construction requirements set forth in § 27.14. Under the first option, the partitioner and partitionee each certifies that they will collectively share responsibility for meeting the construction requirement for the entire pre-partition geographic license area. If the partitioner and partitionee collectively fail to meet the construction requirement, then both the partitioner and partitionee will be subject to the consequences enumerated in § 27.14(g) and
(h)for this failure. Under the second option, the partitioner and partitionee each certifies that it will independently meet the construction requirement for its respective partitioned license area. If the partitioner or partitionee fails to meet the construction requirement for its respective partitioned license area, then the consequences for this failure shall be those enumerated in § 27.14(g) and (h).
(2)*Disaggregation.*
(i)Except for AWS licensees in the 1915-1920 MHz, 1995-2000 MHz, and 2155-2180 MHz bands and WCS licensees holding authorizations for Block A in the 698-704 MHz and 728-734 MHz bands, Block B in the 704-710 MHz and 734-740 MHz bands, Block E in the 722-728 MHz band, Blocks C, C1, or C2 in the 746-757 MHz and 776-787 MHz bands, or Block D in the 758-763 MHz and 788-793 MHz bands, the following rules apply to WCS and AWS licensees holding authorizations for purposes of implementing the construction requirements set forth in § 27.14. Parties to disaggregation agreements have two options for satisfying the construction requirements set forth in § 27.14. Under the first option, the disaggregator and disaggregatee each certifies that it will share responsibility for meeting the substantial service requirement for the geographic service area. If the parties choose this option and either party subsequently fails to satisfy its substantial service responsibility, both parties' licenses will be subject to forfeiture without further Commission action. Under the second option, both parties certify either that the disaggregator or the disaggregatee will meet the substantial service requirement for the geographic service area. If the parties choose this option, and the party responsible subsequently fails to meet the substantial service requirement, only that party's license will be subject to forfeiture without further Commission action.
(ii)For AWS licensees in the 1915-1920 MHz, 1995-2000 MHz, and 2155-2180 MHz bands and WCS licensees holding authorizations for Block A in the 698-704 MHz and 728-734 MHz bands, Block B in the 704-710 MHz and 734-740 MHz bands, Block E in the 722-728 MHz band, and Blocks C, C1, or C2 in the 746-757 MHz and 776-787 MHz bands, the following rules apply for purposes of implementing the construction requirements set forth in § 27.14. If either the disaggregator or the disaggregatee meets the construction requirements set forth in § 27.14, then these requirements will be considered to be satisfied for both parties. If neither the disaggregator nor the disaggregatee meets the construction requirements, then both parties will be subject to the consequences enumerated in § 27.14(g) and
(h)for this failure. 10. Section 27.16 is revised to read as follows: § 27.16. Network access requirements for Block C in the 746-757 and 776-787 MHz bands and for the 2155-2180 MHz band (the AWS-3 Band).
(a)*Applicability.* This section shall apply only to the authorizations for Block C in the 746-757 and 776-787 MHz bands (700 C Block) assigned as a result of Auction 73 and to the 2155-2180 MHz band (AWS-3 Band).
(b)*Use of devices and applications.* Licensees offering service on the 700 C Block and the licensee offering premium or paid services on the AWS-3 Band subject to this section shall not deny, limit, or restrict the ability of their customers to use the devices and applications of their choice on the licensee's network, and the licensee providing free broadband service on the AWS-3 band subject to this section shall not deny, limit, or restrict the ability of their customers to use the devices of their choice on the licensee's network, except:
(1)Insofar as such use would not be compliant with published technical standards reasonably necessary for the management or protection of the licensee's network,
(2)Licensees or lessees providing free broadband service required under § 27.1192 of this part shall not deny, limit, or restrict the ability of users to use the devices of their choice on the licensee's or lessee's network, or
(3)As required to comply with statute or applicable government regulation.
(c)*Technical standards.* For purposes of paragraph (b)(1) of this section:
(1)Standards shall include technical requirements reasonably necessary for third parties to access a licensee's network via devices or applications without causing objectionable interference to other spectrum users or jeopardizing network security. The potential for excessive bandwidth demand alone shall not constitute grounds for denying, limiting or restricting access to the network, except as provided in § 27.1192(a)(2) part for the AWS-3 Band.
(2)To the extent a licensee relies on standards established by an independent standards-setting body which is open to participation by representatives of service providers, equipment manufacturers, application developers, consumer organizations, and other interested parties, the standards will carry a presumption of reasonableness.
(3)A licensee shall publish its technical standards, which shall be non-proprietary, no later than the time at which it makes such standards available to any preferred vendors, so that the standards are readily available to customers, equipment manufacturers, application developers, and other parties interested in using or developing products for use on a licensee's networks.
(d)*Access requests.*
(1)Licensees shall establish and publish clear and reasonable procedures for parties to seek approval to use devices or applications on the licensees' networks. A licensee must also provide to potential customers notice of the customers' rights to request the attachment of a device or application to the licensee's network, and notice of the licensee's process for customers to make such requests, including the relevant network criteria.
(2)If a licensee determines that a request for access would violate its technical standards or regulatory requirements, the licensee shall expeditiously provide a written response to the requester specifying the basis for denying access and providing an opportunity for the requester to modify its request to satisfy the licensee's concerns. 11. Section 27.50(d) is revised to read as follows: § 27.50 Power and antenna height limits.
(d)The following power and antenna height requirements apply to stations transmitting in the 1710-1755 MHz, 1915-1920 MHz, 1995-2000 MHz, and 2110-2180 MHz bands:
(1)The power of each fixed or base station transmitting in the 1995-2000 MHz and 2110-2155 MHz bands and each base or downlink fixed station transmitting in the 2155-2180 MHz band, and located in any county with population density of 100 or fewer persons per square mile, based upon the most recently available population statistics from the Bureau of the Census, is limited to:
(i)An equivalent isotropically radiated power
(EIRP)of 3280 watts when transmitting with an emission bandwidth of 1 MHz or less;
(ii)An EIRP of 3280 watts/MHz when transmitting with an emission bandwidth greater than 1 MHz.
(2)The power of each fixed or base station transmitting in the 1995-2000 MHz and 2110-2155 MHz band and each base or downlink fixed station transmitting in the 2155-2180 MHz band, and located in any geographic location other than that described in paragraph (d)(1) of this section is limited to:
(i)An equivalent isotropically radiated power
(EIRP)of 1640 watts when transmitting with an emission bandwidth of 1 MHz or less;
(ii)An EIRP of 1640 watts/MHz when transmitting with an emission bandwidth greater than 1 MHz.
(3)A licensee operating a base or fixed station in the 2110-2155 MHz band or a base or downlink fixed station in the 2155-2180 MHz band and utilizing a power greater than 1640 watts EIRP and greater than 1640 watts/MHz EIRP must coordinate such operations in advance with the following licensees authorized to operate within 120 kilometers (75 miles) of the base or fixed station operating in this band: all Government and non-Government satellite entities in the 2025-2110 MHz band; all Broadband Radio Service
(BRS)licensees authorized under Part 27 in the 2155-2160 MHz band; and all advanced wireless services
(AWS)licensees authorized to operate on adjacent frequency blocks in the 2110-2180 MHz band.
(4)Fixed, mobile, and portable (hand-held) stations operating in the 1710-1755 MHz band are limited to 1 watt
(W)EIRP. Fixed stations operating in the 1710-1755 MHz band are limited to a maximum antenna height of 10 meters above ground. Uplink fixed stations operating in the 1915-1920 MHz and 2155-2180 MHz bands are limited to 2 watts/MHz (W/MHz) peak EIRP. Mobile and portable stations operating in the 1915-1920 MHz and 2155-2180 MHz bands are limited to 200 milliwatts/MHz (mW/MHz) peak EIRP. Mobile and portable stations operating in the 1710-1755 MHz, 1915-1920 MHz, and 2155-2180 MHz bands must employ a means for limiting power to the minimum necessary for successful communications.
(5)Equipment employed must be authorized in accordance with the provisions of Sec. 27.51. Except for mobile, portable, and uplink fixed stations operating in the 1915-1920 MHz and 2155-2180 MHz bands, power measurements for transmissions by stations authorized under this section may be made either in accordance with a Commission-approved average power technique or in compliance with paragraph (d)(6) of this section. In measuring transmissions in this band using an average power technique, the peak-to-average ratio
(PAR)of the transmission may not exceed 13 dB.
(6)Peak transmit power must be measured over any interval of continuous transmission using instrumentation calibrated in terms of an RMS-equivalent voltage. The measurement results shall be properly adjusted for any instrument limitations, such as detector response times, limited resolution bandwidth capability when compared to the emission bandwidth, sensitivity, etc., so as to obtain a true peak measurement for the emission in question over the full bandwidth of the channel. 12. In § 27.53 paragraph
(h)is revised to read as follows: § 27.53 Emission limits.
(h)For operations in the 1710-1755 MHz, 1915-1920 MHz, 1995-2000 MHz, and 2110-2180 MHz bands, the power of any emission outside a licensee's frequency block shall be attenuated in accordance with the following:
(1)For all operations in the 1710-1755 MHz, 1995-2000 MHz, and 2110-2155 MHz bands and for all base and downlink fixed station operations in the 2155-2180 MHz band, the power of any emission outside a licensee's frequency block shall be attenuated below the transmitter power
(P)by at least 43 + 10 log10
(P)dB;
(2)For all mobile, portable, and uplink fixed station operations in the 2155-2180 MHz band, the power of any emission outside a licensee's frequency block shall be attenuated below the transmitter power
(P)by at least 60 + 10 log10
(P)dB;
(3)For all operations in the 1915-1920 MHz band, the power of any emission outside a licensee's frequency block shall be attenuated below the transmitter power
(P)by at least 43 + 10 log10
(P)dB and the power of any emission on frequencies above 1930 MHz shall be attenuated below the transmitter power
(P)by at least 90 + 10 log10
(P)dB;
(4)Compliance with these provisions are based on the use of measurement instrumentation employing a resolution bandwidth of 1 megahertz or greater. However, in the 1 megahertz bands immediately outside and adjacent to the licensee's frequency block, a resolution bandwidth of at least one percent of the emission bandwidth of the fundamental emission of the transmitter may be employed. The emission bandwidth is defined as the width of the signal between two points, one below the carrier center frequency and one above the carrier center frequency, outside of which all emissions are attenuated at least 26 dB below the transmitter power;
(5)When measuring the emission limits, the nominal carrier frequency shall be adjusted as close to the licensee's frequency block edges, both upper and lower, as the design permits;
(6)The measurements of emission power can be expressed in peak or average values, provided they are expressed in the same parameters as the transmitter power. 13. Section 27.55 is revised to read as follows: § 27.55 Power strength limits.
(a)Field strength limits. For the following bands, the predicted or measured median field strength at any location on the geographical border of a licensee's service area shall not exceed the value specified unless the adjacent affected service area licensee(s) agree(s) to a different field strength. This value applies to both the initially offered service areas and to partitioned service areas.
(1)1995-2000, 2110-2180, 2305-2320 and 2345-2360 MHz bands: 47 dBμV/m.
(2)698-758 and 775-787 MHz bands: 40 dBμV/m.
(3)The paired 1392-1395 MHz and 1432-1435 MHz bands and the unpaired 1390-1392 MHz band (1.4 GHz band): 47 dBμV/m.
(4)BRS and EBS: The predicted or measured median field strength at any location on the geographical border of a licensee's service area shall not exceed the value specified unless the adjacent affected service area licensee(s) agree(s) to a different field strength. This value applies to both the initially offered services areas and to partitioned services areas. Licensees may exceed this signal level where there is no affected licensee that is constructed and providing service. Once the affected licensee is providing service, the original licensee will be required to take whatever steps necessary to comply with the applicable power level at its GSA boundary, absent consent from the affected licensee.
(i)Prior to transition, the signal strength at any point along the licensee's GSA boundary does not exceed the greater of that permitted under the licensee's Commission authorizations as of January 10, 2005 or 47 dBμV/m.
(ii)Following transition, for stations in the LBS and UBS, the signal strength at any point along the licensee's GSA boundary must not exceed 47 dBμV/m. This field strength is to be measured at 1.5 meters above the ground over the channel bandwidth ( *i.e.* , each 5.5 MHz channel for licensees that hold a full channel block, and for the 5.5 MHz channel for licensees that hold individual channels).
(iii)Following transition, for stations in the MBS, the signal strength at any point along the licensee's GSA boundary must not exceed the greater of −73.0 + 10 log(X/6) dBW/m2 , where X is the bandwidth in megahertz of the channel, or for facilities that are substantially similar to the licensee's pre-transition facilities (including modifications that do not alter the fundamental nature or use of the transmissions), the signal strength at such point that resulted from the station's operations immediately prior to the transition, provided that such operations complied with paragraph (a)(4)(i) of this section.
(b)Power flux density limit for stations operating in the 698-746 MHz bands. For base and fixed stations operating in the 698-746 MHz band in accordance with the provisions of § 27.50(c)(6), the power flux density that would be produced by such stations through a combination of antenna height and vertical gain pattern must not exceed 3000 microwatts per square meter on the ground over the area extending to 1 km from the base of the antenna mounting structure.
(c)Power flux density limit for stations operating in the 746-757 MHz, 758-763 MHz, 776-787 MHz, and 788-793 MHz bands. For base and fixed stations operating in the 746-757 MHz, 758-763 MHz, 776-787 MHz, and 788-793 MHz bands in accordance with the provisions of § 27.50(b)(6), the power flux density that would be produced by such stations through a combination of antenna height and vertical gain pattern must not exceed 3000 microwatts per square meter on the ground over the area extending to 1 km from the base of the antenna mounting structure. 14. Section 27.1191 and an undesignated center heading is added to read as follows: Special Provisions Governing the 2155-2180 MHz Band § 27.1191 Free wireless broadband service requirement in the 2155-2180 MHz band.
(a)*Applicability.* This section shall apply only to an authorization in the 2155-2180 MHz “AWS-3” band.
(b)*Provision of free broadband service.* A licensee (including lessees) offering any service on spectrum subject to this section must utilize up to twenty-five percent of its AWS-3 wireless network capacity to provide free two-way wireless broadband Internet service (“free broadband service”) at a minimum engineered data rate of 768 kbps downstream per user.
(1)To the extent that a licensee meets all demand for the free broadband service and is providing such service at a minimum engineered data rate of 768 kbps downstream per user, such licensee can utilize more than seventy-five percent of its wireless network capacity for any other service authorized to operate in this band.
(2)On a per base-station or per market basis, a 2155-2180 MHz licensee will not be required to maintain the minimum data rate when and where meeting additional demand for the free broadband service would require more than twenty-five percent of wireless network capacity. Once demand reaches twenty-five percent of wireless network capacity, a 2155-2180 MHz licensee has the discretion to manage any additional demand for free service using any lawful network management protocol.
(3)Broadband users not required to pay any compensation for any of the broadband services that they receive are considered to receive free broadband service. If a broadband user pays any compensation for any broadband service directly or indirectly affiliated with the licensee, the user does not receive free service. For purposes of this requirement, wireless broadband users receive either free or fee-base service, not both. The compensation paid for broadband service does not include any compensation paid for user/customer equipment. A minimum engineered data rate means that the wireless network is designed, constructed, and implemented to provide meet or exceed the minimum data rate as measured to/from user devices and the AWS-3 licensee's wireless facilities. The minimum engineered data rate is subject to future reassessments by the Commission, including during the term of the license.
(c)*Availability of free broadband service.* A 2155-2180 MHz licensee must make available free broadband service whenever and wherever the licensee offers any other service that uses AWS-3 spectrum (even if other such services are offered prior to the performance deadlines set forth in § 27.14 for the AWS-3 band).
(d)*Geographic partitioning, spectrum disaggregation, license assignment, and transfer.* A licensee is not restricted from assigning, transferring, partitioning, or leasing 2155-2180 MHz spectrum. In such case, the free broadband requirement would apply to the licensee's or lessee's network in the AWS-3 band.
(e)*User equipment.* A 2155-2180 MHz licensee and/or third party vendor is authorized to determine user/customer equipment pricing, features, and availability, so long as such determinations are reasonable and non-discriminatory and in compliance with § 27.16.
(f)*Fee-based services.* Subject to the provisions in this section, a 2155-2180 MHz licensee may provide and prioritize fee-based services as set forth in paragraph
(b)of this section. Users and use of the wireless network for any fee-based service may not be counted towards satisfaction of the requirement to provide free broadband service.
(g)*Fee-based broadband services provided by non-facilities based wholesale customers of a 2155-2180 MHz licensee.* Fee-based broadband services provided by non-facilities based wholesale customers of a 2155-2180 MHz licensee that use such licensee's network capacity is not required to provide free broadband service, although such use of the licensee's network capacity shall be included in any determination of the licensee's compliance with the free broadband service requirement.
(h)*Burden of proof.* Once a complainant sets forth a *prima facie* case that a 2155-2180 MHz licensee is in violation of the free broadband service requirement, such licensee shall have the burden of proof to demonstrate that it is in compliance. Application of the same lawful network management protocol utilized by the licensee to manage fee-based traffic is presumptively reasonable. 15. Add new § 27.1193 to read as follows: § 27.1193 Content Network Filtering Requirement.
(a)The licensee of the 2155-2188 MH band (AWS-3 licensee) must provide as part of its free broadband service a network-based mechanism:
(1)That filters or blocks images and text that constitute obscenity or pornography and, in context, as measured by contemporary community standards and existing law, any images or text that otherwise would be harmful to teens and adolescents. For purposes of this rule, teens and adolescents are children 5 through 17 years of age;
(2)That must be active at all times on any type of free broadband service offered to customers or consumers through an AWS-3 network. In complying with this requirement, the AWS-3 licensee must use viewpoint-neutral means in instituting the filtering mechanism and must otherwise subject its own content—including carrier-generated advertising—to the filtering mechanism.
(b)The AWS-3 licensee must:
(1)Inform new customers that the filtering is in place and must otherwise provide on-screen notice to users. It may also choose additional means to keep the public informed of the filtering, such as storefront or Web site notices;
(2)Use best efforts to employ filtering to protect children from exposure to inappropriate material as defined in paragraph (a)(1) of this section. Should any commercially-available network filters installed not be capable of reviewing certain types of communications, such as peer-to-peer file sharing, the licensee may use other means, such as limiting access to those types of communications as part of the AWS-3 free broadband service, to ensure that inappropriate content as defined in paragraph (a)(1) of this section not be accessible as part of the service. PART 74—EXPERIMENTAL RADIO, AUXILIARY, SPECIAL BROADCASTING AND OTHER PROGRAM DISTRIBUTIONAL SERVICES 16. The authority citation for part 74 continues to read as follows: Authority: 47 U.S.C. 154, 303, 307, 336(f), 336(h) and 554. 17. Revise § 74.690 to read as follows: § 74.690 Transition of the 1990-2025 MHz band from the Broadcast Auxiliary Service to emerging technologies.
(a)New Entrants are collectively defined as those licensees proposing to use emerging technologies to implement Mobile Satellite Services in the 2000-2020 MHz band (MSS licensees), those licensees authorized after July 1, 2004 to implement new Fixed and Mobile services in the 1990-1995 MHz band, and those licensees authorized after September 9, 2004 in the 1995-2000 MHz and 2020-2025 MHz bands. New entrants may negotiate with Broadcast Auxiliary Service licensees operating on a primary basis and fixed service licensees operating on a primary basis in the 1990-2025 MHz band (Existing Licensees) for the purpose of agreeing to terms under which the Existing Licensees would relocate their operations to the 2025-2110 MHz band, to other authorized bands, or to other media; or, alternatively, would discontinue use of the 1990-2025 MHz band. New Entrants in the 2020-2025 MHz band are subject to the specific relocation procedures adopted in WT Docket 04-356.
(b)An Existing Licensee in the 1990-2025 MHz band allocated for licensed emerging technology services will maintain primary status in the band until the Existing Licensee's operations are relocated by a New Entrant, are discontinued under the terms of paragraph
(a)of this section, or become secondary under the terms of paragraphs (e)(6) or (f)(1)(a) of this section or the Existing Licensee indicates to a New Entrant that it declines to be relocated.
(c)The Commission will amend the operating license of the Existing Licensee to secondary status only if the following requirements are met:
(1)The service applicant, provider, licensee, or representative using an emerging technology guarantees payment of all relocation costs, including all engineering, equipment, site and FCC fees, as well as any reasonable additional costs that the relocated Existing Licensee might incur as a result of operation in another authorized band or migration to another medium;
(2)The New Entrant completes all activities necessary for implementing the replacement facilities, including engineering and cost analysis of the relocation procedure and, if radio facilities are used, identifying and obtaining, on the incumbents' behalf, new microwave or Local Television Transmission Service frequencies and frequency coordination.
(3)The New Entrant builds the replacement system and tests it for comparability with the existing system.
(d)The Existing Licensee is not required to relocate until the alternative facilities are available to it for a reasonable time to make adjustments, determine comparability, and ensure a seamless handoff. If, within one year after the relocation to new facilities the Existing Licensee demonstrates that the new facilities are not comparable to the former facilities, the New Entrant must remedy the defects.
(e)Subject to the terms of this paragraph (e), the relocation of Existing Licensees will be carried out by MSS licensees in the following manner:
(1)Existing Licensees and MSS licensees may negotiate individually or collectively for relocation of Existing Licensees to one of the channel plans specified in § 74.602(a)(3) of this chapter. Parties may not decline to negotiate, though Existing Licensees may decline to be relocated.
(i)MSS licensees must relocate all Existing Licensees in Nielsen Designated Market Areas
(DMAs)1-30, as such DMAs existed on September 6, 2000, and all fixed stations operating in the 1990-2025 MHz band on a primary basis, prior to beginning operations, except those Existing Licensees that decline relocation. Such relocation negotiations shall be conducted as “mandatory negotiations,” as that term is used in § 101.73 of this chapter. If these parties are unable to reach a negotiated agreement, MSS Licensees may involuntarily relocate such Existing Licensees and fixed stations after December 8, 2004.
(ii)[Reserved]
(iii)On the date that the first MSS licensee begins operations in the 2000-2020 MHz band, a one-year mandatory negotiation period begins between MSS licensees and Existing Licensees in Nielsen DMAs 31-210, as such DMAs existed on September 6, 2000. After the end of the mandatory negotiation period, MSS licensees may involuntary relocate any Existing Licensees with which they have been unable to reach a negotiated agreement. As described elsewhere in this paragraph (e), MSS Licensees are obligated to relocate these Existing Licensees within the specified three- and five-year time periods.
(2)Before negotiating with MSS licensees, Existing Licensees in Nielsen Designated Market Areas where there is a BAS frequency coordinator must coordinate and select a band plan for the market area. If an Existing Licensee wishes to operate in the 2025-2110 MHz band using the channels A03-A07 as specified in the Table in § 74.602(a) of this part, then all licensees within that Existing Licensee's market must agree to such operation and all must operate on a secondary basis to any licensee operating on the channel plan specified in § 74.602(a)(3) of this part. All negotiations must produce solutions that adhere to the market area's band plan.
(3)[Reserved]
(4)[Reserved]
(5)As of the date the first MSS licensee begins operations in the 1990-2025 MHz band, MSS Licensees must relocate Existing Licensees in DMAs 31-100, as they existed as of September 6, 2000, within three years, and in the remaining DMAs, as they existed as of September 6, 2000, within five years.
(6)On December 9, 2013, all Existing Licensees will become secondary in the 1990-2025 MHz band. Upon written demand by any MSS licensee, Existing Licensees must cease operations in the 1990-2025 MHz band within six months.
(f)The 1995-2000 MHz band is allocated for Advanced Wireless Services (AWS). AWS licensees in this band are New Entrants as defined in paragraph
(a)of this section and therefore must comply with sections (a), (b), (c), (d), and
(f)of this section to the extent AWS entrants seek to relocate Broadcast Auxiliary Service licensees operating on a primary basis and fixed service licensees operating on a primary basis in the 1990-2025 MHz band (Existing Licensees).
(1)New entrants are required to protect Existing Licensees in this band from interference.
(i)An AWS licensee may not begin operations in a specific Nielsen Designated Market Area
(DMA)until all incumbent operations in that DMA have been either relocated by an MSS licensee, an AWS entrant, or another licensee; or discontinued pursuant to the terms of paragraph
(a)of this section. If Existing Licensees remain in the band after December 9, 2013, they must cease operations within six months of receiving a written demand from either an MSS licensee or an AWS licensee.
(ii)An AWS licensee in this band is required conform to the technical criteria specified in TIA Bulletin TSB 10-F, or procedures other than TSB 10-F that follow generally acceptable good engineering practices pursuant to § 101.105(c) of this chapter, to determine whether its operations in the 1995-2000 MHz band would cause interference to the operations of Existing Licensees in the 1990-2025 MHz band. To the extent that the TSB 10-F demonstrates that an AWS licensee may cause interference to Existing Licensees in an adjacent DMA, the AWS licensee must either relocate the Existing Licensees or revise its proposed operations to ensure, in accordance with the technical criteria in the TSB 10-F, that its revised operations will not cause interference to Existing Licensees in adjacent DMAs.
(2)If a specific DMA has not yet been cleared and an AWS licensee seeks to begin operations in the specific DMA, an AWS licensee may negotiate with an Existing Licensee for the purpose of agreeing to terms under which the Existing Licensees would relocate their operations to one of the channel plans specified in § 74.602(a)(3) to other authorized bands, or to other media; or, alternatively, would discontinue use of the 1990-2025 MHz band. An AWS licensee may negotiate individually or collectively for relocation of Existing Licensees, but the AWS licensee is required to coordinate its anticipated clearance schedule with other New Entrants. New entrants are expected to work cooperatively with all interested parties to avoid duplicative efforts and undue delay in the negotiation and transition process. Parties may not decline to negotiate, though Existing Licensees may decline to be relocated. The good faith provisions set-forth in § 101.73 of this chapter apply throughout the negotiation and relocation process.
(3)If a mandatory negotiation period for or an involuntary relocation of Existing Licensees in a particular DMA has already been triggered pursuant to paragraph
(e)of this section or pursuant to provisions set-forth elsewhere in this chapter or by order in WT Docket 02-55, ET Docket 00-258, or ET Docket 95-18, an AWS licensee seeking to operate in that particular DMA will not trigger a new negotiation or involuntary relocation schedule pursuant to this section. If such has not occurred with respect to a specific DMA, the following shall apply to AWS licensees at 1995-2000 MHz:
(i)Existing Licensees in DMAs 1-30, as such DMAs existed on September 6, 2000, are subject to involuntary relocation. Under involuntary relocation, the Existing Licensees are required to relocate providing that the New Entrant complies with the requirements set-forth in paragraph
(c)of this section and furnishes Existing Licensees with comparable facilities, as defined in § 101.75
(b)of this chapter.
(ii)For the remaining DMAs, as such DMAs existed on September 6, 2000, a one-year mandatory negotiation period will commence between Existing Licensees and New Entrants (if such has not already occurred or been triggered) when an AWS licensee approaches any Existing Licensee operating in the specific DMA. Mandatory negotiations shall be conducted in accordance with the good faith provisions set-forth in § 101.73 of this chapter with the goal of providing the Existing Licensees with comparable facilities, as defined in § 101.73(d)(1) through
(3)of this chapter. After the end of the mandatory negotiation period, an AWS licensee may involuntary relocate any Existing Licensees with which they have been unable to reach a negotiated agreement.
(iii)To the extent the Commission adopts an earlier transition date to relocate Existing Licensees in a specific DMA in WT Docket 02-55, ET Docket 00-258, or ET Docket 95-18, AWS licensees and Existing Licensees shall comply with the requirements set-forth and adopted in those proceedings. PART 78—CABLE TELEVISION RELAY SERVICE 18. The authority citation for part 78 continues to read as follows: Authority: 47 U.S.C. Secs. 2, 3, 4, 301, 303, 307, 308, 309, 48 Stat., as amended, 1064, 1065, 1066, 1081, 1082, 1083, 1084, 1085; 47 U.S.C. 152, 153, 154, 301, 303, 307, 308, 309. 19. Section 78.40 is revised as follows: § 78.40 Transition of the 1990-2025 MHz band from the Cable Television Relay Service to Emerging Technologies.
(a)New Entrants are collectively defined as those licensees proposing to use emerging technologies to implement Mobile Satellite Services in the 2000-2020 MHz band (MSS licensees), those licensees authorized after July 1, 2004 to implement new Fixed and Mobile services in the 1990-1995 MHz band, and those licensees authorized after September 9, 2004 in the 1995-2000 MHz and 2020-2025 MHz bands. New entrants may negotiate with Cable Television Relay Service licensees operating on a primary basis and fixed service licensees operating on a primary basis in the 1990-2025 MHz band (Existing Licensees) for the purpose of agreeing to terms under which the Existing Licensees would relocate their operations to the 2025-2110 MHz band, to other authorized bands, or to other media; or, alternatively, would accept a sharing arrangement with the New Entrants that may result in an otherwise impermissible level of interference to the Existing Licensee's operations. New Entrants in the 2020-2025 MHz band are subject to the specific relocation procedures adopted in WT Docket 04-356.
(b)Existing Licensees in the 1990-2025 MHz band allocated for licensed emerging technology services will maintain primary status in the band until a New Entrant completes relocation of the Existing Licensee's operations, Existing Licensee indicates to a New Entrant that it declines to be relocated, become secondary under the terms of paragraphs (f)(6) or (g)(1)(i) of this section.
(c)The Commission will amend the operating license of the Existing Licensee to secondary status only if the following requirements are met:
(1)The service applicant, provider, licensee, or representative using an emerging technology guarantees payment of all relocation costs, including all engineering, equipment, site and FCC fees, as well as any reasonable additional costs that the relocated Existing Licensee might incur as a result of operation in another authorized band or migration to another medium;
(2)The New Entrant completes all activities necessary for implementing the replacement facilities, including engineering and cost analysis of the relocation procedure and, if radio facilities are used, identifying and obtaining, on the incumbents' behalf, new microwave or Cable Television Relay Service frequencies and frequency coordination.
(3)The New Entrant builds the replacement system and tests it for comparability with the existing system.
(d)The Existing Licensee is not required to relocate until the alternative facilities are available to it for a reasonable time to make adjustments, determine comparability, and ensure a seamless handoff.
(e)If, within one year after the relocation to new facilities the Existing Licensee demonstrates that the new facilities are not comparable to the former facilities, the New Entrant must remedy the defect.
(f)Subject to the terms paragraph
(f)of this section, the relocation of Existing Licensees will be carried out by MSS licensees in the following manner:
(1)Existing Licensees and MSS licensees may negotiate individually or collectively for relocation of Existing Licensees to one of the channel plans specified in § 74.602(a)(3). Parties may not decline to negotiate, though Existing Licensees may decline to be relocated.
(i)MSS licensees must relocate all Existing Licensees in Nielsen Designated Market Areas
(DMAs)1-30, as such DMAs existed on September 6, 2000, prior to beginning operations, except those Existing Licensees that decline relocation. Such relocation negotiations shall be conducted as “mandatory negotiations,” as that term is used in § 101.73 of this chapter. If these parties are unable to reach a negotiated agreement, MSS Licensees may involuntarily relocate such Existing Licensees after December 8, 2004.
(ii)[Reserved]
(iii)On the date that the first MSS licensee begins operations in the 2000-2020 MHz band, a one-year mandatory negotiation period begins between MSS licensees and Existing Licensees in DMAs 31-210, as such DMAs existed on September 6, 2000. After the end of the mandatory negotiation period, MSS licensees may involuntary relocate any Existing Licensees with which they have been unable to reach a negotiated agreement. As described elsewhere in this paragraph (f), MSS Licensees are obligated to relocate these Existing Licensees within the specified three- and five-year time periods.
(2)Before negotiating with MSS licensees, Existing Licensees in Nielsen Designated Market Areas where there is a BAS frequency coordinator must coordinate and select a band plan for the market area. If an Existing Licensee wishes to operate in the 2025-2110 MHz band using the channel plan specified in § 78.18(a)(6)(i), then all licensees within that Existing Licensee's market must agree to such operation and all must operate on a secondary basis to any licensee operating on the channel plan specified in § 78.18(a)(6)(ii). All negotiations must produce solutions that adhere to the market area's band plan.
(3)[Reserved]
(4)[Reserved]
(5)As of the date the first MSS Licensee begins operations in the 1990-2025 MHz band, MSS Licensees must relocate Existing Licensees in DMAs 31-100, as they existed as of September 6, 2000, within three years, and in the remaining DMAs, as they existed as of September 6, 2000, within five years.
(6)On December 9, 2013, all Existing Licensees will become secondary in the 1990-2025 MHz band. Upon written demand by any MSS Licensee, Existing Licensees must cease operations in the 1990-2025 MHz band within six months.
(g)The 1995-2000 MHz band is allocated for Advanced Wireless Services (AWS). AWS licensees in this band are New Entrants as defined in paragraph
(a)of this section and therefore must comply with sections (a), (b), (c), (d),
(e)and
(g)of this section to the extent AWS entrants seek to relocate Broadcast Auxiliary Service licensees operating on a primary basis and fixed service licensees operating on a primary basis in the 1990-2025 MHz band (Existing Licensees).
(1)AWS licensees are required to protect previously Existing Licensees in this band from interference.
(i)An AWS licensee may not begin operations in a specific Nielsen Designated Market Area
(DMA)until all incumbent operations in that DMA have been either relocated by an MSS licensee, an AWS entrant, or another licensee; or discontinued pursuant to the terms of paragraph
(a)of this section. If Existing Licensees remain in the band after December 9, 2013, they must cease operations within six months of receiving a written demand from either an MSS licensee or an AWS licensee.
(ii)An AWS licensee in this band is required to conform to the technical criteria specified in TIA Bulletin TSB 10-F, or procedures other than TSB 10-F that follow generally acceptable good engineering practices pursuant to § 101.105(c) of this chapter, to determine whether its operations in the 1995-2000 MHz band would cause interference to the operations of Existing Licensees in the 1990-2025 MHz band. To the extent that the TSB 10-F demonstrates that an AWS licensee may cause interference to Existing Licensees in an adjacent DMA, the AWS licensee must either relocate the Existing Licensees or revise its proposed operations to ensure, in accordance with the technical criteria in the TSB 10-F, that its revised operations will not cause interference to Existing Licensees in adjacent DMAs.
(2)If a specific DMA has not yet been cleared and an AWS licensee seeks to begin operations in the specific DMA, an AWS licensee may negotiate with an Existing Licensee for the purpose of agreeing to terms under which the Existing Licensees would relocate their operations to one of the channel plans specified in § 74.602(a)(3) of this chapter, to other authorized bands, or to other media; or, alternatively, would discontinue use of the 1990-2025 MHz band. An AWS licensee may negotiate individually or collectively for relocation of Existing Licensees, but the AWS licensee is required to coordinate its anticipated clearance schedule with other New Entrants. New entrants are expected to work cooperatively with all interested parties to avoid duplicative efforts and undue delay in the negotiation and transition process. Parties may not decline to negotiate, though Existing Licensees may decline to be relocated. The good faith provisions set-forth in § 101.73 of this chapter apply throughout the negotiation and relocation process.
(3)If a mandatory negotiation period for or an involuntary relocation of Existing Licensees in a particular DMA has already been triggered pursuant to paragraph
(e)of this section or pursuant to provisions set-forth elsewhere in this chapter or by order in WT Docket 02-55, ET Docket 00-258, or ET Docket 95-18, an AWS licensee seeking to operate in that particular DMA will not trigger a new negotiation or involuntary relocation schedule pursuant to this section. If such has not occurred with respect to a specific DMA, the following shall apply to AWS licensees at 1995-2000 MHz:
(i)Existing Licensees in DMAs 1-30, as such DMAs existed on September 6, 2000, are subject to involuntary relocation. Under involuntary relocation, the Existing Licensees are required to relocate providing that the New Entrant complies with the requirements set-forth in paragraph
(c)of this section and furnishes Existing Licensees with comparable facilities, as defined in § 101.75(b) of this chapter.
(ii)For the remaining DMAs, as such DMAs existed on September 6, 2000, a one-year mandatory negotiation period will commence between Existing Licensees and New Entrants (if such has not already occurred or been triggered) when an AWS licensee approaches any Existing Licensee operating in the specific DMA. Mandatory negotiations shall be conducted in accordance with the good faith provisions set-forth in § 101.73 of this chapter with the goal of providing the Existing Licensees with comparable facilities, as defined in § 101.73(d)(1)-(3) of this chapter. After the end of the mandatory negotiation period, an AWS licensee may involuntary relocate any Existing Licensees with which they have been unable to reach a negotiated agreement.
(iii)To the extent the Commission adopts an earlier transition date to relocate Existing Licensees in a specific DMA in WT Docket 02-55, ET Docket 00-258, or ET Docket 95-18, AWS licensees and Existing Licensees shall comply with the requirements set-forth and adopted in those proceedings. PART 101—FIXED MICROWAVE SERVICES 20. The authority citation for part 101 continues to read as follows: Authority: 47 U.S.C. Secs. 154, 303. 21. Revise § 101.69 to read as follows: Policies Governing Microwave Relocation From the 1850-1990 and 2110-2200 MHz Bands § 101.69 Transition of the 1850-1990 MHz, 2110-2150 MHz, and 2160-2200 MHz bands from the fixed microwave services to personal communications services and emerging technologies. Fixed Microwave Services
(FMS)in the 1850-1990 MHz, 2110-2150 MHz, and 2160-2200 MHz bands have been allocated for use by emerging technology
(ET)services, including Personal Communications Services (PCS), Advanced Wireless Services (AWS), and Mobile Satellite Services (MSS). The rules in this section provide for a transition period during which ET licensees may relocate existing FMS licensees using these frequencies to other media or other fixed channels, including those in other microwave bands.
(a)ET licensees may negotiate with FMS licensees authorized to use frequencies in the 1850-1990 MHz, 2110-2150 MHz, and 2160-2200 MHz bands, for the purpose of agreeing to terms under which the FMS licensees would:
(1)Relocate their operations to other fixed microwave bands or other media; or alternatively
(2)Accept a sharing arrangement with the ET licensee that may result in an otherwise impermissible level of interference to the FMS operations. (b)-(c) [Reserved]
(d)Relocation of FMS licensees in the 2110-2150 and 2160-2200 MHz band will be subject to mandatory negotiations only. Except as provided in paragraph
(e)of this section, mandatory negotiation periods are defined as follows:
(1)Non-public safety incumbents will have a two-year mandatory negotiation period; and
(2)Public safety incumbents will have a three-year mandatory negotiation period.
(e)Relocation of FMS licensees by Mobile-Satellite Service
(MSS)licensees, including MSS licensees providing Ancillary Terrestrial Component
(ATC)service, will be subject to mandatory negotiations only. Mandatory negotiation periods that are triggered in the first instance by MSS/ATC licensees are defined as follows:
(1)The mandatory negotiation period for non-public safety incumbents will end December 8, 2004.
(2)The mandatory negotiation period for public safety incumbents will end December 8, 2005.
(f)AWS licensees operating in the 1915-1920 MHz band will follow the requirements and procedures set forth in ET Docket No. 00-258 and WT Docket No. 04-356.
(g)If no agreement is reached during the mandatory negotiation period, an ET licensee may initiate involuntary relocation procedures. Under involuntary relocation, the incumbent is required to relocate, provided that the ET licensee meets the conditions of § 101.75. 22. Section 101.79 is amended by revising paragraph
(a)to read as follows: § 101.79 Sunset provisions for licensees in the 1850-1990 MHz, 2110-2150 MHz, and 2160-2200 MHz bands.
(a)FMS licensees will maintain primary status in the 1850-1990 MHz, 2110-2150 MHz, and 2160-2200 MHz bands unless and until an ET licensee (including MSS/ATC operator) requires use of the spectrum. ET licensees are not required to pay relocation costs after the relocation rules sunset. Once the relocation rules sunset, an ET licensee may require the incumbent to cease operations, provided that the ET licensee intends to turn on a system within interference range of the incumbent, as determined by TIA TSB 10-F (for terrestrial-to-terrestrial situations) or TIA TSB 86 (for MSS satellite-to-terrestrial situations) or any standard successor. ET licensee notification to the affected FMS licensee must be in writing and must provide the incumbent with no less than six months to vacate the spectrum. After the six-month notice period has expired, the FMS licensee must turn its license back into the Commission, unless the parties have entered into an agreement which allows the FMS licensee to continue to operate on a mutually agreed upon basis. The date that the relocation rules sunset is determined as follows:
(1)For the 2110-2150 MHz and 2160-2180 MHz bands, ten years after the first ET license is issued in the respective band; and
(2)For the 2180-2200 MHz band, December 8, 2013 ( *i.e.* , ten years after the mandatory negotiation period begins for MSS/ATC operators in the service). [FR Doc. E8-14423 Filed 6-24-08; 8:45 am] BILLING CODE 6712-01-P GENERAL SERVICES ADMINISTRATION 48 CFR Parts 509 and 552 [GSAR Case 2006-G512; Docket 2008-0007; Sequence 9] RIN 3090-AI57 General Services Acquisition Regulation; GSAR Case 2006-G512; Rewrite of GSAR Part 509, Contractor Qualifications AGENCY: Office of the Chief Acquisition Officer, General Services Administration (GSA). ACTION: Proposed rule with request for comments. SUMMARY: The General Services Administration
(GSA)is proposing to amend the General Services Acquisition Regulation
(GSAR)to update language addressing contractor qualifications. This rule is a result of the General Services Administration Acquisition Manual
(GSAM)Rewrite initiative undertaken by GSA to revise the GSAM to maintain consistency with the FAR, and to implement streamlined and innovative acquisition procedures that contractors, offerors and GSA contracting personnel can utilize when entering into and administering contractual relationships. The GSAM incorporates the General Services Administration Acquisition Regulation
(GSAR)as well as internal agency acquisition policy. GSA will rewrite each part of the GSAR and GSAM, and as each GSAR part is rewritten, will publish it in the **Federal Register** . This is one of a series of revisions. It covers the rewrite of GSAR Part 509, Contractor Qualifications. DATES: Interested parties should submit written comments to the Regulatory Secretariat on or before August 25, 2008 to be considered in the formulation of a final rule. ADDRESSES: Submit comments identified by GSAR Case 2006-G512 by any of the following methods: • Regulations.gov: *http://www.regulations.gov* . Submit comments via the Federal eRulemaking portal by inputting “GSAR Case 2006-G512” under the heading “Comment or Submission”. Select the link “Send a Comment or Submission” that corresponds with GSAR Case 2006-G512. Follow the instructions provided to complete the “Public Comment and Submission Form”. Please include your name, company name (if any), and “GSAR Case 2006-G512” on your attached document. • Fax: 202-501-4067. • Mail: General Services Administration, Regulatory Secretariat (VPR), 1800 F Street, NW., Room 4041, ATTN: Laurieann Duarte, Washington, DC 20405. *Instructions* : Please submit comments only and cite GSAR Case 2006-G512 in all correspondence related to this case. All comments received will be posted without change to *http://www.regulations.gov* , including any personal and/or business confidential information provided. FOR FURTHER INFORMATION CONTACT: Ms. Meredith Murphy, Procurement Analyst, at
(202)208-6925, or by e-mail at *meredith.murphy@gsa.gov* for clarification of content. For information pertaining to the status or publication schedules, contact the Regulatory Secretariat (VPR), Room 4041, GS Building, Washington, DC 20405,
(202)501-4755. Please cite GSAR Case 2006-G512. SUPPLEMENTARY INFORMATION: A. Background **The GSAR Rewrite Project** On February 15, 2006, GSA published an Advance Notice of Proposed Rulemaking
(ANPR)with request for comments because GSA is beginning the review and update of the General Services Administration Acquisition Regulation (GSAR). The GSAR rewrite will— • Consider comments received from the ANPR, published in the **Federal Register** at 71 FR 7910, February 15, 2006. • Change “you” to “contracting officer.” • Maintain consistency with the FAR but eliminate duplication. • Revise GSAR sections that are out of date, or impose inappropriate burdens on the Government or contractors, especially small businesses. • Streamline and simplify. In addition, GSA has recently reorganized into two, rather than three services. Therefore, the reorganization of the Federal Supply Service
(FSS)and the Federal Technology Service
(FTS)into the Federal Acquisition Service
(FAS)will be considered in the rewrite initiative. **The Rewrite of Part 509** This proposed rule contains the revisions made to Part 509, Contractor Qualifications. There are no major substantive changes to the policies. GSA Form 353, Performance Evaluation and Facilities Report, is proposed for deletion so that FAR forms would be used instead. Subsection 509.405-1(b) and clauses 552.209-70 through 552.209-73 are proposed for deletion as unnecessary. The explanation of “auditor” in 509.105-1 is removed as unnecessary - it is partly duplicative (credit and finance) and too restrictive (does not allow use of DCAA). Subsection 509.406-3(b)(7) is deleted as duplicative of 509.406-3(b)(5). The debarment legal authorities in 509.401 are updated. The term “Suspension and Debarment Official” is used throughout the Part. **Discussion of Comments** As a result of the ANPR, GSA received two comments pertaining to GSAR Part 509. One commenter suggested revising the Assignment of Claims clause, GSAR 552.232-23, to facilitate contractor teaming arrangements. The proposed revision applies to GSAM Part 532, not Part 509; it has therefore been referred to the Part 532 Rewrite Team, which has not yet begun work. Any changes proposed to the Assignment of Claims clause by the Part 532 Rewrite Team will, of course, be published for public comment. The other commenter suggested GSA consider placing guidance on teaming arrangements that is on GSA's website in the GSAR. There is no guidance on teaming arrangements on a GSA-wide website. One purchasing office within GSA does have such guidance on a website, but that guidance is unique to Federal Supply Schedules. Therefore, the team that is revising GSAM Part 508, Required Sources of Supplies and Services, will incorporate the regulatory and procedural material on Schedules teaming arrangements in GSAM Part 508, ensure that it is published for public comment, and oversee the removal of the regulatory and procedural teaming arrangement material from the Federal Acquisition Service
(FAS)website. This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804. B. Regulatory Flexibility Act The General Services Administration does not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, *et seq.* , because the only substantive change is a minor one, deleting a GSA-unique form in favor of using the FAR forms. An Initial Regulatory Flexibility Analysis has, therefore, not been performed. We invite comments from small businesses and other interested parties. GSA will consider comments from small entities concerning the affected GSAR Parts 509 and 552 in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 601, *et seq.* (GSAR case 2006-G512), in correspondence. C. Paperwork Reduction Act The Paperwork Reduction Act does apply; however, these changes to the GSAR do not impose additional information collection requirements to the paperwork burden previously approved under OMB Control Number 3090-0007. List of Subjects in 48 CFR Parts 509 and 552 Government procurement. Dated: June 12, 2008. Al Matera, Director, Office of Acquisition Policy,General Services Administration. Therefore, GSA proposes to amend 48 CFR parts 509 and 552 as set forth below: 1. The authority citation for 48 CFR parts 509 and 552 is revised to read as follows: Authority: 40 U.S.C. 121(c). PART 509—CONTRACTOR QUALIFICATIONS 2. Revise section 509.105 to read as follows: 509.105 Procedures. 509.105-1 Obtaining information.
(a)*From a prospective contractor* . FAR 9.105-1 lists a number of sources of information that a contracting officer may utilize before making a determination of responsibility. The contracting officer may request information directly from a prospective contractor using GSA Form 527, Contractor's Qualifications and Financial Information, but only after exhausting other available sources of information.
(b)*From Government personnel* . The contracting officer may solicit and consider information from any appropriate activities, *e.g.* , legal counsel, quality control, contract management, credit and finance, and auditors before determining that an offeror is responsible. 509.105-2 Determinations and documentation.
(a)The contracting officer shall provide written notification to a prospective contractor determined not responsible. Include the basis for the determination. Notification provides the prospective contractor with the opportunity to correct any problem for future solicitations.
(b)Due to the potential for de facto debarment, the contracting officer shall avoid making repeated determinations of nonresponsibility based on the same past performance information.
(c)To provide for timely consideration of the need to institute action to debar a contractor, the contracting officer shall submit a copy of each nonresponsibility determination, other than those based on capacity or financial capability, to the Suspension and Debarment Official in the Office of the Chief Acquisition Officer. 509.106 [Removed] 3. Section 509.106 is removed. Subpart 509.2 [Removed] 4. Subpart 509.2 is removed. 5. Revise section 509.306 to read as follows: 509.306 Solicitation requirements. The clauses at FAR 52.209-3 and 52.209-4 do not cover all the solicitation requirements described in FAR 9.306. If a solicitation contains a testing and approval requirement, the contracting officer must address the requirements in FAR 9.306(d) and
(f)through
(j)in the solicitation's Section H, special contract requirements. 509.308 [Removed] 6. Section 509.308 is removed. 7. Revise section 509.401 to read as follows: 509.401 Applicability. This subpart applies to all the following:
(a)Acquisitions of personal property, nonpersonal services, construction, and space in buildings.
(b)Acquisition of transportation services (Federal Management Regulation
(FMR)Parts 102-117 and 102-118 (41 CFR Parts 102-117 and 102-118)).
(c)Contracts for disposal of personal property (FMR Parts 102-36 through 102-38 (41 CFR Parts 102-36 through 102-38)).
(d)Covered transactions as defined by 41 CFR Part 105-68. 8. Amend section 509.403 by adding, in alphabetical order, the definitions “Debarring official” and “Suspending official”; and, in the definition “Fact-finding official” by removing the word “GSA” and adding the word “Civilian” in its place. The added text reads as follows: 509.403 Definitions. Debarring official means the Suspension and Debarment Official within the Office of the Chief Acquisition Officer. Suspending official means the Suspension and Debarment Official within the Office of the Chief Acquisition Officer. 9. Revise section 509.405 to read as follows: 509.405 Effect of listing. 509.405-1 Continuation of current contracts.
(a)When a contractor appears on the current EPLS, consider terminating a contract under any of the following circumstances:
(1)Any circumstances giving rise to the debarment or suspension also constitute a default in the contractor's performance of the contract.
(2)The contractor presents a significant risk to the Government in completing the contract.
(3)The conduct that provides the cause of the suspension, proposed debarment, or debarment involved a GSA contract.
(b)Before terminating a contract when a contractor appears on the current EPLS, consider the following factors:
(1)Seriousness of the cause for debarment or suspension.
(2)Extent of contract performance.
(3)Potential costs of termination and reprocurement.
(4)Need for or urgency of the requirement, contract coverage, and the impact of delay for reprocurement.
(5)Availability of other safeguards to protect the Government's interest until completion of the contract.
(6)Availability of alternate competitive sources to meet the requirement ( *e.g.* , other multiple award contracts, readily available commercial items).
(c)The responsibilities of the agency head under FAR 9.405-1 are delegated to the GSA Suspension and Debarment Official. 509.405-2 Restrictions on subcontracting. The responsibilities of the agency head under FAR 9.405-2(a) are delegated to the GSA Suspension and Debarment Official. 10. Revise section 509.406-1 to read as follows: 509.406-1 General. The Suspension and Debarment Official is the designee under FAR 9.406-1(c). 11. Amend section 509.406-3 by— a. Removing from paragraphs
(a)and (b), the words “debarring official” and adding the words “Suspension and Debarment Official” in its place each time it appears; b. Removing from paragraph (b)(2), the word “Number” and adding the word “Numbers” in its place; c. Removing paragraph (b)(7); d. Revising paragraph (c); and e. Removing from paragraph (d), the words “debarring official” and adding the words “Suspension and Debarment Official” in its place each time it appears. The revised text reads as follows: 509.406-3 Procedures.
(c)*Review* . The Suspension and Debarment Official will review the report, and after coordinating with assigned legal counsel—
(1)Initiate debarment action;
(2)Decline debarment action;
(3)Request additional information; or
(4)Refer the matter to the OIG for further investigation and development of a case file. 509.407-1 [Amended] 12. Amend section 509.407-1 by removing the words “suspending official” and adding “Suspension and Debarment Official” in its place. 509.407-3 [Amended] 13. Amend section 509.407-3 by removing the words “suspending official” and adding “Suspension and Debarment Official” in its place each time it appears. PART 552—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 552.209-70 through 552.209-73 [Removed] 14. Sections 552.209-70 through 552.209-73 are removed. [FR Doc. E8-14392 Filed 6-24-08; 8:45 am] BILLING CODE 6820-61-S DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Part 192 [Docket No. PHMSA-RSPA-2004-19854] RIN 2137-AE15 Pipeline Safety: Integrity Management Program for Gas Distribution Pipelines AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking. SUMMARY: PHMSA proposes to amend the Federal Pipeline Safety Regulations to require operators of gas distribution pipelines to develop and implement integrity management
(IM)programs. The purpose of these programs is to enhance safety by identifying and reducing pipeline integrity risks. The IM programs required by the proposed rule would be similar to those currently required for gas transmission pipelines, but tailored to reflect the differences in and among distribution systems. In accordance with Federal law, the proposed rule would require operators to install excess flow valves on certain new and replaced residential service lines, subject to feasibility criteria outlined in the rule. Based on the required risk assessments and enhanced controls, the proposed rule also would establish procedures and standards permitting risk-based adjustment of prescribed intervals for leak detection surveys and other fixed-interval requirements in the agency's existing regulations for gas distribution pipelines. To further minimize regulatory burdens, the proposed rule would establish simpler requirements for master meter and liquefied petroleum gas
(LPG)operators, reflecting the relatively lower risk of these small pipeline systems. This proposal also addresses statutory mandates and recommendations from the DOT's Office of the Inspector General
(OIG)and stakeholder groups. DATES: Anyone may submit written comments on proposed regulatory changes by September 23, 2008. PHMSA will consider late-filed comments to the extent possible. ADDRESSES: Comments should reference Docket No. PHMSA-RSPA-2004-19854 and may be submitted in the following ways: • *E-Gov Web Site:* *http://www.regulations.gov* . This site allows the public to enter comments on any **Federal Register** notice issued by any agency. • *Fax:* 1-202-493-2251. • *Mail:* DOT Docket Operations Facility (M-30), U.S. Department of Transportation, West Building, 1200 New Jersey Avenue SE., Washington, DC 20590. • *Hand Delivery:* DOT Docket Operations Facility, U.S. Department of Transportation, West Building, 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. *Instructions:* In the *E-Gov Web site: http://www.regulations.gov* , under “Search Documents'' select “Pipeline and Hazardous Materials Safety Administration.” Next, select “Notices,” and then click “Submit.” Select this rulemaking by clicking on the docket number listed above. Submit your comment by clicking the yellow bubble in the right column then following the instructions. Identify docket number PHMSA-RSPA-2004-19854 at the beginning of your comments. For comments by mail, please provide two copies. To receive PHMSA's confirmation receipt, include a self-addressed stamped postcard. Internet users may access all comments at *http://www.regulations.gov* , by following the steps above. Note: PHMSA will post all comments without changes or edits to *http://www.regulations.gov* including any personal information provided. Privacy Act Statement Anyone can search the electronic form of all comments received in response to any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). DOT's complete Privacy Act Statement was published in the **Federal Register** on April 11, 2000 (65 FR 19477). FOR FURTHER INFORMATION CONTACT: Mike Israni at
(202)366-4571 or by e-mail at *mike.israni@dot.gov* . SUPPLEMENTARY INFORMATION: The following subjects are addressed in this preamble: I. Background A. Integrity Management
(IM)B. Nature of U.S. Distribution Pipeline Systems C. Safety of Distribution Pipeline Systems D. Distribution Pipeline Safety Regulation E. Applicability of Integrity Management Plans
(IMP)to Distribution Pipeline Systems Distribution Systems Are Located in Highly Populated Areas Challenges of Assessment or Testing II. American Gas Foundation Study III. Recommendations or Mandates of Oversight Bodies A. DOT Inspector General B. National Transportation Safety Board C. Congressional Mandate IV. Stakeholder Groups A. Stakeholder Groups' Involvement B. Stakeholder Groups' Findings C. Stakeholder Conclusions D. Findings Relevant To Leak Management E. Stakeholder Considerations Regarding Excess Flow Valves Comments From Fire Service Organizations V. Public Meetings A. Public Meetings Concerning Distribution Integrity Management B. EFV Public Meeting VI. Guidance for Integrity Management VII. Applicability to Small and Simple Distribution Systems; Request for Comments A. Master Meter and LPG Operators B. Very Small Distribution Systems VIII. Plastic Pipe Issues A. Plastic Pipeline Database and Availability of Failure Information B. Plastic Pipe Marking IX. Monitoring the Effectiveness of Actions X. Deviating From Required Intervals Based on Operator's Distribution Integrity Management Plan
(DIMP)XI. Prevention Through People XII. Summary Description of Proposed Rule XIII. Section-by-Section Analysis XIV. Regulatory Analyses and Notices I. Background A. Integrity Management PHMSA is initiating this rulemaking proceeding in order to extend its integrity management approach to the largest segment of the Nation's pipeline network—the distribution systems that directly serve homes, schools, businesses, and other natural gas consumers. Beginning in 2000, the agency has promulgated regulations requiring operators of hazardous liquid pipelines (49 CFR 195.452, published at 65 FR 75378 and 67 FR 2136) and gas transmission pipelines (49 CFR 192, Subpart O, published at 68 FR 69778) to develop and follow individualized integrity management
(IM)programs, in addition to PHMSA's core pipeline safety regulations. The IM approach was designed to promote continuous improvement in pipeline safety by requiring operators to identify and invest in risk control measures beyond core regulatory requirements. The IM regulations for hazardous liquid and gas transmission pipelines are similar. Fundamentally, both require that operators analyze their pipelines to identify and manage factors that affect risks to the pipeline and risks posed by the pipeline. Operators must integrate the best available information about their pipelines to inform their risk decisions. Both rules require that operators identify segments of their pipelines where an incident could cause serious consequences and focus priority attention in those areas. Both rules also require that operators implement a program to provide greater assurance of the integrity of these pipeline segments. Actions required in these segments include assessments utilizing in-line inspection tools, pressure testing, direct assessment, or other technology that provides an equivalent understanding of the pipe condition. While existing regulations required prompt repair of safety-significant problems, the IM regulations require operators to inspect their lines and perform repairs within a period of time commensurate with the safety significance of the problems found. The rules also require that operators implement measures that will help prevent accidents from occurring on their high-consequence segments and that will mitigate the consequences if an accident does occur. Although it is too early to draw statistically-significant conclusions about the effectiveness of the IM programs for transmission pipelines, early indications are very favorable. The initial inspections under IM have identified tens of thousands of locations where the pipelines were damaged (including damage by external force/excavation and by conditions like corrosion) and repairs were made before accidents could occur. Operators have implemented additional safety measures to address higher-risk situations, many of which are unique to their individual circumstances. These early successes have fueled interest in extending the IM approach to gas distribution pipeline systems. B. Nature of U.S. Distribution Pipeline Systems As of 2006, more than 1.2 million miles of gas mains are in service in the U.S. “Mains'' are the pipelines providing a common supply to a certain number (often hundreds) of homes and businesses. These pipelines are often located under city streets and range in size from less than 2 inches in diameter to more than 8 inches in diameter. These mains feed over 63 million “services.'' A “service'' is the pipe that connects to a main and delivers gas to an individual customer, at the meter. Service lines are usually very small, less than 1-inch in diameter except for those serving larger industrial and commercial customers. The length of service lines varies widely. In dense urban areas where townhouses are built right up to the sidewalk, a service line may be only a few feet long. In rural areas, service lines may be several hundred feet long, perhaps as long as a mile. PHMSA uses 65 feet as its estimate of the average length of a service line. Applying that value, the 63 million services represent nearly another 800,000 miles of pipeline, meaning that the total amount of pipeline in U.S. distribution pipeline systems is approximately two million miles. Use of natural gas continues to grow in the U.S., and the amount of distribution pipeline in service increases accordingly. Since 2001, an additional 5.1 million customers have been added, representing an increase of over 173,000 miles of distribution pipeline. Natural gas has been distributed by pipeline in some areas for over a hundred years. Pipeline systems in these areas were originally small, serving a few customers. These systems often merged as larger distribution companies were formed. The materials in use in some of these systems reflect older ( *e.g.* , cast iron, copper, bare steel) as well as newer ( *e.g.* , polyethylene plastic and cathodically-protected coated steel) technologies. Two-thirds of States have programs that require distribution pipeline operators to replace older pipe, 1 but much of the pipe in service is still many decades old. 1 Some of these programs involve a limited number of operators, as described further below. In other areas, distribution of natural gas by pipeline is a relatively new phenomenon. In some rural areas, for example, gas may not have been available until a transmission pipeline was routed into the vicinity. Then, municipalities or distribution companies may have created a distribution system to bring natural gas service to customers for whom it was previously unavailable. Systems of this nature tend to be relatively uniform in age and type of materials, but the threats to integrity (such as electrical interference from other buried substructures and localized flooding or vehicular traffic patterns) may still vary from one location to another. Diversity of the gas pipeline system will likely increase as systems age, new customers are added, and portions of the original systems are replaced. The bulk of newer gas distribution pipeline systems, and replacements for older pipe, are comprised of plastic pipe. More than half of the pipelines in U.S. gas distribution systems are non-metallic. C. Safety of Distribution Pipeline Systems By operation of the Federal Pipeline Safety Laws, 49 U.S.C. 60102, the Federal government has assumed ultimate responsibility for the safety oversight of distribution pipeline operators. PHMSA's regulations in 49 CFR Part 192 establish a minimum set of safety requirements that all States must implement, although States may impose more stringent requirements on intrastate systems. PHMSA also collects data concerning distribution system mileage, incidents that occur on distribution systems, their leak repair experience and other information about the size, age and material(s) of construction of their distribution piping. PHMSA considered this information, its historical trends, and projected patterns in proposing IM regulations for distribution pipelines. Incidents on distribution pipelines kill and injure more people than incidents on gas transmission pipelines. As noted above, nearly two million miles of distribution pipelines are in operation in the U.S., compared with approximately 300,000 miles of gas transmission pipelines. In addition, distribution pipelines are almost all located in populated areas. Large portions of gas transmission pipelines traverse rural areas where there are few people. Largely because of these differences, incidents on distribution pipelines in 2006 resulted in five times as many fatalities (16 vs. 3) and six times as many serious injuries (25 vs. 4) as those on gas transmission pipelines, even though the total number of incidents on each type of pipeline was about the same (141 vs. 134). Because of the much larger number of miles of distribution pipeline, the normalized rate of fatalities and injuries (i.e., the number per 100,000 miles) is similar for the two types of lines, with a slightly lower rate for distribution lines. As described further below, the trend in gas distribution incidents involving fatalities and serious injuries (those requiring hospitalization) was downward from 1990-2002. In the years since, however, the number has again started to increase. D. Distribution Pipeline Safety Regulation Pursuant to Federal law, most oversight of gas distribution pipeline systems is performed directly by States. Under 49 U.S.C. 60105 and 60106, a State may exercise jurisdiction over intrastate gas distribution operations within the State if its pipeline safety program is certified by PHMSA or if it enters into an agency agreement with DOT. Under these provisions, 48 States (excluding only Alaska and Hawaii) and the District of Columbia currently exercise safety jurisdiction over some or all gas distribution operations within their boundaries. States must implement the minimum standards established by PHMSA but have a variety of ways in which they can oversee distribution pipeline safety. They can simply mirror the Federal pipeline safety program; they can impose additional requirements, beyond the Federal minimum; they can engage in special oversight programs with individual operators or groups of operators; or finally, they can provide incentives for safety improvements, often through their rate-setting authority. It is appropriate that the principal actions for regulating distribution pipeline safety rest with the States. States need to balance safety and affordability. They need to ensure that the particular needs of their citizenry are fulfilled. They also need to ensure that the applied safety standards are appropriate for the unique environment in which gas distribution occurs. Distribution pipeline systems are limited in geographic scope, although some systems serve many thousands of customers. The environment in which they operate significantly affects the safety issues that they face. Factors such as weather (dry/wet, hot/subject to freezing), soil conditions (corrosivity), and the local economy (significant construction and excavation activity) can significantly shape the threats affecting individual distribution operators and the actions necessary to address those threats. Proximity to gas-producing regions also can be important, as natural gas that is distributed near production areas may be subject to less processing and may contain more contaminants, with greater potential to affect system integrity, than gas that is processed for long-distance transportation. States must have flexibility to deal with their local circumstances. It would be both ineffective and inefficient, for example, to impose frost heave damage requirements in the desert southwest. States address these differences by imposing some requirements that exceed those in the Federal safety code. The National Association of Pipeline Safety Representatives (NAPSR) 2 surveyed its members to determine the extent to which they impose requirements or programs that exceed the Federal minimum. 3 The survey, addressed to each State pipeline safety program manager, asked whether the State imposes additional requirements or has infrastructure safety improvement programs implemented that exceed the federal minimum requirements. NAPSR asked its members to provide a brief description of any positive responses. 2 NAPSR's members are the managers of the pipeline safety regulatory staff from each state (and the District of Columbia) that is certified by, or a designated agent of, DOT for regulatory oversight. 3 NAPSR conducted the survey in 2004-2005. Forty-eight State agencies and the District of Columbia responded to the NAPSR survey. All but six reported some requirements or programs exceeding the Federal minimum standards. The results were as follows: • 20 States have additional reporting requirements; • 11 States provide enhanced oversight and observation of work/testing on the pipelines; • 11 States have additional damage prevention requirements; • 13 States require additional leak testing; • 11 States impose leak response requirements (including eight of the 13 that require additional leak testing); • Eight States impose either additional odorant requirements or more frequent testing; • Six States impose additional design and installation requirements; • Six States impose additional training and qualification of operator personnel requirements. • Six States impose additional requirements related to cathodic protection systems used to protect steel pipe from corrosion; • Six States require their State regulators to approve operators' operating and maintenance plans; • Five States impose operating pressure requirements; • Five States impose additional customer meter requirements; • Three States require that operators cap off abandoned service lines after specified periods; • Four States extend operator responsibility for maintenance of service/customer lines; • Four States encourage safety enhancement through rate cases, and approve the operation of distribution pipeline systems by specific companies; • One State requires its operators to conduct an annual evaluation of all cast iron and unprotected steel pipe in their distribution systems; and • One State requires its operators to remediate any evidence found of corrosion within 90 days. The most significant area in which States reported actions beyond Federal standards was replacement of aging and inferior infrastructure. Thirty-three States, or two-thirds of those responding, reported they have some kind of program for replacing infrastructure, including cast-iron pipe, uncoated steel pipe, copper pipe, and some types of plastic pipe. These programs varied in scope and schedule, often reflecting the relative amount of targeted infrastructure present in each State. NAPSR collected the following data on pipe replacement programs: • Twelve States reported their programs involved all (or nearly all) operators; • Sixteen States reported their programs involved one or a limited number of operators, often in response to past accidents or rate cases; • Four States provided no information from which to estimate the scope of their programs; • Eight States reported that their programs are complete ( *i.e.* , all targeted infrastructure has been replaced) or will be completed by 2010; • Eight States reported that their programs will be complete by about 2020; • Four States reported that their programs would not be complete until after 2020; and • Twelve States did not report an expected completion date. These results indicate States can and do exercise authority beyond minimum Federal requirements. Additional requirements are focused in scope, and vary from State to State, based on local needs and issues. Programs to replace older, inferior infrastructure are the most widespread practice beyond Federal requirements. Such programs are in progress in two-thirds of the States, although some of these programs are of limited scope (i.e., affecting a single operator). Still, despite these State efforts, serious incidents continue to occur on distribution pipeline systems. As discussed above, the number of serious incidents per mile is similar to that for gas transmission pipelines, but there are many more miles of distribution pipelines. As a result, serious incidents on gas distribution pipelines kill or injure more people annually than do incidents on gas transmission pipelines. Even if the number of serious incidents on transmission pipelines is significantly reduced, major improvement in overall safety will not be achieved unless the number of incidents on distribution pipelines is also reduced. PHMSA's approach to achieving improvement for gas transmission pipelines was to require that each operator analyze its own pipeline's risks, through an integrity management program, and address them as necessary. PHMSA concludes that the same approach is appropriate for distribution pipelines. Although the additional State requirements provide protection beyond the minimum Federal standards to help assure the integrity of distribution pipeline systems, the requirements vary by State. No State requires a comprehensive systematic evaluation and management of the risks associated with operating gas distribution pipelines similar to PHMSA's existing IM requirements or to the requirements we are proposing in this Notice. Nevertheless, some State imposed requirements likely encompass individual actions operators would be required to take under an IM program, offsetting the costs for those operators to comply with this rule. The National Association of Regulatory Utility Commissioners (NARUC) has also considered the need for additional safety regulation. NARUC members represent Public Service/Safety Commissions under whose auspices States usually conduct pipeline safety regulatory programs. As such, NARUC represents executive management of State pipeline safety programs. In February 2005, the NARUC Board of Directors adopted a resolution encouraging development of an approach to distribution IM using risk-based, technically-sound, and cost-effective performance-based measures. NARUC recommended an approach based on the notion that operators are knowledgeable about their infrastructure and can identify and respond to threats against their systems in order to reduce the risk of system failures while balancing the need to ensure continued safe, reliable service at a minimal financial cost. NARUC based its resolution on the long-standing commitment of industry and government to operate the United States' gas pipeline system reliably and safely. They acknowledged recent examinations by regulators, legislators, and gas distribution pipeline operators to determine the most effective approach to maintaining and enhancing distribution system integrity and safety. NARUC commented that States must take into account varying circumstances including: geography, energy customer base, local economy, system age and construction materials, size of distribution operations and consumption patterns of gas customers (ranging from large-volume manufacturers to mid-size businesses to single-family residences), as well as a State's overall executive policies and goals. NARUC noted that due to significant structural, geographical, and functional differences among gas transmission and distribution companies, it would be infeasible to apply many transmission integrity requirements to distribution systems. NARUC further noted any adjustment to an operator's distribution IM program should be responsive to the operator's safety performance, existing regulations, and current practices affecting such performance. E. Applicability of Integrity Management Plans
(IMP)to Distribution Pipeline Systems The basic premise of the integrity management programs for gas transmission and hazardous liquid pipelines—that safety is improved by identifying risks and taking actions to address them—is applicable to distribution pipeline systems. However, because of the differences between distribution pipeline systems and pipeline systems covered by current IM regulations, the physical inspections (e.g. In-Line Inspection tools and Direct Assessment methods) of pipeline segments required by the current IM regulations cannot be required on distribution pipelines. Because the same IM regulations will not work, a different type of integrity management approach is necessary. Distribution Systems Are Located in Highly Populated Areas The first element of existing IM program requirements for transmission pipelines is to identify so-called “high consequence areas”—those segments of the pipeline where an incident/break could produce serious harm to people or the environment. This is important for hazardous liquid and gas transmission pipelines because both traverse large distances, including areas that are sparsely populated or where risk of serious environmental damage would be small. Identifying high consequence areas improves the effectiveness of integrity management requirements by focusing inspection and assessment efforts on the pipe where significant consequences could occur. As described above, gas distribution pipeline systems are different. Unlike transmission pipelines, they do not traverse long distances and generally do not include significant areas of limited population. They operate almost entirely in populated areas, because their purpose is to provide gas service to the residences and businesses of those populations. Thus, by contrast to a transmission pipeline, identifying areas where the gas distribution pipeline is near concentrations of people would not tend to identify a limited portion of the pipeline on which integrity management attention should be focused. Some other means of prioritizing operator attention, based on risk, is needed for distribution pipelines. Challenges of Assessment or Testing As described above, distribution pipeline systems consist of a complex network of mains and services. They include considerable lengths of pipeline of very small diameter and many non-metallic materials. They also include extensive branching, with a typical city main being connected to a new service roughly every one hundred feet. These differences make it impossible to use many of the techniques required by the existing IMP regulations to assess the physical condition of the pipeline. One technique (in-line inspection) involves passing through the inside of a pipeline inspection tools that use magnetic detection techniques to identify areas where the wall of a steel pipe has been thinned by corrosion or damage. Another (direct assessment) involves using indirect inspection tools to identify areas where the electrical current imposed on steel pipes to prevent corrosion is interrupted or is experiencing interference. Distribution pipelines are too small and have too many connections to allow in-line inspection tools to pass through the lines, and approximately half of the distribution pipeline system is non-metallic (e.g., plastic), meaning that neither the internal tools nor the indirect inspections used for direct assessment can be used. Pressure testing (isolating a pipe and filling it with water or air at high pressure to see if it leaks) can be used, but would require that service be cut off to all customers served by the portion of the system being tested. A continuing program of such testing would essentially constitute the natural gas equivalent of “rolling blackouts” and would be unacceptable to the American public. Distribution pipelines can be inspected by digging to expose the pipeline, and operators are required to do such inspections when pipe must be excavated for other reasons. Digging up all distribution pipelines on a periodic basis, however, is clearly impractical. For these reasons, the inspection requirements of current IMP regulations cannot be used for distribution pipelines. Some other approach is needed. As described below, PHMSA worked with stakeholder groups and held two public meetings to help determine how best to apply IMP principles in the gas distribution pipeline environment. 4 These public meetings are discussed further below. 4 The public meetings concerning integrity management requirements were held on December 16, 2004 and September 21, 2005. A third meeting, on June 17, 2005, focused exclusively on appropriate requirements for excess flow valves. Summaries of all meetings are in the docket. II. American Gas Foundation Study The gas distribution industry recognized the need to consider its safety record and to determine if additional actions are needed. In late 2003, the American Gas Foundation
(AGF)launched a study of the safety performance and integrity of gas distribution pipeline systems. Currently, operators must report an incident to PHMSA if it meets the reporting criteria in 49 CFR Part 191. The AGF study examined the record of incidents reported to PHMSA on gas distribution pipeline systems from 1990 through 2002 (the latest year for which data were complete at the time the study began) and compared that record to incidents reported for transmission pipelines over the same period. The AGF study analyzed trends in reported incidents and focused specifically on incidents involving deaths or injuries requiring hospitalization (called “serious incidents” in the study). A joint team, the Distribution Infrastructure Government-Industry Team (DIGIT), was established to oversee the AGF study. This team consisted of representatives of the AGF, the American Public Gas Association, and State pipeline safety regulators. PHMSA took part in DIGIT as an observer. The AGF published its findings in January 2005. 5 The AGF study found a downward trend in serious incidents over the 13-year period analyzed at a 95 percent statistical confidence level. (No statistically significant trend was found when considering all reported incidents.) The number of serious incidents per 100,000 miles of distribution pipeline was essentially the same as that for gas transmission pipelines over the analyzed period. There are many more miles of distribution pipelines, however. Historically, distribution pipeline incidents result in more deaths and injuries than incidents on gas transmission or hazardous liquid pipelines, largely because distribution lines are located in populated areas and constitute a much larger share of the mileage of working pipelines. 5 American Gas Foundation, “Safety Performance and Integrity of the Natural Gas Distribution Infrastructure,” January 2005, available at *http://www.aga.org/Template.cfm/Section=Non-AGA_Studies_Forecasts_Stats&template.* AGF found the primary cause of serious incidents was outside force damage, principally third-party excavation. Outside force damage represented 47 percent of serious incidents over the analyzed period. Corrosion caused 6.5 percent of serious incidents, and all other causes contributed less than 10 percent each. AGF also examined practices gas distribution operators use to address threats to their systems, both those required by regulation and those performed voluntarily. The study found no obvious gaps and that industry practices exist to address known threats. Further, the study concluded (as for hazardous liquid pipelines and gas transmission pipelines) serious incidents continue to occur (albeit rarely) despite compliance with existing regulations. III Recommendations or Mandates of Oversight Bodies A. DOT Inspector General In a report published June 14, 2004, 6 the DOT's Inspector General
(IG)found that recent accident trends for gas distribution pipelines are not favorable. The IG noted that nearly all of the natural gas distribution pipelines are located in highly-populated areas, such as business districts and residential communities, where a rupture could have the most significant consequences. As a result, the audit pointed out for the 10-year period from 1994 through 2003, accidents on natural gas distribution pipelines have resulted in more fatalities and injuries than accidents on hazardous liquid and natural gas transmission lines combined. 6 Audit report SC-2004-064, issued June 14, 2004. The IG also recognized that applying risk management principles to distribution pipelines could help reverse these trends. In testimony before Congress in July 2004, 7 the IG recommended that PHMSA should define an approach for requiring operators of distribution pipeline systems to implement some form of integrity management or enhanced safety program with elements similar to those required in hazardous liquid and gas transmission pipeline integrity management programs. 7 *Id.* B. National Transportation Safety Board The National Transportation Safety Board
(NTSB)investigates serious pipeline accidents, including those that occur on gas distribution pipeline systems. Over the years, the NTSB has made several recommendations to improve safety regulation of gas distribution pipelines. In particular, the NTSB has recommended the use of excess flow valves
(EFVs)in all new construction and replaced service pipelines. EFVs have received significant attention as a mitigation option for gas distribution systems. Current Federal regulations require that operators notify service line customers for new and replaced service lines of the availability and potential safety benefits of installing EFVs. 8 In lieu of this notification, operators may elect to install the valves voluntarily when certain conditions apply. The valves are generally applicable for new installations or complete service piping replacement for single-family residential homes, where the operating pressure is greater than 10 pounds per square inch (psi). Operators must install the valve if the customer agrees to pay for the cost of such installation. Discussions with operators indicate that approximately 30% of distribution system operators are installing the valves as a routine part of new and replaced service installations in situations in which they apply. Many of these are larger distribution operators, so the percentage of new and replaced service line installations voluntarily including EFVs is higher. 8 49 CFR 192.383. PHMSA conducted additional studies on the effectiveness of the valves and on the experience that has been gained as a result of their use. NAPSR assisted in these studies. PHMSA concluded that EFVs, if specified and installed correctly, operate reliably to cut off the supply of gas in the event of major damage to the downstream service line (e.g., excavation damage). While performance problems had occurred with early installation of EFVs, the data also show that the valves seldom now suffer false activations, cutting off the supply of gas when no damage has occurred. EFVs installed in new construction or replaced service lines would mitigate an incident occurring on service lines in which the line was severed. The valves are designed to operate in the event of line ruptures that result in major flow of gas. At the same time, they are an inexpensive option for mitigating such incidents. The valves themselves cost less than $20 and the cost to install them, when a service line is being installed or replaced is nominal. They will not operate in the event of small leaks. They will not operate in the event of leaks or problems within a customer's residence or business, downstream of their pressure regulator, including situations in which a fire in a residence results in a breach of a gas appliance line in the residence. PHMSA asked Allegro Energy Consulting to review incident report records to estimate how many incidents might have been mitigated by the presence of an excess flow valve had one been installed at construction or during repair. Allegro reviewed 634 incident reports submitted between 1999 and 2003. They screened out those that did not involve service lines, that were obviously slow leaks, or which otherwise did not appear to meet the criteria as incidents for which an excess flow valve would be beneficial. As a result, Allegro identified 101 incidents in which the presence of an EFV might have mitigated consequences over this five-year period. To be clear, this is an estimate. The incident reports do not include some information (e.g., gas flow rate) that is necessary to ascertain definitively whether an excess flow valve would have been effective. They do not include information on whether the 25% of fatalities or injuries in which automobiles struck gas meter set assemblies at the side of homes could have been prevented by an EFV shutting off gas flow. PHMSA also conducted a public meeting concerning EFVs, which is described in Section VI below. C. Congressional Mandate Subsequent to the stakeholder groups' recommendations discussed below and the public meeting, Congress passed the Pipeline Inspection, Protection, Enforcement, and Safety Act of 2006 (PIPES Act), which the President signed into law in December 2006. The Act included a mandate that PHMSA require gas distribution operators to implement integrity management programs and to install EFVs in all new or replaced residential gas service lines where operating conditions are suitable for available valves, beginning June 1, 2008. This proposed rule includes requirements addressing this mandate, which will no longer require the customer notification requirements of § 192.383. Thus, we are proposing to repeal this requirement. IV. Stakeholder Groups A. Stakeholder Groups' Involvement In 2004, as described above, the IG recommended that PHMSA establish IM requirements for distribution pipelines, including elements similar to those in the IM regulations for hazardous liquid and gas transmission pipelines (except for those related to physical inspection (i.e., assessment, of the pipeline). The IG highlighted this recommendation in testimony before Congress in 2004, and a report of the fiscal year
(FY)2005 Conference Committee on Appropriations required DOT to report its plans to establish such regulations. PHMSA filed its report in June 2005. A copy of the report is in the docket. PHMSA's report to Congress described the work of four stakeholder groups to investigate opportunities to enhance the safety of distribution pipelines. The four multi-stakeholder groups (viz. Excavation Damage Group, Data Group, Risk Control Practices Group and Strategic Operations Group), representing State regulators, the public, and the gas distribution industry, collected and analyzed available information and issued a report of their investigations in December 2005. A copy of the report is in the docket. The groups agreed IM requirements for transmission pipelines could not be applied directly to distribution systems because gas distribution pipeline systems differ significantly from transmission pipelines in their design. The groups also found that diversity among gas distribution pipeline operators and systems was so great that prescriptive requirements suitable for all circumstances could not be established. Instead, the groups found it would be more appropriate to require all distribution pipeline operators, regardless of size, to implement an IM program, including seven key elements. These seven elements are described below under “Stakeholder Group Findings.” The groups concluded that distribution IM requirements should apply to all distribution pipeline systems, rather than just to portions of systems in high-consequence areas. Distribution pipeline systems are located in populated areas, where incidents are likely to produce serious consequences. Because distribution pipelines operate at very low pressures, failures typically appear as leaks. Experience shows gas released through leaks can migrate underground and collect in nearby buildings or other locations. These leaks can result in fires and explosions in locations not directly on the pipeline. Thus, the method used to identify high consequence areas along transmission pipelines—predicated on the likelihood that a fire or explosion would occur at the rupture location—would be irrelevant to gas distribution systems. The stakeholder groups generally concluded IM requirements for distribution pipelines should be established by a regulation that sets high-level performance objectives with implementation guidelines. This approach would allow States flexibility in implementing IM programs suited to their particular circumstances; operators flexibility in better identifying the sources of risk to their pipelines; and more focused actions aimed at addressing those risks. B. Stakeholder Groups' Findings The stakeholder groups made the following findings and conclusions about the current state of gas distribution pipeline safety and integrity: 1. Distribution pipeline safety and excavation damage prevention are intrinsically linked. Excavation damage poses, by far, the most significant threat to the safety and integrity of gas distribution pipeline systems. Therefore, excavation damage prevention presents the greatest opportunity for gas distribution system safety improvements. Any effort to improve distribution pipeline safety is flawed if it does not seriously address excavation damage prevention. 2. The dominant cause of reportable distribution pipeline incidents is “excavation damage,” while “other outside force” and “natural force” are the second and third leading causes. 3. Corrosion is the principal cause of distribution pipeline leaks removed for both mains and service lines, but it causes relatively few incidents. 4. “Excavation damage” is nearly as significant as “corrosion damage” in causing service line leaks. 5. Excavation damage and material/weld failures, respectively, are the second and third leading causes of leaks for both mains and service lines. 6. Corrosion causes approximately four percent of incidents, indicating operators are managing corrosion to prevent it from becoming one of the major contributors to reportable incidents. 7. The rate of reportable distribution incidents resulting in deaths and injuries has decreased from 1990 to 2002. (Note that the Inspector General's analysis and AGF study were conducted for different periods.) 8. No statistically significant trend could be determined for total reportable distribution incidents for the same period. 9. There is a downward trend for reportable incidents resulting in deaths or injuries caused by damage from outside force. 10. Although not statistically analyzed, the data suggest a slight downward trend in corrosion-caused leaks, and a decreasing trend in leaks caused by third-party damage. C. Stakeholder Conclusions Based on their findings, the groups concluded: 1. The most useful option for imposing distribution IM requirements would be a high-level, flexible Federal regulation, with implementation guidance. 2. Seven elements could describe the basic structure of a high-level, flexible Federal regulation addressing distribution IM. Each operator would have to do the following regarding its pipeline system: • Develop a written program describing management of the integrity of the distribution system; • Have an understanding of the system, including the conditions and factors important to assessing risks; • Identify threats applicable to the system, including potential future threats; • Assess risks and characterize the relative significance of applicable threats to the system; • Identify and put in place appropriate risk-control practices (or modify current risk-control practices) to prevent and mitigate risks from applicable threats consistent with the significance of these threats; • Develop and monitor performance measures to evaluate effectiveness of programs, periodically evaluate program effectiveness, and adjust programs as needed to assure effectiveness; and • Periodically report a select set of performance measures to jurisdictional regulatory authorities. 3. Because a distribution IM program would cover the entire distribution system, there is no need to identify high-consequence areas. 4. A distribution IM program should consider threats identified in the PHMSA Annual Distribution Report, PHMSA Form 7100.1-1, as “Cause of Leaks” in Part C: • Corrosion; • Natural Forces; • Excavation Damage; • Other Outside Force; • Material or Welds (Construction); • Equipment; • Operations; and • Other 5. Distribution IM requirements should not exclude any class or group of local distribution companies. 6. Operators may need guidance materials to comply with a high-level, risk-based, flexible federal rule. Small operators may need more precise compliance guidance. 7. Implementation of elements of distribution IM regulations should be based on information reasonably accessible to an operator and on information an operator can collect on a going-forward basis. Regulations should not require extensive research. 8. The most useful performance measures at the national level could be incidents (per mile or per service), number of excavation damages per “ticket,” 9 the status of implementing elements of the rule, the amount of pipe that is not state-of-the-art, and a redefined measure or measures related to leaks. 9 A ticket is the information the underground facility operator receives from the one-call notification center. 9. Operator-specific performance measures are unique and must match the specific risk-control practices of its distribution IM program. 10. The operator should periodically evaluate the effectiveness of its distribution IM program. Programs should specify the period for evaluating program effectiveness, which should be as frequently as needed to assure distribution system integrity. 11. Operators should review and implement Common Ground Alliance
(CGA)Best Practices, and other industry practices as appropriate, to reduce damages to their facilities. Similarly, other affected stakeholders should review and implement applicable CGA Best Practices. 12. A joint stakeholder group formed to conduct an annual review of safety performance metrics data, to resolve issues, and to produce a national performance metrics report would be of considerable value. D. Findings Relevant to Leak Management As described above, the stakeholder groups found that although corrosion is the dominant cause of leaks repaired on gas distribution pipeline systems, corrosion accounts for only four percent of gas distribution incidents. This reflects the importance and effectiveness of leak management practices operators currently use. The stakeholder groups agreed leak management is an important risk control practice and should be a part of a gas distribution IM program, along with excavation damage prevention. According to the stakeholder groups, the essential elements of an effective leak management program are as follows: • Locate the leak; • Evaluate its severity; • Act appropriately to mitigate the leak; • Keep records; and • Self-assess to determine if additional actions are necessary to keep the system safe. These elements are collectively referred to by the acronym LEAKS, representing the first letter of each element. E. Stakeholder Considerations Regarding Excess Flow Valves The stakeholder groups devoted considerable attention to excess flow valves
(EFVs)in the context of potential IM program requirements. As described above, an EFV is designed to stop the flow of gas in a service line experiencing major leakage, generally caused by excavation damage. The device prevents consequences associated with a significant escape of gas and its ignition. An EFV in a service line provides no protection for breaks downstream of the meter (in homes). Since pressure is reduced at the meter and the flow through, even a completely severed line in the home poses much less risk than if the same break were to occur on the higher-pressure service line upstream of the meter. The stakeholder groups considered the use of EFVs for IM and reached the following conclusions: 1. Information drawn from surveys of State practices and operational experience for currently installed EFVs indicated: • Over 6.3 million EFVs have been installed in the United States (i.e., protecting approximately 10% of all services). • If correctly specified and installed, EFVs work as designed. • EFVs will not work in all applications—for example, EFVs will not work in up to 60 percent of new services in Connecticut, a State favoring their use, because the service lines operate at pressures below that required for EFVs to function. 2. Regulations should not require installation of EFVs on all new and replaced service lines. EFVs are one risk-control practice operators should consider along with others. 3. Operators, as part of their distribution IM program, should consider the mitigative value of installing EFVs. In their findings, the stakeholder groups considered the NTSB's recommendation that DOT require installation of EFVs on all new and replaced gas service lines where operating pressure exceeds 10 psig. 10 This recommendation resulted from the NTSB's investigation of a 1998 accident in South Riding, Virginia, which destroyed a new home and killed one of its occupants. 11 The NTSB concluded the accident was caused by gas escaping from a hole in the gas service line and the flow through that hole was of sufficient magnitude that an EFV would have prevented the accident. 10 NTSB, “Natural Gas Explosion and Fire at South Riding Virginia, July 7, 1998,” Pipeline Accident Report PAR-01/01, June 12, 2001. 11 Ibid. Comments From Fire Service Organizations The stakeholders also considered comments from representatives of the fire service organizations. The International Association of Fire Chiefs and the International Association of Fire Fighters wrote to the Secretary of Transportation in early 2004 urging DOT to require installation of EFVs. The organizations commented that fire fighters are often first to respond to incidents involving fires fueled by escaping gas and their lives were at risk in doing so. The same organizations, along with the National Volunteer Fire Council and the Congressional Fire Services Institute, wrote to PHMSA again in 2005 after reviewing draft reports of the Risk Control Practices stakeholder group. The fire service organizations reiterated their recommendation about mandatory EFV installation and disagreed with the group's conclusion that EFVs should be treated under distribution IM requirements as one of the available mitigation options. (Note that the conclusions of the stakeholder groups are reported here for completeness, but that many have been rendered moot by the statutory mandate, enacted after the stakeholder group deliberations, that installation of EFVs be made mandatory) Surveys In conjunction with stakeholder group findings, PHMSA considered the results of several surveys evaluating the prevalence and efficacy of EFVs in gas distribution systems. One survey, conducted by the National Regulatory Research Institute (NRRI), a university-based research arm of the National Association of Regulatory Utility Commissioners (NARUC), surveyed State regulatory commissioners, partly in response to PHMSA's interest in the subject. A second survey conducted by the National Association of Pipeline Safety Representatives (NAPSR) 12 obtained results from pipeline safety program managers in all States (and the District of Columbia) with regulatory jurisdiction over distribution pipeline safety. A third survey, sponsored by PHMSA and conducted by Oak Ridge National Laboratory, examined in more detail the experience of nine gas distribution operators, some of whom install EFVs voluntarily and others who install in conformance with the requirements of 49 CFR 192.383. Results of all three surveys are available in the docket for this rulemaking. 12 NAPSR is an organization consisting of the state pipeline safety program manager from each state that exercises jurisdiction over pipeline safety. The surveys indicate EFVs, if correctly sized and installed, operate reliably. Instances of false closure, where gas flow stops even though the service line is undamaged, rarely occur. Likewise, the valves function reliably when service lines are damaged. In fact, one potential problem with EFVs —the increased risk that excavation-related damage will go unreported—is directly related to their effectiveness in stopping the flow of gas from a severed gas line. In some cases, particularly where directional boring 13 is used, excavators may not even 0be aware they have damaged a gas service line. When an excavator damages a service line not protected by an EFV, gas is released and the excavator must stop work and notify the gas distributor to protect the safety of its own personnel and the house at which they are working. If an EFV is installed, the EFV functions to stop the flow of gas, and an irresponsible excavator can finish its work, re-fill the hole, and leave the site. Only later, when the residents discover they have no gas service, is the damage reported. The gas distribution operator must then re-excavate to locate and repair the damage, increasing the expense of the repair. Although anecdotal evidence shows excavators do not always notify operators of damage to service lines, PHMSA does not have the data to determine if this is a prevalent problem. 13 Underground utilities are usually installed by digging a trench, laying the pipe or cable in the trench and refilling it. In such installations, damage to other utilities would be obvious. Directional boring is a technique used when trenching is impractical, often when utilities must be installed below paved surfaces. When directional boring is used, a service line could be damaged or severed. If an installed EFV operates properly to shut off the flow of gas, the installer may not even be aware that a gas service line has been damaged. V. Public Meetings A. Public Meetings Concerning Distribution Integrity Management PHMSA conducted two public meetings to collect and evaluate public comments on the potential for adding IMP requirements for distribution pipelines. During the first meeting, held December 16, 2004, presentations were made concerning the then-draft AGF study discussed above and the DOT IG's recommendation. Comments made at this meeting resulted in the stakeholder group investigations, which are discussed in section VI. The second public meeting, held on September 21, 2005, included presentations describing the stakeholder group investigations, which were then in progress. Participants included representatives of industry, State regulators, PHMSA, and the public, including persons involved in the stakeholder investigations. Key points made by meeting participants included the following: • There must be a balance among improved safety, reliability, and costs. For municipal operators, cost trade-off involves potential effects on other community services, including public safety. • The primary cause of incidents on distribution systems is outside force damage, and any action must address this threat. Operators have limited ability to prevent excavation damage, and excavators are not typically under the jurisdiction of pipeline safety authorities. Comprehensive damage prevention programs can reduce incidence of excavation damage. • Leak management is an important element in assuring the integrity of gas distribution pipelines. • The majority of companies affected by any new distribution IM requirements are small companies, and the needs of those operators differ from larger companies. Smaller companies will likely require more detailed guidance for implementing new rules. Summaries of both public meetings are in the docket. B. EFV Public Meeting On June 17, 2005, PHMSA conducted a public meeting to discuss EFV performance, notification, and installation issues. The meeting included panel discussions involving members of industry, State governments, fire service organizations, the National Association of Fire Protection, advocacy groups, the NTSB, and researchers who analyzed EFV performance. Industry participants included representatives of companies voluntarily installing EFVs and those installing only when a customer requested. These company representatives said they analyzed the costs and benefits of installing EFVs under local conditions in deciding whether to install EFVs. Factors in these analyses include the size and growth rate of company service areas, costs of maintaining records related to notifications, experience with load growth after initial installation (which can result in a need to replace EFVs), and the relative effectiveness of alternative actions to reduce the threat of excavation damage. Operators also noted they have experienced instances in which excavators damaged a line equipped with an EFV, but the damage was not reported to the operator, increasing operator costs to repair the damage. PHMSA and Allegro Energy described PHMSA-sponsored research on EFV performance (discussed above). The research examined incidents reported on gas distribution systems over a five-year period (634 events)—the Allegro Energy analysis described above. The PHMSA study examined these narratives and concluded EFVs could have been a factor in mitigating 101 (approximately 16 percent) of the analyzed incidents. The NTSB reported that serious accidents on gas distribution systems prompted its recommendation that PHMSA require EFV installation. Recognizing that States conduct most regulatory oversight of distribution operators, the NTSB contacted all State governors in 1996, recommending they establish requirements for mandatory installation,. The responses to those recommendations—indicating States look to PHMSA for safety standards—reinforced the NTSB's support for a Federal requirement. Representatives of State pipeline safety authorities, utility commissioners, and regulatory program managers described the factors considered by States in evaluating EFVs. They said local conditions could affect decisions on whether to use the valves. Initial installation costs are small, but life-cycle costs must be considered. They reported that EFVs provide protection from a limited scope of incidents involving significant damage to, or severance of, a service line. Many operators reported their belief that their resources are better spent attempting to reduce the frequency of those events rather than on installing EFVs. While all agree damage reduction activities can improve safety for existing gas services, they believe retrofit installation of EFVs, where the service line is not being replaced for other reasons, is impractical. Public safety advocates expressed significant concern with the manner in which operators are implementing the notification requirements in 49 CFR § 192.383. Often the “customer” notified about the availability of EFVs for newly installed services is a builder/developer rather than the resident of a home. Experience indicates few builders/developers elect to have EFVs installed. When homes are then occupied shortly after the gas service is installed, the customer neither enjoys the protection of an EFV nor has the opportunity to decide to pay for the added protection. Comments From Fire Service Representatives Fire fighters participated in the stakeholder groups and public meetings. Because the consequences of accidents on gas distribution pipelines generally result from fires fed by escaping gas, fire fighters have a significant interest in reducing the frequency and consequences of such events. As described above, the International Association of Fire Chiefs, the International Association of Fire Fighters, the National Volunteer Fire Council, and the Congressional Fire Services Institute support a requirement to install EFVs in all new and replaced service lines where installation is suitable. Additionally, these organizations support IM programs for gas distribution operators to identify and evaluate specific risks associated with their systems and to implement measures to minimize those risks. The organizations agreed most operators will need guidance to implement these requirements and small operators are likely to need guidance that is more precise. These organizations also believe it is vital for operators to implement strategies to reduce the frequency of outside force damage. The comments of these organizations are in the report of the stakeholder group investigations and are in the docket. Representatives of the National Association of State Fire Marshals (NASFM) and the National Fire Protection Association
(NFPA)participated in stakeholder groups. State Fire Marshals are responsible for overseeing compliance with State fire codes and related building standards, training fire fighters, and other duties based on State agency assignments. NFPA is a professional association responsible for developing American National Standards Institute approved consensus standards related to fire safety. NASFM also supports mandatory installation of EFVs. In comments made at the June 2005 public meeting on EFVs and the September 2005 public meeting on distribution IM, NASFM also supported a comprehensive approach to IM. This approach would address all threats, prioritize them for action, and deal with them based on importance. NFPA also supports IM requirements for gas distribution pipelines and agrees new requirements for distribution systems will primarily affect smaller operators who will need detailed guidance to implement them. NFPA acknowledges EFVs will reliably stop gas flow if the flow exceeds their trip point, but cautions that the valves are not a panacea because damage to a service line may not always result in sufficient flow to trip an EFV. A complete summary of this meeting is available in the docket. VI. Guidance for IM As described above, the stakeholder groups concluded operators would need guidance to implement a regulation requiring operators to meet high-level performance objectives to improve IM. The diversity among distribution systems and the size/capabilities of distribution operators make it impractical to require specific, detailed actions in the regulation. In particular, the stakeholder groups described above reported to PHMSA that operators need guidance to describe the following: 1. Information they should gather through routine activities to improve their understanding of the distribution system infrastructure. 2. How best to assemble detailed information on pipe characteristics (including material, manufacturer, batch, etc.) to strengthen their understanding of the system and to support current and future risk-management activities. 3. Threat evaluation processes and data needed to support this evaluation. 4. Options for evaluating the relative importance of threats. 5. How to perform risk analysis, encompassing situations from small, simple distribution systems to large and complicated ones, and how to use the results of these analyses. 6. Decision processes and criteria for choosing among prevention, detection, and mitigation measures. 7. Options for measuring safety program effectiveness and determining the situations under which different measures would be meaningful. 8. How to evaluate the overall effectiveness of the program such as how to determine if the program is being implemented as described and how to determine if the program is producing improvements. 9. How to structure a comprehensive leak management program, which is fundamental to successful management of distribution risk. At a minimum, operators need guidance to implement the LEAKS program or the following: —Determine how local conditions and system knowledge should affect the frequency and type of leak surveys. —Identify methods/criteria for evaluating the severity of leaks and need for action. —Describe records an operator should maintain to permit trending and identification of underlying problems. —Identify performance metrics and the types of analyses in which the operator should consider them. On March 2, 2006, PHMSA asked the Gas Piping Technology Committee (GPTC), a standards-developing body, to prepare guidance. GPTC is accredited by the American National Standards Institute (ANSI), the governing body for consensus standards development in the U.S. GPTC has historically prepared guidance to assist operators in implementing various parts of natural gas pipeline safety regulations in 49 CFR Part 192. GPTC agreed and formed a Distribution Integrity Guidance Task Force to develop guidance. The GPTC guidance will provide suggestions for operators concerning options they could use to implement the high-level requirements in a final rule. The GPTC will describe the scope and content of the guidance at a public meeting during the comment period. The GPTC guidance is designed to assist operators in developing their distribution integrity management programs. PHMSA expects the guidance will provide options that operators can use to implement the DIMP requirements and that inspectors, primarily from State pipeline safety agencies, also will use the guidance as examples of actions an operator could take to comply with the rule. It will be up to each operator to develop its plan implementing the DIMP requirements. The GPTC guidance is only intended to assist operators; operators may use other approaches. Whatever approach and guidance an operator uses to develop its plan, it will be up to the operator to demonstrate how its approach satisfies the DIMP requirements. When inspectors identify deficiencies in operator plans and procedures intended to satisfy the requirements, they will use existing enforcement tools, based on non-compliance with the rule (not with the guidance) to cause operators to comply. PHMSA is not proposing to incorporate by reference the GPTC guidance. PHMSA understands the GPTC guidance will be published for public comment, as part of the ANSI approval process, after this NPRM is published. PHMSA also is supporting work by the American Public Gas Association
(APGA)Security and Integrity Foundation
(SIF)to develop more specific guidance for use by the smallest operators. These are usually municipalities that have limited resources to develop IM programs. SIF is a non-profit 501(c)(3) corporation, which was established by the APGA in 2004. The SIF is dedicated to promoting the security and operational integrity and safety of small natural gas distribution and utilization facilities. The SIF will focus its resources on enhancing the abilities of gas utility operators to prevent, mitigate and repair damage to the nation's small gas distribution infrastructure. In this work, SIF is using the GPTC guidance to develop a computer program that will assist small operators in developing their IM programs. PHMSA and NAPSR have formed a joint workgroup to develop a framework for oversight of the Federal requirements for the distribution integrity management program. This joint workgroup is charged with developing an oversight program that provides consistency in the States' oversight of operator plans. The guidance developed by GPTC will be key to this process. States have the responsibility for designing and implementing their oversight programs, but PHMSA needs certain information from these programs to evaluate the effectiveness of the new Federal requirements, report results to Congress and organizations that oversee us, and determine if future changes are needed. PHMSA's goal in this workgroup is to provide regular reporting on progress and results of inspections of distribution operators' compliance with the final DIMP rule. VII. Applicability to Small and Simple Distribution Systems; Request for Comments A. Master Meter and Liquefied Petroleum Gas
(LPG)Operators We believe IM regulations for master meter and LPG operators should be limited because these systems are simple and seem to pose relatively little risk. By contrast to other local distribution systems, master meter system operators receive gas at a single meter (the master meter) and operate small pipeline systems to deliver the gas from the meter to a small number of users. A typical example of a master meter operator is a trailer park where the trailer park owner/operator receives gas from a local distribution company and distributes it, via underground piping, to individual trailer pads. Master meter pipeline systems tend to cover limited geographical areas. They are simple systems, often including only one type of pipe, operating at a single pressure, and having no equipment other than pipe, meters, service pressure regulators, and valves. Master meter operators are subject to the requirements of Parts 191 and 192, but some requirements are modified to better suit these simpler systems. For example, master meter operators must have damage prevention plans under § 192.614, but their plans do not have to be written. Similarly, these operators must provide notification of incidents by telephone (§ 191.5) but do not have to submit written incident reports (§ 191.9) or annual reports (§ 191.11). These modifications recognize these systems are generally simple and represent less risk. LPG systems are small systems, mostly in rural areas, that use liquefied petroleum gas to serve a number of customers, usually in areas not served by natural gas transmission lines. Like master meter pipeline systems, LPG systems are simple and tend to cover limited geographical areas. Further, we estimate each master meter and LPG system operator has, on average, 100 services at low pressure. Very small operators with less than ten services and no portion of their systems in public areas will not be subject to the requirements of this proposed rule because these small operators are generally exempt from Part 192. 14 14 Section 192.1(b)(6) states the requirements of Part 192 do not apply to operators of ``any pipeline system that transports only petroleum gas or petroleum gas/air mixtures to—(i) Fewer than 10 customers, if no portion of the system is located in a public place.'' PHMSA's review of reported incidents shows few incidents occur in master meter and LPG systems. Because of the relative simplicity of these pipeline systems, a risk analysis would provide much less useful information than an analysis of a more complicated distribution system. Master meter operators often exercise more positive control over excavations near their pipelines, thereby providing enhanced protection from third-party damage, the leading cause of distribution system incidents. Based on this analysis and the distinctions that already exist in the regulations, the proposed rule would limit the scope of the IM requirements for master meter operators and LPG operators. Under the proposal, these operators would not have to perform risk analyses as part of their IM program because the relative simplicity of their systems makes the effort to perform the analysis more burdensome than beneficial. Additionally, these operators will not have to report performance measures, although they will need to maintain internal records of performance for inspection purposes. PHMSA invites public comment on the following: • Whether these IM limitations are appropriate for master meter and LPG system operators; • Whether we should further limit the IM requirements for these operators; or • Whether we should exempt these operators from IM requirements. B. Very Small Distribution Systems PHMSA notes there may be some local distribution systems of limited area and simple design for which similar limited IM requirements may be appropriate. There is currently no regulatory precedent for differentiating among local distribution systems to identify a class of operators to exempt from certain requirements. PHMSA would consider limiting IM requirements for other operators of small, simple systems if we can establish reasonable criteria to identify operators for which such limitations are appropriate. PHMSA does not consider the number of customers an appropriate selection criterion. Size, as measured by number of customers, is not directly correlated to risk. For example, a system serving several thousand customers that was installed over a brief period (e.g., after a transmission line was installed nearby providing a source of gas) could be quite uniform in design and materials. On the other hand, a system serving a few hundred customers that has been installed piecemeal over many years could have multiple types of material, including older materials subjected to age-related degradation, etc. In this example, the larger system would be expected to pose considerably less risk than the smaller. Rather than the system's size, PHMSA considers that appropriate criteria would identify systems with characteristics similar to those of master meter systems and representative of low risk. PHMSA proposes the following basis for making this distinction: 1. The system operates at a single pressure; 2. The system may include valves, meters, and service pressure regulators, but no other equipment; 3. The physical environment (i.e., potential for corrosion) is similar throughout the entire system; 4. Most of the system was installed at one time, consisting of one material. Additions may have been made later of another material, but those additions are limited and their location is known; and 5. The system location allows the operator to exercise control over most third-party excavation. PHMSA invites comment on whether limited IM requirements should also apply to operators of simple distribution pipeline systems and on whether the above criteria would be appropriate for identifying systems to which to apply this limitation. VIII. Plastic Pipe Issues A. Plastic Pipeline Database and Availability of Failure Information A significant amount of gas distribution pipeline is made of plastic. Very little plastic pipe is used in other pipeline systems. The Plastic Pipe Data Committee (PPDC), a voluntary group consisting of representatives of industry, the NTSB, State pipeline safety regulators and PHMSA, and administered by the American Gas Association (AGA), monitors in-service performance of plastic pipe. Participating operators send information on problems occurring with plastic pipe and related fittings in their pipeline systems. PPDC periodically analyzes this information to identify adverse performance trends and problems potentially requiring action by plastic pipe users. PPDC information has limited distribution and is generally not available to operators who do not participate in the program. Gas distribution pipeline operators whose systems include significant amounts of plastic pipe would be better able to carry out an IM program with knowledge of plastic pipe performance issues. PHMSA believes changes to the PPDC process could significantly improve operator insight into the risks associated with plastic distribution pipelines. In particular, more data of better quality and improved availability of results from PPDC data analysis could help inform operators of potential integrity issues related to their plastic pipe. Changes PHMSA would consider valuable include the following: • Changing the current system of data collection, analysis, and communication to allow all operators better access to information on ``suspect'' materials in their systems (once analysis identifies a potential generic problem); • Adding new requirements to facilitate operator use of PPDC information; and • Adding requirements for information gathering on existing installed piping and equipment when normal operation and maintenance exposes the pipe. PHMSA intends to discuss with AGA how to strengthen the PPDC process and improve availability of results and to encourage AGA to continue related discussions with PPDC members. PHMSA also invites public comment as to whether the PPDC, administered by AGA, is adequately objective to evaluate and report to the industry information concerning plastic pipe failures, or whether PHMSA should seek a new independent third party to perform this function. PPDC is an independent entity. PHMSA cannot dictate the actions that PPDC takes. PPDC may not agree to changes that would provide information to operators who do not participate, and who cannot now include in their analyses failures that occur at non-participating operators. Further, it is uncertain whether a different independent third party can be identified that would be willing and able to assume the task of analyzing failure information. Given the importance of plastic pipe integrity to distribution pipeline system safety, PHMSA has included in this proposed rule requirements for all operators to report data on failures that occur in plastic pipe/fittings. We are proposing that reports be made within 90 days of the occurrence of a failure. PHMSA will collect the data and ensure that the data are analyzed and that appropriate insights are communicated to all distribution pipeline operators for their consideration as part of their integrity management programs. PHMSA may take additional actions if analysis of reported failures indicates additional regulatory action is appropriate. PHMSA is proposing that a report be submitted within 90 days because we consider 90 days to be reasonable time for conducting detailed failure cause analysis. PHMSA invites public comment on whether some other reporting frequency is preferable and adequate to identify trends (e.g., quarterly reporting, annual reporting). The proposed requirements to collect and report data on plastic pipe failures from the final rule may not be necessary if another group agrees to perform these functions. PHMSA invites comments on the appropriateness of the proposed reporting requirements. B. Plastic Pipe Marking Having better information on pipe type and its history would improve operators' ability to manage their risk. In many cases, records are inadequate to determine exactly what type of pipe is installed in particular locations in distribution systems. It would be convenient if pipe was marked so that operators could collect this information by examining the pipe when it is excavated for other reasons. Unfortunately, plastic pipe has not historically included any permanent markings that would allow operators to determine the particular type of plastic, its age, or other key parameters. PHMSA recognizes there are many technical issues associated with pipe marking, and developing solutions requires discussion with all affected organizations. Technical issues include the label contents, durability, size, visibility, and spacing. PHMSA plans to discuss these issues further with pipeline manufacturers, operators, AGA, and State pipeline safety regulators. Thereafter, PHMSA plans to ask the American Society of Testing and Materials
(ASTM)to revise its current standard for plastic pipe marking (i.e., ASTM D2513). PHMSA could then consider incorporating the standards into federal regulations. PHMSA invites comments on the desirability of requiring permanent markings on plastic pipe, on the related technical and logistical issues, and on its proposed approach to rely on ASTM to establish appropriate standards. IX. Monitoring the Effectiveness of Actions It is important that any program intended to improve safety include measurable attributes that can demonstrate whether the program is being effective. The existing IMP requirements for hazardous liquid and gas transmission pipelines both require operators to monitor performance and to review their programs periodically to determine if there is a need to change. This proposed rule contains similar requirements for distribution pipeline system operators. Similarly, it is important for PHMSA to be able to measure whether its actions are having the desired effect—improved safety. The ultimate measure of distribution pipeline system safety is the number of deaths and injuries and the amount of property damage caused by incidents on distribution pipeline systems. Fortunately, however, incidents occur relatively infrequently. The number of deaths and injuries and the amount of damage are thus lagging indicators of performance that cannot reliably capture safety trends other than over long periods of time. Other interim measures are needed to provide information in a shorter period to evaluate the effectiveness of any new integrity management requirements implemented for distribution pipeline systems. This proposed rule requires that distribution pipeline operators submit to PHMSA annually the number of leaks repaired (by cause), the number of excavation damages and the number of “tickets” (representative of the amount of excavation activity), and the number of EFVs installed. PHMSA will use these data to evaluate the effectiveness of new distribution integrity management requirements until sufficient time has passed that trends in the overall number of incidents, deaths, serious injuries, and property damage should be apparent. PHMSA solicits comments on whether the paperwork burdens associated with the collection of this data is justified by the usefulness of this information. PHMSA also invites comment on other measures that might be used to monitor effectiveness in this interim period. X. Deviating From Required Intervals Based on Operator's DIMP The underlying purpose of all of PHMSA's integrity management requirements is to improve knowledge of the condition of each operator's pipeline and to use that information to identify new risk control solutions and to better focus risk reduction efforts. PHMSA concludes, based on our experience with hazardous liquid and gas transmission integrity management, that this process is working and is producing a more efficient and effective approach to controlling pipeline risk. PHMSA considers that implementing integrity management for distribution pipelines should offer additional opportunities to improve efficiency in assuring safety. Improving efficiency in assuring safety requires, however, that it be possible to reduce efforts that have marginal effect on controlling risk in order to shift resources to more effective actions. As part of our continuing effort to improve efficiency and to make the approach to pipeline safety more risk-based, we are proposing an approach that would allow operators and the States to have more of a role in setting compliance intervals for distribution operators within a state. Rather than continue to require distribution operators to comply with intervals set by existing federal regulation in Part 192, this approach would let an operator use its distribution integrity plan, and the risk assessment on which it is based, to propose alternative intervals for Part 192 requirements that they must now implement periodically. 15 Operators could propose extended intervals for threats and areas (e.g., portions of pipeline systems) where risk is low, making the application of these requirements more risk-based. 15 Operators are currently required to take the following periodic actions: 1. Cathodic Protection
(CP)must be tested once per year. Rectifiers and moving/active components must be inspected six times per year (192.465) 2. Operators must reevaluate pipelines without CP every 3 years and provide CP if active corrosion is found (192.465) 3. Pipe exposed to the atmosphere must be inspected for corrosion every 3 years (§ 192.481) 4. Leak surveys must be conducted annually in business districts and at least every 5 years (3 if cathodically unprotected and electrical surveys are impractical) outside of business districts (§ 192.723) 5. Pressure limiting devices must be tested at least annually (§ 192.739) 6. Each valve necessary for safe system operation must be tested annually (§ 192.747) 7. Vaults housing pressure regulating equipment must be inspected annually (§ 192.749) 8. Mains must be patrolled 4 times a year in business districts and twice per year outside business districts (§ 192.721) Operators would be required to submit their proposed intervals to the jurisdictional regulatory authority (usually the State) for review and determination that the proposal will provide an adequate level of pipeline safety. States would base their decisions on their review of the operator's risk analysis and on their own knowledge of the safety performance of, and issues affecting, each operator. While operators would likely propose only longer intervals, States could exercise their existing authority to impose requirements more restrictive than Federal minimums to require shorter intervals where necessary based on risk. PHMSA intends to work with NAPSR to develop guidance States can use in making decisions concerning changes to the intervals for periodic requirements. As an example, operators are now required to inspect pipelines potentially subject to atmospheric corrosion, including service lines entering customer gas meters, at least every three years. Many meters are located inside homes where, in many cases, no one is available during the day to provide access, and where the environment is unlikely to be particularly corrosive. Operators must arrange with residents for access, and must sometimes make multiple visits in order to complete their inspections. The industry is seeking regulatory changes based on these difficulties to reduce the frequency of required inspections of inside meters. An alternative approach might be for operators to establish that corrosion of pipelines in residences is low-risk, and to propose an alternate interval for conducting these inspections. States would have the flexibility to accept or modify operator adjustments to these inspection intervals based on their local circumstances and their understanding of operators' risk. We seek comment on the following issues: • What are the advantages and disadvantages of allowing operators and States to set intervals for each distribution operator on required activities using a risk-based approach driven by thorough analysis of individual operator performance data? • Should there be some limit on the amount by which an operator can deviate from currently-prescribed intervals (e.g., no more than twice the interval in the Federal regulation)? • How would a State establish guidance for implementing such a process? • What additional performance data and analysis would be required? • What costs to the States would be associated with such a process? • What cost savings to operators could result from such changes? • On what basis should a State judge the operators' engineering basis adequate? XI. Prevention Through People Historically, PHMSA's pipeline integrity management programs have focused on assuring the physical and structural soundness of the pipe. This is a key element to the safe transportation of hazardous materials, including transportation by pipeline. However, it is only part of the safety picture. The role of people, including control center operators, in preventing and reducing risk is another critical component in managing the integrity of pipeline systems, including distribution piping. The proposed IM program regulations include requirements for operators to understand the threats affecting the integrity of their systems and to implement appropriate actions to mitigate risks associated with these threats. These include a first step towards instituting a “Prevention through People”
(PTP)program to address human impacts on pipeline system integrity. Human impacts include both errors contributing to events and intervention to prevent or mitigate events. As part of considering the threat of inappropriate operation ( *i.e.,* inappropriate actions by people), this proposed rule would have operators evaluate the potential for human error, considering existing regulatory programs (e.g. Operator Qualification, Drug and Alcohol Testing, Damage Prevention, Public Education) , and any voluntary supplemental programs the operator now implements, in preventing and mitigating risk. An operator would be required to include in its written IM program a separate section on “Assuring Individual Performance,” in which they would identify risk management measures to evaluate and manage the contribution of human error and intervention to risk (e.g., changes to the role or expertise of people). Several existing regulations strengthen the effectiveness of the role of people in managing safety. These include Damage Prevention Program in § 192.614, Public Awareness in § 192.616, Qualification of Pipeline Personnel in subpart N under Part 192, and drug and alcohol testing in Part 199. The evaluation required by this proposed rule would consider the effects of these programs, and a PTP program would integrate these existing efforts and would address the risks associated with human factors as enumerated in Section 12 of the PIPES Act, as well as the opportunities for people to mitigate risks. PHMSA is separately developing proposed requirements for control room management, which would also become a part of the PTP program and a consideration for integrity management of distribution pipeline systems. A PTP program could include regulations and a system to identify and communicate noteworthy best practices. Because human interaction with gas distribution systems contributes to the risk these systems pose, PHMSA believes a PTP effort has strong potential to reduce distribution system risk. PHMSA invites public comment on the PTP concept and on any other requirements that should be included in this or a future IM program rulemaking. PHMSA also requests public comment on how operators are currently addressing human factors, including fatigue, in their ongoing efforts to manage the integrity of their distribution pipelines. XII. Summary Description of Proposed Rule Over the past eight years, more than 1,000 incidents on distribution pipelines have resulted in fatalities, serious injuries, or major property damage. Excavation damage and other outside forces caused most of these incidents. This proposal reduces system operating risks and the probability of failure by requiring operators to establish a documented, systematic approach to evaluating and managing risks associated with their pipeline systems. In this NPRM, PHMSA proposes to add a new subpart to the Federal pipeline safety regulations to require gas distribution pipeline operators to develop and implement IM programs covering the seven IM program elements identified by PHMSA and representatives of States, industry, and the public who participated in the stakeholder groups. The proposed rule also implements the legislative direction that PHMSA prescribe minimum standards for IM programs for distribution pipelines. As discussed above, PHMSA requested GPTC to develop more detailed guidance to assist distribution operators in implementing a new rule and States in overseeing these requirements. The proposed regulation would require operators to develop and implement written IM programs addressing the following elements: • Knowledge of infrastructure; • Identification of threats; • Evaluation and prioritization of risks; • Mitigation of risks; • Measurement and monitoring of performance; • Periodic evaluation and improvement; and • Reporting of results. The proposed rule implements the legislative direction that PHMSA require distribution pipeline operators to install an EFV in each newly-installed or replaced service line serving a single-family residence for which a suitable valve is commercially-available and where conditions are suitable. Suitable conditions include: • Operation continuously throughout the year at a pressure not less than 10 psig; • No history of liquids or contaminants in the gas flow which would interfere with operation of the valve; and • Where installation is not likely to cause a loss of service to the residence; or • Interfere with required operation and maintenance activities. Any installation will have to comply with the performance standards in § 192.381. The proposed requirement to install EFVs will make it unnecessary for operators to notify customers of EFV availability as currently required by § 192.383. Thus, this proposal would repeal the customer notification requirement. Because of the significant diversity among distribution pipeline operators and systems, the IM requirements in the proposed rule are high-level and performance-based. The proposal specifies the required program elements, but does not prescribe specific methods of implementation. Prescriptive, how-to requirements would likely not fit the circumstances of all operators. Still, PHMSA recognizes many operators will want additional detail about actions they may take to implement the performance-based regulatory requirements. This is the reason PHMSA asked GPTC to develop guidance providing examples of methods that satisfy the requirements. Also, as discussed earlier, the APGA SIF intends to use the GPTC guidance to develop model IM programs for its small municipal members. XIII. Section-by-Section Analysis *Section 192.383 Excess flow valve customer notification.* This section currently requires operators to notify customers about EFV availability for installation and install an EFV if the customer so requests and agrees to bear all associated costs. The proposed requirements in this NPRM would require operators to install EFVs in new or replaced service lines unless certain conditions preclude installation. We are repealing this existing requirement because the proposed new requirements render the notification requirements in this section unnecessary. *Section 192.1001 What do the regulations in this subpart cover?* These proposed rules will apply to all operators of gas distribution systems subject to Part 192. The proposed rules would require each operator of a distribution pipeline system to implement an IM program with prescribed minimum requirements. Under the proposal, IM requirements applicable to master meter operators and operators of liquid propane gas
(LPG)distribution systems will be much more limited than those applicable to larger operators. For example, the proposal would not require these operators to install EFVs and would not have them evaluate and prioritize risks and report results. *Section 192.1003 What definitions apply to this subpart?* PHMSA proposes to add a definition for the term “damage” as used in § 192.1005. *Section 192.1005 What must a gas distribution operator (other than a master meter or LPG operator) do to implement this subpart?* The proposed rule would require gas distribution operators, other than master meter or LPG distribution system operators ( *see* § 192.1015), to develop a formal IM program with certain prescribed elements and to implement their programs no later than 18 months after the final rule becomes effective. The IM program is to manage and reduce the risks associated with the operator's pipeline system. *Section 192.1007 What are the required IM program elements?* The proposed rule defines the minimum elements each operator's IM program must include. Master meter and LPG operators will include only some elements in their programs. For gas distribution operators other than master meter or LPG operators, the required program elements are as follows: *a. Knowledge of the system's infrastructure.* To develop an IM program, an operator must identify threats applicable to its pipeline system and analyze the risks its pipeline system poses. Operators cannot do this without understanding their pipeline systems. Generally, the operator should know information such as location, material composition, piping sizes, construction methods, date of installation, soil conditions, pressure (operating and design), operating experience, performance data, condition of the system, and any other characteristics that help identify the applicable threats and risks. An operator may not know some necessary information about its infrastructure. In some cases, distribution systems include pipe installed several decades ago, and reliable records may not exist to provide complete information. In other cases, distribution systems have grown by acquisition and merger, as multiple pipeline systems came under common ownership. Complete records may not have been transferred during these changes in ownership, again leading to gaps in the knowledge an operator has about its pipeline system. This proposed rule does not require operators to engage in extensive investigative programs to uncover information, nor does it require operators to conduct excavations for the sole purpose of revealing information about buried pipe. An operator must assemble as complete an understanding of its infrastructure as possible using information the operator has on hand from ongoing design, operations, and maintenance activities. An operator's IM program must identify what additional information the operator needs to know about its infrastructure, and must provide for gaining that additional knowledge over time through normal activities. For example, situations in which buried pipe must be exposed for maintenance or other purposes present an opportunity to collect data about the pipe and its environment at very little or no additional cost. An operator's IM program must provide for identification and use of such opportunities to improve knowledge of the distribution system infrastructure. *b. Identify threats (existing and potential)* . Operators need to evaluate their pipeline systems and the environments in which the pipelines operate to identify specific threats the pipelines face and to determine what are appropriate actions to manage the threats and minimize the risk. Threats affecting pipeline systems are generally grouped into broad categories. This proposed rule uses the same categories as does the form operators use to report incidents occurring on their distribution pipeline systems (Form PHMSA F 7100.1). Not all threat categories are applicable to all pipelines. For example, corrosion does not affect plastic pipe. Additionally, the categories often represent a grouping of similar threats, not all of which may affect a given pipeline. Although all buried metal pipe is generally considered subject to potential external corrosion, not all pipeline systems are subject to internal corrosion. Outside force may be an applicable threat, but outside force from earthquake movement may or may not be an issue. The proposed rule would require operators to identify both existing threats and potential threats. For example, outside force from landslide or earth movement may be a potential threat to a distribution pipeline system servicing an expanding community, even though currently, the pipeline system is not affected by such problems. In considering the threat of inappropriate operation, operators would be required to evaluate the effects that actions of its personnel can have on pipeline safety. *c. Evaluate and prioritize risk.* Simply knowing what threats exist is not sufficient to understand and manage risk posed to distribution pipeline systems. Operators must determine the likelihood that a system failure would be caused by any given threat. Therefore, the proposed rule would require operators to evaluate each applicable threat and estimate the risk to the pipeline. An operator may subdivide the system into regions (areas within a distribution system consisting of mains, services and other appurtenances) with similar characteristics and reasonably consistent risk, and for which similar actions would be effective in reducing risk. *d. Identify and implement measures to address risks.* Once the relative risks are known, operators can take action to mitigate those risks and thus improve safety. The specific actions appropriate for an operator to take will vary depending on the applicable threats, their prevalence, and the risks posed by a leak or failure on the operator's pipeline. The proposed rule would require operators to identify and implement appropriate risk reduction strategies. Under the proposal, operators would be required to implement at least two risk reduction strategies—an effective leak management program and an enhanced damage prevention program. Since excavation damage is the leading cause of incidents on gas distribution pipeline systems, having effective measures to minimize the likelihood of such damage would be a valuable risk reduction method. Low-pressure distribution pipelines tend to fail by leaking, except in some cases of excavation damage. Leaking gas tends to migrate and can accumulate in buildings and other confined areas where fires and explosion can result. Leaks can be identified and corrected before injury to people and property occurs. Distribution pipeline operators typically have established leak management programs. This is the reason, for example, why leaks resulting from corrosion represent 36 percent of leaks repaired on distribution mains and 25 percent on service lines, while corrosion is the cause of less than five percent of distribution pipeline incidents. 16 An effective leak management program is thus a valuable risk reduction strategy for all distribution pipeline operators. 16 Integrity Management for Gas Distribution, Report of Phase 1 Investigations, December 2005, Attachment 4, page 18. Based on data reported to PHMSA by distribution pipeline operators for 2004. Each operator would be required to develop an IM program with a separate section on “Assuring Individual Performance” to improve the safety performance of its personnel. This is a first step towards implementing an integrated approach to assuring PTP. *e. Measure performance, monitor results, and evaluate effectiveness* . The proposed rule would require each operator to measure its performance and report certain measures periodically to PHMSA and State regulatory authorities. Only by measuring results can an operator know if its risk reduction efforts are effective. As proposed, operators would have to make changes to their programs to improve effectiveness if performance measurement indicates improvement is needed. Regulators will use the reported performance measures to evaluate overall effectiveness in reducing risk from gas distribution pipeline systems. Further changes to regulations or to oversight (e.g., frequency of inspections) may be appropriate depending on the data analysis findings. *f. Periodic Evaluation and Improvement.* Operators would use measured performance to determine whether further improvements are needed and to make necessary changes in their IM programs. Operators would have to evaluate their programs periodically. Operators should determine how often these reviews are appropriate. For large, complex systems, sufficient data and experience may be available to make annual reviews meaningful. For small, simple systems, there may not be sufficient information to make an annual review meaningful. Whatever the size of the system, all operators will have to conduct a complete program evaluation at least once every five years. *g. Report results.* The proposed rule would require each operator to measure its performance and report certain measures periodically to PHMSA and State regulatory authorities. The proposal would require operators to report four of the required performance measures each March to PHMSA as part of the annual report required by § 191.11. Combining this reporting with the annual report already required will minimize the additional burden on operators to provide this information. Operators would also be required to report these four measures to the State pipeline safety authority where the gas distribution pipeline is located. Operators also would be required to retain records of the remaining listed performance measures for ten years. *Section 192.1009 What must an operator report when plastic pipeline fails?* Plastic pipe (including fittings, couplings, valves and joints) forms a significant portion of many distribution pipeline systems. Plastic pipe is used very little in other pipeline systems. Knowledge of potential weaknesses in its plastic pipe is thus particularly important for a distribution pipeline operator analyzing the risk from its system. This section would require that operators report all plastic pipe failures to PHMSA within 90 days after a failure. PHMSA will collect this information and will assure that it is analyzed to identify and communicate significant information about potential vulnerabilities associated with plastic pipe. Distribution pipeline operators will then be able to take this information into consideration in their risk analyses. *Section 192.1011 When must an Excess Flow Valve
(EFV)be installed?* Gas distribution operators, except for master meter and LPG operators, would be required to install an EFV in each new or replaced service line installed for a single-family residence if a suitable valve is commercially available and certain operating conditions are present for the EFV to function. The required operating conditions are: the operating pressure in the service line must be 10 psig or greater; the gas stream must be free of contaminants and liquids potentially interfering with valve operation; installation must not result in loss of service to the residence; the presence of an EFV must not interfere with required operation and maintenance activities; and the EFV must meet the performance criteria listed in 49 CFR § 192.381. *Section 192.1013 How does an operator file a report with PHMSA?* This section describes where an operator is to send required reports. PHMSA prefers electronic submissions. *Section 192.1015 What records must an operator keep?* The proposed rule requires an operator to make a number of decisions and to perform a number of analyses to determine and implement risk reduction methods most appropriate to its distribution pipeline system. It is critical that an operator retain knowledge of the basis for its decisions for the operator to effectively implement and modify its IM program. The proposed rule specifies the records an operator would have to keep to serve this purpose. These records also will allow PHMSA (or the applicable State oversight agency) to review the operator's analyses, decisions, and actions to determine through inspections if they are reasonable and comply with the proposed requirements. *Section 192.1017 When may an operator deviate from required periodic inspections of this part?* Various provisions of Part 192 require all distribution pipeline operators to perform actions at prescribed intervals. 49 CFR 192.481, for example, requires all operators to perform atmospheric corrosion inspection at fixed three-year intervals, without regard to system-specific risk factors. It is likely that some of these actions could be performed at less frequent intervals (based on lower risk) with no difference in safety outcomes. The resources made available by reducing action intervals, where appropriate, could be used to address more risk-significant problems. Thus, deviating from intervals now specified in other sections of Part 192 could allow operators to be more risk-based in application of their resources. This section would allow operators to use their risk analyses to propose changes to the intervals for periodic requirements included in other sections of Part 192. Operators would be required to submit their proposals to jurisdictional safety regulators (usually States) for review and determination that the proposal will assure an adequate level of pipeline safety. *Section 192.1019 What must a master meter or liquefied petroleum gas
(LPG)operator do to implement this subpart?* This section specifies the requirements master meter and LPG operators must meet. Gas distribution systems operated by master meter and LPG operators are subject to the requirements of Part 192, but these systems are generally smaller and pose less risk than systems operated by other gas distribution operators. Master meter and LPG systems cover a smaller geographic area, over which the operator usually has more control. In particular, the operator usually has more control over excavation activity, which is the leading cause of damage to gas distribution pipeline systems. To reflect these differences, we are proposing a more limited and simpler set of IM program requirements for these operators. They must develop and implement written IM programs containing the elements required of other gas distribution operators, except an IM program for a master meter or LPG operation need not include the elements for evaluating and prioritizing risks and reporting results. There will be no EFV installation requirements. Also, the level of detail in these IM programs should be much less to reflect the relative simplicity of these pipeline systems. In a separate guidance document, we will provide a model IM program these operators may use. A draft of this guidance is available in the docket to this rulemaking. We request comment on this draft guidance. *Guidance.* To carry out the proposed requirements, operators will have to make a number of reasonably complex decisions and analyses to understand their systems, evaluate threats and risks, and implement risk reduction methods. While it is impractical to specify a single method for how operators should make these decisions/analyses, it is possible to provide guidance concerning factors operators should consider This document will provide guidance in carrying out several requirements. PHMSA expects GPTC to develop more detailed guidance to assist operators in implementing a final rule. Once the GPTC guidance is available, PHMSA may modify the proposed guidance. This draft guidance document is available in the docket to this rulemaking XIV. Regulatory Analyses and Notices A. Statutory/Legal Authority for This Rulemaking This notice of proposed rulemaking is published under the authority of the Federal Pipeline Safety Law (49 U.S.C. 60101 *et seq.* ). Section 60102 authorizes the Secretary of Transportation to issue regulations governing design, installation, inspection, emergency plans and procedures, testing, construction, extension, operation, replacement, and maintenance of pipeline facilities. The proposed integrity management program regulations are issued under this authority and address the NTSB's and DOT Inspector General's recommendations. This rulemaking also carries out the mandates regarding distribution integrity management and excess flows valves under section 9 of the Pipeline Inspection, Protection, Enforcement, and Safety Act of 2006 (Pub. L. 109-468, Dec. 29, 2006). B. Executive Order 12866 and DOT Regulatory Policies and Procedures DOT considers this an “economically significant” regulatory action under section 3(f)(1) of Executive Order 12866 (58 FR 51735; October 4, 1993). This NPRM is also significant under DOT's regulatory policies and procedures (44 FR 11034; February 26, 1979). PHMSA prepared a Draft Regulatory Evaluation for this NPRM and placed it in the public docket. The proposed requirements would affect an estimated 9,291 natural gas operators with a combined total of 1,138,000 miles of mains and 60,970,000 services. Of these operators, 201 are local gas utilities with more than 12 thousand services, 1,090 are local gas utilities with 12 thousand or fewer services, and 8,000 are master meter and LPG systems. The monetized benefits resulting from the proposed rule are estimated to be $214 million per year. Those benefits include: • Reductions in the consequences of reportable incidents; • Reductions in the consequences of non-reportable incidents; • A reduction in the probability of a major catastrophic incident; • Reductions in lost natural gas; • Reductions in emergency response costs; • Reductions in evacuations; • Reductions in dig-ins impacting non-gas underground facilities; and • Elimination of the existing EFV notification requirement. The costs of the proposed rule are estimated to be $155.1 million in the first year and $104.1 million in each subsequent year. Those costs cover: • Development of an IMP; • Implementation of the IMP; • Mitigation of risks; • Reporting to PHMSA and State Regulators; • Recordkeeping; and • Management of the IMP. The analysis finds that, for those costs and benefits that can be quantified, the present value of net benefits are expected to be between $1.5 billion and $2.8 billion over a fifty year period after all of the requirements are implemented. Also significant is that the proposed rule is expected to be cost-effective if it results in eliminating only approximately 14.5 percent of the societal costs associated with gas distribution systems. C. Regulatory Flexibility Act Under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ) PHMSA must consider whether a rulemaking would have a significant effect on a substantial number of small entities. The proposed IM program requirements apply to gas distribution pipeline operators and require operators of gas distribution pipelines to develop and implement IMPs that will better assure the integrity of their pipeline systems. Many gas distribution pipeline operators meet the Small Business Administration's small business definition of 500 or fewer employees for natural gas distribution operators under North American Industry Classification System (NAICS) 221210. PHMSA estimates that the proposed rule will affect 9,007 small operators. These small operators can be separated into two categories:
(1)Local gas distribution utilities with 12,000 or fewer services and
(2)master meter and LPG systems. PHMSA estimates there are 1,007 small operators among the local gas distribution utilities with 12,000 or fewer services and 8,000 master meter and LPG systems, all of which are small. Furthermore, PHMSA estimates the proposed rule will cost each local gas utility with 12,000 or fewer services on average approximately $40,000 in the first year and $17,000 in each subsequent year. PHMSA also estimates that the proposed rule will cost master meter and LPG systems on average approximately $3,000 in the first year and $1,000 in each subsequent year. PHMSA does not have information on the operators' revenues and cannot estimate the economic impact the costs will have. The costs associated with the proposed rule may be significant for at least some of the small entities. Therefore, PHMSA believes that the proposed rule could result in a significant adverse economic impact for some of the smallest affected entities. PHMSA invites comments on these assumptions. PHMSA has tried to minimize costs for these small operators. As mentioned earlier, small operators' IM programs will not have to include the elements for evaluating and prioritizing risks and for reporting results and there will be no EFV installation requirements. PHMSA is also providing a manual for small operators to guide their compliance with the proposed rule and PHMSA will continue to evaluate alternative methods of compliance that reduce the burden on small businesses while retaining an appropriate level of pipeline safety. Additionally, industry is undertaking a number of initiatives that will help small entities comply with the proposed rule, including the preparation of guidance materials and a model IM program for distribution pipeline operators. D. Paperwork Reduction Act The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ) addresses the collection of information by the Federal government from individuals, small businesses and State and local governments and seeks to minimize the burdens such information collection requirements might impose. A collection of information includes providing answers to identical questions posed to, or identical reporting or record-keeping requirements imposed on ten or more persons, other than agencies, instrumentalities, or employees of the United States. In accordance with the requirements of the Paperwork Reduction Act, agencies may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget
(OMB)control number. PHMSA is requesting comment on a proposed information collection. PHMSA is also giving notice that the proposed collection of information has been submitted to OMB for review and approval. This NPRM proposes additional information collection requirements. Those requirements result from affected natural gas distribution system operators having to
(1)prepare a distribution integrity management program (DIMP);
(2)document their DIMP procedures and processes;
(3)prepare periodic revisions to their IM programs;
(4)keep records, and
(5)report periodically to PHMSA and the States. PHMSA evaluated the NPRM, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), and believes the burden hours to industry resulting from the NPRM will be 681,379 in the first year and 85,597 hours in each subsequent year. Large and small operators will bear the largest share of the information collection burden. Master meter and Liquid Petroleum Gas system operators are estimated to require 20 hours each to comply in the first year and to make brief (less than 1/4 hour) updates to the initial information in subsequent years. Pursuant to 44 U.S.C. 3506(c)(2)(B), PHMSA solicits comments concerning: whether these information collection requirements are necessary for PHMSA to properly perform its functions, including whether the information has practical utility; the accuracy of PHMSA's estimates of the burden of the information collection requirements; the quality, utility, and clarity of the information to be collected; and whether the burden of collecting information on those who are to respond, including through the use of automated collection techniques or other forms of information technology, may be minimized. E. Executive Order 13084 This NPRM has been analyzed under principles and criteria contained in Executive Order 13084 (“Consultation and Coordination with Indian Tribal Governments”). Because this NPRM does not significantly or uniquely affect communities of Indian tribal governments and does not impose substantial direct compliance costs, the funding and consultation requirements of Executive Order 13084 do not apply. F. Executive Order 13132 PHMSA analyzed this NPRM under the principles and criteria contained in Executive Order 13132 (Federalism). PHMSA issues pipeline safety regulations applicable to interstate and intrastate pipelines. The requirements in this proposed rule apply to operators of distribution pipeline systems, primarily intrastate pipeline systems. Under 49 U.S.C. 60105, PHMSA cedes authority to enforce safety standards on intrastate pipeline facilities to a certified State authority. Thus, State pipeline safety regulatory agencies will be the primary enforcer of these safety requirements. Although some States have additional requirements that address IM issues, no State requires its distribution operators to have comprehensive IM programs similar to what we are proposing. Under 49 U.S.C. 60107, PHMSA gives participating States grant money to carry out their pipeline safety enforcement programs. Although some States choose not to participate in the pipeline safety grant program, every State has the option to participate. This grant money is used to defray added safety program costs incurred by enforcing the proposed requirements. We expect to increase money available to help States. PHMSA has concluded this proposed rule does not propose any regulation that:
(1)Has substantial direct effects on States, relationships between the national government and the States, or distribution of power and responsibilities among various levels of government;
(2)imposes substantial direct compliance costs on States and local governments; or
(3)preempts State law. Therefore, the consultation and funding requirements of Executive Order 13132 (64 FR 43255; August 10, 1999) do not apply. This proposed rule would serve to preempt any currently established State requirements in this area. States would have the ability to augment pipeline safety requirements for pipelines, but would not be able to approve safety requirements less stringent than those contained within this proposed rule. Although the consultation requirements do not apply, the States have played an integral role in helping develop the proposed requirements. State pipeline safety regulatory agencies participated in the stakeholder groups that helped develop the findings on which this proposal is based and provided guidance through NARUC in the form of a resolution. PHMSA action is consistent with this resolution. G. Executive Order 13211 This NPRM is not a “significant energy action” under Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use). It is not likely to have a significant adverse effect on supply, distribution, or energy use. Further, the Office of Information and Regulatory Affairs has not designated this NPRM as a significant energy action. H. Unfunded Mandates PHMSA estimates that this NPRM does impose an unfunded mandate under the 1995 Unfunded Mandates Reform Act (UMRA). PHMSA estimates the rule to cost operators $155.1 million in the first year of the regulations, which is higher than the $100 million threshold (adjusted for inflation, currently estimated to be $132 million) in any one year. The Regulatory Impact Analysis performed under EO 12866 requirements also meets the analytical requirements under UMRA, and PHMSA has concluded the approach taken in this regulation is the least burdensome alternative for achieving the NPRM's objectives. I. National Environmental Policy Act PHMSA analyzed this NPRM in accordance with section 102(2)(c) of the National Environmental Policy Act (42 U.S.C. 4332), the Council on Environmental Quality regulations (40 CFR 1500-1508), and DOT Order 5610.1C, and has preliminarily determined this action will not significantly affect the quality of the human environment. The Environmental Assessment is in the Docket. List of Subjects in 49 CFR Part 192 Integrity management, Pipeline safety, Reporting and recordkeeping requirements. In consideration of the foregoing, PHMSA proposes to amend part 192 of title 49 of the Code of Federal Regulations as follows: PART 192—TRANSPORTATION OF NATURAL AND OTHER GAS BY PIPELINE: MINIMUM FEDERAL SAFETY STANDARDS 1. The authority citation for part 192 continues to read as follows: Authority: 49 U.S.C. 5103, 60102, 60104, 60108, 60109, 60110, 60113, and 60118; and 49 CFR 1.53. § 192.383 [Removed] 2. Section 192.383 is removed. 3. In part 192, a new subpart P is added to read as follows: Subpart P—Gas Distribution Pipeline Integrity Management
(IM)Sec. 192.1001 What do the regulations in this subpart cover? 192.1003 What definitions apply to this subpart? 192.1005 What must a gas distribution operator (other than a master meter or LPG operator) do to implement this subpart? 192.1007 What are the required integrity management
(IM)program elements? 192.1009 What must an operator report when plastic pipe fails? 192.1011 When must an Excess Flow Valve
(EFV)be installed? 192.1013 How does an operator file a report with PHMSA? 192.1015 What records must an operator keep? 192.1017 When may an operator deviate from required periodic inspections under this part? 192.1019 What must a master meter or liquefied petroleum gas
(LPG)operator do to implement this subpart? Subpart P—Gas Distribution Pipeline Integrity Management
(IM)§ 192.1001 What do the regulations in this subpart cover? *General.* This subpart prescribes minimum requirements for an IM program for any gas distribution pipeline covered under this part. A gas distribution operator, other than a master meter or liquefied petroleum
(LPG)operator, must follow the requirements in §§ 192.1005 through 192.1017 of this subpart. A master meter operator or LPG operator of a gas distribution pipeline must follow the requirements in § 192.1019 of this subpart. § 192.1003 What definitions apply to this subpart? The following definitions apply to this subpart: *Damage* means any impact or exposure resulting in the repair or replacement of an underground facility, related appurtenance, or materials supporting the pipeline. § 192.1005 What must a gas distribution operator (other than a master meter or LPG operator) do to implement this subpart?
(a)*Dates.* No later than [INSERT DATE 18 MONTHS AFTER PUBLICATION OF THE FINAL RULE IN THE **Federal Register** ] an operator of a gas distribution pipeline must develop and fully implement a written IM program. The IM program must contain the elements described in § 192.1007.
(b)*Procedures.* An operator's program must have written procedures describing the processes for developing, implementing and periodically improving each of the required elements. § 192.1007 What are the required integrity management
(IM)program elements?
(a)*Knowledge.* An operator must demonstrate an understanding of the gas distribution system.
(1)Identify the characteristics of the system and the environmental factors that are necessary to assess the applicable threats and risks to the gas distribution system.
(2)Understand the information gained from past design and operations.
(3)Identify additional information needed and provide a plan for gaining that information over time through normal activities.
(4)Develop a process by which the program will be continually refined and improved.
(5)Provide for the capture and retention of data on any piping system installed after the operator's IM program becomes effective. The data must include, at a minimum, the location where the new piping and appurtenances are installed and the material of which they are constructed.
(b)*Identify threats.* The operator must consider the following categories of threats to each gas distribution pipeline: corrosion, natural forces, excavation damage, other outside force damage, material or weld failure, equipment malfunction, inappropriate operation, and any other concerns that could threaten the integrity of the pipeline. An operator must gather data from the following sources to identify existing and potential threats: incident and leak history, corrosion control records, continuing surveillance records, patrolling records, maintenance history, and “one call” and excavation damage experience. In considering the threat of inappropriate operation, the operator must evaluate the contribution of human error to risk and the potential role of people in preventing and mitigating the impact of events contributing to risk. This evaluation must also consider the contribution of existing DOT requirements applicable to the operator's system ( *e.g.* , Operator Qualification, Drug and Alcohol Testing) in mitigating risk.
(c)*Evaluate and prioritize risk.* An operator must evaluate the risks associated with its distribution pipeline system. In this evaluation, the operator must determine the relative probability of each threat and estimate and prioritize the risks posed to the pipeline system. This evaluation must consider each applicable current and potential threat, the likelihood of failure associated with each threat, and the potential consequences of such a failure. An operator may subdivide the system into regions (areas within a distribution system consisting of mains, services and other appurtenances) with similar characteristics and reasonably consistent risk, and for which similar actions would be effective in reducing risk.
(d)*Identify and implement measures to address risks.* Determine and implement measures designed to reduce the risks from failure of its gas distribution pipeline system. These measures must include implementing an effective leak management program and enhancing the operator's damage prevention program required under § 192.614 of this part. To address risks posed by inappropriate operation, an operator's written IM program must contain a separate section with a heading ‘Assuring Individual Performance’. In that section, an operator must list risk management measures to evaluate and manage the contribution of human error and intervention to risk ( *e.g.* , changes to the role or expertise of people), and implement measures appropriate to address the risk. In addition, this section of the written IM program must consider existing programs the operator has implemented to comply with § 192.614 (damage prevention programs); § 192.616 (public awareness); Subpart N of this Part (qualification of pipeline personnel), and 49 CFR Part 199 (drug and alcohol testing).
(e)*Measure performance, monitor results, and evaluate effectiveness.*
(1)Develop and monitor performance measures from an established baseline to evaluate the effectiveness of its IM program. An operator must consider the results of its performance monitoring in periodically re-evaluating the threats and risks. These performance measures must include the following:
(i)Number of hazardous leaks either eliminated or repaired, per § 192.703(c), categorized by cause;
(ii)Number of excavation damages;
(iii)Number of excavation tickets (receipt of information by the underground facility operator from the notification center);
(iv)Number of EFVs installed;
(v)Total number of leaks either eliminated or repaired, categorized by cause;
(vi)Number of hazardous leaks either eliminated or repaired per § 192.703(c), categorized by material; and
(vii)Any additional measures to evaluate the effectiveness of the operator's program in controlling each identified threat.
(f)*Periodic Evaluation and Improvement.* An operator must continually re-evaluate threats and risks on its entire system and consider the relevance of threats in one location to other areas. In addition, each operator must periodically evaluate the effectiveness of its program for assuring individual performance to reassess the contribution of human error to risk and to identify opportunities to intervene to reduce further the human contribution to risk ( *e.g.* , improve targeting of damage prevention efforts). Each operator must determine the appropriate period for conducting complete program evaluations based on the complexity of its system and changes in factors affecting the risk of failure. An operator must conduct a complete program re-evaluation at least every five years. The operator must consider the results of the performance monitoring in these evaluations.
(g)*Report results.* Report the four measures listed in paragraphs (e)(1)(i) through (e)(1)(iv) of this section, annually by March 15, to PHMSA as part of the annual report required by § 191.11 of this chapter. An operator also must report these four measures to the State pipeline safety authority in the State where the gas distribution pipeline is located. § 192.1009 What must an operator report when plastic pipe fails? Each operator must report information relating to each material failure of plastic pipe (including fittings, couplings, valves and joints) no later than 90 days after failure. This information must include, at a minimum, location of the failure in the system, nominal pipe size, material type, nature of failure including any contribution of local pipeline environment, pipe manufacturer, lot number and date of manufacture, and other information that can be found in markings on the failed pipe. An operator must send the information report as indicated in § 192.1013. An operator must also report this information to the State pipeline safety authority in the State where the gas distribution pipeline is located. § 192.1011 When must an Excess Flow Valve
(EFV)be installed?
(a)*General requirements.* This section only applies to new or replaced service lines serving single-family residences. An EFV installation must comply with the requirements in § 192.381.
(b)*Installation required.* The operator must install an EFV on the service line installed or entirely replaced after [INSERT DATE 90 DAYS AFTER PUBLICATION OF THE FINAL RULE IN THE **Federal Register** ], unless one or more of the following conditions is present:
(1)The service line does not operate at a pressure of 10 psig or greater throughout the year;
(2)The operator has prior experience with contaminants in the gas stream that could interfere with the EFV's operation or cause loss of service to a residence;
(3)An EFV could interfere with necessary operation or maintenance activities, such as blowing liquids from the line; or
(4)An EFV meeting performance requirements in § 192.381 is not commercially available to the operator. § 192.1013 How does an operator file a report with PHMSA? An operator must send any performance report required by this subpart to the Information Resource Manager as follows:
(a)Through the online electronic reporting system available at PHMSA's home page at *http://phmsa.dot.gov;*
(b)Via facsimile to
(202)493-2311; or
(c)Mail: PHMSA—Information Resource Manager, U.S. Department of Transportation-East Building, 1200 New Jersey Avenue, SE., Washington, DC 20590. § 192.1015 What records must an operator keep? Except for the performance measures records required in § 192.1007, an operator must maintain, for the useful life of the pipeline, records demonstrating compliance with the requirements of this subpart. At a minimum, an operator must maintain the following records for review during an inspection:
(a)A written IM program in accordance with § 192.1005;
(b)Documents supporting threat identification;
(c)A written procedure for ranking the threats;
(d)Documents to support any decision, analysis, or process developed and used to implement and evaluate each element of the IM program;
(e)Records identifying changes made to the IM program, or its elements, including a description of the change and the reason it was made; and
(f)Records on performance measures. However, an operator must only retain records of performance measures for ten years. § 192.1017 When may an operator deviate from required periodic inspections under this part?
(a)An operator may propose to reduce the frequency of periodic inspections and tests required in this part on the basis of the engineering analysis and risk assessment required by this subpart. Operators may propose reductions only where they can demonstrate that the reduced frequency will not significantly increase risk.
(b)An operator must submit its proposal to the PHMSA Associate Administrator for Pipeline Safety or the State agency responsible for oversight of the operator's system. PHMSA, or the applicable State oversight agency, may accept the proposal, with or without conditions and limitations, on a showing that the adjusted interval provides a satisfactory level of pipeline safety. § 192.1019 What must a master meter or liquefied petroleum gas
(LPG)operator do to implement this subpart?
(a)*General.* No later than [INSERT DATE 18 MONTHS AFTER PUBLICATION OF THE FINAL RULE IN THE **Federal Register** ] the operator of a master meter or a liquefied petroleum gas
(LPG)gas distribution pipeline must develop and fully implement a written IM program. The IM program must contain, at a minimum, elements in paragraphs (a)(1) through (a)(5) of this section. The IM program for these pipelines should reflect the relative simplicity of these types of systems.
(1)*Infrastructure knowledge.* The operator must demonstrate knowledge of the system's infrastructure, which, to the extent known, should include the approximate location and material of its distribution system. The operator must identify additional information needed and provide a plan for gaining knowledge over time through normal activities.
(2)*Identify threats.* The operator must consider, at minimum, the following categories of threats (existing and potential): corrosion, natural forces, excavation damage, other outside force damage, material or weld failure, equipment malfunction and inappropriate operation.
(3)*Identify and implement measures to mitigate risks.* The operator must determine and implement measures designed to reduce the risks from failure of its pipeline system.
(4)*Measure performance, monitor results, and evaluate effectiveness.* The operator must develop and monitor performance measures on the number of leaks eliminated or repaired on its pipeline system and their causes.
(5)*Periodic evaluation and improvement.* The operator must determine the appropriate period for conducting IM program evaluations based on the complexity of its system and changes in factors affecting the risk of failure. An operator must re-evaluate its entire program at least every five years. The operator must consider the results of the performance monitoring in these evaluations.
(b)*Records.* The operator must maintain, for the useful life of the pipeline, the following records:
(1)A written IM program in accordance with this section;
(2)Documents supporting threat identification; and
(3)Documents showing the location and material of all piping and appurtenances that are installed after the effective date of the operator's IM program and, to the extent known, the location and material of all pipe and appurtenances that were existing on the effective date of the operator's program. Issued in Washington, DC on June 20, 2008. William H. Gute, Deputy Associate Administrator for Pipeline Safety. [FR Doc. 08-1387 Filed 6-20-08; 3:31 pm]
Connectionstraces to 94
Traces to 94 documents
register
U.S. Code
- Rule making§ 553
- Purposes§ 3501
- Congressional declaration of purpose§ 4321
- Congressional findings§ 4501
- Definitions§ 601
- Avoidance of duplicative or unnecessary analyses§ 605
- Duties and authorities of Director§ 4513
- Federal Aviation Administration§ 106
- Public information; agency rules, opinions, orders, records, and proceedings§ 552
- Repealed. Pub. L. 114–329, title II, § 205(a)(1), Jan. 6, 2017, 130 Stat. 3000§ 278n
- General definition of institution of higher education§ 1001
- Disclosure of joint venture§ 4305
- Notice of copyright: Visually perceptible copies§ 401
- Mortgage insurance for hospitals§ 1715z–7
- Cooperation of agencies; reports; availability of information; recommendations; international and national coordination of efforts§ 4332
- Insurance of mortgages§ 1709
- Establishment, functions, and activities§ 272
- Transferred§ 1226
- Transferred§ 191
- SHORT TITLE.§ 801
- EXPEDITED PROCESSING OF REQUESTS FOR JAPANESE IMPERIAL GOVERNMENT RECORDS.§ 804
- Congressional findings and declaration of purpose§ 7401
- Application of chapter and integration with other Acts§ 6905
- Initial regulatory flexibility analysis§ 603
- Nonroad engines and vehicles§ 7547
- Administrative proceedings and judicial review§ 7607
- Regulations and reports§ 5707
- Regulations§ 5738
- Quarters, quarters allowances, and storage§ 905
- Flood elevation determinations§ 4104
- Congressional findings and declaration of purpose§ 4001
- Oil and hazardous substance liability§ 1321
- Superintendence of the merchant marine§ 2103
- General regulatory authority§ 5103
- Repealed. Pub. L. 112–141, div. B, § 20030(e), July 6, 2012, 126 Stat. 731]§ 5330
- Department of Transportation§ 102
- General powers§ 322
- Statements to accompany significant regulatory actions§ 1532
- Definitions§ 102
- Departmental regulations§ 301
- Functions of the Attorney General§ 509
- Imprisonment of a convicted person§ 3621
- Regulations for drawbridges§ 499
- Disaster mitigation requirements; notification to flood-prone areas§ 4105
- Federal agency responsibilities§ 3506
- Purposes of chapter; Federal Communications Commission created§ 151
- Definitions§ 632
- Federal Communications Commission§ 154
- ACCESS TO ELECTROMAGNETIC SPECTRUM FOR COMMERCIAL SPACE LAUNCHES AND REENTRIES.§ 2
- Application of chapter§ 152
- Periodic review of rules§ 610
- Administrative§ 121
- Purpose and general authority§ 60102
- State pipeline safety program certifications§ 60105
- Definitions§ 60101
- Public information collection activities; submission to Director; approval and delegation§ 3507
- State pipeline safety grants§ 60107
CFR
- What size standards has SBA identified by North American Industry Classification System codes?§ 121.201
- Designation of applicable regulations.§ 21.17
- Special conditions.§ 21.16
- What public comment procedures does the FAA follow for Special Conditions?§ 11.38
- May I address the unsafe condition in a way other than that set out in the airworthiness directive?§ 39.19
- General.§ 91.403
- Definitions.§ 242.1
- Eligible mortgagors.§ 242.10
- Maximum mortgage amounts and cash equity requirements.§ 242.23
- Covenant for malpractice, fire, and other hazard insurance.§ 242.33
- Form of regulation.§ 242.56
- Books, accounts, and financial statements.§ 242.58
- Management.§ 242.61
- Policy.§ 10.1
- Funds and finances: deposits and letters of credit.§ 242.49
- Southern California Annual Marine Events for the San Diego Captain of the Port Zone.§ 100.1101
- Delegation of rulemaking authority.§ 1.05-1
- Sector Virginia Marine Inspection Zone and Captain of the Port Zone.§ 3.25-10
- Addresses of State air pollution control agencies and EPA Regional Offices.§ 63.13
- Purpose and scope.§ 723.1
- Prohibited activities.§ 723.7
- State regulation of business lending.§ 723.10
- Collateral and security.§ 723.5
- Loan participations.§ 701.22
- Construction and development loans.§ 723.6
- Delegations.§ 0.96
- When the drawbridge must open.§ 117.5
99 references not yet in our index
- 7 CFR 650
- 7 CFR 650.5(c)
- 7 CFR 650.8(a)
- 7 CFR 650.12
- 7 CFR 650.8
- 40 CFR 1507.3(b)(2)
- 7 CFR 650.7
- 40 CFR 1506.6
- 40 CFR 1505.1
- 230 F.3d 947
- 2 USC 1531-1538
- 7 CFR 2.62
- 40 CFR 1501.4(e)(2)
- 40 CFR 1501.4(b)
- 7 CFR 956
- 7 USC 601-674
- 7 CFR 982
- 12 CFR 1750
- Pub. L. 102-550
- 14 CFR 23
- 14 CFR 34
- 14 CFR 36
- Pub. L. 92-574
- 14 CFR 39
- 1 CFR 51
- 15 CFR 296
- Pub. L. 110-69
- 13 CFR 121
- 24 CFR 242
- 24 CFR 50
- 24 CFR 10
- 42 USC 3535d
- 33 CFR 100
- 33 CFR 165
- 5 USC 601-612
- Pub. L. 104-121
- 44 USC 3501-3520
- 42 USC 4321-4370f
- Pub. L. 107-295
- 33 USC 1225
+ 59 more
Citation graph
cites case law
Unknown
Interim final rule
F. App'x230 F.3d 947
F. App'x370 F.3d 1
F. App'x494 F.3d 188
Cites 193 · showing 12Cited by 0 across 0 sources