Unknown. Final rule
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/register/2009/08/18/09-19773A 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-2009-08-18.xml --- 74 158 Tuesday, August 18, 2009 Contents Agriculture Agriculture Department See Commodity Credit Corporation See Food and Nutrition Service See Forest Service See Natural Resources Conservation Service See Rural Utilities Service Arts and Humanities, National Foundation See National Foundation on the Arts and the Humanities Centers Centers for Disease Control and Prevention NOTICES Meetings: Board of Scientific Counselors, National Center for Public Health Informatics, 41712 E9-19754 Coast Guard Coast Guard RULES Drawbridge Operation Regulations:
Sabine River, Echo, TX, 41632-41633 E9-19703 PROPOSED RULES Escort Vessels in Certain U.S. Waters, 41646-41648 E9-19705 Commerce Commerce Department See Economic Development Administration See International Trade Administration See National Oceanic and Atmospheric Administration See National Telecommunications and Information Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 41675-41676 E9-19728 Commodity Commodity Credit Corporation RULES Farm Storage Facility Loan and Sugar Storage Facility Loan Programs, 41581-41592 E9-19652 NOTICES Environmental Impact Statements;
Availability, etc.: Farm Storage Facility Loan Program, 41674-41675 E9-19644 Court Court Services and Offender Supervision Agency for the District of Columbia NOTICES Privacy Act; Systems of Records, 41689-41690 E9-19739 Economic Economic Development Administration RULES Revisions to the Trade Adjustment Assistance for Firms Program Regulations, etc., 41592-41603 E9-19774 Education Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 41690-41691 E9-19769 Energy Energy Department See Federal Energy Regulatory Commission NOTICES Meetings:
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Airbus Model A318, A319, A320, and A321 Series Airplanes, 41611-41613 E9-19636 BAE Systems (Operations) Limited Model BAe 146 and Avro 146 RJ Airplanes, 41605-41607 E9-19442 Boeing Model 737-600, -700, -700C, -800, and -900 Series Airplanes, 41607-41611 E9-19180 Saab AB, Saab Aerosystems Model SAAB 340A (SAAB/SF340A) and SAAB 340B Airplanes, 41603-41605 E9-19182 Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments, 41613-41617 E9-19657 E9-19658 PROPOSED RULES Airworthiness Directives:
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Proposals, Submissions, and Approvals, 41780-41781 E9-19711 Fiscal Fiscal Service NOTICES Surety Companies Acceptable on Federal Bonds: National Trust Insurance Co., 41783 E9-19685 Fish Fish and Wildlife Service PROPOSED RULES Endangered and Threatened Wildlife and Plants: Designation of Critical Habitat for the Sonoma County Distinct Population Segment of California Tiger Salamander, 41662-41673 E9-18885 Partial 90-Day Finding on Petition to List 206 Species in Midwest and Western United States, etc., 41649-41662 E9-19494 NOTICES Agency Information Collection Activities;
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Reopening of Comment Period, 41711-41712 E9-19778 Office of the Commissioner Reorganization; Statement ofOrganizations, Functions, and Delegations of Authority, 41713-41734 E9-19680 Public Workshop: Development of Antiviral Products for Treatment of Smallpox and Related Poxvirus Infections, 41734 E9-19781 Food Food and Nutrition Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 41674 E9-19766 Foreign Foreign Assets Control Office NOTICES Designation of Entities (Pursuant to Executive Order 13382), 41782-41783 E9-19791 Designation of Entities Pursuant to Executive Order (13382), 41783 E9-19790 Update to Identifying Information Associated With An Entity Previously Designated Pursuant to Executive Order (13382), 41784 E9-19789 Forest Forest Service NOTICES Boundary Establishment:
North Fork Smith and Upper Rogue National Wild and Scenic Rivers, Rogue River-Siskiyou National Forest, OR, 41674 E9-19512 Health Health and Human Services Department See Centers for Disease Control and Prevention See Food and Drug Administration See National Institutes of Health NOTICES Delegations of Authority, 41701-41702 E9-19709 Findings of Research Misconduct, 41702 E9-19795 Interest Rate on Overdue Debts, 41702 E9-19707 Homeland Homeland Security Department See Coast Guard See Federal Emergency Management Agency Housing Housing and Urban Development Department NOTICES Privacy Act;
Systems of Records, 41735-41737 E9-19800 Indian Indian Affairs Bureau NOTICES Reservation Proclamation: Match-e-be-nash-she-wish Band of Pottawatomi Indians of Michigan, aka, Gun Lake Tribe, 41740-41741 E9-19751 Interior Interior Department See Fish and Wildlife Service See Indian Affairs Bureau See Land Management Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 41737-41739 E9-19635 International International Trade Administration NOTICES Energy Efficiency Trade Mission to India (November 16-20, 2009), 41677-41679 E9-19777 Extension of Time Limit for the Preliminary Results:
Seventh Administrative Review of Honey from the People’s Republic of China, 41679-41680 E9-19780 Final Results of Antidumping Duty Changed Circumstances Review: Certain Circular Welded Non-Alloy Steel Pipe and Tube from Mexico, 41681-41682 E9-19783 Light-Walled Rectangular Pipe and Tube from Mexico, 41680-41681 E9-19822 Rescission of Antidumping Duty Administrative Review in Part: Polyester Staple Fiber from Taiwan, 41684 E9-19802 Justice Justice Department See Parole Commission Labor Labor Department See Occupational Safety and Health Administration See Workers Compensation Programs Office NOTICES Agency Information Collection Activities;
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Take of Anadromous Fish, 41677 E9-19772 Fisheries in the Western Pacific: Marine Conservation Plan for Pacific Insular Areas; American Samoa, 41682-41683 09-19773 Meetings: Western Pacific Fishery Management Council, 41683-41684 09-19660 Taking of Marine Mammals Incidental to Specified Activities: Construction of the East Span of the San Francisco-Oakland Bay Bridge, 41684-41689 E9-19771 National Telecommunications National Telecommunications and Information Administration NOTICES Broadband Initiatives Program and the Broadband Technology Opportunities Program:
Funds Availability; Extension of Application Closing Deadline for Pending Electronic Applications, 41676 E9-19750 National Transportation National Transportation Safety Board NOTICES Meetings; Sunshine Act, 41757-41758 E9-19900 NRCS Natural Resources Conservation Service NOTICES Proposed Change to Section IV of the Virginia State Technical Guide, 41675 E9-19765 Nuclear Nuclear Regulatory Commission NOTICES Meetings; Sunshine Act, 41758 E9-19846 Occupational Occupational Safety and Health Administration NOTICES Grant of a Permanent Variance:
Gibraltar Chimney International, LLC, Hoffmann, Inc., and Kiewit Power Constructors Co., 41742-41757 E9-19741 E9-19761 Parole Parole Commission NOTICES Meetings; Sunshine Act, 41741 E9-19626 Postal Postal Regulatory Commission RULES International Mail, 41633-41637 E9-19757 NOTICES New Competitive Postal Product, 41758-41760 E9-19808 E9-19809 Public Public Debt Bureau See Fiscal Service RUS Rural Utilities Service NOTICES Broadband Initiatives Program and the Broadband Technology Opportunities Program:
Funds Availability; Extension of Application Closing Deadline for Pending Electronic Applications, 41676 E9-19750 SEC Securities and Exchange Commission NOTICES Self-Regulatory Organizations; Proposed Rule Changes: Chicago Board Options Exchange, Inc., 41761-41763, 41766-41769 E9-19692 E9-19734 Financial Industry Regulatory Authority, Inc., 41774-41777 E9-19735 Municipal Securities Rulemaking Board, 41771-41772 E9-19745 NASDAQ OMX BX, Inc., 41765-41766 E9-19732 NASDAQ OMX PHLX, Inc., 41773-41774, 41777-41778 E9-19733 E9-19744 New York Stock Exchange LLC, 41763-41765, 41769-41770 E9-19730 E9-19736 NYSE Amex LLC, 41778-41780 E9-19731 SBA Small Business Administration NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 41760 E9-19797 TVA Tennessee Valley Authority NOTICES Meetings; Sunshine Act, 41784 E9-19834 Transportation Transportation Department See Federal Aviation Administration See Federal Highway Administration See Federal Transit Administration Treasury Treasury Department See Fiscal Service See Foreign Assets Control Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 41782 E9-19786 U.S. U.S.-China Economic and Security Review Commission NOTICES Public Hearing, 41784-41785 E9-19747 Workers′ Workers Compensation Programs Office RULES Claims for Compensation;
Death Gratuity Under the Federal Employee’s Compensation Act, 41617-41631 E9-18523 Reader Aids Consult the Reader Aids section at the end of this page 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. 74 158 Tuesday, August 18, 2009 Rules and Regulations DEPARTMENT OF AGRICULTURE Commodity Credit Corporation 7 CFR Part 1436 RIN 0560-AH60 Farm Storage Facility Loan and Sugar Storage Facility Loan Programs AGENCY:
Commodity Credit Corporation and Farm Service Agency, USDA. ACTION: Final rule. SUMMARY: The Commodity Credit Corporation
(CCC)is amending the Farm Storage Facility Loan
(FSFL)and Sugar Storage Facility Loan
(SSFL)regulations to implement provisions of the Food, Conservation, and Energy Act of 2008 (the 2008 Farm Bill). The 2008 Farm Bill adds hay and renewable biomass as eligible FSFL commodities, extends the maximum loan term to 12 years, and increases the maximum loan amount to $500,000. This rule also adds fruits and vegetables (including nuts) as eligible facility loan commodities and adds cold storage facilities as eligible facilities pursuant to discretionary authority in the 2008 Farm Bill. This rule amends the regulations to clarify requirements for loan security and to allow for a partial loan disbursement during construction if certain conditions are met. This rule amends the FSFL program regulations, which include SSFLs; however, there are no changes to the specific requirements for SSFLs. DATES: *Effective Date:* August 17, 2009. FOR FURTHER INFORMATION CONTACT: DeAnn Allen, Program Manager, Price Support Division, FSA, USDA, STOP 0512, 1400 Independence Ave., SW., Washington, DC 20250-0512; *telephone:*
(202)720-9889; *facsimile:*
(202)690-3307; *e-mail: deann.allen@wdc.usda.gov.* Persons with disabilities who require alternative means of communication (Braille, large print, audio tape, etc.) should contact the USDA Target Center at
(202)720-2600 (voice and TDD). SUPPLEMENTARY INFORMATION: Background The U.S. Department of Agriculture
(USDA)Farm Service Agency
(FSA)FSFL program provides low-interest financing for producers to build or upgrade farm storage and handling facilities. FSA was initially authorized to implement the FSFL program through the CCC Charter Act (15 U.S.C. 714b), which provides that CCC may make loans to grain producers needing grain storage facilities in areas where the Secretary determines there is a deficiency of such storage. When there was no documented shortage of storage, such as the period between 1982 and 2000, the program did not operate. Section 1614 of the 2008 Farm Bill (Pub. L. 110-246, 7 U.S.C. 8789) authorizes changes to the FSFL program through 2012 without the specific requirement that the Secretary determine that there is a deficit in grain storage. This rule therefore amends § 1436.2, “Administration,” to remove a provision that the Deputy Administrator may suspend the program if there is no shortage of storage. The current FSFL program, which has been operating since May 2000, makes loans primarily for grain storage and drying equipment. This rule expands the program to include hay and renewable biomass as eligible facility loan commodities, as required by the 2008 Farm Bill, and to include fruit and vegetables as eligible facility loan commodities, which is a discretionary addition permitted by the 2008 Farm Bill. The on-farm storage financed by the FSFL program allows producers flexibility in timing when to sell their crops. On-farm storage allows producers to avoid some fees associated with storing grain at commercial facilities (grain elevators). New uses for grain and other renewable biomass crops may increase the need for on-farm storage. In addition, the costs of building grain storage facilities are increasing. Most of the current participants in the program are grain producers, particularly corn, soybean, and wheat producers. Some dairy farms use the program to fund silage storage. The expansions in this rule will allow new groups to benefit from the program. Producers of fruits and vegetables are expected to participate in the FSFL program to fund short-term storage of perishable produce for farmers' markets. Producers of hay are expected to participate in the program to fund storage of high quality hay for sale to the equine and cow-calf industry. Renewable biomass producers are expected to participate in the FSFL program to fund storage of these renewable plant materials to maintain the quality of the biomass between harvest and delivery to a purchaser. The amendments in this rule allowing larger loans will address the increasing cost for storage facilities. According to studies by Kansas State University, in FY 1999, the average cost to construct a bushel of grain storage was approximately $1.37 per bushel; by FY 2007, the cost had increased to $1.80 per bushel of grain storage. 1 Producers are also constructing larger structures for grain storage. In FY 1999, the majority of the bins constructed stored between 10,000 to 50,000 bushels of grain. In FY 2007, grain bin manufacturers reported the majority of the bins constructed had the capacity to store between 100,000 and 200,000 bushels of grain. The Kansas State University study in 2007 also found that producers are demanding larger grain bins. In general, larger buildings have a lower per bushel construction cost, but a higher total cost. An increasing percentage of FSFLs, over 5 percent in 2008, are for the maximum dollar amount allowed in the current regulations. As specified in the 2008 Farm Bill, the maximum cap is raised from $100,000 per borrower to $500,000 per loan, which should address the demand for larger and more costly structures. 1 The KSU studies discussed in this paragraph are available on the Internet at: *http://www.agrisk.umn.edu/cache/ARL01317.pdf* and *http://www.oznet.ksu.edu/library/agec2/mf2474.pdf* . The prior regulations and the amendments in this rule apply to both the FSFL program and the SSFL program, which is a sub-program of the main FSFL program. Since the SSFL program was established, CCC has only received one loan application. That loan application was withdrawn by the applicant before approval. Therefore, most of the discussion in this preamble focuses on the FSFL program for all the eligible facility loan commodities except sugar. Section 1404 of the 2008 Farm Bill requires the SSFL program to not charge prepayment penalties; no change is needed in this rule to implement that provision because the existing regulation already specifies that the loan may be paid in full or part without any penalty at any time before maturity. This rule makes minor language changes to some of the provisions concerning SSFLs, to keep the provisions for SSFLs consistent with the provisions for the other eligible facility loan commodities, but makes no changes to the substantive requirements for SSFLs. New and Revised Definitions This rule amends § 1436.3, “Definitions,” to add hay and renewable biomass to the definition of a “facility loan commodity,” as required by the 2008 Farm Bill. The 2008 Farm Bill also gives the Secretary authority to include as eligible facility loan commodities “other storable commodities (other than sugar) as determined by the Secretary.” Therefore, as a discretionary change, this rule adds fruits and vegetables as eligible facility loan commodities for FSFL. Fruits and vegetables include nuts. This rule adds definitions for hay and renewable biomass. Hay is defined as a grass or legume that has been cut and stored. Commonly used grass mixtures include rye grass, timothy, brome, fescue, coastal Bermuda, orchard grass, and other native species, depending on the region. Forage legumes include alfalfa and clovers. Hay will be considered to include grains where the entire plant, including the seeds, has been cut, stored, and used for animal feed, such as in the case of frost-damaged grain crops harvested as hay. Loans will not be made to store wheat straw or corn stalks used for bedding; these are not considered hay. “Renewable biomass” is defined as any organic matter that is available on a renewable or recurring basis including renewable plant material such as feed grains or other agricultural commodities (including, but not limited to, soybeans and switchgrass), other plants and trees (excluding old-growth timber), algae, crop residue (including, but not limited to, corn stover, various straws and hulls, and orchard prunings), other vegetative waste material (including, but not limited to, wood waste, wood residues, and food and yard waste) used for the production of energy in the form of heat, electricity, and liquid, solid, or gaseous fuels. Manure from any source is not included. This definition is consistent with definitions of renewable biomass used by other USDA and Department of Energy
(DOE)programs. If renewable biomass storage facilities are eligible for other loans or grants, such as those provided by USDA Rural Development or DOE, the amount of those benefits will be subtracted from the amount of the FFSL, so as to avoid duplication of benefits. This is consistent with the prior operation of the FSFL program. It also adds definitions for “cold storage facility,” “commercial facility,” and “commercial storage.” The definitions of “commercial storage” and “commercial facility” are based on the terms commercial purpose and commercial operation that were previously in §§ 1436.6 and 1436.13. This rule moves the definitions related to commercial storage to § 1436.3, “Definitions,” and amends them to include facilities for the new eligible facility loan commodities. The definition of “storage need requirement” is removed from the Definitions section, and expanded specific provisions for storage need requirements for each type of eligible commodity are added to § 1436.9, “Loan Amount and Loan Application Approvals.” This rule adds a definition for “resale collateral value” to clarify how FSA county committees will determine the value of loan collateral if the collateral is removed from its original location and sold. This rule removes the following terms that are no longer used in the rules: Person and Uniform Commercial Code. Loan Terms, Eligible Storage, and Equipment Prior to this rule, the loan term for all storage facilities, except sugar facilities, was 7 years, and the useful life of a facility was required to be at least 10 years. This rule changes the maximum loan term to 12 years in § 1436.7, “Loan Term,” and increases the required useful life of all facilities to a minimum of 15 years in § 1436.6, “Eligible Storage or Handling Equipment.” The 12 year loan term is required by the Farm Bill; the 15 year minimum useful life of the facility is a discretionary change made to ensure that the loan will be adequately secured throughout the loan term. For most structures, the useful life of the commodity storage facility, if properly maintained, is well over 15 years. The required minimum useful life of a sugar facility is already set at 15 years in the current regulations, and is not changing with this rule. This rule also amends § 1436.6 to specify that the loan collateral must be used for the purpose for which the storage facility was delivered, erected, constructed, assembled, or installed for the entire term of the loan. The intent of the program is to provide on-farm storage to producers for the storage of eligible facility loan commodities they produce and not for any other purpose. This rule amends § 1436.6 to allow the Deputy Administrator, Farm Programs, to approve rebuild kits that are not from the original manufacturer for oxygen-limiting storage structures. Rebuild kits typically include new parts for the purpose of rebuilding an existing structure to bring it back to a manufacturer's specifications and may include, but are not limited to, nuts, bolts, washers, seals, gaskets, internal breather bags, a new base kit, and a new floor. Loans have been available for remanufactured oxygen-limiting storage structures built to the original manufacturer's design specifications using rebuild kits, but the prior rule allowed only original manufacturer rebuild kits. This discretionary change is necessary because the original manufacturer for the majority of the original oxygen-limiting structures is no longer in business. There are a number of reputable companies manufacturing the rebuild kits. This rule amends § 1436.6 to add specific provisions for facilities and eligible cost items for hay, renewable biomass, and fruit and vegetable storage. In each case, the requirements are similar to those for other commodities, with the additional requirement for hay and renewable biomass that the flooring be suitable for the region in which the facility is located, and designed according to acceptable guidelines. This requirement is to ensure that the program makes loans for facilities that are appropriately designed for the intended purpose, and not for some other purpose. For fruit and vegetable cold storage facilities, the allowable cost items include building insulation to help limit the loss of cool air from the structure. No loans will be approved for any portable structures, portable handling and cooling equipment, or used or pre-owned structures and equipment. Loans may be approved for modifications to existing structures. Loans will not be made for existing structures, but may be made for new components added to existing structures. Remanufactured oxygen-limited structures rebuilt to the original specifications are not considered used, due to the extensive nature of the remanufacturing process. This rule amends § 1436.9, “Loan Amount and Loan Application Approvals,” to specify that any portion of a storage structure that is not used for storing facility loan commodities, such as an office space or display area, will not be eligible for loan. The loan amount will be adjusted to exclude this ineligible space. This provision was already in the regulation, but is clarified and expanded. This rule further clarifies that FSFL structures are prohibited from being used for any commercial storage. The purpose of the FSFL program is to provide low-cost financing to producers to store the commodities that they produce. Accordingly, the program does not provide financing for commercial storage facilities. This rule amends § 1436.9 to add provisions regarding how storage need requirements will be determined for specific eligible facility loan commodities. These requirements were previously in the Definitions section. The purpose of these requirements is to ensure that CCC uses its limited resources to finance storage facilities that are of a capacity appropriate to the needs of the producer. Storage capacity for two years will be used to estimate the storage needs for hay and renewable biomass commodities. This is the same time period used for all of the other originally approved facility loan commodities in the current regulations. For fruits and vegetables, the cold storage need requirement will be determined based on production for one year. Fruits and vegetables are perishable commodities and their quality can only be maintained for a limited period of time. Cold storage facilities can extend this period of time, but a cold storage facility cannot maintain the quality of fruits and vegetables for longer than a year. Although apples may be stored from between 3 to 8 months, and carrots will maintain their quality for approximately 6 months, the quality for many fruits and vegetables in cold storage can typically be maintained for only a week to 10 days. Eligible Borrowers Section 1614(b) of the 2008 Farm Bill (7 U.S.C. 8789(b)) requires that producers eligible for FSFLs have a satisfactory credit history, demonstrate the ability to repay the loan, and show a need for increased storage capacity. These requirements were already included in the regulations in § 1436.5, “Eligible Borrowers.” This rule makes only minor changes, described below, to the regulations specifying borrower eligibility requirements. Prior to this rule, the regulations allowed a producer to construct storage using as eligibility the producer's own share of the crop. On occasion, a crop share landlord or tenant requests to construct a storage structure to store all commodities produced on the farm but only one of the individuals wishes to assume liability for the loan. This rule amends § 1436.5 to address this situation. A new provision in this rule allows the Deputy Administrator, Farm Programs, to issue a waiver to use all production from the farm to compute FSFL eligibility for a crop share landlord or tenant. These waivers must be requested by the applicant in writing, and will be issued on a case by case basis. Prior to this rule, the regulations required borrowers to carry crop insurance on all crops of economic significance. However, crop insurance under the Federal Crop Insurance Program is not available for some of the renewable biomass commodities, and as an example, hay may not be an economically significant crop on a particular farm depending upon the total expected value of all crops grown by the applicant. This rule amends this section of the regulations to clarify that if crop insurance is not available for a commodity for which a producer is requesting FSFL, crop insurance is not a requirement. This rule also adds a requirement that borrowers with outstanding FSFLs must present proof of crop insurance annually to the FSA office servicing their loan, and clarifies that crop insurance or Noninsured Crop Disaster Assistance Program
(NAP)coverage, if available, is required on all the commodities stored in the FSFL-funded facility, whether economically significant or not. Loans are approved and disbursed to a farming operation that is an eligible entity or an eligible producer at the time of approval. This rule amends § 1436.16 “Foreclosure, Liquidation, Assumptions, Sales or Conveyance, or Bankruptcy” to add one more available option to address the situation where changes are made to the farming operation after the loan is disbursed. This rule adds a new paragraph
(d)to § 1436.16 to specify that if any significant changes are made, as determined by CCC, to the legal or operating status of the farming operation with an outstanding FSFL, such as changing from a partnership to a corporation, or discontinuing farming, the borrower must do one of the following: • Find an eligible borrower or entity to assume the loan; • repay the loan; or • undergo new financial analysis as approved and determined by CCC to ensure that CCC's interests are protected and it is determined by CCC that the current borrower is in a position to continue making the scheduled loan payments. The provisions for loan assumption or repayment are not changing; the financial analysis provision is a new option to allow flexibility in situations where changes are made to the farming operation after the loan is disbursed. This situation typically occurs when a borrower retires and wishes to maintain ownership of a structure but is no longer receiving a share of the crop. CCC will allow the loan to continue, provided the scheduled payments are made, the facility is not used as a commercial facility or operation, and one of the three provisions for addressing changes to the farming operation is met. Loan Terms, New Loan Limit Prior to this rule, the FSFL regulation at § 1436.9 limited FSFLs for all eligible facility loan commodities except sugar to a maximum of $100,000 for each borrower signing the note and security agreement. This rule increases that limit to $500,000 per loan, not per borrower, as required by the 2008 Farm Bill. This rule continues to specify the loan limit as 85 percent of the qualified costs to construct an on-farm storage structure, which is not a change from the prior regulation. With the new maximum limit of $500,000, it will be possible for an eligible borrower to construct a structure costing nearly $589,000. It will also be possible for a borrower to qualify for multiple loans for multiple facilities, but such borrower must separately qualify for each loan and CCC will administer each loan separately. As discussed earlier, the loan term is extended to a maximum of 12 years, as required by section 1614 of the 2008 Farm Bill. This rule amends § 1436.7, “Loan term,” to specify the loan term of 7, 10, or 12 years, with the loan term determined by the amount of loan principal; within the specific options set by this rule, the borrower may choose the term as follows: • For a loan with the total principal of $100,000 or less, the term will be set at 7 years. • For loans from $100,000.01 through $250,000, the borrower can choose a loan term of 7 or 10 years. • For loans from $250,000.01 through $500,000, the borrower can choose a loan term of 7, 10, or 12 years. The requested loan term will be specified by the borrower at the time of loan application on the loan application form, as the required financial analysis must take into account the annual payment amount. The borrower may change the loan term prior to the final loan disbursement if the principal amount qualifies the loan for a different term and if a new financial analysis indicates the annual payments will be manageable as determined by CCC. If a partial disbursement has been issued, the term on the amount disbursed can not be adjusted because the promissory note and the security agreement establishing the interest rate and loan term have already been completed and the lien perfected. This rule amends § 1436.12, “Interest and fees,” to clarify how the interest rate is determined for FSFLs. CCC borrows from the U. S. Treasury to fund the FSFL program. The FSFL interest rates are equivalent to the rate of interest charged on Treasury Securities of a comparable term and maturity. For this reason, the interest rate on the 7, 10, and 12 year FSFL loan terms may be different. The rates will be published on the FSA website and posted in the county office. This rule also amends § 1436.12 to specify that the loan application fee for FSFLs will be assessed per loan borrower and not per loan. The non-refundable loan application fee for each FSFL is increased from not less than $45 per loan to not less than $100 per borrower. This discretionary change is needed to cover the cost to CCC of making these loans. CCC is required to conduct lien searches, obtain credit reports, and file liens on the loan security for all borrowers on a loan. The cost to CCC for these lien searches, security filings, and credit reports has increased since the regulations were published in 2001. The purpose of the loan application fee is to cover the cost of the fees associated with the loan. Security for Loan This rule makes a number of changes to § 1436.8, “Security for Loan,” to implement provisions of the 2008 Farm Bill regarding loan security. Section 1614(f)(2) of the 2008 Farm Bill (7 U.S.C. 8789(f)(2)) provides that a severance agreement from the holder of any prior lien on the real estate parcel on which the storage facility is located will not be required if the borrower agrees to increase the down payment on the storage facility loan in an amount determined by the Secretary or provides another form of security acceptable to the Secretary. This rule amends the regulations to include this provision. CCC has determined that if the borrower increases the down payment from 15 percent to 20 percent, severance agreements will not be required. This will only apply to loans $50,000 or less because all other loans already require additional security and in most instances when CCC has a mortgage on the real estate, the facility is not severed from the real estate. Section 1614(f)(3) of the 2008 Farm Bill (7 U.S.C. 8789(f)(3)) requires that CCC allow a borrower to use a parcel of real estate to secure a loan if this acreage is not subject to any other liens or mortgages superior to CCC's lien interest, and is of adequate size and value to secure the loan and insure repayment. That is consistent with current CCC policy. This rule amends the regulations to specifically include this provision. This rule also amends § 1436.8 to require loans for $50,000 or less that are secured by collateral with no resale value, as determined by CCC, to have additional security. Additional security on loans of $50,000 or less has not been required in the past unless the aggregate outstanding FSFL balance for the borrower exceeds $50,000 or CCC determines as a result of financial analysis that additional security is required. Some FSFL facilities, such as poured cement open bunker silos, have nothing that can be removed and sold if a borrower defaults on the loan. CCC will now require county committees to determine if a structure has resale collateral value and if additional security is required for the loan. This change is needed to protect CCC's interests in case of default. Most of the loans in the FSFL program are under $50,000. Disbursement Section 1614(e) of the 2008 Farm Bill (7 U.S.C. 8789(e)) requires the availability of one partial loan disbursement and the final loan disbursement. This rule amends § 1436.10, “Down Payment,” and § 1436.11, “Disbursements and Assignments,” to implement the new provisions regarding the partial and final loan disbursement. The partial loan disbursement must be requested by the borrower and will be made to facilitate the purchase and construction of an eligible facility. The partial loan disbursement will be available after a portion of the construction has been done and commensurate with the amount of construction completed on the approved structure. CCC has determined at this time that the maximum amount of the partial loan disbursement will be 50 percent of the projected and approved total loan amount, and cannot exceed $250,000. The borrower will need to provide acceptable documentation specifying the cost of the completed portion of the structure to CCC, then FSA will inspect the facility to verify the amount of the construction completed. Security required for the principal amount of the partial loan disbursement will be required before the partial disbursement is finalized. CCC will make the final loan disbursement after the borrower provides acceptable documentation specifying the total cost of the facility to CCC and after the facility is completely delivered, erected, constructed, assembled, or installed. An FSA representative will inspect and approve the facility prior to the final loan disbursement. All security needed to fully secure both the partial and final loan disbursements must be received before the final loan disbursement. For SSFLs, the option for a partial loan disbursement is not available, because section 1404 of 2008 Farm Bill, which amends 7 U.S.C. 7971(c), which contains provisions specific to SSFLs, does not include this provision. As a conforming change, this rule amends § 1436.10 to specify that the down payment will be made before either the partial or final loan disbursements. Fruits and Vegetables The discretionary change to add cold storage for fruits and vegetables into the farm storage facility loan program regulation is one avenue USDA is implementing to help farmers. The post-harvest cooling of produce to remove the field heat is necessary to reduce incidents of microbial contamination. Cooling also extends the shelf life of produce. Cooling facilities are an expensive outlet for beginning and start-up growers. Many farmers indicate a need to have on-farm or proximate access to cooling facilities, but found that financing them was difficult given the seasonal nature of their use. With credit more difficult to obtain, many producers have found they are unable to get commercial lending for a cold storage facility. Small farms are diversifying to make a profit and with the emphasis of buying locally grown food, many small fruit and vegetable producers market their crops at farmers markets. To remove the field heat from their produce, a cold storage facility is needed to cool down their crops immediately after harvest and prior to trucking to a farmers market. Many producers must truck their produce to a cold storage facility up to 2 hours away to remove the field heat, and go back to retrieve it before proceeding to the market. The 2008 Farm Bill increased the loan limit from $100,000 per borrower to a maximum of $500,000 per loan. Even with the maximum loan amount, considering the cost of a cold storage facility, only a small to moderate size facility could be constructed, thereby benefiting the small to mid size farmers. The smaller producers store their crops for a much shorter term and are constantly moving in and out a variety of different crops. A study entitled “2007 Pennsylvania Shipping Point Market Feasibility Study,” by Philip Gottwals, Duke Burruss, and Ali Church indicated that a self enclosed modular forced air cooling and cold storage facility that would meet the needs of the small producer cost approximately $28,000 in 2007. This facility has a capacity of 20 pallets and would remove field heat by forced air cooling and serve as a temporary cold storage room. The structure in this example is 8 feet × 40 feet × 8.5 feet high equaling 2,720 cu. feet of storage space. The price is still around $28,000. A cold storage building measuring 40 feet × 60 feet × 14 feet high where half of the structure (16,800 Cu. feet) was refrigerated for cold storage, cost $125,000. This is considered a small cold storage facility. The addition of cold storage facilities for fruits and vegetables will help the Department's outreach goals and initiatives to expand access of USDA programs and services to underserved groups. Underserved groups include small farms, beginning farmers, and racial and ethnic minority groups. Only 2 percent of all U.S. farms primarily grow vegetables, whereas vegetable production is the primary enterprise for 6 percent of Black farmers, 13 percent of Asian farmers, and 9 percent of American Indian farmers. Fruits or nuts are the primary enterprise for 4 percent of all U.S. farms, but are the primary enterprise for 37 percent of Asian farmers and 16 percent of Hispanic origin farmers. Small farms and beginning farmers also are more likely to be involved in these farm enterprises. Therefore, adding these agricultural products to the eligible commodities increases the Departments outreach to these underserved groups. Specialty crops, which include fruits and vegetables, account for most direct-to-consumer sales, and are produced at a high frequency by small farmers. The direct-to-consumer sales through local markets play a pivotal role in maintaining the viability of family farmers by providing them direct access to markets close to home. Farmers who sell directly to their customers receive more of the full retail price for their food, which means that many small farmers are able to earn greater returns. Other Miscellaneous Changes This rule amends § 1436.4, “Availability of Loans,” to designate where the producer must submit loan applications for renewable biomass commodity facilities and cold storage facilities for fruits and vegetables. This rule amends that section to specify that if the commodities will be produced on land that has farm records established in a county office, the application must be submitted to that office. If the commodities will be produced on land that does not have farm records established in a county office, the application must be submitted to the county FSA office that services the county where the facility will be located. This amendment is needed to clarify where the loan applications should be filed, because the new eligible facility loan commodities may be produced on land that does not currently have FSA farm records. This rule amends § 1436.9, “Loan Amount and Loan Application Approvals,” to allow the Deputy Administrator, Farm Programs, to set a limit for the approval authority of original loan applications by county and State FSA committees that is lower than the maximum loan amount. The intent of this amendment is to protect the financial interests of CCC. This rule also amends § 1436.9 to allow the State FSA committee the authority to extend the loan approval period for an additional 4 months for a total of 12 months from the original approval date. In the current rule, the initial loan approval period is set at 4 months from the county or State committee approval date. The FSA State committee or its representative can currently extend approval for another 4 months. This rule will change that to allow a second extension, for a total of 12 months. Currently, if the producer cannot complete construction of the facility in 8 months, the State Committee has to send the loan approval to the FSA headquarters office to formally approve the extension. There are common reasons why a facility cannot be completed in 8 months, such as weather, part defects, contractor scheduling issues, and other construction delays. The change will expedite and simplify the loan extension process for producers who have routine construction delays, by allowing a second loan extension to be made at the State committee level. Only the State committee will have the authority to extend the loan approval period to 12 months and that authority cannot be delegated. This change is permitted for all eligible facility loan commodities except sugar. The provisions regarding the extension for SSFLs remain unchanged. This rule amends § 1436.13, “Loan Installments, Delinquency, and Acceleration of Maturity Date,” to clarify that the producer's first installment payment is due and payable to CCC one year from the date of each of the partial and final loan disbursements. Producers that request a partial disbursement, which will therefore also necessitate a final payment, will have two notes for the one loan with two payment schedules. One note will be for the partial disbursement and the second note will be for the final disbursement of the loan; there will be only one loan application required for the two notes. Producers that request a partial disbursement will have two annual installments due one year from each disbursement and annually on these dates until the loans have been paid in full. This section is also amended to clarify the procedure for rescheduling debts. Any rescheduling or alternate repayment arrangements on any outstanding loans will require prior written approval from the Deputy Administrator, Farm Programs. This is a discretionary change to protect CCC's financial interest by assuring that proper procedure is followed in rescheduling any FSFL debts. This rule adds retail and wholesale cold storage facilities to the provisions prohibiting commercial facilities for outstanding FSFLs in this section. This section allows CCC to declare the entire loan immediately due and payable if the facility is used for a commercial operation, which is not a change from the previous rule. In addition, nonsubstantive, housekeeping changes are being made to the regulations to fix typos and add to the clarity, readability, plain language, and consistency of the regulations. Some examples of these changes include: • Clarifying the list of commodities to reflect the full list throughout the regulation, for example in the definition of “facility loan commodity,” some of the commodities had not been added the last time the regulations were revised; • Referring consistently to a commodity as a “facility loan commodity” instead of “grain” versus “commodities” or “agricultural commodities.” The same type of wording change was made for commercial operations, facility, storage, and other terms where consistency was needed; • Clarifying which provisions apply to sugar and which do not apply; and • Replacing “shall” with “will” or “must” based on context where deemed appropriate. Notice and Comment These regulations are exempt from notice and comment provisions of 5 U.S.C. 553, as specified in section 1601(c) of the 2008 Farm Bill, which requires that the regulations be promulgated and administered without regard to the notice and comment provisions of section 5 or title 5 of the United States Code or the Statement of Policy of the Secretary of Agriculture effective July 24, 1971 (36 FR 13804), relating to notices of proposed rulemaking and public participation in rulemaking. Executive Order 12866 This final rule is economically significant and was reviewed by the Office of Management and Budget
(OMB)under Executive Order 12866. A Cost Benefit Analysis is summarized below and is available from the contact information listed above. Summary of Economic Impacts The amendments to the FSFL program in this rule will add costs of $6 million in 2009, $28 million in 2010, $30 million in 2011, and $32 million in 2012 over the cost of the existing program. This rule was designated as economically significant based on original estimates that included the full cost of the program instead of the regulatory impact of the changes to the existing program. The majority of the increase in demand for loans will come from the increase in loan size eligibility from $100,000 to $500,000; the remaining increase will come from demand for storage of the additional eligible crops for storage (hay, fruits and vegetables, and renewable biomass). The total program cost includes a roughly 3% increase per year in lending volumes, due to increased construction costs and capacity needs. The total benefit to producers per year from the FSFL program is about $10 million per year in interest rate savings over what they would have had to pay to finance comparable loans from commercial lenders. Assuming that all those producers could have gotten a commercial loan and would have done so, commercial lenders have an equivalent $10 million loss in loan revenue per year. If credit markets remain tight, the benefits to producers could be larger, because the spread between FSFL rates and commercial rates might be larger. The availability of below-market rate loans for on-farm storage facilities has a small potential negative impact on commercial storage facilities, such as grain elevators. FSFL has funded less than 4% of the on-farm storage capacity in the U.S., so it is unlikely that the program is having a significant impact on commercial storage facilities at a national level, although there may be more significant localized effects in locations where FSFL has a relatively larger share of the new facility loan market. Regulatory Flexibility Act This rule is not subject to the Regulatory Flexibility Act because CCC is not required to publish a notice of proposed rulemaking for the subject matter of this rule. Environmental Review FSA has prepared a Programmatic Environmental Assessment
(PEA)to evaluate the environmental consequences associated with implementing the changes to the FSFL Program authorized by the 2008 Farm Bill. The PEA notice is published elsewhere in this issue of the **Federal Register** . In consideration of the analysis documented in the PEA and the reasons outlined in the Finding of No Significant Impact (FONSI), the Preferred Alternative would not constitute a major Federal action that would significantly affect the quality of the human environment. Therefore, an environmental impact statement will not be prepared. Executive Order 12372 This program is not subject to Executive Order 12372, which requires consultation with State and local officials. See the notice related to 7 CFR part 3015, subpart V, published in the **Federal Register** on June 24, 1983 (48 FR 29115). Executive Order 12988 The final rule has been reviewed under Executive Order 12988. This rule preempts State laws that are inconsistent with its provisions. This rule is not retroactive and does not preempt State or local laws, regulations, or policies unless they present an irreconcilable conflict with this rule. Before any judicial action may be brought regarding the provisions of this rule the administrative appeal provisions of 7 CFR parts 11 and 870 must be exhausted. Executive Order 13132 The policies contained in this rule do not have any substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Nor does this rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States is not required. Executive Order 13175 The policies contained in this rule do not impose substantial unreimbursed direct compliance costs on Indian tribal governments or have tribal implications that preempt tribal law. Unfunded Mandates This rule contains no Federal mandates under the regulatory provisions of Title II of the Unfunded Mandates Reform Act of 1995
(UMRA)for State, local, and tribal governments or the private sector. In addition, CCC was not required to publish a notice of proposed rulemaking for this rule. Therefore, this rule is not subject to the requirements of sections 202 and 205 of the UMRA. Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) Section 1601(c)(3) of the 2008 Farm Bill requires that the Secretary use the authority in section 808 of title 5, United States Code, which allows an agency to forgo SBREFA's usual 60-day Congressional Review delay of the effective date of a major regulation if the agency finds that there is a good cause to do so. This rule affects a large number of agricultural producers who are dependent upon these provisions for financing farm storage and need to know the details as soon as possible because it affects their planting, marketing, and building decisions. Accordingly, this rule is effective upon the date of filing for public inspection by the Office of the **Federal Register** . Federal Assistance Programs The changes in this rule affect the following FSA programs as listed in the *Catalog of Federal Domestic Assistance:* 10.056—Farm Storage Facility Loans. Paperwork Reduction Act The regulations in this rule are exempt from requirements of the Paperwork Reduction Act (44 U.S.C. Chapter 35), as specified in section 1601(c)(2) of the 2008 Farm Bill, which provides that these regulations be promulgated and administered without regard to the Paperwork Reduction Act. E-Government Act Compliance CCC 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. List of Subjects in 7 CFR Part 1436 Administrative practice and procedure, Loan programs-agriculture, Penalties, Price support programs, Reporting and recordkeeping requirements. For the reasons discussed above, this rule amends 7 CFR part 1436 as follows: PART 1436—FARM STORAGE FACILITY LOAN PROGRAM REGULATIONS 1. Revise the authority citation for part 1436 to read as follows: Authority: 7 U.S.C. 7971 and 8789; and 15 U.S.C. 714-714p. § 1436.1 [Amended] 2. Amend § 1436.1 by removing the word “state” and adding in its place the word “State”. 3. Amend § 1436.2 as follows: a. Amend paragraphs (a), (c), introductory text,
(d)and
(f)second sentence, by removing the word “shall” each time it appears and adding in its place the word “will” and b. Revise paragraph
(g)to read as set forth below. § 1436.2 Administration.
(g)The purpose of the Farm Storage Facility Loan program is to provide CCC funded loans for producers of grains, oilseeds, pulse crops, sugar, hay, renewable biomass, fruits and vegetables (including nuts), and other storable commodities, as determined by the Secretary, to construct or upgrade storage and handling facilities for the eligible facility loan commodities they produce. 4. Amend § 1436.3 as follows: a. Amend the undesignated introductory paragraph, by removing the word “shall” each time it appears and adding in its place the word “will”, b. Add new definitions, in alphabetical order, for the terms “cold storage facility,” “commercial facility,” “commercial storage,” “hay,” “renewable biomass,” and “resale collateral value” as set forth below, c. Revise the definitions of “collateral” and “facility loan commodity” to read as set forth below, and d. Remove the definitions of “person,” “storage need requirement,” and “Uniform Commercial Code”. § 1436.3 Definitions. *Collateral* means the storage structure; the drying, handling, and cold storage equipment; and any other equipment securing the loan. *Cold storage facility* means a facility or rooms within a facility that are specifically designed and constructed for the cold temperature storage of perishable commodities. The temperature and humidity in these facilities must be able to be regulated to specified conditions required for the commodity requiring storage. *Commercial facility* means any structure, used in connection with or by any commercial operation including, but not limited to, grain elevators, warehouses, dryers, processing plants, or cold storage facilities used for the storage and handling of any agricultural product, whether paid or unpaid. Any structure suitable for the storage of an agricultural product that is in working proximity to any commercial storage operation will be considered to be part of a commercial storage operation. *Commercial storage* means the storing of any agricultural product, whether paid or unpaid, for persons other than the owner of the structure, except for family members and tenants or landlords with a share in the eligible facility loan commodity requiring storage. *Facility loan commodity* means corn, grain sorghum, oats, wheat, barley, rice, raw or refined sugar, soybeans, sunflower seed, canola, rapeseed, safflower, flaxseed, mustard seed, crambe, sesame seed, other oilseeds as determined and announced by CCC, dry peas, lentils, or chickpeas harvested as whole grain, peanuts, hay, renewable biomass, and fruits and vegetables (including nuts). Corn, grain sorghum, wheat, and barley are included whether harvested as whole grain or other than whole grain. *Hay* means a grass or legume that has been cut and stored. Commonly used grass mixtures include rye grass, timothy, brome, fescue, coastal Bermuda, orchard grass, and other native species, depending on the region. Forage legumes include alfalfa and clovers. *Renewable biomass* means any organic matter that is available on a renewable or recurring basis including renewable plant material such as feed grains or other agricultural commodities (including, but not limited to, soybeans and switchgrass), other plants and trees (excluding old-growth timber), algae, crop residue (including, but not limited to, corn stover, various straws and hulls, and orchard prunings), other vegetative waste material (including, but not limited to, wood waste, wood residues, and food and yard waste) used for the production of energy in the form of heat, electricity, and liquid, solid, or gaseous fuels. Manure from any source is not included. *Resale collateral value* means collateral that can be sold and moved to a new location for which compensation equal to the outstanding loan value can be expected. 5. Revise § 1436.4 to read as follows: § 1436.4 Application for loans.
(a)An application for a loan must be submitted:
(1)For all loans, except loans for renewable biomass storage facilities and cold storage facilities for fruits and vegetables, to the administrative county office that maintains the records of the farm or farms to which the application applies. With State office approval, loans may be made or serviced by a county office other than the administrative county office.
(2)For loans for renewable biomass storage facilities and cold storage facilities for fruits and vegetables, to the administrative county FSA office that maintains the records of the farm or farms to which the application applies, if the facility will be located on land that has farm records established at the county office. If the commodities will be produced on land that does not have farm records established at the county office, the application must be submitted to the county FSA office that services the county where the facility will be located.
(b)Upon request, the applicant must furnish information and documents as the State or county committee deems reasonably necessary to support the application. This may include financial statements, receipts, bills, invoices, purchase orders, specifications, drawings, plats, or written authorization of access.
(c)For sugar storage facility loans, a loan application must be submitted to the county FSA office that maintains the applicant's records. If no such records exist, loan applications must be submitted to the county office serving the headquarters location of the sugar processor.
(d)Submitting an application does not ensure loan approval nor create any liability on behalf of CCC. Borrowers who authorize delivery, site preparation, or construction actions without an approved loan, do so at their own risk. 6. Amend § 1436.5 as follows: a. Amend paragraph (a)(4) by adding the words “as determined” immediately before the words “by CCC;” b. Revise paragraphs (a)(5) and (a)(6) to read as set forth below, c. Amend paragraph (a)(7) by removing the acronym “USDA” and adding, in its place the words “the U.S. Department of Agriculture (USDA)”, d. Amend paragraph (a)(11) by adding the words “or a crop insurance violation” immediately after the word “violation,” and e. In paragraph (b), introductory text, remove the word “related”. § 1436.5 Eligible borrowers.
(a)* * *
(5)Demonstrates a need for increased storage capacity as determined by CCC if the applicant is applying for a loan for a storage structure. The Deputy Administrator, Farm Programs, may issue a waiver, if requested, on a case by case basis if a crop share landlord or tenant requests to construct a structure to store commodities produced on the farm but only one of the two wishes to accept loan liability;
(6)Annually provides proof of crop insurance offered under the Federal Crop Insurance Program for insurable crops of economic significance on all farms operated by the borrower in the county where the storage facility is located. Crop insurance or Noninsured Crop Disaster Assistance Program
(NAP)coverage, if available, is required on all the commodities stored in the FSFL-funded facility, whether economically significant or not; crop insurance under the Federal Crop Insurance Program may not be available for certain renewable biomass commodities; 7. Amend § 1436.6 as follows: a. Revise paragraphs (a), introductory text, and (a)(2) to read as set forth below, b. In paragraph (a)(1) remove the number “10” and add, in its place, the number “15”, c. In paragraph (a)(3) remove the number “10” and add, in its place, the number “15” and remove the word “and” at the end, d. In paragraph (a)(4) remove the number “10” and add, in its place, the number “15” and remove the period at the end and add, in its place, a semicolon. e. Add new paragraphs (a)(5) and (a)(6) to read as set forth below, f. Revise paragraph
(b)introductory text to read as set forth below, g. Amend paragraph (b)(3) to remove the word “grain” and add, in its place, the words “eligible facility loan commodity”, h. Amend paragraph (b)(4) to remove the word “grain” and add, in its place, the words “eligible facility loan commodity” and remove the word “and” at the end, i. Amend paragraph (b)(5) to remove the word “grain” and add, in its place, the words “eligible facility loan commodity” and remove the period at the end and add, in its place “; and”, j. Add new paragraph (b)(6) to read as set forth below, k. Revise paragraphs (c), introductory text, (c)(3), and (c)(5) to read as set forth below, l. Revise paragraph
(d)to read as set forth below, m. Amend paragraph
(e)in the first sentence to add the words “for all eligible facility loan commodities except sugar and fruits and vegetables” immediately after the word “Loans” and remove the number “10” and add, in its place, the number “15”, n. Add introductory text to paragraph
(f)to read as set forth below, o. Remove paragraph (f)(1), p. Redesignate paragraph (f)(2) as paragraph (f)(1) and amend newly designated paragraph (f)(1) in the first sentence, by removing the words “For sugar-related loans, the” and adding, in their place, the word “The”, q. Redesignate paragraph (f)(4) as paragraph (f)(2) and remove the words “For sugar-related loans,” and add, in their place, the words “Sugar storage facility”, r. Revise paragraph (f)(3) introductory text to read as set forth below, and s. Add paragraph
(g)to read as set forth below. § 1436.6 Eligible storage or handling equipment.
(a)For all eligible facility loan commodities, except sugar and fruits and vegetables, loans may be made only for the purchase and installation of eligible storage facilities, and permanently affixed drying and handling equipment, or for the remodeling of existing storage facilities or permanently affixed drying and handling equipment as provided in this section. The loan collateral must be used for the purpose for which it was delivered, erected, constructed, assembled, or installed for the entire term of the loan. Eligible storage and handling facilities include the following:
(2)New oxygen-limiting storage structures or remanufactured oxygen-limiting storage structures built to the original manufacturer's design specifications using original manufacturer's rebuild kits or kits from a supplier approved by the Deputy Administrator, Farm Programs, and other upright silo-type structures designed for whole grain storage or other than whole grain storage and with a useful life of at least 15 years; and
(5)New structures suitable for storing hay that are built according to acceptable design guidelines from the Cooperative State Research, Education, and Extension Services (CSREES) or land-grant universities and with a useful life of at least 15 years; and
(6)New structures suitable for storing renewable biomass that are built according to acceptable industry guidelines and with a useful life of at least 15 years.
(b)For all eligible facility loan commodities, except sugar and fruits and vegetables, the calculation of the loan amount may include costs associated with building, improving, or renovating an eligible storage or handling facility, including:
(6)Flooring appropriate for storing hay and renewable biomass suitable for the region where the facility is located and designed according to acceptable guidelines from CSREES or land-grant universities.
(c)For all eligible facility loan commodities, except sugar and fruits and vegetables, no loans will be made for installation or related costs of:
(3)Used structures or handling equipment, not including remanufactured oxygen-limiting storage structures built to the manufacturer's original design specifications as specified in paragraph (a)(2) of this section;
(5)Storage structures to be used as a commercial facility. Any facility that is in working proximity to any commercial storage operation will be considered to be part of a commercial storage operation; and
(d)Loans for all eligible facility loan commodities, except sugar and fruits and vegetables, may be approved for financing additions to or modifications of an existing storage facility with an expected useful life of at least 15 years if the county committee determines there is a need for the capacity of the structure, but loans will not be approved solely for the replacement of worn out items such as motors, fans, or wiring.
(f)The provisions of this paragraph apply only to sugar storage facility loans.
(3)No sugar storage facility loans will be made for:
(g)The provisions of this paragraph apply only to fruit and vegetable cold storage facility loans.
(1)For cold storage facility loans, the loan amount may include costs associated with the purchase, installation, building, improving, remodeling, or renovating an eligible storage or handling facility. Costs associated with the construction of a permanently installed cold storage facility include, but are not limited to, the following: An insulated cement slab floor, insulation for walls and ceiling (including, but not limited to, loose fill cellulose, foam insulation sheets, sprayed-on and foam-in-place materials), and a vapor barrier.
(2)Eligible facilities include, but are not limited to, the following:
(i)A new cold storage facility of wood pole and post construction, steel, or concrete, that is suitable for storing the fruits and vegetables produced by the borrower and with a useful life of at least 15 years;
(ii)New walk-in prefabricated permanently installed cold storage coolers that are suitable for storing the producer's fruits and vegetables and with a useful life of at least 15 years;
(iii)Permanently affixed equipment necessary for a cold storage facility such as refrigeration units or system and circulation fans;
(iv)Permanently installed equipment to maintain or monitor the quality of produce stored in a cold storage facility;
(v)Electrical equipment, including labor and materials for installation, such as lighting, motors, and wiring integral to the proper operation of a cold storage facility.
(3)For cold storage facility loans, loans may be approved for financing additions or modifications to an existing storage facility with an expected useful life of at least 15 years if CCC determines there is a need for the capacity of the structure.
(4)No cold storage facility loans will be made for:
(i)Portable structures;
(ii)Portable handling and cooling equipment;
(iii)Used or pre-owned structures, or cooling and handling equipment; or
(iv)Structures that are not suitable for a fruit or vegetable cold storage facility. 8. Revise § 1436.7 to read as set forth below: § 1436.7 Loan term.
(a)For eligible facility loan commodities other than sugar, the term of the loan will be 7, 10, or 12 years, based on the total loan principal, from the date a promissory note and security agreement is completed on both the partial and final loan disbursements. The applicant will choose, if applicable, a loan term when submitting the loan application and total cost estimates.
(1)For a loan with the principal of $100,000 or less, the term is 7 years.
(2)For loans from $100,000.01 through $250,000, the borrower will choose a term of 7 or 10 years.
(3)For loans from $250,000.01 through $500,000, the borrower will choose a loan term of 7, 10, or 12 years.
(b)No extensions of the loan term will be granted. The loan balance and all related costs are due at the end of the loan term.
(c)For a sugar-related loan:
(1)CCC, at its discretion, may authorize a maximum loan term of 15 years. The minimum loan term of a sugar-related loan is 7 years.
(2)The loan balance and costs are due at the end of the loan term, which will be established on the date the promissory note and security agreement is executed. 9. Revise § 1436.8 to read as follows: § 1436.8 Security for loan.
(a)Except as agreed to by CCC, all loans must be secured by a promissory note and security agreement covering the farm storage facility and such other assurances as CCC may demand, subject to the following:
(1)The promissory note and security agreement must grant CCC a security interest in the collateral and must be perfected in the manner specified in the laws of the State where the collateral is located.
(2)CCC's security interest in the collateral must be the sole security interest in such collateral except for prior liens on the underlying real estate that by operation of law attach to the collateral if it is or will become a fixture. If any such prior lien on the real estate will attach to the collateral, a severance agreement must be obtained in writing from each holder of such a lien, including all government or USDA agencies. No additional liens or encumbrances may be placed on the storage facility after the loan is approved unless CCC approves otherwise in writing.
(b)For any loan amounts of $50,000 or less, CCC will not require a severance agreement from the holder of any prior lien on the real estate parcel on which the storage facility is located, if the borrower:
(1)Agrees to increase the down payment on the storage facility loan from 15 percent to 20 percent; or
(2)Provides other security such as an irrevocable letter of credit, bond, or other form of security, as approved by CCC.
(c)For loan amounts exceeding $50,000, or when the aggregate outstanding balance will exceed $50,000 or for loans in which the approving county or State committee determines, as a result of financial analysis, that additional security is required, a lien on the real estate parcel on which the farm storage facility is located is required in the form of a real estate mortgage, deed of trust, or other security instrument approved by USDA's Office of the General Counsel, provided further that:
(1)CCC's interest in the real estate must be superior to all other liens, except a loan may be secured by a junior lien on real estate when the loan is adequately secured and a severance agreement is obtained from prior lien holders.
(2)A loan will be considered to be adequately secured when the real estate security for the loan is at least equal to the loan amount.
(3)If the real estate is covered by a prior lien, a lien waiver may be obtained by means of a subordination agreement approved for use in the State by USDA's Office of the General Counsel. CCC will not require such an agreement from any agency of USDA.
(d)Title insurance or a title opinion is required for loans secured by real estate.
(e)Real estate liens, with prior CCC approval, may cover land separate from the collateral if a lien on the underlying real estate is not feasible and if:
(1)The borrower owns the separate acreage and the acreage is not subject to any other liens or mortgages that are superior to CCC's lien interest and
(2)The acreage is of adequate size and value at the time of the application as determined by the county committee to adequately secure and insure repayment of the loan.
(f)A borrower, in lieu of such liens required by this section, may provide an irrevocable letter of credit, bond, or other form of security, as approved by CCC.
(g)If an existing structure is remodeled and an addition becomes an attached, integral part of the existing storage structure, CCC's security interest will include the remodeled addition as well as the existing storage structure.
(h)For all farm storage facility loans, except sugar loans, the borrower must pay the cost of loan closings by attorneys, title opinions, title insurance, title searches, filing, and recording all real estate liens, fixture filings, appraisals if requested by the borrower, and all subordinations. CCC will pay costs relating to credit reports, collateral lien searches, and filing and recording financing statements for the collateral.
(i)All loans of $50,000 or less that are secured with collateral with no resale value, as determined by CCC, may require additional security.
(j)For sugar storage facility loans, in addition to other requirements in this section, additional security, including real estate, chattels, crops in storage, and other assets owned by the applicant, is required if deemed necessary by CCC to adequately secure the loan. A sugar storage facility loan will generally be considered to be adequately secured when the CCC-determined value of security for the loan is equal to at least 125 percent of the loan amount.
(k)For sugar storage facility loans, paragraph
(h)of this section is not applicable. However, the borrower must pay all loan making fees and closing costs. This includes, but is not limited to, attorney fees for loan closings, environmental assessments and studies, chattel and real estate appraisals, title opinions, title insurance, title searches, and filing and recording all real estate liens, fixture filings, subordinations, credit reports, collateral lien searches, and filing and recording financing statements for the collateral. 10. Revise § 1436.9 to read as follows: § 1436.9 Loan amount and loan application approvals.
(a)The cost on which the loan will be based is the net cost of the eligible facility, accessories, and services to the applicant after discounts and rebates, not to exceed a maximum per-bushel, -ton or, -cubic foot cost established by the FSA State committee.
(b)The net cost for all storage facilities and handling equipment:
(1)May include the following: All real estate lien related fees paid by the borrower, including attorney fees, except for filing fees; environmental and historic review fees including archaeological study fees; the facility purchase price; sales tax; shipping; delivery charges; site preparation costs; installation cost; material and labor for concrete pads and foundations; material and labor for electrical wiring; electrical motors; off-farm paid labor; on-farm site preparation and construction equipment costs not to exceed commercial rates approved by the county committee; and new on-farm material approved by the county committee.
(2)May not include secondhand material or any other item determined by the approving authority to be ineligible for loan.
(c)The maximum total principal amount of the farm storage facility loan is 85 percent of the net cost of the applicant's needed storage or handling facility, including equipment, not to exceed $500,000 per loan.
(d)The storage need requirement for eligible facility loan commodities will be determined as follows:
(1)For facility loan commodities, except sugar and fruits and vegetables:
(i)Multiply the average of the applicant's share of the acres farmed for the most recent three years for each type of facility loan commodity requiring suitable storage at the proposed facility;
(ii)By a yield determined reasonable by the county committee;
(iii)Multiply by two (for 2 years production); and
(iv)Subtract existing storage capacity in the units of measurement, such as bushels, tons, or cubic feet, for the type of storage needed to determine remaining storage need.
(v)Compare capacity of proposed facility with storage need (calculated as specified in paragraphs (d)(1)(i)-(iv) of this section) to determine if applicant is eligible for additional storage.
(2)For sugar storage facility loans,
(i)Identify past processing volume and marketing allotments;
(ii)Use the processor's projection of processing volume, available storage capacity, volume not to be marketed due to marketing allotment, and other appropriate factors affecting the processor's storage need to estimate the storage need requirement, and
(iii)Compare capacity of proposed facility with storage need (estimated as specified in paragraphs (d)(2)(i)-(ii) of this section) to determine if additional storage is required.
(3)For cold storage facilities for fruits and vegetables:
(i)Multiply the average of the applicant's share of the acres farmed for the most recent three years for each eligible fruit and vegetable commodity requiring cold storage at the proposed facility;
(ii)By a yield determined reasonable by the county committee;
(iii)Determine cold storage needed (calculated as specified in paragraphs (d)(3)(i)-(ii) of this section) with the assistance of CSREES, land-grant university, or ARS publications; and
(iv)Subtract existing cold storage capacity to determine remaining storage need.
(v)Compare capacity of proposed cold storage facility with cold storage need (calculated as specified in paragraphs (d)(3)(i)-(iv) of this section) to determine if applicant is eligible for additional cold storage.
(4)For all eligible facility loan commodities, except sugar, if acreage data is not available, including prevented planted acres, or data is not applicable to the storage need, a reasonable acreage projection may be made for newly acquired farms, changes in cropping operations, or in facility loan commodity crops being grown for the first time.
(e)When a storage structure has a larger capacity than the applicant's needed capacity, as determined by CCC, the net cost eligible for a loan will be prorated. Only costs associated with the applicant's needed storage capacity will be considered eligible for loan under this part.
(f)Any borrower with an outstanding loan must use the financed structure only for the storage of eligible facility loan commodities. If a borrower uses such structure for other purposes such as office space or display area, the loan amount will be adjusted for the ineligible space as determined by CCC.
(g)The FSA county committee may approve applications, if loan funds are available, up to the maximum approval amount unless the Deputy Administrator, Farm Programs, or the FSA State committee establishes a lower limit for county committee approval authority.
(h)Farm storage facility loan approvals, for all eligible facility loan commodities except sugar, will expire 4 months after the date of approval unless extended in writing for an additional 4 months by the FSA State Committee. A second 4 month extension, for a total of 12 months from the original approval date, may be approved by the FSA State Committee. This authority will not be re-delegated. Sugar storage facility loan approvals will expire 8 months after the date of approval unless extended in writing for an additional 4 months by the FSA State Committee.
(i)For sugar storage facility loans, paragraphs
(c)and
(g)of this section do not apply.
(j)For sugar storage facility loans, the agency approval officials may only approve loans, subject to available funds. § 1436.10 [Amended] 11. Amend § 1436.10 as follows: a. In paragraph (a), remove the word “shall” and add, in its place, the word “will” and remove the words “before the loan is disbursed” and add, in their place, the words “before either the partial or final loan disbursements” and b. In paragraph (b), remove the word “shall” and add, in its place, the word “must.” 12. Revise § 1436.11 to read as follows: § 1436.11 Disbursements and assignments.
(a)At the request of the borrower, one partial disbursement of loan principal and one final loan disbursement will be available. The partial loan disbursement will be made to facilitate the purchase and construction of an eligible facility and will be made after the approved applicant has completed construction on part of the structure. County FSA personnel will inspect and verify the amount of construction completed.
(1)The amount of the partial loan disbursement will be determined by CCC and made after the borrower provides acceptable documentation for that portion of the completed construction to the County Committee.
(2)Security required for the amount of the partial loan disbursement will be required before the partial loan disbursement is finalized.
(3)The final disbursement of the loan by CCC will be made after the farm storage facility has been completely and fully delivered, erected, constructed, assembled, or installed and a CCC representative has inspected and approved such facility.
(4)All additional security needed to fully secure both the partial and final loan disbursements must be received before the final loan disbursement.
(b)Both the partial and final loan disbursements will be made only if the borrower furnishes satisfactory evidence of the total cost of the facility and payment of all debts on the facility in excess of the amount of the loan. If deemed appropriate by CCC, the partial and final disbursement may have separate notes and separate security instruments.
(c)Both the partial and final loan disbursement will be made jointly to the borrower and the contractor or supplier, except disbursement may be made to the borrower solely where CCC determines, based upon information made available to CCC by the borrower, that the borrower has paid the contractor or supplier all amounts that are due and owing with respect to the facility and that all applicable liens, security interests, or other encumbrances have been released.
(d)A release of liability will be required from all contractors and suppliers providing goods and services to the loan applicant.
(e)Loan proceeds cannot be assigned.
(f)For sugar storage facility loans, only one disbursement will be made and such disbursement will be regarded as a final disbursement. 13. Revise § 1436.12 to read as follows: § 1436.12 Interest and fees.
(a)Loans will bear interest at the rate equivalent, as determined by CCC, to the rate of interest charged on Treasury securities of comparable term and maturity on the date the loan is initially approved.
(b)The interest rate for each loan will remain in effect for the term of the loan.
(c)Each borrower on a loan application must pay a non-refundable application fee in such amount determined appropriate by CCC; the fee will be not less than $100 per borrower. The loan application fee is determined based on the cost of the fees associated with the loan, including, but not limited to, the cost to CCC for lien searches, security filings, and credit reports.
(d)For sugar storage facility loans, paragraph
(c)of this section does not apply. 14. Amend § 1436.13 as follows: a. In paragraph (a), in the second sentence, remove the words “the loan,” and add, in their place, the words “each of the partial and final loan disbursements,” b. In paragraph (b), in the second sentence, remove the word “Repayment shall” and add, in its place, the words “Each payment will”, c. Revise paragraph
(c)to read as set forth below, d. In paragraph (d), remove the word “shall” and add, in its place, the word “will”, e. In paragraph (e), remove the word “operation” and add, in its place, the word “facility” and remove the words “dryers or processing plants.” and add, in their place, the words “dryers, processing plants, or retail or wholesale cold storage facilities.”, f. In paragraph (f)(2), remove the word “debtors” and add, in its place, the word “debtor's,” and g. In paragraph (h), remove the word “shall” and add, in its place, the word “will”. § 1436.13 Loan installments, delinquency, and acceleration of maturity date.
(c)When installments are not paid on the due date:
(1)CCC will generally mail a demand for payment to the debtor after the due date has passed.
(2)If the installment is not paid within 30 calendar days of the due date or if a new due date acceptable to CCC has not been established based on a financial plan submitted by the debtor, CCC may send two subsequent written demands at approximately 30 calendar day intervals unless CCC needs to take other action to protect the interests of CCC.
(3)If the debtor files an appeal according to § 1436.18, CCC will generally cease collection action until the appeal process is complete, however, CCC may withhold any payments due the debtor and, depending on the outcome of the appeal, any payments due the debtor may later be offset and applied to reduce the indebtedness.
(4)In lieu of a foreclosure on the collateral or the land securing a loan in the case of a delinquency, CCC may permit a rescheduling of the debt or other measures consistent with the collection of other debts under the provisions of part 1403 of this chapter. Any rescheduling or alternate repayment arrangements will be permitted only with prior approval from the Deputy Administrator, Farm Programs. Alternately, CCC may implement such other collection procedures as it deems appropriate. § 1436.14 [Amended] 15. Amend § 1436.14 by adding the words “or land” immediately after the word “collateral” both times it appears and in the second sentence, remove the word “shall” both times it appears, and add, in its place, the word “will”. 16. Amend § 1436.15 as follows: a. In paragraphs (a), (b), (c), and (e), remove the word “shall” each time it appears and add, in its place, the word “will” and b. Revise paragraph
(f)to read as set forth below: § 1436.15 Maintenance, liability, insurance, and inspections.
(f)For sugar storage facility loans, in addition to the requirements of paragraph
(d)of this section, sugar processors must also insure the contents of storage structures used as collateral for a sugar storage facility loan against all perils. 17. Amend § 1436.16 as follows: a. Revise the section heading to read as set forth below, b. In paragraph (a)(2), second sentence, remove the word “state” and add, in its place, the word “State”, c. In paragraph (a)(3), introductory paragraph, second sentence, remove the word “shall” and add, in its place, the word “will”, d. In paragraph (a)(4), remove the word “nonmovable” and add, in its place, the words “non-movable or non-salable”, e. In paragraph (a)(5), introductory text, second sentence, remove the word “shall” and add, in its place, the word “will”, f. In paragraph (b)(1) remove the word “shall” both times it appears and add, in its place, the word “must”, g. In paragraph (b)(2), remove the word “shall” and add, in its place, the word “will”, h. In paragraph (c), second sentence, remove the word “shall” both times it appears and add, in its place, the word “must” and remove the word “borrowers” and add, in its place, the word “borrower's” i. Redesignate paragraph
(d)as paragraph (e), j. Add new paragraph
(d)to read as set forth below, and k. In redesignated paragraph
(e)remove the word “shall” and add, in its place, the word “will”. § 1436.16 Foreclosure, liquidation, assumptions, sales or conveyance, or bankruptcy.
(d)If any significant changes are made to the legal or operating status of the farming operation with an outstanding Farm Storage Facility Loan, the borrower must do one of the following:
(1)Find an eligible borrower or entity to assume the loan as specified in paragraph
(b)of this section,
(2)Repay the loan, or
(3)Undergo new financial analysis, as approved and determined by CCC, to ensure CCC's interests are protected and that the current borrower is in a position to continue making the scheduled loan payments. 1436.19 [Amended] 18. Amend § 1436.19 as follows: a. In paragraph (a), first sentence, by removing the word “shall” and adding, in its place, the word “will” and by adding the sentence “FSFL borrowers are subject to the nondiscrimination provisions applicable to Federally assisted programs contained in 7 CFR parts 15 and 15b.” at the end and b. In paragraph (b), by removing the words “national origin, sex, marital status, or” and adding, in their place, the words “national origin, disability, sex, marital status, familial status, parental status, sexual orientation, genetic information, political beliefs, reprisal, or” and by adding at the end the sentence “FSFL is subject to the nondiscrimination provisions applicable to Federally conducted programs contained in 7 CFR parts 15d and 15e.” Signed in Washington, DC, on August 11, 2009. Jonathan W. Coppess, Executive Vice President, Commodity Credit Corporation and Administrator, Farm Service Agency. [FR Doc. E9-19652 Filed 8-17-09; 8:45 am] BILLING CODE 3410-05-P DEPARTMENT OF COMMERCE Economic Development Administration 13 CFR Parts 313 and 315 [Docket No. 090429810-91212-02] RIN 0610-AA65 Revisions to the Trade Adjustment Assistance for Firms Program Regulations and Implementation Regulations for the Community Trade Adjustment Assistance Program AGENCY: Economic Development Administration, Department of Commerce. ACTION: Final rule. SUMMARY: On May 5, 2009, the Economic Development Administration (‘EDA’) published a notice of proposed rulemaking to reflect the amendments made to the Trade Act of 1974, as amended, by the Trade and Globalization Adjustment Assistance Act of 2009 (‘TGAAA’), which was included as subtitle I within the American Recovery and Reinvestment Act of 2009. The notice of proposed rulemaking provided a public comment period from May 5, 2009 through June 4, 2009. The TGAAA provides that the Secretary of Commerce must establish the Community Trade Adjustment Assistance Program by August 1, 2009, under which EDA would provide technical assistance under section 274 of the Trade Act to communities impacted by trade to facilitate the economic adjustment of those communities. The TGAAA amendments to the Trade Act took effect on May 17, 2009, 90 days after enactment. As a result of the enactment of the TGAAA, EDA promulgates this final rule to provide regulations to implement the Community Trade Adjustment Assistance Program and makes specific changes to the Trade Adjustment Assistance for Firms Program regulations. DATES: This rule is effective as of August 18, 2009. FOR FURTHER INFORMATION CONTACT: Jamie Lipsey, Attorney Advisor, Office of Chief Counsel, Economic Development Administration, Department of Commerce, Room 7005, 1401 Constitution Avenue, NW., Washington DC 20230; *telephone:*
(202)482-4687. SUPPLEMENTARY INFORMATION: Background EDA published a notice of proposed rulemaking (the ‘NPRM’) in the **Federal Register** (74 FR 20647) on May 5, 2009. The NPRM reflects the amendments made to the Trade Act of 1974, as amended (19 U.S.C. 2341 *et seq.* ) (the ‘Trade Act’), by the Trade and Globalization Adjustment Assistance Act of 2009 (the ‘TGAAA’), which was included as subtitle I to the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5, 123 Stat. 115, at 367). The TGAAA authorized the Trade Adjustment Assistance for Communities (‘Community TAA’) Program and made amendments to certain provisions affecting the Trade Adjustment Assistance for Firms (‘TAAF’) Program, which EDA currently administers through a network of 11 University-affiliated and non-profit Trade Adjustment Assistance Centers (each, a ‘TAAC’) located throughout the nation. This final rule promulgates the Community TAA Program regulations and makes specific changes to the TAAF Program regulations, both of which implement the amendments to the Trade Act made by the TGAAA. It also reflects EDA's current practices and policies in administering the TAAF Program that have evolved since the promulgation of EDA's current regulations. Chapter 3 of title II of the Trade Act authorizes the TAAF Program, under which technical assistance is provided to Firms that have lost domestic sales and employment due to increased imports of similar or competitive goods. Chapter 4 of title II of the Trade Act establishes the Community TAA Program, which is designed to help local economies adjust to changing trade patterns through the coordination of Federal, State, and local resources and the creation and implementation of community-based development strategies to help address trade impacts. Capitalized terms used but not otherwise defined in this final rule have the meanings ascribed to them in EDA's regulations set out in 13 CFR chapter III ( *see, e.g.,* 13 CFR 300.3, 303.2, 315.2, and 315.15). A complete discussion of the changes made to EDA's regulations was provided in the NPRM and is not repeated here. Response to Comments A 31-day public comment period, from May 5, 2009 through June 4, 2009, followed the publication of the NPRM. EDA received a small number of public comments on different portions of the NPRM. All comments received, which were from the Directors of three TAACs, related to the TAAF Program. EDA did not receive any comments related to the Community TAA Program. A summary of the comments and EDA's response are provided below. Section 315.2—Definitions EDA received one comment from the Director of the Rocky Mountain TAAC that stated the following: “The definition of ‘ *Absolutely'* has been determined by EDA to mean five percent. This is an arbitrary number that the TAACs at times have been told is no longer valid. The intended result is to only accept firms that are truly impacted. The actual result is usually several months' delay in assistance for the firm until sales and employment declines enough to satisfy the five percent decline. This delay causes unnecessary hardship to the firm. ‘Absolutely’ should not be defined in this document, but be determined on a case-by-case basis, which is customary with other similar definitions like ‘significant,’ which is purposely not defined.” The proposed revision to the definition of ‘ *Decreased Absolutely'* does not in any way alter the meaning of the term ‘Decreased Absolutely’ or EDA's current administration of the TAAF Program. EDA replaced the word ‘irrespective’ in paragraph
(1)with the word ‘independent’ for increased clarity and ease of understanding. Although the NPRM did not propose a revision to the provision of the definition that the commenter addresses, EDA has reviewed the comment and addresses it here. Requiring a Firm to show at least a five percent decline in sales and employment to be eligible for assistance under the TAAF Program is consistent with the need to marshal limited TAAF Program resources. In EDA's experience, the five percent minimum threshold helps to ensure that import-impacted Firms receive limited program resources. However, EDA recognizes that Firms' situations differ, and there are instances when an import impact will not manifest as such a quantifiable decline. Accordingly, EDA provided case-by-case flexibility in the interim final regulations published in the **Federal Register** on October 22, 2008 (73 FR 62858). In the October 22, 2008 interim final rule, EDA revised the definitions of Decreased Absolutely and ‘ *Significant Number or Proportion of Workers,'* which requires eligible Firms to demonstrate a workforce decline of at least five percent, to include the phrase, “unless EDA determines that these limitations in a given case would not be consistent with the purposes of the Trade Act.” This added language provides for the threshold five percent, but allows for case-by-case flexibility when the threshold may be unduly restrictive. In practice, the revised definitions have been effective to avoid unjust denials and efficiently use limited program financial and staff resources. EDA received the following comment from the Director of the Northwest TAAC regarding the proposed definition of ‘ *Increase in Imports,* ’ which was revised to include a discussion of the type of evidence EDA may consider in determining whether an Increase in Imports has occurred in a particular case. The proposed revision adds the new requirement from section 1863 of the TGAAA to permit EDA to determine that an Increase in Imports exists if customers accounting for a significant percentage of the decline in a Firm's sales or production certify that their purchases of imported ‘ *Like Articles or Services'* have increased absolutely or relative to the acquisition of such Like Articles or Services from suppliers in the United States. The commenter stated: “EDA's use of the word ‘certification’ in this paragraph on the definition of Increase in Imports is confusing. If what is meant is some sort of ‘writing’ from the customer of the petitioning firm then EDA is misconstruing the intent of Congress. To require such a ‘writing’ from a customer will make it almost impossible to use this method to show an increase in imports. Customers are very reluctant to admit they are purchasing imports out of fear there will be some sort of retribution placed upon them. Congress did not intend to make certification of service firms more difficult than manufacturing firms. ( *See* section 288 of the Act ‘sense of Congress.’) Since there are no HTS statistics for service imports, customer verification will be the primary method. However, to require a ‘writing’ in order for a customer to ‘certify’ their purchase of imports will not work. Besides, the petitioning firm, the petition preparer and the TAAC director already give their assurance as to the accuracy and completeness of the petition.” EDA believes that the amendment made by section 1863 of the TGAAA requires a written customer certification in certain circumstances. The revised definition of Increase in Imports implements section 251 of the Trade Act, as amended by section 1863 of the TGAAA, to provide that certification by a Firm's customers of increased imports to the Secretary is a method by which EDA may determine the existence of an Increase in Imports. Previously, the method to determine whether an Increase in Imports had occurred was left to the Secretary's discretion, and EDA used a combination of Harmonized Tariff Schedule (‘HTS’) data and the TAAC's interviews of the Firm's customers. This dual information gathering helps demonstrate import impacts on two levels: using HTS data helps show overall import trends in a manufacturing Firm's market, while customer interviews provide confirmation of trade impacts at the local level. The HTS comprises a hierarchical structure that classifies goods into specific ‘buckets’ using criteria such as name, use, and material used in a good's description. Using HTS data works well for manufacturing companies because the goods that are produced allow such Firms to fit within a specific HTS ‘bucket,’ and the trend data can be readily accessed. To understand the local forces affecting a Firm, the TAAC interviews the Firm's customers. However, HTS data for a ‘ *Service Sector Firm'* is extremely broad and does not allow for such a snapshot, which makes it infeasible as a method to assess import trends for Service Sector Firms. Other reliable data for assessing how imports affect service sector industries do not yet exist to provide information on import trends within a given Service Sector Firm's market. The TGAAA specifies the customer certification method to address this lack of industry data and provide a reliable method to assess the import impact(s). The plain meaning of ‘certify’ is to make a formal acknowledgment, and such certification must be in writing. The commenter also expressed concern that customers will be “very reluctant to admit they are purchasing imports out of fear there will be some sort of retribution placed on them.” As far as EDA is aware, information obtained from a Firm's customers and others has never been and will not be used for any other purpose than to make the required eligibility determinations in order to certify a Firm under the TAAF Program. The commenter noted that a written certification contravenes the ‘Sense of Congress’ expressed in the Trade Act, as amended by the TGAAA. EDA intends to apply the provisions of chapter 3 of the Trade Act with the utmost regard to Firms, but it also must comply with the directly expressed requirements of the TGAAA, which specify customer certifications to the Secretary. EDA is construing the provision narrowly and making its application minimally burdensome. For example, a customer certification will be required only to certify:
(i)A manufacturing Firm when the applicable HTS data does not show an Increase in Imports; and
(ii)Service Sector Firms until applicable HTS data become available. Also, EDA will accept customer certifications by email. Finally, the commenter indicated that requiring customer certification is redundant since the Firm and the TAAC already certify to the accuracy and completeness of a petition. EDA notes that this requirement comes directly from the statute, as section 1863 of the TGAAA specifies that “customers accounting for a significant percentage of the decrease in the sales or production of the firm” must “certify to the Secretary that such customers have increased their imports of such articles or services from a foreign country.” Section 315.6—Firm Eligibility for Adjustment Assistance EDA received one comment from the Director of the Midwest TAAC requesting clarification on existing Firm matching share requirements as set out in section 315.6(c)(2)(i). The comment states the following: “Does section 315.6(b)(2)(i) remove the $150,000 cap on total AP requests?” The NPRM did not propose changes to this provision, however, EDA reviewed and addresses the question here. After a Firm is certified as eligible for assistance under the TAAF Program, the Firm must develop an EDA-approved Adjustment Proposal, which is a strategy document designed to map out a path for the Firm's recovery. In an effort to marshal limited resources, EDA's general policy is to limit the amount of Federal assistance provided under the Adjustment Proposal to $150,000, which consists of $75,000 in EDA funds and $75,000 in Firm matching funds. EDA does not contemplate raising the $150,000 cap at this time. Section 315.7—Certification Requirements EDA received one comment from the Director of the Rocky Mountain TAAC on the existing interim sales or production decline Firm certification option, which was relocated, but not substantively amended by the NPRM and is set out in section 315.7(4). The comment stated: “The six month interim decline is useful, but not responsive enough to deal with a firm facing a rapid decline. A three month interim decline would provide for more timely assistance, and minimize unnecessary hardship to the firm.” The NPRM did not propose a revision to this provision, however, EDA has reviewed and addresses the comment in this final rule. EDA assumes that the commenter is referring to the interim sales or production and employment decline certification options in EDA's current regulations, which allow a Firm to pursue certification without at least a year of data showing sales or production and employment decline. The interim decline options are a regulatory rule; they are not statute-based. The addition of the interim decline options to the TAAF Program regulations was based on EDA's interpretation of the Trade Act's language and intent regarding the *threat* of employment separation and the need to provide proactive assistance. EDA extrapolated that since the Trade Act also focuses on the threat of harm, if a Firm can show a precipitous decline over six months, then it is a reasonable assumption that the pattern may continue. Although the interim decline options are not statute-derived, Congress has consistently appropriated the TAAF Program with those options in place. EDA does not believe that three months provide enough data to reasonably foresee a sales or production and employment decline, and does not believe cutting the interim decline options in half to three months will provide optimal program results. Section 315.8—Processing Petitions for Certifications EDA received two similar comments from the Directors of the Rocky Mountain and Northwest TAACs on the proposed revision to section 315.8, which provides that EDA has 40 days instead of 60 days from the date EDA accepts a petition to make a certification determination to implement section 251(d) of the Trade Act, as amended by section 1867 of the TGAAA. The commenters stated: “This section should contain a maximum number of days from receipt of a petition by EDA to ‘accept’ the petition for processing. To allow EDA an unlimited time to ‘accept’ a petition defeats the intent of Congress to only allow 40 days for EDA to make a determination to certify or reject the petition. ( *see* section 288 of Act).” In practice, many petitions that are submitted to EDA are incomplete or otherwise deficient in some manner. EDA has allowed and continues to allow the TAACs to informally submit a petition and works with the TAAC to resolve any deficiencies. After all deficiencies have been resolved, EDA accepts the petition, which starts the certification determination clock. EDA believes that automatically accepting all petitions will result in a higher rate of petition denials. Once a petition has been denied, the petitioning Firm must wait for one year from the date of denial before re-applying. Although EDA may waive the one-year limitation for good cause, EDA believes that the flexibility of the current system best serves the interests of Firms. This flexibility allows EDA to more effectively achieve the Congressional intent, which is to assist trade-impacted Firms with a minimum of delay and administrative burden. Firms likely to suffer the greatest trade-induced stress may have difficulty responding expeditiously to requests for clarification or to provide documentation and are most likely to exceed a hard and fast 40-day limit. The new regulations should not impose new response demands on already stressed Firms. Section 315.10—Loss of Certification Benefits EDA received the following comment from the Director of the Northwest TAAC on proposed section 315.10(d), which was revised to reflect EDA's current practice that a Certified Firm has five, not two, years from the date upon which EDA approves an Adjustment Proposal to complete work on the Adjustment Proposal: “There should be a subpart ‘(e)’. This subpart
(e)should state a firm has five years from the date their AP is approved to complete all parts of the implementation as found within its AP, without approval from EDA for going beyond this five year period to implement all aspects of the approved AP. This would put these regulations in compliance with what is actually occurring at the present time.” EDA believes that the proposed revision reflects current practice and that another subpart is not necessary. Changes From the NPRM After publication of the NPRM, EDA discovered that the proposed revisions to the Firms' 24- or 36-month sales decline certification requirements, set out in section 315.7(b)(2) and (3), do not reflect the ‘average annual’ language as provided in section 251 of the Trade Act, as amended by section 1862 of the TGAAA. Therefore, in this final rule, EDA revises section 315.7 to include the ‘average annual’ language, thereby succeeding and nullifying the revision proposed in the NPRM. Classification Prior notice and opportunity for public comment are not required for rules concerning public property, loans, grants, benefits, and contracts (5 U.S.C. 553(a)(2)). In the alternative, EDA finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness. EDA is required by the Trade and Globalization Adjustment Assistance Act of 2009, which was included as subtitle I within the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5, 123 Stat. 115, at 401), to implement these regulations by August 1, 2009. If this rulemaking was delayed to allow for a 30-day delay in effectiveness, EDA would not be able to meet its statutory requirement. Therefore, in order to make these regulations effective before August 1, 2009, EDA waives the 30-day in effectiveness and makes this rule effective immediately. Because prior notice and an opportunity for public comment are not required pursuant to 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. Therefore, a regulatory flexibility analysis has not been prepared. Paperwork Reduction Act This final rule contains collection-of-information requirements subject to the Paperwork Reduction Act (‘PRA’). In regard to the Community TAA Program, the Office of Management and Budget (‘OMB’) has approved the use of Form ED-900 (‘Application for Investment Assistance’) under Control Number 0610-0094. Form SF-424 (‘Application for Federal Assistance’) is approved under OMB Control Number 4040-0004. To estimate burden, EDA examined its experience with its public works and economic adjustment assistance programs, which are authorized under the Public Works and Economic Development Act of 1965, as amended (42 U.S.C. 3121 *et seq.* ) (‘PWEDA’). The potential demand for programs under PWEDA is, of course, much greater because eligibility is based on general economic distress and is not restricted to trade impact. EDA estimates that demand from trade-impacted areas would constitute a small fraction of all areas experiencing economic distress. Nonetheless, to a certain extent, demand will be elastic depending on the amount of appropriations Congress and the President approve for the Community TAA Program. Because the respondent burden will be similar for applications under the Community TAA Program as it is for applications under EDA's traditional programs, if the Community TAA Program is funded at its authorized level of $150,000,000, EDA estimates that it may receive about 350 responses for a petition for affirmative determination and 300 responses for an implementation grant. EDA estimates that the total annual paperwork burden for a petition for affirmative determination would be about 550 hours and the total annual paperwork burden for an implementation grant application would be about 6,500 hours. In regard to the TAAF Program, the use of Form ED-840P (‘Petition by a Firm for Certification of Eligibility to Apply for Trade Adjustment Assistance’) has been approved by OMB under Control Number 0610-0091. In light of the expansion of the TAAF Program to Service Sector Firms and the expansion of the ‘look back’ periods, EDA estimates the number of respondents who complete petitions for a certification of eligibility will increase more than 100 percent to about 500 respondents and that the total annual paperwork burden would be about 4,100 hours. Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number. Executive Order No. 12866 It has been determined that this final rule is significant for purposes of Executive Order 12866. Congressional Review Act This final rule is not ‘major’ under the Congressional Review Act (5 U.S.C. 801 *et seq.* ). Executive Order No. 13132 Executive Order 13132 requires agencies 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 Executive Order 13132 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.” It has been determined that this final rule does not contain policies that have federalism implications. List of Subjects 13 CFR Part 313 Trade adjustment assistance for communities, Impacted community, Petition and affirmative determination requirements, Strategic plan, Implementation grant. 13 CFR Part 315 Administrative practice and procedure, Trade adjustment assistance, Eligible petitioner, Firm selection, Certification requirements, Recordkeeping and audit requirements, Adjustment proposals. Regulatory Text For reasons stated in the preamble, EDA amends chapter III of title 13 of the *Code of Federal Regulations* to add new part 313 and to amend part 315 as follows: 1. Add part 313 to read as follows: PART 313—COMMUNITY TRADE ADJUSTMENT ASSISTANCE Subpart A—General Provisions Sec. 313.1 Purpose and scope. 313.2 Definitions. Subpart B—Participation in the Community Trade Adjustment Assistance Program 313.3 Overview of Community Trade Adjustment Assistance. 313.4 Affirmative determinations. 313.5 Technical assistance. 313.6 Strategic Plans. 313.7 Implementation grants for Impacted Communities. 313.8 Competitive process. Subpart C—Administrative Provisions 313.9 Records. 313.10 Conflicts of interest. 313.11 Other requirements. Authority: 19 U.S.C. 2341 *et seq.* , as amended by Division B, Title I, Subtitle I, Part II of Pub. L. 111-5; 42 U.S.C. 3211; Department of Commerce Organizational Order 10-4. Subpart A—General Provisions § 313.1 Purpose and scope. The regulations in this part set forth the responsibilities of the Secretary of Commerce under chapter 4 of title II of the Trade Act concerning Community Trade Adjustment Assistance (‘ *Community TAA* ’). The Community TAA Program is designed to assist Communities impacted by trade with economic adjustment through the coordination of Federal, State, and local resources, the creation of community-based development strategies, and the development and provision of programs that meet the training needs of workers. The statutory authority and responsibilities of the Secretary of Commerce relating to Community TAA are delegated to EDA. EDA certifies Communities as eligible to apply for assistance under the Community TAA Program, provides technical assistance to Impacted Communities, and provides implementation assistance to Impacted Communities in preparing and carrying out Strategic Plans. § 313.2 Definitions. In addition to the defined terms set forth in § 300.3 of this chapter, the terms used in this part shall have the following meanings: *Agricultural Commodity Producer* has the same meaning given to that term in title II, chapter 6, section 291 of the Trade Act. *Community Adjustment Assistance* means technical and implementation assistance provided to an Impacted Community under chapter 4 of title II of the Trade Act. *Community* means a city, county, or other political subdivision of a State or a consortium of political subdivisions of a State. *Cognizable Certification* means a certification:
(1)By the Secretary of Labor that a group of workers in the Community is eligible to apply for assistance under chapter 2, section 223 of the Trade Act;
(2)By the Secretary of Commerce that a Certified Firm (as defined at § 315.2 of this chapter) located in the Community is eligible to apply for Adjustment Assistance in accordance with chapter 3, sections 251-253 of the Trade Act; or
(3)By the Secretary of Agriculture that a group of Agricultural Commodity Producers in the Community is eligible to apply for assistance under chapter 6, section 293 of the Trade Act. *Impacted Community* means a Community that is affected by trade to such a degree that the Secretary has made an affirmative determination that it is eligible to apply for assistance under this part. *Strategic Plan* means an Impacted Community's plan for improving its economic situation developed in accordance with § 313.6. Subpart B—Participation in the Community Trade Adjustment Assistance Program § 313.3 Overview of Community Trade Adjustment Assistance. The Community TAA Program is designed to assist Communities impacted by trade to adjust to that impact. The Community TAA Program will be administered in accordance with the following process:
(a)*Determination of eligibility.* First, EDA must make an affirmative determination that the Community is impacted by trade in accordance with § 313.4.
(b)*Provision of technical assistance.* After an affirmative determination is made, EDA will provide the Impacted Community with technical assistance in accordance with § 313.5.
(c)*Strategic Plan development.* An Impacted Community that intends to apply for an implementation grant in accordance with § 313.7 must develop, in accordance with § 313.6, an EDA-approved Strategic Plan.
(d)*Implementation grant.* In accordance with § 313.7, EDA may award an implementation grant to assist an Impacted Community in carrying out a project or program included in a Strategic Plan. § 313.4 Affirmative determinations.
(a)*General.* Subject to the availability of funds, a Community may apply for an affirmative determination if:
(1)On or after August 1, 2009, one or more Cognizable Certifications are made with respect to the Community; and
(2)The Community submits the petition at least 180 days after the date of the most recent Cognizable Certification.
(b)*Grandfathered Communities.* If one or more Cognizable Certifications were made with respect to a Community on or after January 1, 2007, and before August 1, 2009, the Community may submit a petition to EDA for an affirmative determination under this section not later than February 1, 2010.
(c)*Affirmative determination petition requirements.*
(1)The Community must submit a complete petition to the applicable regional office (or regional offices in the event the Community crosses multiple geographic boundaries) serving the geographic area in which the Community is located. A complete petition for an affirmative determination shall contain the following:
(i)The ‘ *Application for Federal Assistance'* (Form SF-424) that contains such information to allow EDA to determine that the petitioning Community is significantly affected by the threat to, or the loss of, jobs associated with one or more Cognizable Certifications;
(ii)The applicable Cognizable Certification(s) upon which the Community bases its petition; and
(iii)Such other information as EDA considers material.
(2)The petition for affirmative determination must contain information about the impact(s) on the Community from the actual or threatened loss of jobs attributable to trade that led to the applicable Cognizable Certification(s) made by the Secretaries of Labor, Commerce or Agriculture, in order for EDA to determine that the Community is significantly affected. EDA shall measure such impact(s) using the petitioning Community's most recent Civilian Labor Force statistics as reported by the Bureau of Labor Statistics, U.S. Department of Labor, effective at the time of petition for affirmative determination. EDA will obtain the applicable Cognizable Certification from publicly available resources. However, a petitioning Community may also provide copies of the applicable Cognizable Certification to EDA.
(d)*Notification to Community.* Upon making an affirmative determination, EDA shall notify promptly the Community and the Governor of the State in which the Community is located of the means for obtaining assistance under this part and other appropriate economic assistance that may be available to the Community. Such notification will identify the appropriate EDA regional office that will provide technical assistance under § 313.5. § 313.5 Technical assistance.
(a)*General.* Once EDA has made an affirmative determination that a Community is an Impacted Community and subject to the availability of funds, EDA shall provide comprehensive technical assistance to:
(1)Diversify and strengthen the economy in the Impacted Community;
(2)Identify significant impediments to economic development that result from the impact of trade on the Impacted Community; and
(3)Develop or update a Strategic Plan in accordance with § 313.6 to address economic adjustment and workforce dislocation in the Impacted Community, including unemployment among agricultural commodity producers.
(b)*Coordination of Federal response.* EDA will coordinate the Federal response to an Impacted Community by:
(1)Identifying Federal, State, and local resources that are available to assist the Impacted Community in responding to economic distress; and
(2)Assisting the Impacted Community in accessing available Federal assistance and ensuring that such assistance is provided in a targeted, integrated manner. § 313.6 Strategic Plans.
(a)*General.* An Impacted Community that intends to apply for a grant for implementation assistance under § 313.7 shall develop and submit a Strategic Plan to EDA for evaluation and approval. EDA shall evaluate the Strategic Plan based on the technical requirements set forth in paragraph
(c)of this section.
(b)*Involvement of private and public entities.* To the extent practicable, an Impacted Community shall consult with the following entities in developing a Strategic Plan:
(1)Federal, local, county, or State government agencies serving the Impacted Community;
(2)Firms, as defined in § 315.2 of this chapter, including small- and medium-sized Firms, within the Impacted Community;
(3)Local workforce investment boards established under section 117 of the Workforce Investment Act of 1998 (29 U.S.C. 2832);
(4)Labor organizations, including State labor federations and labor-management initiatives, representing workers in the Impacted Community; and
(5)Educational institutions, local educational agencies, or other training providers serving the Impacted Community.
(c)*Technical requirements.* EDA shall evaluate the Strategic Plan based on the following minimum requirements:
(1)An analysis of the capacity of the Impacted Community to achieve economic adjustment to the impact(s) of trade;
(2)An analysis of the economic development challenges and opportunities facing the Impacted Community as well as the strengths, weaknesses, opportunities, and threats facing the Impacted Community;
(3)An assessment of the commitment of the Impacted Community to the Strategic Plan over the long term and the participation and input of members of the Community affected by economic dislocation, including how the Strategic Plan will be integrated effectively with one or more applicable Comprehensive Economic Development Strategies (‘ *CEDS'* ) that have been developed in connection with EDA's economic development assistance programs as set out at § 303.7 of this chapter;
(4)A description of the role and the participation of the entities described in paragraph
(b)of this section in developing the Strategic Plan;
(5)A description of the projects to be undertaken by the Impacted Community under its Strategic Plan and how such projects will facilitate the Impacted Community's economic adjustment;
(6)A description of the educational and training programs available to workers in the Impacted Community and the future employment needs of the Community;
(7)An assessment of the cost of implementing the Strategic Plan, including the timing of funding required by the Impacted Community to implement the Strategic Plan and the method of financing to be used to implement the Strategic Plan; and
(8)A strategy for continuing the economic adjustment of the Impacted Community after the completion of the projects described in paragraph (c)(5) of this section.
(d)*Cost sharing limitation.* Assistance awarded to an Impacted Community to develop a Strategic Plan under this section shall not exceed 75 percent of the cost of developing the Strategic Plan. In order to provide funding to as many merit-worthy Impacted Communities as feasible, EDA may base the amount of the Community's required share on the relative distress caused by the actual or threatened decline in the most recent Civilian Labor Force statistics effective on the date EDA receives an application to develop a Strategic Plan. § 313.7 Implementation grants for Impacted Communities.
(a)*General.* EDA may provide assistance in the form of a grant under this section to an Impacted Community to help the Community carry out a project or program that is included in a Strategic Plan developed in accordance with § 313.6. Such assistance may include:
(1)Infrastructure improvements, such as site acquisition, site preparation, construction, rehabilitation and equipping of facilities;
(2)Market or industry research and analysis;
(3)Technical assistance, including organizational development such as business networking, restructuring or improving the delivery of business services, or feasibility studies;
(4)Public services;
(5)Training; and
(6)Other activities justified by the Strategic Plan that satisfy applicable statutory and regulatory requirements.
(b)*Application evaluation criteria.*
(1)An Impacted Community that seeks to receive an implementation grant under this section shall submit a completed *‘Application for Federal Assistance'* (Form ED-900 or any successor form) to the applicable regional office (or regional offices in the event the Community crosses multiple geographic boundaries) serving the geographic area in which the Community is located. A complete application also shall include:
(i)The EDA-approved Strategic Plan that meets the requirements of § 313.6; and
(ii)A description of the project or program included in the Strategic Plan with respect to which the Impacted Community seeks assistance.
(2)EDA will evaluate all applications for the feasibility of the budget presented and conformance with statutory and regulatory requirements. EDA also will consider the degree to which an implementation grant in the Impacted Community will satisfy the evaluation criteria set forth in the applicable FFO announcement.
(c)*Coordination among grant programs.* If an entity in an Impacted Community seeks or plans to seek a Community College and Career Training Grant under section 278 of the Trade Act or a Sector Partnership Grant under section 279A of the Trade Act while the Impacted Community seeks assistance under this section, the Impacted Community shall include in the application for assistance a description of how the Impacted Community will integrate any projects or programs carried out using assistance provided under this section with any projects or programs that may be implemented with other Federal assistance.
(d)*Cost sharing requirement.*
(1)If an Impacted Community is awarded an implementation grant under this section, the following requirements shall apply:
(i)*Federal share.* The Federal share of a project or program for which a grant is awarded may not exceed 95 percent of the cost of implementing the project or program; and
(ii)*Community's share.* The Impacted Community must contribute at least five percent of the amount of the implementation grant towards the cost of implementing the project or program for which the grant is awarded.
(2)In order to provide funding to as many merit-worthy Impacted Communities as feasible, EDA may base the amount of the Community's required share on the relative distress caused by the actual or threatened decline in the most recent Civilian Labor Force statistics effective on the date EDA receives an application for an implementation grant.
(e)*Limitation.* An Impacted Community may not be awarded more than $5,000,000 in implementation grant assistance under this section. § 313.8 Competitive process.
(a)Applications for assistance to develop a Strategic Plan or for an implementation grant shall be reviewed by EDA in accord with a competitive process as set forth in the applicable FFO, to ensure that EDA awards funds to the most merit-worthy projects.
(b)*Priority for grants to small- and medium-sized Communities.* EDA shall give priority to an application submitted under this part by an Impacted Community that is a small- or medium-sized Community.
(c)*Supplement, not supplant.* The Community TAA Program and any funds appropriated to implement its provisions shall be used to supplement and not supplant other Federal, State, and local public funds expended to provide economic development assistance for Communities. Subpart C—Administrative Provisions § 313.9 Records. Communities that receive assistance under this part are subject to the records requirements set out in § 302.14 of this chapter. § 313.10 Conflicts of interest. Communities that receive assistance under this part are subject to the conflicts of interest provisions as set out in § 302.17 of this chapter. § 313.11 Other requirements. Communities that receive assistance under this part are subject to the general terms and conditions for Investment Assistance set out in part 302 of this chapter relating to requirements involving the environment (§ 302.1); post-disaster assistance (§ 302.2); public information (§ 302.4); relocation assistance and land acquisition (§ 302.5); Federal policies and procedures (§ 302.6); amendments and changes to awards (§ 302.7); pre-approval costs (§ 302.8); intergovernmental project reviews (§ 302.9); attorneys' and consultants' fees or the employment of expediters (§ 302.10); EDA's economic development information clearinghouse (§ 302.11); project administration, operation, and maintenance (§ 302.12); post-approval requirements (§ 302.18); indemnification (§ 302.19); and civil rights (§ 302.20). In addition, any Property (defined at § 314.1) acquired in connection with Investment Assistance is subject to the property management regulations set out in part 314 of this chapter. 2. Revise part 315 to read as follows: PART 315—TRADE ADJUSTMENT ASSISTANCE FOR FIRMS Subpart A—General Provisions Sec. 315.1 Purpose and scope. 315.2 Definitions. 315.3 Confidential Business Information. 315.4 Eligible applicants. 315.5 TAAC scope, selection, evaluation and awards. 315.6 Firm eligibility for Adjustment Assistance. Subpart B—Certification of Firms 315.7 Certification requirements. 315.8 Processing petitions for certification. 315.9 Hearings. 315.10 Loss of certification benefits. 315.11 Appeals, final determinations and termination of certification. Subpart C—Protective Provisions 315.12 Recordkeeping. 315.13 Audit and examination. 315.14 Certifications. 315.15 Conflicts of interest. Subpart D—Adjustment Proposals 315.16 Adjustment proposal requirements. Subpart E—Assistance to Industries 315.17 Assistance to Firms in import-impacted industries. Authority: 19 U.S.C. 2341 *et seq.,* as amended by Division B, Title I, Subtitle I, Part II of Pub. L. 111-5; 42 U.S.C. 3211; Department of Commerce Organization Order 10-4. Subpart A—General Provisions § 315.1 Purpose and scope. The regulations in this part set forth the responsibilities of the Secretary of Commerce under chapter 3 of title II of the Trade Act concerning Trade Adjustment Assistance for Firms. The statutory authority and responsibilities of the Secretary of Commerce relating to Adjustment Assistance are delegated to EDA. EDA certifies Firms as eligible to apply for Adjustment Assistance, provides technical Adjustment Assistance to Firms and other recipients, and provides assistance to organizations representing trade injured industries. § 315.2 Definitions. In addition to the defined terms set forth in § 300.3 of this chapter, the following terms used in this part shall have the following meanings: *Adjustment Assistance* means technical assistance provided to Firms or industries under chapter 3 of title II of the Trade Act. *Adjustment Proposal* means a Certified Firm's plan for improving its economic situation. *Certified Firm* means a Firm which has been determined by EDA to be eligible to apply for Adjustment Assistance. *Confidential Business Information* means any information submitted to EDA or a TAAC by a Firm that concerns or relates to trade secrets for commercial or financial purposes, which is exempt from public disclosure under 5 U.S.C. 552(b)(4), 5 U.S.C. 552b(c)(4) and 15 CFR part 4. *Contributed Importantly,* with respect to an Increase in Imports, refers to a cause which is important but not necessarily more important than any other cause. Imports will not be considered to have Contributed Importantly if other factors were so dominant, acting singly or in combination, that the worker separation or threat thereof or decline in sales or production would have been essentially the same, irrespective of the influence of imports. *Decreased Absolutely* means a Firm's sales or production has declined by a minimum of five percent relative to its sales or production during the applicable prior time period,
(1)Independent of industry or market fluctuations; and
(2)Relative only to the previous performance of the Firm, unless EDA determines that these limitations in a given case would not be consistent with the purposes of the Trade Act. *Directly Competitive* means imported articles or services that compete with and are substantially equivalent for commercial purposes ( *i.e.,* are adapted for the same function or use and are essentially interchangeable) as the Firm's articles or services. Any Firm that engages in exploring or drilling for oil or natural gas, or otherwise produces oil or natural gas, shall be considered to be producing articles directly competitive with imports of oil and with imports of natural gas. *Firm* means an individual proprietorship, partnership, joint venture, association, corporation (includes a development corporation), business trust, cooperative, trustee in bankruptcy or receiver under court decree, and includes fishing, agricultural or service sector entities and those which explore, drill or otherwise produce oil or natural gas. *See also* the definition of Service Sector Firm. Pursuant to section 261 of chapter 3 of title II of the Trade Act (19 U.S.C. 2351), a Firm, together with any predecessor or successor firm, or any affiliated firm controlled or substantially beneficially owned by substantially the same person, may be considered a single Firm where necessary to prevent unjustifiable benefits. For purposes of receiving benefits under this part, when a Firm owns or controls other Firms, the Firm and such other Firms may be considered a single Firm when they produce or supply like or Directly Competitive articles or services or are exerting essential economic control over one or more production facilities. Accordingly, such other Firms may include a(n):
(1)*Predecessor* —see the following definition for Successor;
(2)*Successor* —a newly established Firm (that has been in business less than two years) which has purchased substantially all of the assets of a previously operating company (or in some cases a whole distinct division) (such prior company, unit or division, a ‘Predecessor’) and is able to demonstrate that it continued the operations of the Predecessor which has operated as an autonomous unit, provided that there were no significant transactions between the Predecessor unit and any related parent, subsidiary, or affiliate that would have affected its past performance, and that separate records are available for the Predecessor's operations for at least two years before the petition is submitted. The Successor Firm must have continued virtually all of the Predecessor Firm's operations by producing the same type of products or services, in the same plant, utilizing most of the same machinery and equipment and most of its former workers, and the Predecessor Firm must no longer be in existence;
(3)*Affiliate* —a company (either foreign or domestic) controlled or substantially beneficially owned by substantially the same person or persons that own or control the Firm filing the petition; or
(4)*Subsidiary* —a company (either foreign or domestic) that is wholly owned or effectively controlled by another company. *Increase in Imports* means an increase of imports of Directly Competitive or Like Articles or Services with articles produced or services supplied by such Firm. EDA may consider as evidence of an Increase in Imports a certification from the Firm's customers that account for a significant percentage of the Firm's decrease in sales or production that they have increased their purchase of imports of Directly Competitive or Like Articles or Services from a foreign country, either absolutely or relative to their acquisition of such Like Articles or Services from suppliers located in the United States. *Like Articles or Services* means any articles or services, as applicable, which are substantially identical in their intrinsic characteristics. *Partial Separation* means, with respect to any employment in a Firm, either:
(1)A reduction in an employee's work hours to 80 percent or less of the employee's average weekly hours during the year of such reductions as compared to the preceding year; or
(2)A reduction in the employee's weekly wage to 80 percent or less of his/her average weekly wage during the year of such reduction as compared to the preceding year. *Person* means an individual, organization or group. *Record* means any of the following:
(1)A petition for certification of eligibility to qualify for Adjustment Assistance;
(2)Any supporting information submitted by a petitioner;
(3)The report of an EDA investigation with respect to petition; and
(4)Any information developed during an investigation or in connection with any public hearing held on a petition. *Service Sector Firm* means a Firm engaged in the business of supplying services. For purposes of receiving benefits under this part, when a Service Sector Firm owns or controls other Service Sector Firms, the Service Sector Firm and such other Service Sector Firms may be considered a single Service Sector Firm when they furnish like or Directly Competitive services or are exerting essential economic control over one or more servicing facilities. Such other Service Sector Firm may be a Predecessor, Successor, Affiliate or Subsidiary, each as defined in the definition of Firm. *Significant Number or Proportion of Workers* means five percent of a Firm's work force or 50 workers, whichever is less, unless EDA determines that these limitations in a given case would not be consistent with the purposes of the Trade Act. An individual farmer or fisherman is considered a Significant Number or Proportion of Workers. *Substantial Interest* means a direct material economic interest in the certification or non-certification of the petitioner. *TAAC* means a Trade Adjustment Assistance Center, as more fully described in § 315.5. *Threat of Total or Partial Separation* means, with respect to any group of workers, one or more events or circumstances clearly demonstrating that a Total or Partial Separation is imminent. *Total Separation* means, with respect to any employment in a Firm, the laying off or termination of employment of an employee for lack of work. § 315.3 Confidential Business Information. EDA will follow the procedures set forth in 15 CFR 4.9 for the submission of Confidential Business Information. Submitters should clearly mark and designate as confidential any Confidential Business Information. § 315.4 Eligible applicants.
(a)The following entities may apply for assistance to operate a TAAC:
(1)Universities or affiliated organizations;
(2)States or local governments; or
(3)Non-profit organizations.
(b)For purposes of § 315.17 and to the extent funds are appropriated to implement section 265 of the Trade Act, organizations assisting or representing industries in which a substantial number of Firms or workers have been certified as eligible to apply for Adjustment Assistance under sections 223 and 251 of the Trade Act, include:
(1)Existing agencies;
(2)Private individuals;
(3)Firms;
(4)Universities;
(5)Institutions;
(6)Associations;
(7)Unions; or
(8)Other non-profit industry organizations. § 315.5 TAAC scope, selection, evaluation and awards.
(a)*TAAC purpose and scope.*
(1)TAACs are available to assist Firms in obtaining Adjustment Assistance in all 50 U.S. States, the District of Columbia and the Commonwealth of Puerto Rico. TAACs provide Adjustment Assistance in accordance with this part either through their own staffs or by arrangements with outside consultants. Information concerning TAACs serving particular areas may be obtained from the TAAC Web site at *http://www.taacenters.org* or from EDA at *http://www.eda.gov.*
(2)Prior to submitting a petition for Adjustment Assistance to EDA, a Firm should determine the extent to which a TAAC can provide the required Adjustment Assistance. EDA will provide Adjustment Assistance through TAACs whenever EDA determines that such assistance can be provided most effectively in this manner. Requests for Adjustment Assistance will normally be made through TAACs.
(3)A TAAC generally provides Adjustment Assistance by providing assistance to a:
(i)Firm in preparing its petition for eligibility certification; and
(ii)Certified Firm in diagnosing its strengths and weaknesses, and developing and implementing an Adjustment Proposal.
(b)*TAAC selection.*
(1)EDA invites currently funded TAACs to submit either new or amended applications, provided they have performed in a satisfactory manner and complied with previous or current conditions in their Cooperative Agreements with EDA and contingent upon availability of funds. Such TAACs shall submit an application on a form approved by OMB, as well as a proposed budget, narrative scope of work, and such other information as requested by EDA. Acceptance of an application or amended application for a Cooperative Agreement does not ensure funding by EDA.
(2)EDA may invite new applications through a Federal Funding Opportunity *(‘FFO’)* announcement. An application will require a narrative scope of work, proposed budget and such other information as requested by EDA. Acceptance of an application does not ensure funding by EDA.
(c)*TAAC evaluation.*
(1)EDA generally evaluates currently funded TAACs based on:
(i)Performance under Cooperative Agreements with EDA and compliance with the terms and conditions of such Cooperative Agreements;
(ii)Proposed scope of work, budget and application or amended application; and
(iii)Availability of funds.
(2)EDA generally evaluates new TAACs based on:
(i)Competence in administering business assistance programs;
(ii)Background and experience of staff;
(iii)Proposed scope of work, budget and application; and
(iv)Availability of funds.
(d)*TAAC award requirements.*
(1)EDA generally funds a TAAC for a three-year project period consisting of three separate funding periods of 12 months each.
(2)There are no matching share requirements for Adjustment Assistance provided by the TAACs to Firms for certification or for administrative expenses of the TAACs. § 315.6 Firm eligibility for Adjustment Assistance.
(a)Firms participate in the Trade Adjustment Assistance for Firms program in accordance with the following:
(1)Firms apply for certification through a TAAC by completing a petition for certification. The TAAC will assist Firms in completing such petitions (at no cost to the Firms);
(2)Firms certified in accordance with the procedures described in §§ 315.7 and 315.8 must prepare an Adjustment Proposal for Adjustment Assistance from the TAAC (‘Adjustment Proposal’) and submit it to EDA for approval; and
(3)EDA determines whether the Adjustment Assistance requested in the Adjustment Proposal is eligible based upon the evaluation criteria set forth in subpart D of this part. A Certified Firm may submit a request to the TAAC for Adjustment Assistance to implement an approved Adjustment Proposal.
(b)For certification, EDA evaluates Firms' petitions strictly on the basis of fulfillment of the requirements set forth in § 315.7.
(1)Certified Firms generally receive Adjustment Assistance over a two-year period.
(2)The matching share requirements are as follows:
(i)Each Certified Firm must pay at least 25 percent of the cost of preparing its Adjustment Proposal. Each Certified Firm requesting $30,000 or less in total Adjustment Assistance in its approved Adjustment Proposal must pay at least 25 percent of the cost of that Adjustment Assistance. Each Certified Firm requesting more than $30,000 in total Adjustment Assistance in its approved Adjustment Proposal must pay at least 50 percent of the cost of that Adjustment Assistance.
(ii)Organizations representing trade-injured industries must pay at least 50 percent of the total cash cost of the Adjustment Assistance, in addition to appropriate in-kind contributions. Subpart B—Certification of Firms § 315.7 Certification requirements.
(a)*General.* EDA may certify a Firm as eligible to apply for Adjustment Assistance under section 251(c) of the Trade Act if it determines that the petition for certification meets one of the minimum certification thresholds set forth in paragraph
(b)of this section. In order to be certified, a Firm must meet the criteria listed under any one of the 5 circumstances described in paragraph
(b)of this section.
(b)*Minimum certification thresholds.*
(1)*Twelve-month decline.* Based upon a comparison of the most recent 12-month period for which data are available and the immediately preceding twelve-month period:
(i)A Significant Number or Proportion of Workers in the Firm has undergone Total or Partial Separation or a Threat of Total or Partial Separation;
(ii)Either sales or production, or both, of the Firm has Decreased Absolutely; or sales or production, or both, of any article or service that accounted for not less than 25 percent of the total production or sales of the Firm during the 12-month period preceding the most recent 12-month period for which data are available have Decreased Absolutely; and
(iii)An Increase in Imports has Contributed Importantly to the applicable Total or Partial Separation or Threat of Total or Partial Separation, and to the applicable decline in sales or production or supply of services.
(2)*Twelve-month versus twenty-four month decline.* Based upon a comparison of the most recent 12-month period for which data are available and the immediately preceding 24-month period:
(i)A Significant Number or Proportion of Workers in the Firm has undergone Total or Partial Separation or a Threat of Total or Partial Separation;
(ii)Either average annual sales or production, or both, of the Firm has Decreased Absolutely; or average annual sales or production, or both, of any article or service that accounted for not less than 25 percent of the total production or sales of the Firm during the 24-month period preceding the most recent 12-month period for which data are available have Decreased Absolutely; and
(iii)An Increase in Imports has Contributed Importantly to the applicable Total or Partial Separation or Threat of Total or Partial Separation, and to the applicable decline in sales or production or supply of services.
(3)*Twelve-month versus thirty-six month decline.* Based upon a comparison of the most recent 12-month period for which data are available and the immediately preceding 36-month period:
(i)A Significant Number or Proportion of Workers in the Firm has undergone Total or Partial Separation or a Threat of Total or Partial Separation;
(ii)Either average annual sales or production, or both, of the Firm has Decreased Absolutely; or average annual sales or production, or both, of any article or service that accounted for not less than 25 percent of the total production or sales of the Firm during the 36-month period preceding the most recent 12-month period for which data are available have Decreased Absolutely; and
(iii)An Increase in Imports has Contributed Importantly to the applicable Total or Partial Separation or Threat of Total or Partial Separation, and to the applicable decline in sales or production or supply of services.
(4)*Interim sales or production decline.* Based upon an interim sales or production decline:
(i)Sales or production has Decreased Absolutely for, at minimum, the most recent six-month period during the most recent 12-month period for which data are available as compared to the same six-month period during the immediately preceding 12-month period;
(ii)During the same base and comparative period of time as sales or production has Decreased Absolutely, a Significant Number or Proportion of Workers in such Firm has undergone Total or Partial Separation or a Threat of Total or Partial Separation; and
(iii)During the same base and comparative period of time as sales or production has Decreased Absolutely, an Increase in Imports has Contributed Importantly to the applicable Total or Partial Separation or Threat of Total or Partial Separation, and to the applicable decline in sales or production or supply of services.
(5)*Interim employment decline.* Based upon an interim employment decline:
(i)A Significant Number or Proportion of Workers in such Firm has undergone Total or Partial Separation or a Threat of Total or Partial Separation during, at a minimum, the most recent six-month period during the most recent 12-month period for which data are available as compared to the same six-month period during the immediately preceding 12-month period; and
(ii)Either sales or production of the Firm has Decreased Absolutely during the 12-month period preceding the most recent 12-month period for which data are available; and
(iii)An Increase in Imports has Contributed Importantly to the applicable Total or Partial Separation or Threat of Total or Partial Separation, and to the applicable decline in sales or *production or supply of services.* § 315.8 Processing petitions for certification.
(a)Firms shall consult with a TAAC for guidance and assistance in the preparation of their petitions for certification.
(b)A Firm seeking certification shall complete a *Petition by a Firm for Certification of Eligibility to Apply for Trade Adjustment Assistance* (Form ED-840P or any successor form) with the following information about such Firm:
(1)Identification and description of the Firm, including legal form of organization, economic history, major ownership interests, officers, directors, management, parent company, Subsidiaries or Affiliates, and production and sales facilities;
(2)Description of goods or services supplied or sold;
(3)Description of imported Directly Competitive or Like Articles or Services with those produced or supplied;
(4)Data on its sales, production and employment for the applicable 24-month, 36-month, or 48-month period, as required under § 315.7(b);
(5)One copy of a complete auditor's certified financial report for the entire period covering the petition, or if not available, one copy of the complete profit and loss statements, balance sheets and supporting statements prepared by the Firm's accountants for the entire period covered by the petition; publicly-owned corporations should submit copies of the most recent Form 10-K annual reports (or Form 10-Q quarterly reports, as appropriate) filed with the U.S. Securities and Exchange Commission for the entire period covered by the petition;
(6)Information concerning its major customers and their purchases (or its bids, if there are no major customers); and
(7)Such other information as EDA considers material.
(c)EDA shall determine whether the petition has been properly prepared and can be accepted. Promptly thereafter, EDA shall notify the petitioner that the petition has been accepted or advise the TAAC that the petition has not been accepted, but may be resubmitted at any time without prejudice when the specified deficiencies have been corrected. Any resubmission will be treated as a new petition.
(d)EDA will publish a notice of acceptance of a petition in the **Federal Register.**
(e)EDA will initiate an investigation to determine whether the petitioner meets the requirements set forth in section 251(c) of the Trade Act and § 315.7.
(f)A petitioner may withdraw a petition for certification if EDA receives a request for withdrawal before it makes a certification determination or denial. A Firm may submit a new petition at any time thereafter in accordance with the requirements of this section and § 315.7.
(g)Following acceptance of a petition, EDA will:
(1)Make a determination based on the Record as soon as possible after the petitioning Firm or TAAC has submitted all material. In no event may the determination period exceed 40 days from the date on which EDA accepted the petition; and
(2)Either certify the petitioner as eligible to apply for Adjustment Assistance or deny the petition. In either event, EDA shall promptly give written notice of action to the petitioner. Any written notice to the petitioner of a denial of a petition shall specify the reason(s) for the denial. A petitioner shall not be entitled to resubmit a petition within one year from the date of denial, provided, EDA may waive the one-year limitation for good cause. § 315.9 Hearings. EDA will hold a public hearing on an accepted petition if the petitioner or any interested Person found by EDA to have a Substantial Interest in the proceedings submits a request for a hearing no later than 10 days after the date of publication of the notice of acceptance in the **Federal Register,** under the following procedures:
(a)The petitioner or any interested Person(s) shall have an opportunity to be present, to produce evidence and to be heard;
(b)A request for public hearing must be delivered by hand or by registered mail to EDA. A request by a Person other than the petitioner shall contain:
(1)The name, address and telephone number of the Person requesting the hearing; and
(2)A complete statement of the relationship of the Person requesting the hearing to the petitioner and the subject matter of the petition, and a statement of the nature of its interest in the proceedings.
(c)If EDA determines that the requesting party does not have a Substantial Interest in the proceedings, a written notice of denial shall be sent to the requesting party. The notice shall specify the reasons for the denial;
(d)EDA shall publish a notice of a public hearing in the **Federal Register,** containing the subject matter, name of petitioner, and date, time and place of the hearing; and
(e)EDA shall appoint a presiding officer for the hearing who shall respond to all procedural questions. § 315.10 Loss of certification benefits. EDA may terminate a Firm's certification or refuse to extend Adjustment Assistance to a Firm for any of the following reasons:
(a)Failure to submit an acceptable Adjustment Proposal within two years after date of certification. While approval of an Adjustment Proposal may occur after the expiration of such two-year period, a Firm must submit an acceptable Adjustment Proposal before such expiration;
(b)Failure to submit documentation necessary to start implementation or modify its request for Adjustment Assistance consistent with its Adjustment Proposal within six months after approval of the Adjustment Proposal, where two years have elapsed since the date of certification. If the Firm anticipates needing a longer period to submit documentation, it should indicate the longer period in its Adjustment Proposal. If the Firm is unable to submit its documentation within the allowed time, it should notify EDA in writing of the reasons for the delay and submit a new schedule. EDA has the discretion to accept or refuse a new schedule;
(c)EDA has denied the Firm's request for Adjustment Assistance, the time period allowed for the submission of any documentation in support of such request has expired, and two years have elapsed since the date of certification; or
(d)Failure to diligently pursue an approved Adjustment Proposal where five years have elapsed since the date of certification. § 315.11 Appeals, final determinations and termination of certification.
(a)Any petitioner may appeal in writing to EDA from a denial of certification, provided that EDA receives the appeal by personal delivery or by registered mail within 60 days from the date of notice of denial under § 315.8(g). The appeal must state the grounds on which the appeal is based, including a concise statement of the supporting facts and applicable law. The decision of EDA on the appeal shall be the final determination within the Department. In the absence of an appeal by the petitioner under this paragraph, the determination under § 315.8(g) shall be final.
(b)A Firm, its representative or any other interested domestic party aggrieved by a final determination under paragraph
(a)of this section may, within 60 days after notice of such determination, begin a civil action in the United States Court of International Trade for review of such determination, in accordance with section 284 of the Trade Act.
(c)Whenever EDA determines that a Certified Firm no longer requires Adjustment Assistance or for other good cause, EDA will terminate the certification and promptly publish notice of such termination in the **Federal Register.** The termination will take effect on the date specified in the published notice.
(d)EDA shall immediately notify the petitioner and shall state the reasons for any termination. Subpart C—Protective Provisions § 315.12 Recordkeeping. Each TAAC shall keep records that fully disclose the amount and disposition of Trade Adjustment Assistance for Firms program funds so as to facilitate an effective audit. § 315.13 Audit and examination. EDA and the Comptroller General of the United States shall have access for the purpose of audit and examination to any books, documents, papers, and records of a Firm, TAAC or other recipient of Adjustment Assistance pertaining to the award of Adjustment Assistance. § 315.14 Certifications. EDA will provide no Adjustment Assistance to any Firm unless the owners, partners, members, directors or officers thereof certify to EDA:
(a)The names of any attorneys, agents, and other Persons engaged by or on behalf of the Firm for the purpose of expediting applications for such Adjustment Assistance; and
(b)The fees paid or to be paid to any such Person. § 315.15 Conflicts of interest. EDA will provide no Adjustment Assistance to any Firm under this part unless the owners, partners, or officers execute an agreement binding them and the Firm for a period of two years after such Adjustment Assistance is provided, to refrain from employing, tendering any office or employment to, or retaining for professional services any Person who, on the date such assistance or any part thereof was provided, or within one year prior thereto, shall have served as an officer, attorney, agent, or employee occupying a position or engaging in activities which involved discretion with respect to the provision of such Adjustment Assistance. Subpart D—Adjustment Proposals § 315.16 Adjustment proposal requirements. EDA evaluates Adjustment Proposals based on the following:
(a)EDA must receive the Adjustment Proposal within two years after the date of the certification of the Firm;
(b)The Adjustment Proposal must include a description of any Adjustment Assistance requested to implement such proposal, including financial and other supporting documentation as EDA determines is necessary, based upon either:
(1)An analysis of the Firm's problems, strengths and weaknesses and an assessment of its prospects for recovery; or
(2)If EDA so determines, other available information;
(c)The Adjustment Proposal must:
(1)Be reasonably calculated to contribute materially to the economic adjustment of the Firm ( *i.e.,* that such proposal will constructively assist the Firm to establish a competitive position in the same or a different industry);
(2)Give adequate consideration to the interests of a sufficient number of separated workers of the Firm, by providing, for example, that the Firm will:
(i)Give a rehiring preference to such workers;
(ii)Make efforts to find new work for a number of such workers; and
(iii)Assist such workers in obtaining benefits under available programs; and
(3)Demonstrate that the Firm will make all reasonable efforts to use its own resources for its recovery, though under certain circumstances, resources of related Firms or major stockholders will also be considered; and
(d)The Adjustment Assistance identified in the Adjustment Proposal must consist of specialized consulting services designed to assist the Firm in becoming more competitive in the global marketplace. For this purpose, Adjustment Assistance generally consists of knowledge-based services such as market penetration studies, customized business improvements, and designs for new products. Adjustment Assistance does not include expenditures for capital improvements or for the purchase of business machinery or supplies. Subpart E—Assistance to Industries § 315.17 Assistance to firms in import-impacted industries.
(a)Whenever the International Trade Commission makes an affirmative finding under section 202(B) of the Trade Act that increased imports are a substantial cause of serious injury or threat thereof with respect to an industry, EDA shall provide to the Firms in such industry assistance in the preparation and processing of petitions and applications for benefits under programs which may facilitate the orderly adjustment to import competition of such Firms.
(b)EDA may provide Adjustment Assistance, on such terms and conditions as EDA deems appropriate, for the establishment of industry-wide programs for new product development, new process development, export development or other uses consistent with the purposes of the Trade Act and this part.
(c)Expenditures for Adjustment Assistance under this section may be up to $10,000,000 annually per industry, subject to availability of funds, and shall be made under such terms and conditions as EDA deems appropriate. Dated: August 13, 2009. Dennis Alvord, Acting Deputy Assistant Secretary of Commerce for Economic Development. [FR Doc. E9-19774 Filed 8-17-09; 8:45 am] BILLING CODE 3510-24-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2009-0447; Directorate Identifier 2008-NM-172-AD; Amendment 39-15993; AD 2009-17-02] RIN 2120-AA64 Airworthiness Directives; Saab AB, Saab Aerosystems Model SAAB 340A (SAAB/SF340A) and SAAB 340B Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: We are adopting a new airworthiness directive
(AD)for the products listed above. This AD results from mandatory continuing airworthiness information
(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: During refueling, the ground crew detected smoke from the refuel/defuel panel illuminated placard 160VU. * * * We are issuing this AD to require actions to correct the unsafe condition on these products. DATES: This AD becomes effective September 22, 2009. The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of September 22, 2009. 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: Shahram Daneshmandi, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-1112; fax
(425)227-1149. SUPPLEMENTARY INFORMATION: Discussion We issued a notice of proposed rulemaking
(NPRM)to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the **Federal Register** on May 14, 2009 (74 FR 22712). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states: During refueling, the ground crew detected smoke from the refuel/defuel panel illuminated placard 160VU. The design of the refuel/defuel panel illuminated placard was changed during 1997 from its original specification, to fill the cavity inside the placard with silicone to avoid moisture/fluid ingress. SAAB has reviewed the working procedure and has developed a placard filled with a bi-component silicone-based material to minimize the cavity inside the panels. For the reasons described above, this EASA AD requires the identification of the manufacturing date of the affected placard, a visual inspection of the placard for heat and/or burn marks and the installation of a new placard in accordance with the instructions of SAAB Service Bulletin
(SB)340-28-027. This AD has been revised to identify the affected VIBRACHOC (the part manufacturer) placard with Part Number (P/N) C4FL5031C001, instead of the corresponding SAAB P/N 9303719-001, which was
(also)quoted inaccurately. In addition, it has been recognised that the original AD did not allow installation of the placards with a manufacturing date before 31/97; that has now been corrected. The unsafe condition is an electrical malfunction in the illuminated placard of the refuel and defuel panel, which could result in fire. 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 141 products of U.S. registry. We also estimate that it will take about 2 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $80 per work-hour. Required parts will cost about $1,500 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 $234,060, or $1,660 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: **2009-17-02 Saab AB, Saab Aerosystems:** Amendment 39-15993. Docket No. FAA-2009-0447; Directorate Identifier 2008-NM-172-AD. Effective Date
(a)This airworthiness directive
(AD)becomes effective September 22, 2009. Affected ADs
(b)None. Applicability
(c)Saab AB, Saab Aerosystems Model SAAB 340A (SAAB/SF340A) and SAAB 340B airplanes; certificated in any category; all serial numbers. Subject
(d)Air Transport Association
(ATA)of America Code 28: Fuel. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: During refueling, the ground crew detected smoke from the refuel/defuel panel illuminated placard 160VU. The design of the refuel/defuel panel illuminated placard was changed during 1997 from its original specification, to fill the cavity inside the placard with silicone to avoid moisture/fluid ingress. SAAB has reviewed the working procedure and has developed a placard filled with a bi-component silicone-based material to minimize the cavity inside the panels. For the reasons described above, this EASA AD requires the identification of the manufacturing date of the affected placard, a visual inspection of the placard for heat and/or burn marks and the installation of a new placard in accordance with the instructions of SAAB Service Bulletin
(SB)340-28-027. This AD has been revised to identify the affected VIBRACHOC (the part manufacturer) placard with Part Number (P/N) C4FL5031C001, instead of the corresponding SAAB P/N 9303719-001, which was
(also)quoted inaccurately. In addition, it has been recognized that the original AD did not allow installation of the placards with a manufacturing date before 31/97; that has now been corrected. The unsafe condition is an electrical malfunction in the illuminated placard of the refuel and defuel panel, which could result in fire. Actions and Compliance
(f)Unless already done, do the following actions:
(1)Within 3 months after the effective date of this AD, inspect the illuminated placard of the refuel and defuel panel, part number (P/N) C4FL5031C001, for signs of heat and burn marks, in accordance with Saab Service Bulletin 340-28-027, Revision 01, dated July 7, 2008.
(2)If any sign of heat or burn marks are found, before further flight, replace the illuminated placard of the refuel and defuel panel with a new illuminated placard of the refuel and defuel panel, having part number C4FL5031C001, and marked with a manufacturer date before 31/97 ( *i.e.,* week 31 of 1997), or a manufacturing date of 37/07 ( *i.e.,* week 37 of 2007) or higher and marked `Amdt:A.', in accordance with Saab Service Bulletin 340-28-027, Revision 01, dated July 7, 2008.
(3)If no signs of heat and burn marks are found, within 12 months after accomplishing the inspection required by (f)(1) of this AD is done, replace the illuminated placard of the fuel and defuel panel with a new illuminated placard of the refuel and defuel panel, having part number C4FL5031C001, and marked with a manufacturer date before 31/97 ( *i.e.,* week 31 of 1997) or a manufacturing date of 37/07 ( *i.e.,* week 37 of 2007) or higher and marked `Amdt:A.', in accordance with Saab Service Bulletin 340-28-027, Revision 01, dated July 7, 2008.
(4)As of 15 months after the effective date of this AD, installing an illuminated placard of the refuel and defuel panel is prohibited on any airplane, unless it has a manufacturing date before 31/97, or unless it has a manufacturing date of 37/07 or higher and is marked `Amdt:A'.
(5)Actions accomplished before the effective date of this AD in accordance with Saab Service Bulletin 340-28-027, dated April 30, 2008, are considered acceptable for compliance with the corresponding actions specified in paragraphs (f)(1), (f)(2), and (f)(3) of this AD. FAA AD Differences Note 1: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions
(g)The following provisions also apply to this AD:
(1)*Alternative Methods of Compliance (AMOCs):* The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to Attn: Shahram Daneshmandi, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-1112; fax
(425)227-1149. Before using any approved AMOC on any airplane to which the AMOC applies, notify your principal maintenance inspector
(PMI)or principal avionics inspector (PAI), as appropriate, or lacking a principal inspector, your local Flight Standards District Office. The AMOC approval letter must specifically reference this AD.
(2)*Airworthy Product:* For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3)*Reporting Requirements:* For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget
(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information
(h)Refer to MCAI European Aviation Safety Agency Airworthiness Directive 2008-0127R1, dated August 7, 2008; and Saab Service Bulletin 340-28-027, Revision 01, dated July 7, 2008, for related information. Material Incorporated by Reference
(i)You must use Saab Service Bulletin 340-28-027, Revision 01, dated July 7, 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 Saab Aircraft AB, SAAB Aerosystems, SE-581 88, Linköping, Sweden; telephone +46 13 18 5591; fax +46 13 18 4874; e-mail *saab2000.techsupport@saabgroup.com* ; Internet *http://www.saabgroup.com.*
(3)You may review copies of the service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington. For information on the availability of this material at the FAA, call 425-227-1221 or 425-227-1152.
(4)You may also review copies of the service information that is incorporated by reference 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 Renton, Washington, on August 3, 2009. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E9-19182 Filed 8-17-09; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2009-0532; Directorate Identifier 2008-NM-024-AD; Amendment 39-15994; AD 2009-17-03] RIN 2120-AA64 Airworthiness Directives; BAE Systems (Operations) Limited Model BAe 146 and Avro 146-RJ Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: We are adopting a new airworthiness directive
(AD)for the products listed above. This AD results from 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: The airbrake upper crossbeam on an airplane failed in-flight. The crossbeam failure caused damage to the rudder control system, resulting in loss of rudder control. Loss of rudder control will cause handling difficulties particularly during take-off, approach, and landing phases in cross winds. We are issuing this AD to require actions to correct the unsafe condition on these products. DATES: This AD becomes effective September 22, 2009. The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of September 22, 2009. ADDRESSES: You may examine the AD docket on the Internet at *http://www.regulations.gov* or in person at the U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC. FOR FURTHER INFORMATION CONTACT: Todd Thompson, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-1175; fax
(425)227-1149. SUPPLEMENTARY INFORMATION: Discussion We issued a notice of proposed rulemaking
(NPRM)to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the **Federal Register** on June 11, 2009 (74 FR 27725). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states: The airbrake upper crossbeam on an airplane failed in-flight. The crossbeam failure caused damage to the rudder control system, resulting in loss of rudder control. Loss of rudder control will cause handling difficulties particularly during take-off, approach, and landing phases in cross winds. BAE Systems (Operations) Ltd has published Inspection Service Bulletin
(ISB)53-200 that revises and supersedes the inspection requirements, which are defined in the Maintenance Review Board Report
(MRBR)SSI Task 53-40-125, Supplemental Structural Inspections Document
(SSID)Tasks 53-40-125.1 and 53-40-125.2 (included in the Airworthiness Limitations Section of Aircraft Maintenance Manual Chapter 5 that is currently mandated as part of EASA AD 2007-0271 [which corresponds to an FAA NPRM, Directorate Identifier 2007-NM-363-AD]) and in Maintenance Planning Document
(MPD)Task Reference 534025-DVI-10000-1. These revised inspection requirements and reduced inspection periods are to ensure that any fatigue damage is detected before it causes upper airbrake crossbeam failure. MRBR, SSID and MPD will be amended in due course to reflect these revised inspection periods. For the reasons stated above, this Airworthiness Directive
(AD)requires the [high frequency eddy current and low frequency phase analysis eddy current] inspection [for cracking, discrete surface damage, and discontinuity (corrosion and mechanical damage)] and, as necessary, repair of the airbrake upper crossbeam. The required actions include replacing the three rivets with Hi-lok pins. For cracking, damage, or discontinuity that is outside certain limits defined in the service bulletin, the repair includes contacting BAE Systems (Operations) Limited for repair instructions and doing the repair. 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 affects 1 product of U.S. registry. We also estimate that it takes about 6 work-hours 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 $480 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: **2009-17-03 BAE Systems (Operations) Limited (Formerly British Aerospace Regional Aircraft):** Amendment 39-15994. Docket No. FAA-2009-0532; Directorate Identifier 2008-NM-024-AD. Effective Date
(a)This airworthiness directive
(AD)becomes effective September 22, 2009. Affected ADs
(b)None. Applicability
(c)This AD applies to all BAE Systems (Operations) Limited Model BAe 146 and Avro 146-RJ airplanes, certificated in any category. Subject
(d)Air Transport Association
(ATA)of America Code 53: Fuselage. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: The airbrake upper crossbeam on an airplane failed in-flight. The crossbeam failure caused damage to the rudder control system, resulting in loss of rudder control. Loss of rudder control will cause handling difficulties particularly during take-off, approach, and landing phases in cross winds. BAE Systems (Operations) Ltd has published Inspection Service Bulletin
(ISB)53-200 that revises and supersedes the inspection requirements, which are defined in the Maintenance Review Board Report
(MRBR)SSI Task 53-40-125, Supplemental Structural Inspections Document
(SSID)Tasks 53-40-125.1 and 53-40-125.2 (included in the Airworthiness Limitations Section of Aircraft Maintenance Manual Chapter 5 that is currently mandated as part of EASA AD 2007-0271 [which corresponds to an FAA NPRM, Directorate Identifier 2007-NM-363-AD]) and in Maintenance Planning Document
(MPD)Task Reference 534025-DVI-10000-1. These revised inspection requirements and reduced inspection periods are to ensure that any fatigue damage is detected before it causes upper airbrake crossbeam failure. MRBR, SSID and MPD will be amended in due course to reflect these revised inspection periods. For the reasons stated above, this Airworthiness Directive
(AD)requires the [high frequency eddy current and a low frequency phase analysis eddy current] inspection [for cracking, discrete surface damage, and discontinuity (corrosion and mechanical damage)] and, as necessary, repair of the airbrake upper crossbeam. The required actions include replacing the three rivets with Hi-lok pins. For cracking, damage, or discontinuity that is outside certain limits defined in the service bulletin, the repair includes contacting BAE Systems (Operations) Limited for repair instructions and doing the repair. Actions and Compliance
(f)Unless already done, do the following actions:
(1)At the applicable time specified in paragraphs (f)(1)(i) and (f)(1)(ii) of this AD, inspect for cracking, damage, and discontinuity of the airbrake upper crossbeam fastener positions and lightening holes; and replace the three rivets with Hi-lok pins; in accordance with paragraphs 2.B., 2.C., and 2.D. of the Accomplishment Instructions of BAE Systems (Operations) Limited Inspection Service Bulletin ISB.53-200, Revision 1, dated March 13, 2007. If any crack, damage, or discontinuity is found: Before further flight, repair as required by paragraph (f)(3) of this AD.
(i)For airplanes that have not been inspected in accordance with BAE Systems (Operations) Limited MRBR SSI Task No. 53-40-125 (MPD Reference 534025-DVI-10000-1) as of the effective date of this AD, do the inspection prior to accumulating 20,000 total flight cycles or 500 flight cycles after the effective date of this AD, whichever occurs later.
(ii)For airplanes subject to MRBR and SSID requirements that have been inspected in accordance with BAE Systems (Operations) Limited MRBR SSI Task No. 53-40-125 (MPD Reference 534025-DVI-10000-1) as of the effective date of this AD, do the inspection at the latest of the times in paragraphs (f)(1)(ii)(A), (f)(1)(ii)(B), or (f)(1)(ii)(C) of this AD.
(A)Before the accumulation of 4,000 flight cycles since last inspection.
(B)Within 2,500 flight cycles (for MRBR airplanes), or within 1,000 flight cycles (for SSID airplanes) after the effective date of this AD; but not exceeding 8,000 flight cycles since the last inspection.
(C)Within 500 flight cycles after the effective date of this AD.
(2)Repeat the inspection required by paragraph (f)(1) of this AD thereafter at the applicable time specified in paragraph (f)(2)(i), (f)(2)(ii), or (f)(2)(iii) of this AD. If any crack, damage, or discontinuity is found: Before further flight, repair as required by paragraph (f)(3) of this AD.
(i)Inspect fastener positions at the rivet locations at intervals not to exceed 4,000 flight cycles.
(ii)Inspect the holes at Hi-lok pin locations at intervals not to exceed 12,000 flight cycles.
(iii)Inspect the lightening holes at intervals not to exceed 12,000 flight cycles.
(3)If any crack, damage, or discontinuity is found during any inspection required by this AD: Before further flight, do the repair in accordance with paragraph 2.E. of the Accomplishment Instructions of BAE Systems (Operations) Limited Inspection Service Bulletin ISB.53-200, Revision 1, dated March 13, 2007.
(4)Actions accomplished before the effective date of this AD in accordance with BAE Systems (Operations) Limited Inspection Service Bulletin ISB.53-200, dated December 21, 2006, are considered acceptable for compliance with the corresponding action specified in this AD. FAA AD Differences Note 1: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions
(g)The following provisions also apply to this AD:
(1)*Alternative Methods of Compliance (AMOCs):* The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to Attn: Todd Thompson, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-1175; fax
(425)227-1149. Before using any approved AMOC on any airplane to which the AMOC applies, notify your principal maintenance inspector
(PMI)or principal avionics inspector (PAI), as appropriate, or lacking a principal inspector, your local Flight Standards District Office. The AMOC approval letter must specifically reference this AD.
(2)*Airworthy Product:* For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3)*Reporting Requirements:* For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget
(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information
(h)Refer to MCAI European Aviation Safety Agency Airworthiness Directive 2007-0307, dated December 17, 2007; and BAE Systems (Operations) Limited Inspection Service Bulletin ISB.53-200, Revision 1, dated March 13, 2007; for related information. Material Incorporated by Reference
(i)You must use BAE Systems (Operations) Limited Inspection Service Bulletin ISB.53-200, Revision 1, dated March 13, 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 BAE Systems Regional Aircraft, 13850 McLearen Road, Herndon, Virginia 20171; telephone 703-736-1080; e-mail raebusiness@baesystems.com; Internet *http://www.baesystems.com/Businesses/RegionalAircraft/index.htm.*
(3)You may review copies of the service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington. For information on the availability of this material at the FAA, call 425-227-1221 or 425-227-1152.
(4)You may also review copies of the service information that is incorporated by reference 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 Renton, Washington, on August 4, 2009. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E9-19442 Filed 8-17-09; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-1143; Directorate Identifier 2008-NM-136-AD; Amendment 39-15990; AD 2009-16-07] RIN 2120-AA64 Airworthiness Directives; Boeing Model 737-600, -700, -700C, -800, and -900 Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: The FAA is superseding an existing airworthiness directive (AD), which applies to certain Boeing Model 737-600, -700, -700C, -800, and -900 series airplanes. That AD currently requires replacing brackets that hold the P5 panel to the airplane structure, the standby compass bracket assembly, the generator drive and standby power module, and the air conditioning module, as applicable. The existing AD also currently requires, among other actions, inspecting for wire length and for damage of the connectors and the wire bundles, and doing applicable corrective actions if necessary. This new AD requires an additional operational test of the P5-14 panel. This AD results from a report of an electrical burning smell in the flight compartment. We are issuing this AD to prevent wire bundles from contacting the overhead dripshield panel and modules in the P5 overhead panel, which could result in electrical arcing and shorting of the electrical connector and consequent loss of several critical systems essential for safe flight; and to ensure proper operation of the passenger oxygen system. If an improperly functioning passenger oxygen system goes undetected, the passenger oxygen mask could fail to deploy and result in possible incapacitation of passengers during a depressurization event. DATES: This AD becomes effective September 22, 2009. The Director of the Federal Register approved the incorporation by reference of a certain publication listed in the AD as of September 22, 2009. On June 22, 2006 (71 FR 28766, May 18, 2006), the Director of the Federal Register approved the incorporation by reference of certain other publications listed in the AD. ADDRESSES: For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, Washington 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; e-mail *me.boecom@boeing.com;* Internet *https://www.myboeingfleet.com.* Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov;* or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (telephone 800-647-5527) is the Document Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. FOR FURTHER INFORMATION CONTACT: Binh Tran, Systems and Equipment Branch, ANM-130S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)917-6485; fax
(425)917-6590. SUPPLEMENTARY INFORMATION: Discussion The FAA issued a notice of proposed rulemaking
(NPRM)to amend 14 CFR part 39 to include an AD that supersedes AD 2006-10-17, amendment 39-14601 (71 FR 28766, May 18, 2006). The existing AD applies to certain Boeing Model 737-600, -700, -700C, -800, and -900 series airplanes. That NPRM was published in the **Federal Register** on October 31, 2008 (73 FR 64894). That NPRM proposed to continue to require replacing brackets that hold the P5 panel to the airplane structure, the standby compass bracket assembly, the generator drive and standby power module, and the air conditioning module. That NPRM also proposed to continue to require, among other actions, inspecting for wire length and for damage of the connectors and the wire bundles and doing applicable corrective actions if necessary. That NPRM also proposed to require an additional operational test of the P5-14 panel. Comments We provided the public the opportunity to participate in the development of this AD. We have considered the comments that have been received on the NPRM. Request To Align AD Action With Related Service Bulletin One commenter, Boeing, requests that the NPRM wording for paragraph (f)(4) be revised to align with Boeing Service Bulletin 737-24A1141, Revision 3, dated February 20, 2008. Boeing states that the current wording in the NPRM indicates that the standby compass bracket assembly must be replaced with a new assembly. Boeing states that Boeing Service Bulletin 737-24A1141, Revision 3, dated February 20, 2008, states that the standby compass bracket assembly need not be replaced for all groups of airplanes. Boeing Service Bulletin 737-24A1141, Revision 3, dated February 20, 2008, also states to replace the standby compass bracket if necessary. We agree that clarification may be necessary. Paragraph (f)(4) is a restatement of actions required by AD 2006-10-17, and is retained in this supersedure. Paragraph
(f)of this AD states that the corrective actions (including replacing the standby compass bracket assembly as required by paragraph (f)(4) of this AD) must be done, as applicable. In addition, we note that a new requirement of this AD, paragraph
(i)of this AD, requires that after the effective date of this AD, only Revision 3 of Boeing Service Bulletin 737-24A1141, dated February 20, 2008, be used to do all applicable actions. We have not made any changes to the AD in this regard. Request To Clarify Terminology One commenter, the Air Transport Association (ATA), on behalf of its member Delta Airlines, requests that the terminology in Boeing Service Bulletin 737-24A1141 be clarified. In its comment, Delta states that it believes that Boeing Service Bulletin 737-24A1141 contains material that is vague in nature, which would leave information subject to interpretation. Delta states that Boeing Service Bulletin 737-24A1141 includes figures that contain statements such as, “Some airplanes may have different wires, panels or connectors” (e.g., in Figures 6-11 and 94 of the service bulletin). Delta is concerned that statements such as these, when dealing with compliance situations in which many different individuals are left to determine the intent and method prescribed by such instructions, can lead to problems determining the state of compliance of aircraft that have had work accomplished per the required accomplishment instructions. In the past, this has led to the grounding of airplanes at significant expense to the airlines, while confusion over the interpretation of said instructions is determined and resolved. Therefore, Delta believes that either Boeing Service Bulletin 737-24A1141 should be revised to clarify the meaning of vague terms (e.g., “typical”), or the AD should include notes to accomplish the same intent. Delta states that failure to clarify the vague terms will likely lead to the same compliance issues that operators previously experienced with the B737 Rudder System Enhancement Program (AD 2007-03-07, Amendment 39-14918, 72 FR 4625, February 1, 2007) and MD88 auxiliary hydraulic pump feeder wire inspection/modification (AD 2006-15-15, Amendment 39-14696, 71 FR 43035, July 31, 2006). We find that clarification of certain material contained in Boeing Service Bulletin 737-24A1141, Revision 3, dated February 20, 2008, is necessary. We discussed the material referenced by the commenter as “vague” with Boeing to clarify the intended meaning. Boeing noted that Boeing Service Bulletin 737-24A1141, Revision 3, dated February 20, 2008, was initially released in January 2004, and since then has been revised three times (December 2004, December 2005, and February 2008) to update and correct information. As specified in Boeing Service Bulletin 737-24A1141, Revision 3, dated February 20, 2008, required actions include: replacing brackets to lower the P5 overhead panel to increase the space between the wire bundles and the dripshield panel and modules; inspecting to determine if unwanted wire length or damage exists; retying the wire bundle or reterminating the wire bundle into the connector to eliminate the unwanted wire; and repairing damaged wire and using teflon tape, nylon sheet, and lacing tape to give greater protection to the wire bundles. Also, depending on airplane configuration, the service bulletin specifies replacing the standby compass bracket assembly with a new assembly, and replacing the stud assemblies with new assemblies. Boeing clarified that the P5 overhead panel varies from customer to customer, as indicated in the 98 figures contained in Boeing Service Bulletin 737-24A1141, Revision 3, dated February 20, 2008. Boeing explains that the phrase questioned by the commenter—i.e., “Some airplanes may have different wires, panels or connectors”—was used in the illustrations in the figures to indicate that the configuration on any given customer's airplane may be different from that shown in the illustrations. The illustrations simply provide examples of various configurations an operator might find; therefore, the information provided in the illustrations of the figures is for reference. Boeing explained further that the word “typical” is intended to represent a configuration that is in more than one location within an illustration. Additionally, while accomplishment of the steps specified in the tables of the figures is required, the illustrations are simply examples of the wiring configuration. In addition, we find that the word “unwanted” requires clarification. That term is used in various locations in the service bulletin in conjunction with wire length conditions—e.g., paragraph 3.B.9. of the Accomplishment Instructions states to “Inspect the connectors and the wire bundles in the rear, P5 aft panel to determine if unwanted wire length exists in Group 1-22 airplanes. *See* Figure 6.” We clarify that the General Information section of the Accomplishment Instructions of Boeing Service Bulletin 737-24A1141, Revision 3, dated February 20, 2008, references Boeing Standard Wiring Practices Manual
(SWPM)20-10-11 for wire installation procedures, including defining the amount of slack and making sure that all wire slack is securely tied into the parent harness or clamped. Additionally, it should be noted that tables found in certain figures of Boeing Service Bulletin 737-24A1141, Revision 3, dated February 20, 2008 (Figure 6, for example), refer operators to the SWPM for general conditions for wire installation. We have revised this final rule to include new Note 2 and Note 3 to clarify the meaning of the terminology discussed previously. Updated Contact Information for Alternative Methods of Compliance (AMOCs) We have updated the contact information for paragraph
(k)of this final rule. Conclusion We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting the AD with the change described previously. We also determined that this change will not increase the economic burden on any operator or increase the scope of the AD. Costs of Compliance There are about 740 airplanes of the affected design in the worldwide fleet. This AD affects about 333 airplanes of U.S. registry. For all airplanes, the required inspection, replacements, and wiring change that are required by AD 2006-10-17 and retained in this AD take about 16 or 18 work hours per airplane (depending on airplane configuration), at an average labor rate of $80 per work hour. Required parts cost about $10,231 or $11,139 per airplane (depending on the kit). Based on these figures, the estimated cost of the replacements and inspections required by this AD for U.S. operators is between $3,833,163 and $4,188,807, or between $11,511 and $12,579 per airplane. For certain airplanes, the modification of the generator drive and standby power module assembly that is required by AD 2006-10-17 and retained in this AD takes about 2 work hours per airplane, at an average labor rate of $80 per work hour. The airplane manufacturer states that it will supply required parts to operators at no cost. Based on these figures, the estimated cost of this modification required by this AD is $160 per airplane. For certain other airplanes, the modification of the air conditioning module assembly that is required by AD 2006-10-17 and retained in this AD takes about 1 work hour per airplane, at an average labor rate of $80 per work hour. The airplane manufacturer states that it will supply required parts to operators at no cost. Based on these figures, the estimated cost of this modification required by this AD is $80 per airplane. For certain airplanes, the new action takes about 21 or 23 work hours per airplane depending on the airplane configuration, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the new actions required by this AD for U.S. operators is $1,680 or $1,840 per airplane, depending on the airplane configuration. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. *For the reasons discussed above, I certify that this AD:*
(1)Is not a “significant regulatory action” under Executive Order 12866;
(2)Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
(3)Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration
(FAA)amends § 39.13 by removing amendment 39-14601 (71 FR 28766, May 18, 2006) and by adding the following new airworthiness directive (AD): **2009-16-07 Boeing:** Amendment 39-15990. Docket No. FAA-2008-1143; Directorate Identifier 2008-NM-136-AD. Effective Date
(a)This AD becomes effective September 22, 2009. Affected ADs
(b)This AD supersedes AD 2006-10-17. Applicability
(c)This AD applies to Boeing Model 737-600, -700, -700C, -800, and -900 series airplanes, certificated in any category; as identified in Boeing Service Bulletin 737-24A1141, Revision 3, dated February 20, 2008. Unsafe Condition
(d)This AD results from a report of an electrical burning smell in the flight compartment. We are issuing this AD to prevent wire bundles from contacting the overhead dripshield panel and modules in the P5 overhead panel, which could result in electrical arcing and shorting of the electrical connector and consequent loss of several critical systems essential for safe flight; and to ensure proper operation of the passenger oxygen system. If an improperly functioning passenger oxygen system goes undetected, the passenger oxygen mask could fail to deploy and result in possible incapacitation of passengers during a depressurization event. Compliance
(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Requirements of AD 2006-10-17 Inspection/Replacements/Wiring Changes/Corrective Actions
(f)Within 36 months after June 22, 2006 (the effective date of AD 2006-10-17), do the applicable actions in paragraphs (f)(1) through (f)(5) of this AD by accomplishing all the applicable actions specified in the Accomplishment Instructions of Boeing Service Bulletin 737-24A1141, Revision 2, dated December 1, 2005, except as provided by paragraph
(i)of this AD. Any applicable corrective actions must be done before further flight.
(1)Replace the five brackets that hold the P5 panel to the airplane structure with new brackets;
(2)Do a general visual inspection for wire length and damage of the connectors and the wire bundles, and applicable corrective actions;
(3)Make wiring changes;
(4)Replace the standby compass bracket assembly with a new assembly; and
(5)Replace the stud assemblies with new assemblies. Note 1: For the purposes of this AD, a general visual inspection is: “A visual examination of an interior or exterior area, installation, or assembly to detect obvious damage, failure, or irregularity. This level of inspection is made from within touching distance unless otherwise specified. A mirror may be necessary to ensure visual access to all surfaces in the inspection area. This level of inspection is made under normally available lighting conditions such as daylight, hangar lighting, flashlight, or droplight and may require removal or opening of access panels or doors. Stands, ladders, or platforms may be required to gain proximity to the area being checked.”
(g)Actions done before June 22, 2006, in accordance with Boeing Alert Service Bulletin 737-24A1141, Revision 1, dated December 23, 2004, are acceptable for compliance with the requirements of paragraph
(f)of this AD. Concurrent Requirements
(h)Before or concurrently with the requirements of paragraph
(f)of this AD, do the applicable action specified in Table 1 of this AD. Table 1—Concurrent Requirements For airplanes identified in Boeing component Service Bulletin— Action
(1)233A3205-24-01, dated July 26, 2001 Modify the generator drive and standby power module assembly in accordance with the Accomplishment Instructions of Boeing Component Service Bulletin 233A3205-24-01, dated July 26, 2001.
(2)69-37319-21-02, Revision 1, dated August 30, 2001 Modify the air conditioning module assembly in accordance with the Accomplishment Instructions of Boeing Component Service Bulletin 69-37319-21-02, Revision 1, dated August 30, 2001. New Actions Required by This AD New Service Bulletin Revision
(i)As of the effective date of this AD, use only the Accomplishment Instructions of Boeing Service Bulletin 737-24A1141, Revision 3, dated February 20, 2008, to do all the applicable actions required by paragraph
(f)of this AD. Note 2: Accomplishment of the steps specified in the tables of the figures of Boeing Service Bulletin 737-24A1141, Revision 3, dated February 20, 2008, is required. Due to the variability of airplane configurations, the illustrations in the figures are provided as examples. Note 3: Boeing Service Bulletin 737-24A1141, Revision 3, dated February 20, 2008, refers to “unwanted” wire length. “Unwanted” wire length is any wire length that does not meet the wire length requirements specified in the Standard Wiring Practices Manual (SWPM). Additional Operational Test
(j)For airplanes on which the actions required by paragraph
(f)of this AD have been done in accordance with Boeing Service Bulletin 737-24A1141, Revision 2, dated December 1, 2005, before the effective date of this AD: Within 12 months after the effective date of this AD, do an operational test of the P5-14 panel in accordance with paragraphs 3.B.92. and 3.B.93., as applicable, of the Accomplishment Instructions of Boeing Service Bulletin 737-24A1141, Revision 3, dated February 20, 2008. Alternative Methods of Compliance (AMOCs) (k)(1) The Manager, Seattle Aircraft Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to Attn: Binh Tran, Aerospace Engineer, Systems and Equipment Branch, ANM-130S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)917-6485; fax
(425)917-6590. Or, e-mail information to *9-ANM-Seattle-ACO-AMOC-Requests@faa.gov.*
(2)To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your principal maintenance inspector
(PMI)or principal avionics inspector (PAI), as appropriate, or lacking a principal inspector, your local Flight Standards District Office. The AMOC approval letter must specifically reference this AD.
(3)AMOCs approved previously in accordance with AD 2006-10-17 are approved as AMOCs for the corresponding provisions of this AD. Material Incorporated by Reference
(l)You must use the service information contained in Table 2 of this AD to do the actions required by this AD, unless the AD specifies otherwise. Table 2—All Material Incorporated by Reference Document Revision level Date Boeing Component Service Bulletin 233A3205-24-01 Original July 26, 2001. Boeing Component Service Bulletin 69-37319-21-02 1 August 30, 2001. Boeing Service Bulletin 737-24A1141 3 February 20, 2008.
(1)The Director of the Federal Register approved the incorporation by reference of the service information contained in Table 3 of this AD under 5 U.S.C. 552(a) and 1 CFR part 51. Table 3—New Material Incorporated by Reference Document Revision level Date Boeing Service Bulletin 737-24A1141 3 February 20, 2008.
(2)The Director of the Federal Register previously approved the incorporation by reference of the service information contained in Table 4 of this AD on June 22, 2006 (71 FR 28766, May 18, 2006). Table 4—Material Previously Incorporated by Reference Document Revision level Date Boeing Component Service Bulletin 233A3205-24-01 Original July 26, 2001. Boeing Component Service Bulletin 69-37319-21-02 1 August 30, 2001.
(3)For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC 2H-65, Seattle, Washington 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; e-mail *me.boecom@boeing.com* ; Internet *https://www.myboeingfleet.com.*
(4)You may review copies of the service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington. For information on the availability of this material at the FAA, call 425-227-1221 or 425-227-1152.
(5)You may also review copies of the service information that is incorporated by reference 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 Renton, Washington, on August 7, 2009. Stephen P. Boyd, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E9-19180 Filed 8-17-09; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2009-0004; Directorate Identifier 2008-NM-160-AD; Amendment 39-15995; AD 2009-17-04] RIN 2120-AA64 Airworthiness Directives; Airbus Model A318, A319, A320, and A321 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: One case of elevator servo-control disconnection has been experienced on an aircraft of the A320 family. Failure occurred at the servo-control rod eye-end. Further to this finding, additional inspections have revealed cracking at the same location on a number of other servo-control rod eye-ends. In one case, both actuators of the same elevator surface were affected. * * * A dual servo-control disconnection on the same elevator could result in an uncontrolled surface, the elevator surface being neither actuated nor damped, which could lead to reduced control of the aircraft. We are issuing this AD to require actions to correct the unsafe condition on these products. DATES: This AD becomes effective September 22, 2009. The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of September 22, 2009. 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: Tim Dulin, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-2141; fax
(425)227-1149. SUPPLEMENTARY INFORMATION: Discussion We issued a notice of proposed rulemaking
(NPRM)to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the **Federal Register** on January 13, 2009 (74 FR 1646). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states: One case of elevator servo-control disconnection has been experienced on an aircraft of the A320 family. Failure occurred at the servo-control rod eye-end. Further to this finding, additional inspections have revealed cracking at the same location on a number of other servo-control rod eye-ends. In one case, both actuators of the same elevator surface were affected. The root cause of the cracking has not yet been determined and tests are ongoing. It is anticipated that further actions will be required. A dual servo-control disconnection on the same elevator could result in an uncontrolled surface, the elevator surface being neither actuated nor damped, which could lead to reduced control of the aircraft. For the reason described above, this AD requires a one-time inspection [for cracking] of the elevator servo-control rod eye-ends and, in case of findings, the accomplishment of corrective actions. The corrective actions include replacing any cracked rod eye-end with a serviceable unit and re-adjusting the elevator servo-control. You may obtain further information by examining the MCAI in the AD docket. Explanation of Revised Service Information Airbus has issued All Operators Telex
(AOT)A320-27A1186, Revision 04, dated April 3, 2009. (We referred to Airbus AOT A320-27A1186, dated June 23, 2008, in the NPRM as the appropriate source of service information for doing the proposed actions.) Airbus has also issued AOT A320-27A1186, Revision 01, dated August 11, 2008; Revision 02, dated March 30, 2009; and Revision 03, dated April 1, 2009. Airbus issued Revision 01, Revision 03, and Revision 04 of the AOT to include minor improvements in the procedures. No additional work is necessary for airplanes on which Airbus AOT A320-27A1186, dated June 23, 2008; Revision 01, dated August 11, 2008; Revision 02, dated March 30, 2009; or Revision 03, dated April 1, 2009; has been accomplished before the effective date of this AD. We have revised paragraphs (f)(1) through (f)(5), and paragraph
(h)of this AD, to include Airbus AOT A320-27A1186, Revision 04, dated April 3, 2009. We have also added a new paragraph (f)(6) to this AD to include credit for accomplishing the actions before the effective date of this AD using the previously issued AOTs. Airbus AOT A320-27A1186, Revision 02, dated March 30, 2009, reduces the minimum threshold for inspections from 10,000 to 2,500 flight cycles, based on in service findings. Due to the criticality of the unsafe condition, we have determined that this AD must be issued without further delay; however, after this AD is published we might consider additional rulemaking to address the reduced compliance time. Comments We gave the public the opportunity to participate in developing this AD. We considered the comments received. Request To Revise Work Instructions Northwest Airlines
(NWA)asks that we require Airbus to rewrite the work instructions specified in Airbus AOT A320-27A1186, dated June 23, 2008. NWA states that the work steps are not written in a manner that is easily transferable to work cards, such as would normally be provided with a service bulletin. NWA adds that most of the work steps are provided in multiple references that must be extracted and properly sequenced so that the intent of the AOT can be accomplished. We acknowledge NWA's concern. We note that Airbus has issued revisions to AOT A320-27A1186 as described above under “Explanation of Revised Service Information.” However, we disagree that Airbus should revise AOT A320-27A1186 again because we have determined that actions done in accordance with Airbus AOT A320-27A1186, dated June 23, 2008; Revision 01, dated August 11, 2008; Revision 02, dated March 30, 2009; and Revision 03, dated April 1, 2009; or Revision 04, dated April 3, 2009; are adequate to address the identified unsafe condition. Therefore, we have made no change to the AD in this regard. Request To Remove Reporting Requirement NWA also asks that the reporting requirement not be included. NWA states that it sees the value in reporting confirmed findings, but if there are no findings the reporting requirement offers no improvement in safety. We disagree with NWA. We have determined that reporting both positive and negative inspection findings will enable the manufacturer to obtain better insight into the prevalence of the cracking. Reporting all findings will allow the manufacturer to conduct statistical analyses on a continuous basis rather than waiting for the compliance time to expire, which may be several years for certain airplanes. Access to all findings will help the manufacturer to develop final action to address the identified unsafe condition in an expeditious manner. We have made no change to the 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 730 products of U.S. registry. We also estimate that it will take about 13 work-hours 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 $759,200, or $1,040 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: **2009-17-04 Airbus:** Amendment 39-15995. Docket No. FAA-2009-0004; Directorate Identifier 2008-NM-160-AD. Effective Date
(a)This airworthiness directive
(AD)becomes effective September 22, 2009. Affected ADs
(b)None. Applicability
(c)This AD applies to Airbus Model A318-111, -112, -121, and -122; A319-111, -112, -113, -114, -115, -131, -132, and -133; A320-111, -211, -212, -214, -231, -232, -233; and A321-111, -112, -131, -211, -212, -213, -231, and -232 series airplanes; certificated in any category; all manufacturer serial numbers. Subject
(d)Air Transport Association
(ATA)of America Code 27: Flight controls. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: One case of elevator servo-control disconnection has been experienced on an aircraft of the A320 family. Failure occurred at the servo-control rod eye-end. Further to this finding, additional inspections have revealed cracking at the same location on a number of other servo-control rod eye-ends. In one case, both actuators of the same elevator surface were affected. The root cause of the cracking has not yet been determined and tests are ongoing. It is anticipated that further actions will be required. A dual servo-control disconnection on the same elevator could result in an uncontrolled surface, the elevator surface being neither actuated nor damped, which could lead to reduced control of the aircraft. For the reason described above, this AD requires a one-time inspection [for cracking] of the elevator servo-control rod eye-ends and, in case of findings, the accomplishment of corrective actions. The corrective actions include replacing any cracked rod eye-end with a serviceable unit and re-adjusting the elevator servo-control. Actions and Compliance
(f)Unless already done, after the accumulation of 10,000 total flight cycles since first flight of the airplane, do the following actions.
(1)Not before the accumulation of 10,000 total flight cycles since first flight of the airplane, and at the later of the times specified in paragraphs (f)(1)(i) and (f)(1)(ii) of this AD: Inspect both the left-hand and right-hand inboard elevator servo-control rod eye-ends for cracking, in accordance with the instructions of Airbus All Operators Telex
(AOT)A320-27A1186, Revision 04, dated April 3, 2009.
(i)Within 1,500 flight cycles or 200 days after the effective date of this AD, whichever occurs first.
(ii)Within 1,500 flight cycles or 200 days after accumulating 10,000 total flight cycles since first flight of the airplane, whichever occurs first.
(2)Not before the accumulation of 10,000 total flight cycles since first flight of the airplane, and at the later of the times specified in paragraphs (f)(2)(i) and (f)(2)(ii) of this AD: Inspect both the left-hand and right-hand outboard elevator servo-control rod eye-ends for cracking, in accordance with the instructions of Airbus AOT A320-27A1186, Revision 04, dated April 3, 2009.
(i)Within 3,000 flight cycles or 400 days after the effective date of this AD, whichever occurs first.
(ii)Within 3,000 flight cycles or 400 days after accumulating 10,000 total flight cycles since first flight of the airplane, whichever occurs first.
(3)If any cracking is found during any inspection required by this AD, before further flight, accomplish all applicable corrective actions in accordance with the instructions of Airbus AOT A320-27A1186, Revision 04, dated April 3, 2009.
(4)Submit a report of the findings of the inspection required by paragraphs (f)(1) and (f)(2) of this AD to Airbus in accordance with the instructions of Airbus AOT A320-27A1186, Revision 04, dated April 3, 2009; at the applicable time specified in paragraph (f)(4)(i) or (f)(4)(ii) of this AD.
(i)If the inspection was done after the effective date of this AD: Submit the report within 40 days after the inspection.
(ii)If the inspection was done before the effective date of this AD: Submit the report within 40 days after the effective date of this AD.
(5)As of the effective date of this AD, no person may install on any airplane an elevator servo-control rod eye-end unless it has been inspected in accordance with the instructions of Airbus AOT A320-27A1186, Revision 04, dated April 3, 2009.
(6)Actions done before the effective date of this AD in accordance with Airbus AOT A320-27A1186, dated June 23, 2008; Revision 01, dated August 11, 2008; Revision 02, dated March 30, 2009; or Revision 03, dated April 1, 2009; are acceptable for compliance with the corresponding actions required by this AD. FAA AD Differences Note 1: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions
(g)The following provisions also apply to this AD:
(1)*Alternative Methods of Compliance (AMOCs):* The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to Attn: Tim Dulin, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-2141; fax
(425)227-1149. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(2)*Airworthy Product:* For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3)*Reporting Requirements:* For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget
(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information
(h)Refer to MCAI European Aviation Safety Agency Airworthiness Directive 2008-0149, dated August 5, 2008; and Airbus AOT A320-27A1186, Revision 04, dated April 3, 2009; for related information. Material Incorporated by Reference
(i)You must use Airbus All Operators Telex A320-27A1186, Revision 04, dated April 3, 2009, to do the actions required by this AD, unless the AD specifies otherwise. (The document number and issue date of Airbus AOT A320-27A1186, Revision 04, dated April 3, 2009, are specified only on the first page of the AOT.)
(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 Airbus, Airworthiness Office—EAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; *e-mail:* account.airworth-eas@airbus.com; Internet *http://www.airbus.com.*
(3)You may review copies of the service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington. For information on the availability of this material at the FAA, call 425-227-1221 or 425-227-1152.
(4)You may also review copies of the service information that is incorporated by reference 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 Renton, Washington, on August 7, 2009. Stephen P. Boyd, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E9-19636 Filed 8-17-09; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION 14 CFR Part 97 [Docket No. 30682; Amdt. No. 3335] Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final Rule. SUMMARY: This rule establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports. DATES: This rule is effective August 18, 2009. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions. The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of August 18, 2009. ADDRESSES: Availability of matter incorporated by reference in the amendment is as follows: For Examination 1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591; 2. The FAA Regional Office of the region in which the affected airport is located; 3. The National Flight Procedures Office, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or, 4. 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.* *Availability* —All SIAPs are available online free of charge. Visit *http://nfdc.faa.gov* to register. Additionally, individual SIAP and Takeoff Minimums and ODP copies may be obtained from: 1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591; or 2. The FAA Regional Office of the region in which the affected airport is located. FOR FURTHER INFORMATION CONTACT: Harry J. Hodges, Flight Procedure Standards Branch (AFS-420) Flight Technologies and Programs Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 ( *Mail Address:* P.O. Box 25082 Oklahoma City, OK 73125) *telephone:*
(405)954-4164. SUPPLEMENTARY INFORMATION: This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (FDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of Title 14 of the Code of Federal Regulations. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the **Federal Register** expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained in FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAP and the corresponding effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number. The Rule This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP as modified by FDC/P-NOTAMs. The SIAPs, as modified by FDC P-NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days. Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days. Conclusion The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(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)does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. List of Subjects in 14 CFR Part 97 Air traffic control, Airports, Incorporation by reference, and Navigation (air). Issued in Washington, DC on August 7, 2009. John M. Allen, Director, Flight Standards Service. Adoption of the Amendment Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97, 14 CFR part 97, is amended by amending Standard Instrument Approach Procedures, effective at 0901 UTC on the dates specified, as follows: PART 97—STANDARD INSTRUMENT APPROACH PROCEDURES 1. The authority citation for part 97 continues to read as follows: Authority: 49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722. 2. Part 97 is amended to read as follows: By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, ILS/DME, MLS, MLS/DME, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; and § 97.35 COPTER SIAPs, Identified as follows: . . . Effective Upon Publication FDC Date State City Airport FDC No. Subject 07/22/09 NY ISLIP LONG ISLAND MAC ARTHUR 9/8067 THIS NOTAM PUBLISHED IN TL09-18 IS HEREBY RESCINDED IN ITS ENTIRETY. RNAV
(GPS)RWY 6, ORIG 07/24/09 NC CURRITUCK CURRITUCK COUNTY RGNL 9/0779 RNAV
(GPS)RWY 23, ORIG 07/27/09 CA MOJAVE MOJAVE 9/1138 GPS RWY 22, ORIG 07/27/09 CA MOJAVE MOJAVE 9/1139 GPS RWY 4, ORIG 07/27/09 PA PHILADELPHIA NORTHEAST PHILADELPHIA 9/1328 RNAV
(GPS)RWY 24, ORIG 07/27/09 PA PHILADELPHIA NORTHEAST PHILADELPHIA 9/1329 VOR RWY 6, AMDT 12 07/27/09 PA MONONGAHELA ROSTRAVER 9/1331 RNAV
(GPS)RWY 8, ORIG 07/27/09 PA PHILADELPHIA NORTHEAST PHILADELPHIA 9/1332 ILS OR LOC RWY 24, AMDT 12 07/27/09 PA MONONGAHELA ROSTRAVER 9/1333 RNAV
(GPS)RWY 26, ORIG 07/27/09 PA PHILADELPHIA NORTHEAST PHILADELPHIA 9/1334 RNAV
(GPS)RWY 15, ORIG 07/27/09 PA PHILADELPHIA NORTHEAST PHILADELPHIA 9/1335 RNAV
(GPS)RWY 6, ORIG 07/27/09 PA PHILADELPHIA NORTHEAST PHILADELPHIA 9/1336 LOC BC RWY 6, AMDT 7 07/27/09 PA PHILADELPHIA NORTHEAST PHILADELPHIA 9/1337 VOR RWY 24, AMDT 19 07/27/09 PA PHILADELPHIA NORTHEAST PHILADELPHIA 9/1338 RNAV
(GPS)RWY 33, ORIG 08/06/09 LA NATCHITOCHES NATCHITOCHES RGNL 9/1653 LOC RWY 35, AMDT 3D 08/06/09 LA NATCHITOCHES NATCHITOCHES RGNL 9/1654 NDB RWY 35, AMDT 5 07/29/09 IA PELLA PELLA MUNI 9/1699 NDB RWY 34, AMDT 7B 07/29/09 CA SAN JOSE NORMAN Y. MINETA SAN JOSE INTL 9/2126 RNAV
(GPS)RWY 11, ORIG-A 07/29/09 CA SAN JOSE NORMAN Y. MINETA SAN JOSE INTL 9/2127 VOR RWY 12R, AMDT 4 07/29/09 CA SAN JOSE NORMAN Y. MINETA SAN JOSE INTL 9/2128 RNAV
(GPS)RWY 12L, AMDT 1 07/29/09 CA SAN JOSE NORMAN Y. MINETA SAN JOSE INTL 9/2129 RNAV
(GPS)RWY 30R, AMDT 1 07/29/09 CA SAN JOSE NORMAN Y. MINETA SAN JOSE INTL 9/2130 RNAV
(GPS)RWY 29, ORIG-B 07/29/09 CA SAN JOSE NORMAN Y. MINETA SAN JOSE INTL 9/2131 TAKEOFF MINIMUMS AND OBSTACLE DP, AMDT 6 08/03/09 ID IDAHO FALLS IDAHO FALLS REGIONAL 9/2431 ILS OR LOC RWY 20, AMDT 11D 08/03/09 CA SACRAMENTO SACRAMENTO INTL 9/2432 ILS OR LOC RWY 16R, AMDT 14B 08/03/09 CA LANCASTER GENERAL WM J FOX AIRFIELD 9/2436 TAKEOFF MINIMUMS AND OBSTACLE DP, ORIG 08/04/09 OK ALTUS ALTUS/QUARTZ MOUNTAIN RGNL 9/2646 VOR A, AMDT 4C 08/05/09 OK ENID WOODRING RGNL ENID 9/2896 TAKEOFF MINIMUMS AND (OBSTACLE) DEPARTURE PROCEDURES AMDT 3 [FR Doc. E9-19657 Filed 8-17-09; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 97 [Docket No. 30681; Amdt. No. 3334] Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final Rule. SUMMARY: This establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports. DATES: This rule is effective August 18, 2009. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions. The incorporation by reference of certain publications listed in the regulations is approved by the Director of the **Federal Register** as of August 18, 2009. ADDRESSES: Availability of matters incorporated by reference in the amendment is as follows: For Examination 1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591; 2. The FAA Regional Office of the region in which the affected airport is located; 3. The National Flight Procedures Office, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or, 4. 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.* *Availability* —All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit *http://www.nfdc.faa.gov* to register. Additionally, individual SIAP and Takeoff Minimums and ODP copies may be obtained from: 1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591; or 2. The FAA Regional Office of the region in which the affected airport is located. FOR FURTHER INFORMATION CONTACT: Harry J. Hodges, Flight Procedure Standards Branch (AFS-420), Flight Technologies and Programs Divisions, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 ( *Mail Address:* P.O. Box 25082, Oklahoma City, OK 73125) *Telephone:*
(405)954-4164. SUPPLEMENTARY INFORMATION: This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or revoking SIAPS, Takeoff Minimums and/or ODPS. The complete regulators description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA Forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A. The large number of SIAPs, Takeoff Minimums and ODPs, in addition to their complex nature and the need for a special format make publication in the **Federal Register** expensive and impractical. Furthermore, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their depiction on charts printed by publishers of aeronautical materials. The advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA forms is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAPs and the effective dates of the associated Takeoff Minimums and ODPs. This amendment also identifies the airport and its location, the procedure, and the amendment number. The Rule This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as contained in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center
(FDC)Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPS and Takeoff Minimums and ODPS, an effective date at least 30 days after publication is provided. Further, the SIAPs and Takeoff Minimums and ODPS contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPS and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedures before adopting these SIAPS, Takeoff Minimums and ODPs are impracticable and contrary to the public interest, and where applicable, that good cause exists for making some SIAPs effective in less than 30 days. Conclusion The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(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)does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. List of Subjects in 14 CFR Part 97 Air traffic control, Airports, Incorporation by reference, and Navigation (air). Issued in Washington, DC on August 7, 2009. John M. Allen, Director, Flight Standards Service. Adoption of the Amendment Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or revoking Standard Instrument Approach Procedures and/or Takeoff Minimums and/or Obstacle Departure Procedures effective at 0902 UTC on the dates specified, as follows: PART 97—STANDARD INSTRUMENT APPROACH PROCEDURES 1. The authority citation for part 97 continues to read as follows: Authority: 49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722. 2. Part 97 is amended to read as follows: Effective 27 AUG 2009 Bethel, AK, Bethel, RNAV
(GPS)RWY 1R, Orig. Bethel, AK, Bethel, RNAV
(GPS)RWY 19L, Orig. Lewiston, ID, Lewiston-Nez Perce County, ILS RWY 26, Amdt 12. Lewiston, ID, Lewiston-Nez Perce County, RNAV
(GPS)RWY 8, Amdt 1. Lewiston, ID, Lewiston-Nez Perce County, RNAV
(GPS)RWY 12, Amdt 1. Lewiston, ID, Lewiston-Nez Perce County, RNAV
(GPS)RWY 26, Orig. Lewiston, ID, Lewiston-Nez Perce County, VOR RWY 26, Amdt 13. Teterboro, NJ, Teterboro, Takeoff Minimums and Obstacle DP, Amdt 6. Tooele, UT, Bolinder Field-Tooele Valley, ILS OR LOC/DME RWY 17, Amdt 1. Tooele, UT, Bolinder Field-Tooele Valley, RNAV
(GPS)Y RWY 17, Orig. Tooele, UT, Bolinder Field-Tooele Valley, RNAV
(GPS)Z RWY 17, Amdt 2. Effective 24 SEP 2009 Washington, DC, Ronald Reagan Washington Natl, VOR/DME RNAV OR GPS RWY 4, Amdt 6B, CANCELLED. Hollywood, FL, North Perry, Takeoff Minimums and Obstacle DP, Amdt 3. Plains, GA, Peterson Field, Takeoff Minimums and Obstacle DP, Orig. Dixon, IL, Dixon Muni-Charles R Walgreen Field, RNAV
(GPS)RWY 8, Orig-A. Dixon, IL, Dixon Muni-Charles R Walgreen Field, RNAV
(GPS)RWY 26, Orig-A. Dixon, IL, Dixon Muni-Charles R Walgreen Field, VOR-A, Amdt 10A. Moline, IL, Quad City Intl, ILS OR LOC RWY 27, Amdt 2. Moline, IL, Quad City Intl, RNAV
(GPS)RWY 13, Amdt 1. Moline, IL, Quad City Intl, RNAV
(GPS)RWY 31, Amdt 1. Millinocket, ME, Millinocket Muni, VOR RWY 29, Orig-A. Clinton, NC, Sampson County, Takeoff Minimums and Obstacle DP, Amdt 1. Fayetteville, NC, Fayetteville Regional/Grannis Field, LOC BC RWY 22, Amdt 7. Fayetteville, NC, Fayetteville Regional/Grannis Field, RNAV
(GPS)RWY 22, Amdt 3. Fayetteville, NC, Fayetteville Regional/Grannis Field, VOR RWY 22, Amdt 7. Hatteras, NC, Billy Mitchell, Takeoff Minimums and Obstacle DP, Orig. Lincolnton, NC, Lincolnton-Lincoln Rgnl, GPS RWY 5, Orig, CANCELLED. Lincolnton, NC, Lincolnton-Lincoln Rgnl, RNAV
(GPS)RWY 5, Orig. Lincolnton, NC, Lincolnton-Lincoln Rgnl RNAV
(GPS)RWY 23, Orig. Teterboro, NJ, Teterboro, RNAV
(GPS)Y RWY 6, Amdt 2. Teterboro, NJ, Teterboro, RNAV
(RNP)RWY 19, Orig. Teterboro, NJ, Teterboro, RNAV
(RNP)Z RWY 6, Orig. Jamestown, TN, Jamestown Muni, Takeoff Minimums and Obstacle DP, Orig. Provo, UT, Provo Muni, RNAV
(GPS)RWY 13, Amdt 1A. Green Bay, WI, Austin Straubel Intl, VOR/DME OR TACAN RWY 36, Amdt 10. Effective 22 OCT 2009 Jackson, TN, Mc Kellar-Sipes Rgnl, VOR RWY 2, Amdt 13. Livingston, TN, Livingston Muni, RNAV
(GPS)RWY 3, Orig. Livingston, TN, Livingston Muni, RNAV
(GPS)RWY 21, Orig. Livingston, TN, Livingston Muni, Takeoff Minimums and Obstacle DP, Amdt 2. Livingston, TN, Livingston Muni, VOR/DME RWY 21, Amdt 5. [FR Doc. E9-19658 Filed 8-17-09; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF LABOR Office of Workers' Compensation Programs 20 CFR Part 10 RIN 1215-AB66 Claims for Compensation; Death Gratuity Under the Federal Employees' Compensation Act AGENCY: Office of Workers' Compensation Programs, Employment Standards Administration, Labor. ACTION: Interim final rule; request for comments. SUMMARY: This document contains the interim final regulations governing the administration of the death gratuity created by section 1105 of the National Defense Authorization Act for Fiscal Year 2008, Public Law 110-181, by the Department of Labor (Department or DOL). Section 1105 provides a death gratuity payment to eligible survivors of Federal employees and non-appropriated fund instrumentality employees (NAFI employees) who die of injuries incurred in connection with service with an Armed Force in a contingency operation. Section 1105 amended the Federal Employees' Compensation Act
(FECA)to add a new section, designated as section 8102a. The Secretary of Labor has the authority to administer and to decide all questions arising under FECA. 5 U.S.C. 8145. FECA authorizes the Secretary to prescribe rules and regulations necessary for the administration and enforcement of the Act. 5 U.S.C. 8149. The Secretary has delegated the authority provided by 5 U.S.C. 8145 and 8149 to the Assistant Secretary for Employment Standards who then delegated that authority to the Director of the Office of Workers' Compensation Programs (OWCP), who is responsible for the administration and implementation of FECA. 20 CFR 1.1. Thus OWCP will administer the adjudication of claims and the payment of the death gratuity under new section 8102a. DATES: *Effective Date:* This interim final rule is effective on August 18, 2009. *Applicability date:* This interim final rule applies to all claims filed on or after August 18, 2009. This rule also applies to any claims that are pending before OWCP on August 18, 2009. *Comments:* The Department invites comments on the interim final rule from interested parties. Comments on the interim final rule must be postmarked by October 19, 2009. Written comments on the new information collection requirements in this rule must be postmarked by October 19, 2009. ADDRESSES: You may submit comments on the interim final rule, identified by Regulatory Information Number
(RIN)1215-AB66, by any ONE of the following methods: *Federal e-Rulemaking Portal:* The Internet address to submit comments on the rule is *http://www.regulations.gov* . Follow the Web site instructions for submitting comments. *Mail:* Submit written comments to Shelby Hallmark, Director, Office of Workers' Compensation Programs, Employment Standards Administration, U.S. Department of Labor, Room S-3524, 200 Constitution Avenue, NW., Washington, DC 20210. Because of security measures, mail directed to Washington, DC is sometimes delayed. We will only consider comments postmarked by the U.S. Postal Service or other delivery service on or before the deadline for comments. *Instructions:* All comments must include the RIN 1215-AB66 for this rulemaking. Receipt of any comments, whether by mail or Internet, will not be acknowledged. Because DOL continues to experience delays in receiving postal mail in the Washington, DC area, commenters are encouraged to submit any comments by mail early. Comments on the interim final rule will be available for public inspection during normal business hours at the address listed above for mailed comments. Persons who need assistance to review the comments will be provided with appropriate aids such as readers or print magnifiers. Copies of this interim final rule may be obtained in alternative formats (e.g., large print, audiotape or disk) upon request. To schedule an appointment to review the comments and/or to obtain the interim final rule in an alternative format, contact OWCP at 202-693-0031 (this is not a toll-free number). Written comments on the new information collection requirements described in this interim final rule should be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget, *Attention:* Desk Officer for Employment Standards Administration, Washington, DC 20503. FOR FURTHER INFORMATION CONTACT: Shelby Hallmark, Director, Office of Workers' Compensation Programs, Employment Standards Administration, U.S. Department of Labor, Room S-3524, 200 Constitution Avenue, NW., Washington, DC 20210, *Telephone:* 202-693-0031 (this is not a toll-free number). Individuals with hearing or speech impairments may access this telephone number via TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8339. SUPPLEMENTARY INFORMATION: I. Background The National Defense Authorization Act for Fiscal Year 2008, Public Law 110-181, was enacted on January 28, 2008. Section 1105 of Public Law 110-181 amended the FECA, creating a new section 8102a. The section establishes a new FECA benefit for eligible survivors of Federal employees and NAFI employees who die of injuries incurred in connection with service with an Armed Force in a contingency operation. The new section 8102a states that the United States will pay a death gratuity of up to $100,000 to those survivors upon receiving official notification of the employee's death. II. Administrative Procedure Act Issues Section 8102a was effective upon enactment of Public Law 110-181, on January 28, 2008. It states that the United States will pay the death gratuity of up to $100,000 to the eligible survivors “immediately upon receiving official notification” of an employee's death. The section also contains a retroactive payment provision, stating that the death gratuity will be paid for employees of certain agencies who died on or after October 7, 2001, due to injuries incurred in connection with service with an Armed Force in the theater of operations of Operation Enduring Freedom and Operation Iraqi Freedom. Both the immediate payment provision and the retroactive payment provision strongly suggest that the Department act as quickly as possible to implement section 8102a. Therefore, the Department believes that the “good cause” exception to APA notice and comment rulemaking applies to this rule. Under that exception, pre-adoption procedures are not required “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. 553(b)(B). DOL cannot adjudicate claims and pay the death gratuity in every potential claim until these regulations are promulgated. The Department believes that the lengthy steps necessary for the usual notice and comment under the APA would be contrary to Congress' intention that the death gratuity be paid as soon as possible, especially in the case of survivors to whom the retroactive payment provision applies, where the employee may have died years ago. Publication of a notice of proposed rulemaking in the **Federal Register** , which entails among other things, receipt of, consideration of, and response to comments submitted by interested parties; modification of the proposed rules, if appropriate; and publication in the **Federal Register** would take many months at a minimum, further delaying payment to deserving survivors of employees covered by this benefit. DOL does not believe that the benefits that might be gained from further consideration of these rules outweigh the delay in making payments to survivors as soon as possible, as intended by Congress when it required that these payments be made “immediately upon receiving official notification.” Family members and other survivors left behind by those brave individuals, who gave their lives in furtherance of the nations' strategic and vital interests here and abroad, deserve the government's compassionate response without further delay. While some initial claims may be paid easily without issuance of a rule interpreting and implementing this new FECA provision, many of the claims covered by this provision require regulatory guidance to adjudicate. Published regulations are the best vehicle to provide authoritative guidance concerning this provision since it incorporates standards and terms quite different from those applicable to many of the requirements for adjudicating workers' compensation claims under FECA. Accordingly, the Department believes that under 5 U.S.C. 553(b)(B), good cause exists for waiver of notice and comment rulemaking procedures because issuance of proposed rules would be impracticable and contrary to the public interest. While notice and comment rulemaking is being waived, the Department is interested in comments and advice regarding changes that should be made to these interim regulations. The Department will carefully consider all comments on the regulations contained in this interim final rule postmarked on or before October 19, 2009 and will publish the final regulations with any necessary changes. Under the APA, substantive rules generally cannot take effect until 30 days after the rule is published in the **Federal Register** . However, section 553(d)(3) of the APA states that agencies may waive this 30-day requirement for “good cause” and establish an earlier effective date. As explained above, the Department believes that there is “good cause” for waiver of the APA requirement for notice and comment rulemaking because it would be impracticable and contrary to the public interest for the Department to fulfill that requirement. Similarly, the Department believes that the “good cause” exception to the 30-day effective date requirement for substantive rules in the APA applies to this rule, because observing this requirement would be both impractical and contrary to the public interest. As noted above, DOL will not be able to adjudicate all claims under new section 8102a until the regulations in this rule are in effect. Since Congress has directed that the United States pay the death gratuity “immediately,” the Department believes that “good cause” exists for waiver of the usual 30-day effective date requirement for substantive rules and for this rule to become effective immediately upon the date of its publication in the **Federal Register** . DOL believes that it would be clearly contrary to the public interest and would serve no purpose to delay the effective date of this rule beyond the date of its publication in the **Federal Register** . The thirty day delay would provide no benefit to any party while further delaying DOL's ability to implement this provision. III. Overview of the Regulations In enacting section 1105 of Public Law 110-181, Congress created a new FECA benefit of a death gratuity up to $100,000 for survivors of employees who die of injuries incurred in connection with their service with an Armed Force in a contingency operation. DOL has determined for equitable reasons that every death gratuity will be paid in the amount of $100,000. (The $100,000 gratuity is offset by other death gratuities that have been paid for the same death.) These regulations will further define which deaths qualify for the payment of the death gratuity. The regulations will also describe the processes that OWCP will use so that claimants who are survivors and alternate beneficiaries of deceased employees will receive payment of the death gratuity as intended by Congress. Finally, the regulations will explain how OWCP will apply the statutory offset provision for each death gratuity payment. 20 CFR Part 10, Subpart J Section 10.900 The death gratuity is payable to claimants who are survivors or designated beneficiaries of “an employee who dies of injuries incurred in connection with the employee's service with an Armed Force in a contingency operation.” Section 8102a. Section 10.900 adopts the same definition of “Armed Force” as found in 10 U.S.C. 101(a)(4): “ ‘armed forces’ means the Army, Navy, Air Force, Marine Corps, and Coast Guard.” Subsection 10.900(b) explains that the death gratuity payment in section 8102a is a FECA benefit, as defined by section 10.5(a) of part 10. Because Congress enacted the death gratuity as section 8102a in the FECA, all the provisions and definitions in the FECA and in parts 10 and 25 are applicable to the death gratuity unless otherwise specified in section 8102a and these regulations. The FECA provisions applicable to the death gratuity include, for example, the timeliness provisions for filing a claim in section 8122 of the FECA, the definition of injury in section 8101(5) of the FECA, and the various administrative provisions applicable to a FECA claim. Pursuant to section 8137 of FECA and the applicable regulations, OWCP is required to pay an employee suffering a FECA covered injury who is neither a citizen of the United States nor a resident of the United States or Canada the lesser of workers' compensation benefits under FECA or local law. Since the new death gratuity payment is a FECA benefit, it will be included in that determination and thus will not be payable to such an employee where it is determined that the local law applicable to such employee provides a lesser benefit than that available under FECA. Section 10.901 Section 10.901 restates Congress' definition of “employee” in new section 8102a. For purposes of the death gratuity, the term “employee” has the meaning as stated in section 8101(1) of the FECA and also includes NAFI employees as defined in section 1587(a)(1) of Title 10 of the United States Code. Section 10.902 The death gratuity is payable to survivors and other designated beneficiaries of employees who die of injuries incurred in connection with their service with an Armed Force in a contingency operation. Section 10.902 clarifies that every such eligible death that occurs after the date of the enactment of Public Law 110-181 qualifies for the death gratuity. Section 10.903 Section 10.903 implements the retroactivity provision contained in new section 8102a. The statute gives “the Secretary concerned” discretion to apply the death gratuity retroactively to employee deaths that occurred on or after October 7, 2001, and before the date of enactment of section 8102a, if the deaths resulted from injuries incurred in connection with an employee's service with an Armed Force in the theater of operations of Operation Enduring Freedom or Operation Iraqi Freedom. New section 8102a does not further define “Secretary concerned” nor does it indicate any limits on the discretion of the “Secretary concerned” to apply the death gratuity retroactively. The Department interprets the “Secretary concerned” to mean the Secretary in charge of the employing agency of an employee who died in the circumstances specified in new section 8102a. The administration of any agency or non-appropriated fund instrumentality not headed by a Secretary will be considered “the Secretary concerned” for purposes of this provision. Furthermore, in order to promote efficiency in the administration of this benefit and to provide equal treatment and clear guidance to all covered employees and beneficiaries, DOL has requested that employing agencies whose employees are potentially covered by this new benefit make a determination concerning retroactive coverage in time for this rule to reflect that determination and inform all survivors of employees who died as a result of covered injuries during the retroactive period whether they are entitled to benefits pursuant to this provision. DOL engaged in an extensive outreach effort to determine whether any agencies desired to exclude survivors of employees who died as a result of covered injuries during the retroactive period. This effort included sending a letter to the Chief Human Capital Officer (or equivalent) of every Federal agency (as well as the Department of Defense on behalf of nonappropriated fund instrumentality employees) notifying them of the procedure for informing DOL of their decision concerning retroactive coverage. To minimize the burden on agencies, no action was requested of agencies wishing to have their employees included in retroactive coverage. The letter requested that agencies wishing to opt out of such coverage send a letter to DOL stating their desire to opt out of retroactive coverage. In addition to sending these individual letters, DOL distributed copies of the letter at the quarterly interagency FECA meeting held on June 9 attended by agency human resource staff, posted a notice on its website informing agencies of their options concerning retroactive coverage, and emailed workers' compensation contacts at each Federal agency notifying them of the web posting. No agencies chose to opt out of retroactive coverage. Accordingly, new section 8102a of FECA will apply retroactively to all employees covered by section 10.903. Section 10.904 New section 8102a is a FECA benefit, and under FECA, the term “injuries” includes occupational diseases in addition to traumatic injuries. Section 10.904 explains that the death gratuity is applicable to employee deaths due to occupational diseases incurred in connection with the employee's service with an Armed Force in a contingency operation. Section 10.905 Section 10.905 states that if an employee dies of injuries incurred in connection with his or her service with an Armed Force in a contingency operation, the death will qualify for the death gratuity regardless of how long after that injury the employee dies. As with other FECA death benefits, there is no requirement that the employee's death occur within a certain time period after an injury to qualify for the death gratuity benefit. While the death gratuity for members of the Armed Forces, codified at 10 U.S.C. 1475-1480, requires that the death of a member of the Armed Forces occur within 120 days after discharge to qualify for that gratuity, *see* 10 U.S.C. 1476, new section 8102a contains no similar statutory requirement. Section 10.906 Section 10.906 explains the definitions applicable to survivors for purposes of the death gratuity. Many of these terms are specifically defined in section 1105 of Public Law 110-181. These statutory definitions of survivors in new section 8102a differ from the existing definitions of the same terms in the FECA at 5 U.S.C. 8101. The definitions in section 8102a and in section 10.906 are solely applicable to subpart J and do not alter any existing definitions of the same terms in any other subpart of Part 10. Thus in certain circumstances the survivors eligible for payment of the death gratuity under new section 8102a will differ from the survivors eligible for compensation for the death of Federal employees under section 8133 of FECA. The text of section 8102a that defines the terms applicable to survivors is a duplication of the former 10 U.S.C. 1477, which defines eligible survivors for the death gratuity paid to members of the Armed Forces who die from injuries incurred during active duty or inactive duty training. 10 U.S.C. 1475-1480. 10 U.S.C. 1477 was originally enacted on September 2, 1958. *See* Public Law 85-861, 72 Stat. 1452, 1453 (1958). Its language remained unchanged until it was amended by section 645 of the National Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-181). Congress used the definitions in the original section 1477 for the death gratuity in new section 8102a. Subsection 10.906(a)(1) defines “surviving spouse” as “the person who was legally married to the deceased employee at the time of his or her death.” Subsection 10.906(a)(1) adopts the definition of “surviving spouse” from the Department of the Navy regulations applicable to the original 10 U.S.C. 1477. The Navy regulations were first promulgated in September 1959, and the definition of “surviving spouse” remained unchanged throughout the life of the original 10 U.S.C. 1477. Since Congress duplicated the original section 1477 for the death gratuity in new section 8102a, subsection 10.906(a)(1) adopts the Navy regulation's long-standing definition of “surviving spouse.” Subsection 10.906(a)(2) states the definition of “children” given in new section 8102a. Unlike the FECA definition of “child” at 5 U.S.C. 8101(9), section 8102a defines “children” to mean all of the employee's natural children, adopted children, and some stepchildren without regard to the child's age, marital status, or dependency on the employee. Section 8102a includes stepchildren in the definition of “children” if the stepchild was part of the employee's household at the time of the employee's death. Subsection 10.906(a)(2)(A) defines “household” for this purpose. The definition limits eligible stepchildren to those who were sharing a household with the employee pursuant to a written custody agreement or who were actually sharing a home for the majority of the time. For a natural child who is an illegitimate child of a male employee to be considered an eligible survivor of that employee, the child must satisfy one of the four criteria listed in section 10.906(a)(2)(B). These criteria are specifically contained in new section 8102a. Subsection 10.906(a)(3) states the definition of “parents.” New section 8102a states that parents include fathers and mothers through adoption and persons who stood *in loco parentis* to the employee for a period of not less than one year at any time before the person became an employee. Subsection 10.906(a)(3)(A) explains that a person stood *in loco parentis* to an employee when the person assumed the status of parent toward the employee. A person will be considered to stand *in loco parentis* when the person takes a child of another into his or her home and treats the child as a member of his or her family, providing parental supervision, support, and education as if the child were his or her own child. New section 8102a mandates that only one father and one mother, or their counterparts *in loco parentis* may be recognized in any case and that preference will be given to those who exercise a parental relationship on the date, or most nearly before the date, on which the decedent became an employee. These requirements are stated at subsection 10.906(a)(3)(B-C). Section 10.907 Section 10.907 states the order of precedence OWCP will use to determine which survivors will receive payment of the death gratuity under this subpart. This order of precedence is explicitly provided by new section 8102a. The third place in the order of precedence is taken by an employee's parents, brothers, or sisters, as designated by the employee, if the employee before his or her death completes a survivor designation according to the procedures described in section 10.909. If the employee does not complete any such survivor designation, the order of precedence will move directly to the employee's parents in equal shares, followed by the employee's siblings in equal shares. Section 10.908 In addition to the survivor designation mentioned in subsection 10.907(c), section 10.908 explains that an employee before his or her death can designate an alternate beneficiary or beneficiaries to receive up to 50 percent of the death gratuity. The alternate beneficiary designation is separate from the order of precedence. For example, an employee may designate an alternate beneficiary to receive 50% of the death gratuity payment. If that employee's death qualifies for the death gratuity, and the employee is survived by his spouse, the employee's spouse will receive 50% of the death gratuity and the designated alternate beneficiary will receive 50%. The alternate beneficiary can be any person, including anyone named in the order of precedence, but it must be an actual living person rather than a trust or corporation or other legal entity. The procedure to designate an alternate beneficiary is discussed in section 10.909. Section 10.909 Section 10.909 discusses the procedure by which an employee may make a survivor designation under subsection 10.907(c) or an alternate beneficiary designation under section 10.908. Subsection 10.909(a) explains that designation form CA-40, Designation of a Recipient of the Death Gratuity Payment under Section 1105 of Public Law 110-181, must be used to make both types of designations. The designation form may be completed at any time before the employee's death, regardless of the time of injury. The form will not be valid unless it is signed by the employee and it is received and signed prior to the death of the employee by the supervisor of the employee or by another official of the employing agency authorized to do so. This requirement is intended to ensure that all designation forms are authentic. When making a survivor designation under subsection 10.907(c), an employee may designate any combination of any of his or her parents, brothers, or sisters to occupy the third space in the order of precedence under section 10.907. Subsection 10.909(c) explains that if the employee designates any of his or her parents, brothers, or sisters under the survivor designation provision in subsection 10.907(c), but the designation fails to specify what percent of the death gratuity each designated survivor should receive, DOL will honor the designation by disbursing the death gratuity to each designated survivor in equal shares, if the persons in the third place of the order of precedence are entitled to receive payment for a particular employee. Subsection 10.909(d) explains that unlike the survivor designation, if an employee makes an alternate beneficiary designation but fails to indicate the percentage to be paid to the alternate beneficiary, the designation to that person will be invalid. The alternate beneficiary designation is treated differently from the survivor designation because the entitlement of any alternate beneficiaries to a portion of the death gratuity is not as clear as the survivors' entitlement, because the survivors are named in the order of precedence. Therefore, an employee must fully complete designation form CA-40, specifying an alternate beneficiary's name and what percentage of the gratuity he or she should receive, to ensure that OWCP can honor the designation. Additionally, new section 8102a requires that designations to alternate beneficiaries be in 10 percent increments, up to the maximum of 50 percent. Therefore, no more than five alternate beneficiaries may be designated. Subsection 10.909(b) states that any paper executed prior to the effective date of this regulation that specifies an alternate beneficiary of the death gratuity payment will serve as a valid designation as long as it is in writing, was completed before the employee's death, was signed by the employee, and was signed prior to the death of the employee by the supervisor of the employee or by another official of the employing agency authorized to do so. DOL acknowledges that employees who have already suffered fatal injuries incurred while performing work in contingency operations did not have access to designation form CA-40. DOL will honor designations made by these employees as long as the document used to make the designation includes all the assurances of authenticity that are required of form CA-40. Section 10.910 Section 10.910 explains what happens if a person entitled to a portion of the death gratuity payment dies after the death of the covered employee but before receiving his or her portion of the death gratuity. Since the statute provides that, “[i]f a person entitled to all or a portion of a death gratuity under paragraph
(1)or
(4)dies before the person receives the death gratuity, it shall be paid to the living survivor next in the order prescribed by paragraph (1),” the death gratuity is not inheritable. 5 U.S.C. 8102a(d)(5). These provisions are not applicable to an individual potentially eligible to receive all or a portion of a death gratuity because of family relationship or designation who dies prior to the death of a covered employee because that person was never “entitled to all or a portion of a death gratuity.” Accordingly, subsection 10.910(a) states that if a person who is entitled to all or a portion of the death gratuity due to his or her place in the order of precedence in section 10.907 dies after the death of the covered employee but before receiving payment, that portion will be paid to the living survivor(s) otherwise eligible according to the order of precedence. For example, an employee has no living spouse but has three children. If the employee dies, his three children would be entitled to equal shares of the death gratuity according to the order of precedence. If one of those children dies after the employee dies but before receiving payment, that portion of the death gratuity would be paid to the next person in the statutory order of preference, the surviving parents. If there is no other entitled beneficiary, that portion of the gratuity will not be paid. Subsection 10.910(b) explains that if a survivor designated according to subsection 10.907(c) dies after the death of the covered employee but before receiving a portion of the death gratuity to which he or she is entitled, the portion will be paid to the next living survivor in the statutory order of precedence. For example, an employee with no spouse and no children designates under subsection 10.907(c) that her mother receive 50 percent of the death gratuity, her older brother receive 30 percent, and her two younger sisters receive 10 percent each. One of the sisters dies before receiving payment. That 10 percent designation would pass to the next living survivor according to the order of precedence; in this case, that would be the surviving parents pursuant to section 8102a(d)(1)(D). Assuming that the employee's father was alive, he would receive 5% and the employee's mother would receive 55%. If the employee's mother is the only surviving parent, she would receive a total of 60 percent of the death gratuity. Subsection 10.910(c) explains what happens if a person designated as an alternate beneficiary under section 10.908 dies after the death of the covered employee but before receiving payment of his or her designated portion of the death gratuity. If the designated alternate beneficiary dies after the death of the covered employee but before receiving payment, the designation will have no effect. Pursuant to section 8102a(d)(5), the portion designated to be paid to that person will be paid according to the statutory order of precedence listed in section 10.907. Subsection 10.910(d) clarifies that if there are no living eligible survivors or alternate beneficiaries, the death gratuity will not be paid. Section 10.911 Section 10.911 explains how the death gratuity payment process is initiated. Subsection 10.911(a) explains that there are two ways to initiate the process. The employing agency may initiate the death gratuity payment process by filing form CA-42, Official Notice of Employee's Death For Purposes of FECA Section 8102a Death Gratuity, with OWCP, which notifies OWCP of the employee's death. A claimant may also initiate the death gratuity payment process by filing a claim with OWCP to receive the death gratuity payment. Regardless of how the payment process is initiated, both filings must occur for OWCP to pay the death gratuity. If the payment process is initiated by the employing agency filing notification of the employee's death, each claimant must then file a claim with OWCP to receive payment of the gratuity. Each claimant must file a claim so that OWCP has the correct contact information for each claimant and proof of each claimant's status as an eligible beneficiary of the death gratuity payment. Alternatively, if a claimant initiates the death gratuity payment process by filing a claim, the employing agency must then complete the death notification form CA-42 and file it with OWCP. Additional claimants must also complete their own claim forms. Subsection 10.911(b) outlines what will happen when the employing agency files death notification form CA-42. First of all, an employing agency must notify OWCP immediately upon learning of any employee's death that may be eligible for benefits under this subpart. With this notification, the agency must submit to OWCP any designation forms (form CA-40) completed by the employee. Finally, the agency must also provide to OWCP as much information as possible about any living survivors or alternate beneficiaries of which the agency is aware. When OWCP receives all this information from the employing agency, OWCP will contact any living survivors or alternate beneficiaries it is able to identify and provide to them the death gratuity claim form CA-41, Claim For Benefits Under FECA Section 8102a Death Gratuity, with information explaining how to file a claim. Subsection 10.911(c) explains a claimant's responsibilities when filing a claim for the death gratuity payment, and it states what will happen when OWCP receives that claim. A claimant may use form CA-41 to file a claim for the death gratuity. The claimant must provide any information that he or she has about any other beneficiaries who may be entitled to the death gratuity payment, including the Social Security Numbers of those other beneficiaries, if known, and all known contact information. The claimant must also disclose the Social Security Number of the deceased employee and identify the agency that employed the deceased employee when he or she incurred the injury that caused his or her death, if the claimant knows this information. Upon receiving the information from the claimant, OWCP will contact the employing agency to notify it that it must complete and submit the death notification form CA-42 for the employee. OWCP will also contact any other living survivors or alternate beneficiaries it is able to identify and provide to them the death gratuity claim form CA-41 with information explaining how to file a claim. Subsection 10.911(d) explains the responsibilities of an employing agency if a claimant submits a claim for the death gratuity to the agency rather than to OWCP. In this instance, the agency must promptly transmit the claim to OWCP. This includes any claim forms CA-41 that the agency receives and any other claims or papers submitted to the agency which appear to claim compensation on account of the employee's death. Section 10.912 Section 10.912 describes the requirements to establish a claim for the death gratuity payment, which are also described on claim form CA-41. Just as in all claims for compensation under the FECA, the claimant bears the burden of proof to establish each one of these elements. ( *See, e.g.,* 20 CFR 10.115.) Although the employing agency will often provide much of the required information when it completes the death notification form CA-42, the claimant bears the ultimate burden of proof. The evidence required in this subpart must stand up to the same requirements as evidence submitted to establish other FECA compensation claims: the evidence should be in writing, and it must be reliable, probative, and substantial. ( *See id.* ) The first requirement that the claimant must establish is that the claim for the death gratuity was filed within the time limits specified by the FECA, as prescribed in 5 U.S.C. 8122 and in this part. This will be evaluated exactly as it is for all other claims for FECA compensation. Subsection 10.912(a) clarifies that the timeliness of a death gratuity claim will be measured from the date the claimant filed a claim, not the date the employing agency submitted death notification form CA-42. Subsection 10.912(b) gives the second requirement for a death gratuity claim: the claimant must establish that the deceased employee was in fact an employee of the United States or a NAFI employee at the time he or she incurred the injury or disease that caused his or her death. Again, this is the same requirement as in all other claims for compensation under the FECA. Subsection 10.912(c) states that the claimant must establish that the employee suffered an injury or disease and that the employee's death was causally related to that injury or disease. Causation will be evaluated as it is in other FECA claims. The death certificate of the employee must be provided. Although the employing agency will often provide the death certificate and other needed medical documentation, OWCP may request from the claimant any additional documentation needed to establish the claim. Subsection 10.912(d) describes the requirement that sets the death gratuity payment apart from other FECA benefits: the claimant must establish that the deceased employee incurred the fatal injury or disease “in connection with the employee's service with an Armed Force in a contingency operation.” This is the requirement that defines the scope of coverage for the death gratuity payment, as stated in the text of new section 8102a. Subsection 10.912(d) explains and defines the terms contained in that statutory language. Subsection 10.912(d)(1) explains the definition of “contingency operation.” Section 8102a defines “contingency operation” as having “the meaning given to that term in section 1482a(c) of Title 10 of the United States Code.” Section 1482a(c) states, “The term ‘contingency operation' includes humanitarian operation, peacekeeping operations, and similar operations.” There is a more narrow definition of “contingency operation” in section 101 of Title 10, which is the definitions section of Title 10, but Congress chose the broader definition of “contingency operation” contained in section 1482a(c) for purposes of the death gratuity payment. (DOL notes that Congress chose the narrower definition of “contingency operation” in section 585 of the National Defense Authorization Act for Fiscal Year 2008.) Therefore, subsection 10.912(d)(1) explains the definitions of all the different types of “contingency operations” that are included in section 1482a(c), including the basic “contingency operation,” a “humanitarian operation,” and a “peacekeeping operation.” The definitions of all three of these different types of operations are included in the definition of “contingency operation” for purposes of this subpart. “Similar operations” are also included and will be determined by OWCP on a case-by-case basis. Subsection 10.912(d)(1)(A) quotes the definition of “contingency operation” from 10 U.S.C. 101(a)(13). The first part of this definition of “contingency operation” is “military operation that is designated by the Secretary of Defense as an operation in which members of the Armed Forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force.” The second part of this definition includes any military operation that results in the call or order to active duty of members of the uniformed services during a war or national emergency declared by the President or Congress. The definition provides a list of different authorizing statutes under which the call to active duty may occur, including statutes that would apply to military operations that would take place within the United States. Therefore, a “contingency operation” under the definition at 10 U.S.C. 101(a)(13) may take place either within the United States or outside the United States. Subsection 10.912(d)(1)(B) provides the definition of “humanitarian operation” and “peacekeeping operation” as stated in 10 U.S.C. 2302(8). A “humanitarian operation” is “a military operation in support of the provision of humanitarian or foreign disaster assistance,” and a “peacekeeping operation” is “a military operation * * * in support of a peacekeeping operation under chapter VI or VII of the Charter of the United Nations.” Subsection 10.912(d)(1)(C) further defines “humanitarian assistance” as the definition provided in 10 U.S.C. 401(e). All of these definitions have been quoted directly from Title 10. New section 8102a clearly intends the definition of “contingency operation” for purposes of this death gratuity to have the same meaning as the term has for the Armed Forces. Therefore, DOL adopted the definitions given to all the different types of “contingency operations” from Title 10, which governs the Armed Forces. Subsection 10.912(d)(2) clarifies that a “contingency operation” may take place within the United States or abroad. Although the Armed Forces rarely conduct contingency operations in the United States, none of the above definitions of “contingency operation” exclude that possibility. However, subsection 10.912(d)(2) also explains that operations of the National Guard are only considered “contingency operations” for purposes of this subpart when the President, the Secretary of the Army, or the Secretary of the Air Force calls the members of the National Guard into service. The National Guard is made up of the Army National Guard and the Air National Guard, and both are reserve components of the Armed Forces. ( *See* 10 U.S.C. 101(c).) Members of the National Guard can be activated by the President, or by the Secretaries of the Army or the Air Force. Although members of the National Guard can be called into service by the Governor of a state, these operations of the National Guard will not be considered “contingency operations” under this subpart and therefore the death gratuity is not applicable to service with the National Guard in these Governor-led operations. Subsection 10.912(d)(3) states that a claim for a death gratuity must show that the employee incurred the injury or disease while in the performance of duty as that phrase is defined for the purposes of otherwise awarding benefits under the FECA. This requirement is suggested by the statutory language “in connection with the employee's service,” and it is also consistent with the award of other FECA compensation. In addition to showing that the employee was in the performance of duty when he or she incurred injury, a claimant must show that the employee's service was related to an Armed Force's contingency operation to qualify for the death gratuity. The death gratuity is not meant for every employee who dies from an injury incurred while in the performance of duty. Only those employees whose service is related to a contingency operation are covered. Subsections 10.912(d)(4) and
(5)explain the evidentiary burden that a claim must satisfy to show this relation. Subsection 10.912(d)(4) states the evidentiary standard for claims regarding a fatal injury incurred by an employee serving outside the United States: if an employee incurs injury while in the performance of duty serving outside the United States in the same region in which an Armed Force is conducting a contingency operation, OWCP will find that the injury or disease satisfies the requirement that it was incurred “in connection with the employee's service with an Armed Force in a contingency operation,” unless there is conclusive evidence that the employee's service was not supporting the Armed Force's operation. The subsection also clarifies that OWCP considers service in economic or social development projects, such as service on Provincial Reconstruction Teams, in a region in which an Armed Force is conducting a contingency operation to be supporting the Armed Force's operation. The evidentiary burden here recognizes that if an employee is serving outside the United States in the same region in which an Armed Force is conducting a contingency operation, the employee's service is apt to be related to that contingency operation, because the United States governmental activities in the region will of necessity be closely coordinated with the Armed Force's operation. Additionally, activities of covered employees in these areas will be seen as relating to the ongoing contingency operation by the affected populace, and hostilities may be directed at the employees because of that perception. OWCP also recognizes the difficulties involved in accessing and providing evidence regarding the circumstances of an employee's service in a foreign country. Accordingly, OWCP will find that the employee's service in a foreign country is related to a contingency operation if the service is being performed in the same region as that operation, unless OWCP receives conclusive evidence to the contrary. An illustration for example is as follows: a tsunami hits the southern portion of Country Q in Southeast Asia, causing massive devastation. The United States military mobilizes members of the Armed Forces in a humanitarian operation to provide aid to the affected area. An Army helicopter dispatched to deliver supplies crashes into an aid station on the coast, killing two Department of State employees working at the military aid station. OWCP receives death notification form CA-42 describing the employees' deaths, stating that at the time of their deaths they were serving as translators at the aid station at the site of the tsunami. The two Department of State employees' deaths will qualify for the death gratuity. An employee of the Department of Agriculture was vacationing at one of the hotels destroyed by the tsunami, and she dies. Her death would not qualify for the death gratuity because she was not in the performance of duty. On the same day, the Consul General of the Consulate in the far northern part of Country Q is killed in a car accident while traveling from his office to a meeting in the middle of the day. Because of the humanitarian operation being conducted in southern Country Q, the Department of State files form CA-42, notifying OWCP of the Consul's death. (All employers must file form CA-42 for any employee's death that *may* be eligible for benefits under this subpart. *See* subsections 10.911(b) and 10.914(a).) However, on the form, State describes the circumstances of the Consul's death, submitting evidence that the meeting the Consul was attending was regarding data security procedures in the Consul's office. If OWCP receives a claim for the death gratuity, OWCP will evaluate the evidence provided by the Department of State and determine whether the purpose of the Consul's meeting had any relation to the tsunami contingency operation, and determine whether northern Country Q is in the same region as the operation. If the evidence was conclusive that the meeting had no relation to the contingency operation, or that the scope of the operation was strictly limited to southern Country Q, OWCP will deny the claim for the death gratuity. Subsection 10.912(d)(5) explains that a claim based on the death of an employee who was serving within the United States when he or she incurred injury must positively establish that the employee's service was supporting a contingency operation of an Armed Force. The claimant bears a different evidentiary burden to show that an employee's service within the United States was related to a contingency operation of an Armed Force. This is because federal employees and NAFI employees routinely perform service within the United States, and it is not reasonable to infer, from their mere presence in a covered region while in the performance of duty, that their service is in support of a domestic contingency operation. In the rare event that an Armed Force is conducting a contingency operation within the United States, the claimant must supply evidence to show that the employee's service was actually supporting the contingency operation rather than simply being tangentially related to a situation in which an Armed Force was somehow involved. An illustration follows: the President activates a number of National Guard troops in Operation Blue, aimed at stopping illegal immigration from Mexico to the United States. Some of the troops are deployed in McAllen, Texas. On the fourth day of Operation Blue, a mail carrier in McAllen is killed in a car accident while delivering mail. If the mail carrier's surviving spouse files a claim for the death gratuity, he would have to provide evidence to show how the mail carrier's routine duties were supporting the National Guard's operation. If the claim did not contain evidence that her service was supporting the operation, her death would not qualify for the death gratuity. On the same day, a National Guardsman and an employee of the Department of Homeland Security are killed in a construction accident while in the performance of duty building a fence at the border. If survivors of the Homeland Security employee file a claim for the death gratuity, they would need to provide evidence that the employee's work was supporting the National Guard's operation. If they provided sufficient evidence, OWCP will accept the claim. Section 10.912(e) states the final requirement for a claim for the death gratuity: a claimant must establish his or her relationship to the deceased employee, so that OWCP can determine which survivors are eligible to receive the death gratuity payment under the order of precedence in section 10.907. The documentation required is described in the instructions to claim form CA-41. This requirement is similar to the documentation required to establish eligibility for FECA death benefits under 5 U.S.C. 8133. Section 10.913 Section 10.913 contains examples of situations that OWCP considers to clearly qualify for the death gratuity payment. If an employee incurred injury while serving under the direction or supervision of an official of an Armed Force conducting a contingency operation, or while riding with members of an Armed Force in a vehicle or other conveyance deployed to further an Armed Force's objectives in a contingency operation, the employee's service is clearly related to the Armed Force's contingency operation. If the employee's death results from injuries incurred in either of these situations, the death will qualify for the death gratuity. This in no way is meant to signify that the employee was performing a combat mission, an entirely different legal and factual standard, which could impact benefits payable under insurance policies. OWCP believes that these examples will assist employing agencies and claimants in understanding the death gratuity payment. However, numerous other situations may also qualify for the death gratuity payment, which OWCP will determine on a case-by-case basis. Section 10.914 The death gratuity payment is an unusual extension of the FECA, because it only applies to a certain group of employees—those employees whose deaths result from injuries incurred “in connection with the employee's service with an Armed Force in a contingency operation.” Because an employing agency will have direct access to most of the information needed to determine whether its employee was injured “in connection with” his or her service “with an Armed Force in a contingency operation,” and most claimants will not have access to that information, employing agencies have significant responsibilities in the death gratuity claim process. Section 10.914 lists the responsibilities of the employing agency. First, subsection 10.914(a) explains that the employing agency must provide as much information as possible about the circumstances of the employee's injury, especially the employee's assigned duties at the time of the injury. An agency fulfills this requirement by completely filling out the death notification form CA-42 and submitting it to OWCP. The agency must also complete the form as promptly as possible upon learning of an employee's death, so that OWCP can disburse the death gratuity payment as soon as possible. If a claimant submits a claim form CA-41 or any other paper appearing to claim compensation to the employing agency, the agency must promptly transmit that claim to OWCP, as stated in subsection 10.914(b). Subsection 10.914(c) explains an essential responsibility of the employing agency: the agency must maintain any designation forms (forms CA-40) or other papers appearing to make designations under sections 10.907(c) or 10.908 in the employee's official personnel file. The forms should be signed by the employee and by a representative of the agency. The agency must transmit any such designations to OWCP when it submits the death notification form CA-42 to OWCP. Subsection 10.914(d) states the responsibility of an employing agency when a survivor is claiming the death gratuity based on his or her status as an illegitimate child of a deceased male employee. New section 8102a lists four different ways an illegitimate child of a male decedent can prove that he or she is eligible to receive the death gratuity. Those have been quoted in section 10.906(a)(2)(B) of this subpart. One method of proving eligibility is for the claimant to show that he or she has proved “by evidence satisfactory to the employing agency” to be a natural child of the decedent. Therefore, if OWCP cannot determine whether the claimant qualifies as a child of the decedent according to any of the other three methods listed, OWCP may request the employing agency to determine whether the claimant has provided sufficient evidence to show that he or she is a child of the decedent. In that situation, it is the employing agency's responsibility to evaluate the evidence and transmit its determination promptly to OWCP. Because of the offset provision that is discussed in greater detail below in section 10.916, an employing agency must notify OWCP of any other death gratuity payments under any other law of the United States for which an employee's death qualifies and any other death gratuity payments that have been paid based on the employee's death. This responsibility is stated in subsection 10.914(e). Finally, subsection 10.914(f) clarifies that non-appropriated fund instrumentalities have the same responsibilities under this subpart as any other employing agency. Section 10.915 Section 10.915 lists the responsibilities of OWCP in the death gratuity payment process. At the initiation of the process, OWCP will prompt the employing agency to submit the death notification form CA-42 if the agency has not done so, or OWCP will identify living potential claimants and provide them with claim forms CA-41 with instructions on how to file a claim for the death gratuity payment. OWCP will then review all the information provided by the claimant and employing agency to determine whether the claim satisfies all the requirements listed in section 10.912. If the information is not sufficient to satisfy those requirements, OWCP will notify the claimant of additional evidence needed. The claimant will then be allowed at least 30 days to submit additional evidence. OWCP may also request more information from the employing agency. Finally, if the claim satisfies all the required elements, OWCP will calculate the amount of the death gratuity payment and pay the beneficiaries as soon as possible after accepting the claim. Section 10.916 Section 10.916 explains how OWCP will calculate the amount of the death gratuity. DOL has determined for equitable reasons that every death gratuity will be paid in the amount of $100,000. Subsection 10.916(a) explains that the death gratuity payment for each employee death is equal to $100,000 minus the amount of any death gratuity payments that have been paid under any other law of the United States based on that same death. The Conference Report language for section 8102a makes clear that Congress intended the offset provision in new section 8102a to apply only to other death gratuity payments and not to other federal benefits such as compensation for death under section 8133 of the FECA, retirement benefits under chapter 84 of Title 5, life insurance benefits under chapter 87 of Title 5, or any other federal benefit. *See* Conference Report for the National Defense Authorization Act for Fiscal Year 2008, H.R. Rep. No. 110-477, at 1008-09 (2007). A death gratuity payment is a payment in the nature of a gift, beyond reimbursement for death expenses, relocation costs, or other similar death benefits. Subsection 10.916(a) clarifies that funeral expenses under 5 U.S.C. 8134 and the death benefits provided to an employee's survivors under 5 U.S.C. 8133 are not death gratuity payments, and they therefore have no effect on the amount of the death gratuity under this subpart. Subsection 10.916(b) gives a list of examples of death gratuity payments that would affect the amount of the death gratuity under this subpart. This list is not exclusive, but it is meant to name the most common death gratuity statutes for ease of reference and to provide examples of those payments that would be considered death gratuity payments. Subsection 10.916(c) clarifies that the total amount of the death gratuity payment will be calculated before it is disbursed to the employee's various survivors or alternate beneficiaries. Therefore, after it has accepted a claim for the death gratuity, OWCP first subtracts the amount of any other death gratuities that have already been paid based on the same death. After the total amount of the death gratuity for the particular employee has been calculated, OWCP will then disburse the payment according to the order of precedence and any designations that the employee may have completed. Subsection 10.916(c) provides three examples to illustrate this process. IV. Administrative Requirements for the Rulemaking Executive Order 12866 This regulatory action constitutes a “significant” rule within the meaning of Executive Order 12866 in that any executive agency could be required to participate in the development of claims for benefits under this regulatory action. The Department believes, however, that this regulatory action will not have a significant economic impact on the economy, or any person or organization subject to the changes, in that the annual amount of benefits paid under this section is expected to be approximately one million dollars. The changes have been reviewed by the Office of Management and Budget for consistency with the President's priorities and the principles set forth in Executive Order 12866. Regulatory Flexibility Act of 1980 This rule has been reviewed in accordance with the Regulatory Flexibility Act of 1980, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 601-612. The Department has concluded that the rule does not involve regulatory and informational requirements regarding businesses, organizations, and governmental jurisdictions subject to regulation. Paperwork Reduction Act
(PRA)The new collections of information contained in this rulemaking have been submitted to OMB for review in accordance with the Paperwork Reduction Act of 1995. No person is required to respond to a collection of information request unless the collection of information displays a valid OMB control number. The new information collection requirements are set forth in §§ 10.909, 10.911, 10.912, 10.914 and 10.915, and they relate to information required to be submitted by claimants and the employing agencies as part of the claims adjudication process. To implement these new collections, the Department is proposing to create three new forms ( *see* sections A through C below). The Department would like to solicit comments to:
(1)Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2)Evaluate the accuracy of the agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(3)Enhance the quality, utility, and clarity of the information to be collected; and
(4)Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. A. Designation of a Recipient of the Death Gratuity Payment Under Section 1105 of Public Law 110-181 (Form CA-40) *Summary:* New section 8102a allows people covered by that section to designate an alternative order of payment of the death gratuity amongst family members and to designate an alternative person to receive no more than 50% of the death gratuity payment. Form CA-40 provides the means to make such designations. Form CA-40 asks the person covered to provide an alternative order of payment, including each designee's address, relationship to the person covered, and the percentage amount to be given to that designee. Form CA-40 also allows the person covered the opportunity to designate an additional person to receive a percentage of the death gratuity, and asks the person covered to provide that designee's address and the percentage to be given to that designee (up to the statutory maximum of 50%). All employees who complete this form will be required to sign and date this form. The form must also be signed by the appropriate official of the employing establishment to establish a valid designation. *Need:* Pursuant to section 8102a, which allows for designations, this form is necessary for an accurate record of such designation, and for an accurate payment to the appropriate designees in the event of a covered claim. *Respondents and frequency of response:* While not every covered employee will file such a designation, the Department anticipates that those employees who are routinely deployed in support of a contingency operation may file as many as three Form CA-40s over the course of their employment. According to the report of the Subcommittee on Oversight and Investigations of the House Armed Service Committee, “Deploying Federal Civilians to the Battlefield, April 2008,” there have been “nearly 10,000 federal civilian employees” deployed to Iraq and Afghanistan over the past seven years, averaging 1,400 annually. Utilizing this number, as well as considering there will be additional federal civilian employees domestically and abroad whose agencies may request them to complete the designation form, the OWCP estimates that 2,600 designation forms will be filed annually. *Estimated total annual burden:* The time required to review instructions, search existing data sources, gather the data needed, and complete and review each Form CA-40 is estimated to take an average of 15 minutes per covered employee. The Department estimates that there will be 2,600 such filings a year, for a total annual burden of 650 hours. B. Claim For Benefits Under FECA Section 8102a Death Gratuity (Form CA-41) *Summary:* The claims adjudication process begins with a requirement that a claimant file a written claim for benefits with the Department on or after July 31, 2001. The “Claim For Benefits Under FECA Section 8102a Death Gratuity” (Form CA-41) is used to initiate this process and to insure that OWCP has the basic factual information necessary to process the claim, including the identities of the eligible beneficiaries of the covered employee. OWCP may also require claimants to provide factual information in support of any responses made on Form CA-41. All claimants will be required to swear or affirm that the information provided on the Form CA-41 is true. *Need:* Pursuant to section 8102a, a claim for benefits is necessary to initiate the payment process and to provide the information necessary to pay the survivors of the covered employee. *Respondents and frequency of response:* The Office of Workers' Compensation Programs
(OWCP)has been tracking federal civilian injuries and deaths resulting from incidents or exposures arising in Iraq since March 2004. Through the end of FY 2008, there have been 220 claims accepted for injuries or exposures sustained in Iraq. Of those 220 accepted claims, 14 have been claims arising from the death of the Federal civilian employee. OWCP also has been tracking Federal civilian injuries and deaths resulting from incidents or exposures arising in Afghanistan, but only since October, 2007. Through the end of FY 2008, there have been 25 claims accepted for injuries or exposures sustained in Afghanistan and only 1 of those claims was for the death of the employee. Based upon these data, OWCP projects about 10 death claims per year as an upper limit estimate. Assuming each claim is paid at the maximum allowable rate, this would result in expenditures of $1 million or less annually. It is important to note, however, that the projection is based on a very limited amount of data and that a single significant event could result in substantially higher than projected expenditures. Accordingly, as it is estimated that each claim will have an average of 2.5 claimants, it is estimated that 25 claimants annually will file one Form CA-41 *Estimated total annual burden:* The time required to review instructions, search existing data sources, gather the data needed, and complete and review each Form CA-41 is estimated to take an average of 15 minutes per claimant for a total annual burden of 6.25 hours. C. Official Notice of Employee's Death for Purposes of FECA Section 8102a Death Gratuity (Form CA-42) *Summary:* Section 8102a provides that payment under that section is to be made immediately upon “official” notice of a covered employee's death. Form CA-42 provides the means for the employing agency to provide the official notice to OWCP. Form CA-42 asks the employing agency to provide OWCP the necessary information regarding the employee's death. Form CA-42 further requires the employing agency to provide OWCP with the death certificate of that employee. Form CA-42 also requires that the employing agency certify that the employee was a covered employee under Section 8102a and to forward information about survivors and designated alternate beneficiaries. *Need:* As section 8102a provides that payment must be made following official notice of the death of a covered employee, Form CA-42 is necessary to provide the means to submit the official notice to OWCP. *Respondents and frequency of response:* As discussed above, it is estimated that 10 Form CA-42 notices will be filed annually. *Estimated total annual burden:* The time required to review instructions, search existing data sources, gather the data needed, and complete and review each Form CA-42 is estimated to take an average of 20 minutes per form for a total annual burden of 3.33 hours. The National Environmental Policy Act of 1969 The Department certifies that this rule has been assessed in accordance with the requirements of the National Environmental Policy Act of 1969, 42 U.S.C. 4321 *et seq.* (NEPA). The Department concludes that NEPA requirements do not apply to this rulemaking because this rule includes no provisions impacting the maintenance, preservation, or enhancement of a healthful environment. Federal Regulations and Policies on Families The Department has reviewed this rule in accordance with the requirements of section 654 of the Treasury and General Government Appropriations Act of 1999, 5 U.S.C. 601 note. These regulations were not found to have a potential negative affect on family well-being as it is defined thereunder. Executive Order 13045: Protection of Children from Environmental Health Risks and Safety Risks The Department certifies that this rule has been assessed regarding environmental health risks and safety risks that may disproportionately affect children. These regulations were not found to have a potential negative affect on the health or safety of children. Unfunded Mandates Reform Act of 1995 and Executive Order 13132 The Department has reviewed this rule in accordance with the requirements of Exec. Order No. 13132, 64 FR 43225 (Aug. 10, 1999), and the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 *et seq.,* and has found no potential or 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 there is no Federal mandate contained herein that could result in increased expenditures by State, local, or tribal governments or by the private sector, the Department has not prepared a budgetary impact statement. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments The Department has reviewed this rule in accordance with Exec. Order 13,175, 65 FR 67249 (Nov. 9, 2000), and has determined that it does not have “tribal implications.” The rule does not “have substantial direct effects 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.” Executive Order 12630: Governmental Actions and Interference With Constitutionally Protected Property Rights The Department has reviewed this rule in accordance with Exec. Order 12630, 53 FR 8859 (Mar. 15, 1988), and has determined that it does not contain any “policies that have takings implications” in regard to the “licensing, permitting, or other condition requirements or limitations on private property use, or that require dedications or exactions from owners of private property.” Executive Order 13211: Energy Supply, Distribution, or Use The Department has reviewed this regulation and has determined that the provisions of Exec. Order 13211, 66 FR 28355 (May 18, 2001), are not applicable as there are no direct or implied effects on energy supply, distribution, or use. The Privacy Act of 1974, 5 U.S.C. 552a, as Amended While claims filed under section 8102a of the FECA will be a separate claim file and bear a separate claim number from any other FECA claim file maintained on the covered employee, the collection and release of these files will be conducted under the provisions of the Privacy Act and the published systems of record notices for FECA claims files. Therefore, the Department has determined that this rule will require a minor revision of the current Privacy Act System of Records, DOL/GOVT-1, Office of Workers' Compensation Programs, Federal Employees' Compensation Act File, 67 FR 16826 (April 8, 2002). Clarity of This Regulation Executive Order 12866, 58 Fed. Reg. 51735 (September 30, 1993), and the President's memorandum of June 1, 1998, require each agency to write all rules in plain language. The Department invites comments on how to make this rule easier to understand. List of Subjects in 20 CFR Part 10 Administrative practice and procedure, Claims, Death gratuity, Government employees, Labor, Workers' compensation, NAFI. For the reasons set forth in the preamble, 20 CFR part 10 is amended by adding subpart J, consisting of §§ 10.900 through 10.916, to read as follows: Subpart J—Death Gratuity Sec. 10.900 What is the death gratuity under this subpart? 10.901 Which employees are covered under this subpart? 10.902 Does every employee's death due to injuries incurred in connection with his or her service with an Armed Force in a contingency operation qualify for the death gratuity? 10.903 Is the death gratuity payment applicable retroactively? 10.904 Does a death as a result of occupational disease qualify for payment of the death gratuity? 10.905 If an employee incurs a covered injury in connection with his or her service with an Armed Force in a contingency operation but does not die of the injury until years later, does the death qualify for payment of the death gratuity? 10.906 What special statutory definitions apply to survivors under this subpart? 10.907 What order of precedence will OWCP use to determine which survivors are entitled to receive the death gratuity payment under this subpart? 10.908 Can an employee designate alternate beneficiaries to receive a portion of the death gratuity payment? 10.909 How does an employee designate a variation in the order or percentage of gratuity payable to survivors and how does the employee designate alternate beneficiaries? 10.910 What if a person entitled to a portion of the death gratuity payment dies after the death of the covered employee but before receiving his or her portion of the death gratuity? 10.911 How is the death gratuity payment process initiated? 10.912 What is required to establish a claim for the death gratuity payment? 10.913 In what situations will OWCP consider that an employee incurred injury in connection with his or her service with an Armed Force in a contingency operation? 10.914 What are the responsibilities of the employing agency in the death gratuity payment process? 10.915 What are the responsibilities of OWCP in the death gratuity payment process? 10.916 How is the amount of the death gratuity calculated? Authority: 5 U.S.C. 8102a. Subpart J-Death Gratuity § 10.900 What is the death gratuity under this subpart?
(a)The death gratuity authorized by 5 U.S.C. 8102a and payable pursuant to the provisions of this subpart is a payment to a claimant who is an eligible survivor (as defined in §§ 10.906 and 10.907) or a designated alternate beneficiary (as defined in §§ 10.908 and 10.909) of an employee who dies of injuries incurred in connection with the employee's service with an Armed Force in a contingency operation. This payment was authorized by section 1105 of Public Law 110-181 (2008). For the purposes of this subchapter, the term “Armed Force” means the Army, Navy, Air Force, Marine Corps, and Coast Guard.
(b)This death gratuity payment is a FECA benefit, as defined by § 10.5(a) of this part. All the provisions and definitions in this part apply to claims for payment under this subpart unless otherwise specified. § 10.901 Which employees are covered under this subpart? For purposes of this subpart, the term “employee” means all employees defined in 5 U.S.C. 8101 and § 10.5(h) of this part and all non-appropriated fund instrumentality employees as defined in section 1587(a)(1) of title 10 of the United States Code. § 10.902 Does every employee's death due to injuries incurred in connection with his or her service with an Armed Force in a contingency operation qualify for the death gratuity? Yes. All such deaths that occur on or after January 28, 2008 (the date of enactment of Public Law 110-181 (2008)) qualify for the death gratuity administered by this subpart. § 10.903 Is the death gratuity payment applicable retroactively? An employee's death qualifies for the death gratuity if the employee died on or after October 7, 2001, and before January 28, 2008, if the death was a result of injuries incurred in connection with the employee's service with an Armed Force in the theater of operations of Operation Enduring Freedom or Operation Iraqi Freedom. § 10.904 Does a death as a result of occupational disease qualify for payment of the death gratuity? Yes—throughout this subpart, the word “injury” is defined as it is in 5 U.S.C. 8101(5), which includes a disease proximately caused by employment. If an employee's death results from an occupational disease incurred in connection with the employee's service in a contingency operation, the death qualifies for payment of the death gratuity under this subpart. § 10.905 If an employee incurs a covered injury in connection with his or her service with an Armed Force in a contingency operation but does not die of the injury until years later, does the death qualify for payment of the death gratuity? Yes—as long as the employee's death is a result of injuries incurred in connection with the employee's service with an Armed Force in a contingency operation, the death qualifies for the death gratuity of this subpart regardless of how long after the injury the employee's death occurs. § 10.906 What special statutory definitions apply to survivors under this subpart? For the purposes of paying the death gratuity to eligible survivors under this subpart, OWCP will use the following definitions:
(a)“Surviving spouse” means the person who was legally married to the deceased employee at the time of his or her death.
(b)“Children” means, without regard to age or marital status, the deceased employee's natural children and adopted children. It also includes any stepchildren who were a part of the decedent's household at the time of death.
(1)A stepchild will be considered part of the decedent's household if the decedent and the stepchild share the same principal place of abode in the year prior to the decedent's death. The decedent and stepchild will be considered as part of the same household notwithstanding temporary absences due to special circumstances such as illness, education, business travel, vacation travel, military service, or a written custody agreement under which the stepchild is absent from the employee's household for less than 180 days of the year.
(2)A natural child who is an illegitimate child of a male decedent is included in the definition of “children” under this subpart if:
(i)The child has been acknowledged in writing signed by the decedent;
(ii)The child has been judicially determined, before the decedent's death, to be his child;
(iii)The child has been otherwise proved, by evidence satisfactory to the employing agency, to be the decedent's child; or
(iv)The decedent had been judicially ordered to contribute to the child's support.
(c)“Parent” or “parents” mean the deceased employee's natural father and mother or father and mother through adoption. It also includes persons who stood *in loco parentis* to the decedent for a period of not less than one year at any time before the decedent became an employee.
(1)A person stood *in loco parentis* when the person assumed the status of parent toward the deceased employee. (Any person who takes a child of another into his or her home and treats the child as a member of his her family, providing parental supervision, support, and education as if the child were his or her own child, will be considered to stand *in loco parentis.* )
(2)Only one father and one mother, or their counterparts *in loco parentis,* may be recognized in any case.
(3)Preference will be given to those who exercised a parental relationship on the date, or most nearly before the date, on which the decedent became an employee.
(d)“Brother” and “sister” mean any person, without regard to age or marital status, who is a natural brother or sister of the decedent, a half-brother or half-sister, or a brother or sister through adoption. Step-brothers or step-sisters of the decedent are not considered a “brother” or a “sister.” § 10.907 What order of precedence will OWCP use to determine which survivors are entitled to receive the death gratuity payment under this subpart? If OWCP determines that an employee's death qualifies for the death gratuity, the FECA provides that the death gratuity payment will be disbursed to the living survivor(s) highest on the following list:
(a)The employee's surviving spouse.
(b)The employee's children, in equal shares.
(c)The employee's parents, brothers, and sisters, or any combination of them, if designated by the employee pursuant to the designation procedures in § 10.909.
(d)The employee's parents, in equal shares.
(e)The employee's brothers and sisters, in equal shares. § 10.908 Can an employee designate alternate beneficiaries to receive a portion of the death gratuity payment? An employee may designate another person or persons to receive not more than 50 percent of the death gratuity payment pursuant to the designation procedures in § 10.909. Only living persons, rather than trusts, corporations or other legal entities, may be designated under this subsection. The balance of the death gratuity will be paid according to the order of precedence described in § 10.907. § 10.909 How does an employee designate a variation in the order or percentage of gratuity payable to survivors and how does the employee designate alternate beneficiaries?
(a)Form CA-40 must be used to make a variation in the order or percentages of survivors under § 10.907 and/or to make an alternate beneficiary designation under § 10.908. A designation may be made at any time before the employee's death, regardless of the time of injury. The form will not be valid unless it is signed by the employee and received and signed prior to the death of the employee by the supervisor of the employee or by another official of the employing agency authorized to do so.
(b)Alternatively, any paper executed prior to the effective date of this regulation that specifies an alternate beneficiary of the death gratuity payment will serve as a valid designation if it is in writing, completed before the employee's death, signed by the employee, and signed prior to the death of the employee by the supervisor of the employee or by another official of the employing agency authorized to do so.
(c)If an employee makes a survivor designation under § 10.907(c), but does not designate the portions to be received by each designated survivor, the death gratuity will be disbursed to the survivors in equal shares.
(d)An alternate beneficiary designation made under § 10.908 must indicate the percentage of the death gratuity, in 10 percent increments up to the maximum of 50 percent, that the designated person(s) will receive. No more than five alternate beneficiaries may be designated. If the designation fails to indicate the percentage to be paid to an alternate beneficiary, the designation to that person will be invalid. § 10.910 What if a person entitled to a portion of the death gratuity payment dies after the death of the covered employee but before receiving his or her portion of the death gratuity?
(a)If a person entitled to all or a portion of the death gratuity due to the order of precedence for survivors in § 10.907 dies after the death of the covered employee but before the person receives the death gratuity, the portion will be paid to the living survivors otherwise eligible according to the order of precedence prescribed in that subsection.
(b)If a survivor designated under the survivor designation provision in § 10.907(c) dies after the death of the covered employee but before receiving his or her portion of the death gratuity, the survivor's designated portion will be paid to the next living survivors according to the order of precedence.
(c)If a person designated as an alternate beneficiary under § 10.908 dies after the death of the covered employee but before the person receives his or her designated portion of the death gratuity, the designation to that person will have no effect. The portion designated to that person will be paid according to the order of precedence prescribed in § 10.907.
(d)If there are no living survivors or alternate beneficiaries, the death gratuity will not be paid. § 10.911 How is the death gratuity payment process initiated?
(a)Either the employing agency or a living claimant (survivor or alternate beneficiary) may initiate the death gratuity payment process. If the death gratuity payment process is initiated by the employing agency notifying OWCP of the employee's death, each claimant must file a claim with OWCP in order to receive payment of the death gratuity. The legal representative or guardian of any minor child may file on the child's behalf. Alternatively, if a claimant initiates the death gratuity payment process by filing a claim, the employing agency must complete a death notification form and submit it to OWCP. Other claimants must also file a claim for their portion of the death gratuity.
(b)The employing agency must notify OWCP immediately upon learning of an employee's death that may be eligible for benefits under this subpart, by submitting form CA-42 to OWCP. The agency must also submit to OWCP any designation forms completed by the employee, and the agency must provide as much information as possible about any living survivors or alternate beneficiaries of which the agency is aware.
(1)OWCP will then contact any living survivor(s) or alternate beneficiary(ies) it is able to identify.
(2)OWCP will furnish claim form CA-41 to any identified survivor(s) or alternate beneficiary(ies) and OWCP will provide information to them explaining how to file a claim for the death gratuity.
(c)Alternatively, any claimant may file a claim for death gratuity benefits with OWCP. Form CA-41 may be used for this purpose. The claimant will be required to provide any information that he or she has regarding any other beneficiaries who may be entitled to the death gratuity payment. The claimant must disclose, in addition to the Social Security number
(SSN)of the deceased employee, the SSNs (if known) and all known contact information of all other possible claimants who may be eligible to receive the death gratuity payment. The claimant must also identify, if known, the agency that employed the deceased employee when he or she incurred the injury that caused his or her death. OWCP will then contact the employing agency and notify the agency that it must complete and submit form CA-42 for the employee. OWCP will also contact any other living survivor(s) or alternate beneficiary(ies) it is able to identify, furnish to them claim form CA-41, and provide information explaining how to file a claim for the death gratuity.
(d)If a claimant submits a claim for the death gratuity to an employing agency, the agency must promptly transmit the claim to OWCP. This includes both claim forms CA-41 and any other claim or paper submitted which appears to claim compensation on account of the employee's death. § 10.912 What is required to establish a claim for the death gratuity payment? Claim form CA-41 describes the basic requirements. Much of the required information will be provided by the employing agency when it completes notification form CA-42. However, the claimant bears the burden of proof to ensure that OWCP has the evidence needed to establish the claim. OWCP may send any request for additional evidence to the claimant and to his or her representative, if any. Evidence should be submitted in writing. The evidence submitted must be reliable, probative, and substantial. Each claim for the death gratuity must establish the following before OWCP can pay the gratuity:
(a)That the claim was filed within the time limits specified by the FECA, as prescribed in 5 U.S.C. 8122 and this part. Timeliness is based on the date that the claimant filed the claim for the death gratuity under § 10.911, not the date the employing agency submitted form CA-42.
(b)That the injured person, at the time he or she incurred the injury or disease, was an employee of the United States as defined in 5 U.S.C. 8101(1) and § 10.5(h) of this part, or a non-appropriated fund instrumentality employee, as defined in 10 U.S.C. 1587(a)(1).
(c)That the injury or disease occurred and that the employee's death was causally related to that injury or disease. The death certificate of the employee must be provided. Often, the employing agency will provide the death certificate and any needed medical documentation. OWCP may request from the claimant any additional documentation that may be needed to establish the claim.
(d)That the employee incurred the injury or disease in connection with the employee's service with an Armed Force in a contingency operation. This will be determined from evidence provided by the employing agency or otherwise obtained by OWCP and from any evidence provided by the claimant.
(1)Section 8102a defines “contingency operation” to include humanitarian operations, peacekeeping operations, and similar operations. (“Similar operations” will be determined by OWCP.)
(i)A “contingency operation” is defined by 10 U.S.C. 101(a)(13) as a military operation that—
(A)Is designated by the Secretary of Defense as an operation in which members of the Armed Forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force; or
(B)Results in the call or order to, or retention on, active duty of members of the uniformed services under section 688, 12301(a), 12302, 12304, 12305, or 12406 of [Title 10], chapter 15 of [Title 10], or any other provision of law during a war or during a national emergency declared by the President or Congress.
(ii)A “humanitarian or peacekeeping operation” is defined by 10 U.S.C. 2302(8) as a military operation in support of the provision of humanitarian or foreign disaster assistance or in support of a peacekeeping operation under chapter VI or VII of the Charter of the United Nations. The term does not include routine training, force rotation, or stationing.
(iii)“Humanitarian assistance” is defined by 10 U.S.C. 401(e) to mean medical, surgical, dental, and veterinary care provided in areas of a country that are rural or are underserved by medical, surgical, dental, and veterinary professionals, respectively, including education, training, and technical assistance related to the care provided; construction of rudimentary surface transportation systems; well drilling and construction of basic sanitation facilities; rudimentary construction and repair of public facilities.
(2)A contingency operation may take place within the United States or abroad. However, operations of the National Guard are only considered “contingency operations” for purposes of this subpart when the President, Secretary of the Army, or Secretary of the Air Force calls the members of the National Guard into service. A “contingency operation” does not include operations of the National Guard when called into service by a Governor of a State.
(3)To show that the injury or disease was incurred “in connection with” the employee's service with an Armed Force in a contingency operation, the claim must show that the employee incurred the injury or disease while in the performance of duty as that phrase is defined for the purposes of otherwise awarding benefits under FECA.
(i)When the contingency operation occurs outside of the United States, OWCP will find that an employee's injury or disease was incurred “in connection with” the employee's service with an Armed Force in a contingency operation if the employee incurred the injury or disease while performing assignments in the same region as the operation, unless there is conclusive evidence that the employee's service was not supporting the Armed Force's operation.
(ii)Economic or social development projects, including service on Provincial Reconstruction Teams, undertaken by covered employees in regions where an Armed Force is engaged in a contingency operation will be considered to be supporting the Armed Force's operation.
(5)To show that an employee's injury or disease was incurred “in connection with” the employee's service with an Armed Force in a contingency operation, the claimant will be required to establish that the employee's service was supporting the Armed Force's operation. The death gratuity does not cover federal employees who are performing service within the United States that is not supporting activity being performed by an Armed Force.
(e)The claimant must establish his or her relationship to the deceased employee so that OWCP can determine whether the claimant is the survivor entitled to receive the death gratuity payment according to the order of precedence prescribed in § 10.907. § 10.913 In what situations will OWCP consider that an employee incurred injury in connection with his or her service with an Armed Force in a contingency operation?
(a)OWCP will consider that an employee incurred injury in connection with service with an Armed Force in a contingency operation if:
(1)The employee incurred injury while serving under the direction or supervision of an official of an Armed Force conducting a contingency operation; or
(2)The employee incurred injury while riding with members of an Armed Force in a vehicle or other conveyance deployed to further an Armed Force's objectives in a contingency operation.
(b)An employee may incur injury in connection with service with an Armed Force in a contingency operation in situations other than those listed above. Additional situations will be determined by OWCP on a case-by-case basis. § 10.914 What are the responsibilities of the employing agency in the death gratuity payment process? Because some of the information needed to establish a claim under this subpart will not be readily available to the claimants, the employing agency of the deceased employee has significant responsibilities in the death gratuity claim process. These responsibilities are as follows:
(a)The agency must completely fill out form CA-42 immediately upon learning of an employee's death that may be eligible for benefits under this subpart. The agency must complete form CA-42 as promptly as possible if notified by OWCP that a survivor filed a claim based on the employee's death. The agency should provide as much information as possible regarding the circumstances of the employee's injury and his or her assigned duties at the time of the injury, so that OWCP can determine whether the injury was incurred in the performance of duty and whether the employee was performing service in connection with an Armed Force in a contingency operation at the time.
(b)The employing agency must promptly transmit any form CA-41's received from claimants to OWCP. The employer must also promptly transmit to OWCP any other claim or paper submitted that appears to claim compensation on account of the employee's death.
(c)The employing agency must maintain any designations completed by the employee and signed by a representative of the agency in the employee's official personnel file or a related system of records. The agency must forward any such forms to OWCP if the agency submits form CA-42 notifying OWCP of the employee's death. The agency must also forward any other paper signed by the employee and employing agency that appears to make designations of the death gratuity.
(d)If requested by OWCP, the employing agency must determine whether a survivor, who is claiming the death gratuity based on his or her status as an illegitimate child of a deceased male employee, has offered satisfactory evidence to show that he or she is in fact the employee's child.
(e)The employing agency must notify OWCP of any other death gratuity payments under any other law of the United States for which the employee's death qualifies. The employing agency also must notify OWCP of any other death gratuity payments that have been paid based on the employee's death.
(f)Non-appropriated fund instrumentalities must fulfill the same requirements under this subpart as any other employing agency. § 10.915 What are the responsibilities of OWCP in the death gratuity payment process?
(a)If the death gratuity payment process is initiated by the employing agency's submission of form CA-42, OWCP will identify living potential claimants. OWCP will make a reasonable effort to provide claim form CA-41's to any known potential claimants and provide instructions on how to file a claim for the death gratuity payment.
(b)If the death gratuity payment process is initiated by a claimant's submission of a claim, OWCP will contact the employing agency and prompt it to submit form CA-42. OWCP will then review the information provided by both the claim and form CA-42, and OWCP will attempt to identify all living survivors or alternate beneficiaries who may be eligible for payment of the gratuity.
(c)If OWCP determines that the evidence is not sufficient to meet the claimant's burden of proof, OWCP will notify the claimant of the additional evidence needed. The claimant will be allowed at least 30 days to submit the additional evidence required. OWCP may also request additional information from the employing agency.
(d)OWCP will review the information provided by the claimant and information provided by the employing agency to determine whether the claim satisfies all the requirements listed in § 10.912.
(e)OWCP will calculate the amount of the death gratuity payment and pay the beneficiaries as soon as possible after accepting the claim. § 10.916 How is the amount of the death gratuity calculated? The death gratuity payment under this subpart equals $100,000 minus the amount of any death gratuity payments that have been paid under any other law of the United States based on the same death. A death gratuity payment is a payment in the nature of a gift, beyond reimbursement for death and funeral expenses, relocation costs, or other similar death benefits. Only other death gratuity payments will reduce the amount of the death gratuity provided in this subpart. For this reason, death benefits provided to the same employee's survivors such as those under 5 U.S.C. 8133 as well as benefits paid under 5 U.S.C. 8134 are not death gratuity payments, and therefore have no effect on the amount of the death gratuity provided under this subpart.
(a)A payment provided under section 413 of the Foreign Service Act of 1980 (22 U.S.C. 3973), is a death gratuity payment, and if a deceased employee's survivors received that payment for the employee's death, the amount of the death gratuity paid to the survivors under this subpart would be reduced by the amount of the Foreign Service Act death gratuity. Other death gratuities that would affect the calculation of the amount payable include but are not limited to: the gratuity provision in section 1603 of the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Hurricane Recovery, 2006 (Pub. L. 109-234, June 15, 2006); the $10,000 death gratuity to the personal representative of civilian employees, at Title VI, Section 651 of the Omnibus Consolidated Appropriations Act of 1996 (Pub. L. 104-208, September 30, 1996); the death gratuity for members of the Armed Forces or any employee of the Department of Defense dying outside the United States while assigned to intelligence duties, at 10 U.S.C. 1489; and the death gratuity for employees of the Central Intelligence Agency, at 50 U.S.C. 403k.
(b)The amount of the death gratuity under this section will be calculated before it is disbursed to the employee's survivors or alternate beneficiaries, by taking into account any death gratuities paid by the time of disbursement. Therefore, any designations made by the employee under § 10.909 are only applicable to the amount of the death gratuity as described in paragraph
(a)of this section. The following examples are intended to provide guidance in this administration of this subpart.
(1)*Example One.* An employee's survivors are entitled to the Foreign Service Act death gratuity; the employee's spouse received payment in the amount of $80,000 under that Act. A death gratuity is also payable under FECA; the amount of the FECA death gratuity that is payable is a total of $20,000. That employee, using Form CA-40 had designated 50% of the death gratuity under this subpart to be paid to his neighbor John Smith who is still living. So, 50% of the death gratuity will be paid to his spouse and the remaining 50% of the death gratuity paid under this subpart would be paid to John Smith. This means the surviving spouse will receive $10,000 and John Smith will receive $10,000.
(2)*Example Two.* Employee dies in circumstances that would qualify her for payment of the gratuity under this subpart; her agency has paid the $10,000 death gratuity pursuant to Public Law 104-208. The employee had not completed any designation form. The FECA death gratuity is reduced by the $10,000 death gratuity and employee's spouse receives $90,000.
(3)*Example Three.* An employee of the Foreign Service whose annual salary is $75,000 dies in circumstances that would qualify for payment of both the Foreign Service Act death gratuity and the death gratuity under this subpart. Before his death, the employee designated that 40% of the death gratuity under this subpart be paid to his cousin Jane Smith, pursuant to the alternate beneficiary designation provision at section 10.908 and that 10% be paid to his uncle John Doe who has since died. At the time of his death, the employee had no surviving spouse, children, parents, or siblings. Therefore, the Foreign Service Act death gratuity will not be paid, because no eligible survivors according to the Foreign Service Act provision exist. The death gratuity under this subpart would equal $100,000, because no other death gratuity has been paid, and Jane would receive $40,000 according to the employee's designation. As John Doe is deceased, no death gratuity may be paid pursuant to the designation of a share of the death gratuity to him. Signed at Washington, DC, this 29th day of July 2009. Shelby S. Hallmark, Acting Assistant Secretary for Employment Standards Administration. [FR Doc. E9-18523 Filed 8-17-09; 8:45 am] BILLING CODE 4510-CF-P DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 558 [Docket No. FDA-2009-N-0665] New Animal Drugs for Use in Animal Feeds; Semduramicin; Virginiamycin AGENCY: Food and Drug Administration, HHS. ACTION: Final rule. SUMMARY: The Food and Drug Administration
(FDA)is amending the animal drug regulations to reflect approval of an original new animal drug application
(NADA)filed by Phibro Animal Health. The NADA provides for use of single-ingredient Type A medicated articles containing semduramyicin (as semduramicin sodium biomass) and virginiamycin to manufacture 2-way combination drug Type C medicated feeds for use in broiler chickens. DATES: This rule is effective August 18, 2009. FOR FURTHER INFORMATION CONTACT: Timothy Schell, Center for Veterinary Medicine (HFV-128), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 240-276-8116, e-mail: *timothy.schell@fda.hhs.gov* . SUPPLEMENTARY INFORMATION: Phibro Animal Health, 65 Challenger Rd., 3d floor, Ridgefield Park, NJ 07660, filed NADA 141-289 that provides for the use of AVIAX II (semduramicin sodium biomass) and STAFAC (virginiamycin) Type A medicated articles to manufacture 2-way combination drug Type C medicated feeds for broiler chickens. The NADA is approved as of July 13, 2009, and the regulations are amended in 21 CFR 558.555 to reflect the approval. In accordance with the freedom of information provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday. The agency has determined under 21 CFR 25.33 that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required. This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808. List of Subjects in 21 CFR Part 558 Animal drugs, Animal feeds. Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR part 558 is amended as follows: PART 558—NEW ANIMAL DRUGS FOR USE IN ANIMAL FEEDS 1. The authority citation for 21 CFR part 558 continues to read as follows: Authority: 21 U.S.C. 360b, 371. 2. In § 558.555, add paragraphs (e)(2) through (e)(4) to read as follows: § 558.555 Semduramicin.
(e)* * * Semduramicin in grams per ton Combination in grams per ton Indications for use Limitations Sponsor * * * * * * *
(2)22.7 Virginiamycin 5 Broiler chickens: As in paragraph (e)(1) of this section; for increased rate of weight gain and improved feed efficiency. Feed continuously as sole ration. Withdraw 1 day before slaughter. Do not feed to laying hens. Virginiamycin provided by No. 066104 in § 510.600(c) of this chapter. 066104
(3)22.7 Virginiamycin 5 to 15 Broiler chickens: As in paragraph (e)(1) of this section; for increased rate of weight gain. Feed continuously as sole ration. Withdraw 1 day before slaughter. Do not feed to laying hens. Virginiamycin provided by No. 066104 in § 510.600(c) of this chapter. 066104
(4)22.7 Virginiamycin 20 Broiler chickens: As in paragraph (e)(1) of this section; for prevention of necrotic enteritis caused by *C. perfringens* susceptible to virginiamycin. Feed continuously as sole ration. Withdraw 1 day before slaughter. Do not feed to laying hens. Virginiamycin provided by No. 066104 in § 510.600(c) of this chapter. 066104 Dated: August 12, 2009. William T. Flynn, Acting Director, Center for Veterinary Medicine. [FR Doc. E9-19738 Filed 8-17-09; 8:45 am] BILLING CODE 4160-01-S DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2009-0101] RIN 1625-AA09 Drawbridge Operation Regulation; Sabine River, Echo, TX AGENCY: Coast Guard, DHS. ACTION: Final rule. SUMMARY: The Coast Guard is changing the regulation governing the operation of the Union Pacific Railroad Swing Span Bridge across the Sabine River, mile 19.3, at Echo, Orange County, TX. The bridge currently opens on signal with 24 hours advance notice but because of the limited number of requests for openings, the bridge owner requested an increase in the length of notification time required to open the bridge. DATES: This rule is effective September 17, 2009. ADDRESSES: Comments and related materials received from the public, as well as documents mentioned in this preamble as being available in the docket, are part of docket USCG-2009-0101 and are available online by going to *http://www.regulations.gov* , inserting USCG-2009-0101 in the “Keyword” box, and then clicking “Search.” This material is also available for inspection or copying at 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. FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, call or e-mail Kay Wade, Bridge Administration Branch, Coast Guard; telephone 504-671-2128, e-mail *kay.b.wade@uscg.mil* . 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 26, 2009, we published a notice of proposed rulemaking
(NPRM)entitled Drawbridge Operation Regulation; Sabine River, Echo, TX in the **Federal Register** (74 FR 13164). We received 2 comments on the proposed rule. No public meeting was requested, and none was held. Background and Purpose Due to a lack of bridge openings requested by mariners, Union Pacific Railroad Company, the bridge owner, requested a change in the operating regulation governing the Union Pacific railroad swing span bridge across the Sabine River, mile 19.3 at Echo, Texas from 24 hours advance notice to open the bridge to 14 days advance notice to open the bridge. This change allows the bridge owner to open the bridge for the passage of vessels while minimizing his requirements to staff and maintain the bridge. The bridge has a vertical clearance of 7.9 feet above Mean High Water (MHW), elevation 2.18 feet NGVD in the closed-to-navigation position and unlimited in the open-to-navigation position. In accordance with 33 CFR 117.493(a), the bridge is currently required to open on signal for the passage of marine vessels if at least 24 hours of advanced notice is given. Bridge tender logs indicate no requests for bridge openings in several years. Discussion of Comments and Changes The Coast Guard received a total of two comments in response to the NPRM. The comments were from Federal and State agencies having no objections to the proposal. Therefore, no change was made to the regulatory text. 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. We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary. The public will need to notify the bridge owner of a required opening 14 days in advance rather than 24 hours in advance. There is no change in the regulatory text published in the NPRM. 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 might be small entities: The owners or operators of vessels needing to transit the bridge with less than 14 days advance notice. There have been no requests for bridge openings in several years so this rule will not affect a substantial number of small entities. Vessels that can safely transit under the bridge may do so at any time. Before the effective period, we will issue maritime advisories widely available to users of the river. 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. Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or Tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. Indian Tribal Governments This rule does not have Tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( *e.g.,* specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have concluded that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (32)(e), of the Instruction. Under figure 2-1, paragraph (32)(e), of the Instruction, an environmental analysis checklist and a categorical exclusion determination are not required for this rule. List of Subjects in 33 CFR Part 117 Bridges. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows: PART 117—DRAWBRIDGE OPERATION REGULATIONS 1. The authority citation for part 117 continues to read as follows: Authority: 33 U.S.C. 499; 33 CFR 1.05-1; Department of Homeland Security Delegation No. 0170.1. 2. Section 117.493(a) is revised to read as follows: § 117.493 Sabine River.
(a)The draw of the Union Pacific railroad bridge, mile 19.3 near Echo shall open on signal if at least 14 days notice is given. Dated: August 4, 2009. Mary E. Landry, Rear Admiral, U.S. Coast Guard Commander, Eighth Coast Guard District. [FR Doc. E9-19703 Filed 8-17-09; 8:45 am] BILLING CODE 4910-15-P POSTAL REGULATORY COMMISSION 39 CFR Part 3020 [Docket No. CP2009-48; Order No. 267] International Mail AGENCY: Postal Regulatory Commission. ACTION: Final rule. SUMMARY: The Commission is making changes to the Competitive Product List, including adding a new contract within the Global Plus 2 product on the Competitive Product List. This is consistent with changes in a recent law governing postal operations. Republication of the lists of market dominant and competitive products is also consistent with new requirements. DATES: Effective August 18, 2009 and is applicable beginning July 31, 2009. FOR FURTHER INFORMATION CONTACT: Stephen L. Sharfman, General Counsel, 202-789-6820 or *stephen.sharfman@prc.gov* . SUPPLEMENTARY INFORMATION: *Regulatory History* , 74 FR 35898 (July 21, 2009). I. Introduction II. Background III. Comments IV. Commission Analysis V. Ordering Paragraphs I. Introduction The Postal Service proposes to add a specific Global Plus 2 contract to the Global Plus Contract product established in Docket No. MC2008-7. For the reasons discussed below, the Commission approves the Postal Service's proposal. II. Background On July 13, 2009, the Postal Service filed a notice, pursuant to 39 CFR 3015.5, announcing that it has entered into two additional Global Plus 2 contracts, which it states fit within the previously established Global Plus 2 Contracts product. 1 The Postal Service states that each contract is functionally equivalent to previously submitted Global Plus 2 contracts, are filed in accordance with Order No. 112 2 and are supported by Governors' Decision No. 08-10 filed in Docket No. MC2008-7. 3 Notice at 1. 1 Notice of the United States Postal Service of Filing Two Functionally Equivalent Global Plus 2 Negotiated Service Agreements, July 13, 2009 (Notice). While the Notice was filed jointly in Docket Nos. CP2009-48 and CP2009-49, the Commission will address the issues in these dockets in separate orders. The Postal Service requests that the two contracts be included in the Global Plus 2 product, and “that they be considered the new `baseline' contracts for future functional equivalency analyses.* * *” *Id.* at 2. 2 *See* Docket Nos. MC2008-7, CP2008-16 and CP2008-17, Order Concerning Global Plus 2 Negotiated Service Agreements, October 3, 2008 (Order No. 112). 3 *See* Docket Nos. MC2008-7, CP2008-16 and CP2008-17, Decision of the Governors of the United States Postal Service on the Establishment of Prices and Classification for Global Direct, Global Bulk Economy, and Global Plus Contracts, July 16, 2008 (Governors' Decision 08-10). The Notice also states that in Docket No. MC2008-7, the Governors established prices and classifications for competitive products not of general applicability for Global Plus Contracts. The Postal Service relates that the instant contract is the immediate successor contract to the contract in Docket No. CP2008-16 which will expire soon, and which the Commission found to be functionally equivalent in Order No. 112. The Postal Service contends that the instant contract should be included within the Global Plus 2 product on the Competitive Product List. *Id.* In support, the Postal Service has filed a redacted version of the contract and related materials as Attachment 1-A. A redacted version of the certified statement required by 39 CFR 3015.5 is included as Attachment 2-A. The Postal Service states that the contract should be included within the Global Plus 2 product and requests that the instant contract be considered the “baseline contract[s] for future functional equivalency analyses concerning this product.” *Id.* at 2. The Postal Service filed the instant contract pursuant to 39 CFR 3015.5. The contract becomes effective August 1, 2009, unless regulatory reviews affect that date, and have a one-year term. The Postal Service maintains that certain portions of each contract and certified statement required by 39 CFR 3015.5(c)(2), containing names and identifying information of the Global Plus 2 customer, related financial information, portions of the certified statement which contain costs and pricing as well as the accompanying analyses that provide prices, terms, conditions, and financial projections should remain under seal. *Id.* at 3. The Postal Service asserts the contract is functionally equivalent with the contract filed in Docket No. CP2009-49 because they share similar cost and market characteristics. It contends that they should be classified as a single product. *Id.* It states that while the existing contracts filed in Docket Nos. CP2008-16 and CP2008-17 exhibited minor distinctions, the new contracts are identical to one another. *Id.* at 4. The instant contract is with the same Postal Qualified Wholesalers
(PQW)as in Docket No. CP2008-16. Even though some terms and conditions of the contract have changed, the Postal Service states that the essence of the service to the PQW customers is offering price-based incentives to commit large amounts of mail volume or postage revenue for Global Bulk Economy
(GBE)and Global Direct (GD). 4 4 The Postal Service states the commitments also account for International Priority Airmail (IPA), International Surface Air Lift (ISAL), Express Mail International (EMI), and Priority Mail International
(PMI)items mailed under a separate but related Global Plus 1 contract with each customer. The Global Plus 1 contracts are the subject of a separate competitive products proceeding. The Postal Service indicates that the instant contract has material differences which include removal of retroactivity provisions; explanations of price modification as a result of currency rate fluctuations or postal administration fees; removal of language on enforcement of mailing requirements; and restructuring of price incentives, commitments, penalties and clarification of continuing contractual obligations in the event of termination. The Postal Service maintains these differences only add detail or amplify processes included in prior Global Plus 2 contracts. It contends because the instant contract has the same cost attributes and methodology as well as similar cost and market characteristics, the differences do not affect the fundamental service being offered or the essential structure of the contract. *Id.* at 8. Therefore, it asserts these contracts are “functionally equivalent in all pertinent respects.” *Id.* at 8. In Order No. 250, the Commission gave notice of the filing, appointed a Public Representative, and provided the public with an opportunity to comment. 5 5 Notice of Filing of Two Functionally Equivalent Global Plus 2 Negotiated Service Agreements, July 16, 2009 (Order No. 250). On July 23, 2009, Chairman's Information Request No. 1 (CHIR No. 1) was issued with responses due by July 28, 2009. On July 28, 2009, the Postal Service provided its responses to CHIR No. 1. III. Comments Comments were filed by the Public Representative. 6 No other interested parties submitted comments. The Public Representative states the contract appears to satisfy the statutory criteria, but because he believes there are ambiguities in the cost methodology, his response is not an unqualified recommendation in support of the contract's approval. *Id.* at 2. He notes that relevant provisions of 39 U.S.C. 3632, 3633 and 3642 appear to be met by these additional Global Plus 2 contracts. *Id.* The Public Representative states that he believes the contracts are functionally equivalent to the existing Global Plus Contracts product. He also determines that the Postal Service has provided greater transparency and accessibility in its filings. *Id.* at 3. 6 Public Representative Comments in Response to Order No. 250, July 23, 2009 (Public Representative Comments). The Public Representative notes that the general public benefits from the availability of these contracts in several ways: well prepared international mail adds increased efficiency in the mailstream, enhanced volume results in timeliness in outbound shipments to all countries including those with small volume, and the addition of shipping options may result in expansion of mail volumes, particularly with the incentives for PQWs to promote the use of outbound international shipping resulting in expansion of these services for the Postal Service. *Id.* at 4. Finally, he discusses the need for self-contained docket filings. In particular, he notes that the instant contract relies on data from the most recent International Cost and Revenue Analysis (ICRA), which was filed in another docket. He suggest that the Postal Service identify the location of the ICRA utilized and cited in that docket. *Id.* at 6. IV. Commission Analysis The Postal Service proposes to add an additional contract under the Global Plus Contracts product that was created in Docket No. MC2008-7. As filed, this docket presents two issues for the Commission to consider:
(1)Whether the contract satisfies 39 U.S.C. 3633, and
(2)whether the contract is functionally equivalent to previously reviewed Global Plus 2 contracts. In reaching its conclusions, the Commission has reviewed the Notice, the contract and the financial analyses provided under seal, supplemental information, and the Public Representative's comments. *Statutory requirements.* The Postal Service contends that the instant contract and supporting documents filed in this docket establish compliance with the statutory provisions applicable to rates for competitive products (39 U.S.C. 3633). Notice at 2. J. Ron Poland, Manager, Statistical Programs, Finance Department asserts Governors' Decision No. 08-10 for Global Plus Contracts establishes price floor and ceiling formulas issued on July 16, 2008. He certifies that the pricing in the instant contract meets the Governors' pricing formula and meets the criteria of 39 U.S.C. 3633(a)(1),
(2)and (3). He further states that the prices demonstrate that the contract and the included ancillary services should cover their attributable costs, preclude the subsidization of competitive products by market dominant products, and should not impair the ability of competitive products on the whole to cover an appropriate share of institutional costs. Notice, Attachment 2-A. For his part, the Public Representative indicates that the contract appears to satisfy 39 U.S.C. 3633. Public Representative Comments at 1-3. Based on the data submitted, including the supplemental information, the Commission finds that the contract should cover its attributable costs (39 U.S.C. 3633(a)(2)), should not lead to the subsidization of competitive products by market dominant products (39 U.S.C. 3633(a)(1)), and should have a positive effect on competitive products' contribution to institutional costs (39 U.S.C. 3633(a)(3)). Thus, an initial review of the contract indicates that it comports with the provisions applicable to rates for competitive products. *Functional equivalence.* The Postal Service asserts that the instant contract is functionally equivalent to the contract filed in the companion proceeding, Docket No. CP2009-49, as well as with Global Plus 2 contracts filed previously because they share similar cost and market characteristics. Notice at 4. The Postal Service states that the customers under the existing and proposed contracts are the same. In addition, it notes that existing contracts exhibited some differences; the contracts proposed in Docket Nos. CP2009-48 and CP2009-49 are identical. *Id.* Having reviewed the contracts filed in the instant proceeding and in Docket No. CP2009-49, and the Postal Service's justification, the Commission finds that the two contracts may be treated as functionally equivalent. *New baseline.* The Postal Service requests that the contracts filed in Docket Nos. CP2009-48 and 2009-49 be included in the Global Plus 2 product and “considered the new `baseline' contracts for purposes of future functional equivalency analyses concerning this product.” *Id.* at 2. Currently, the Global Plus 2 product consists of two existing contracts that will be superseded by the contracts in Docket Nos. CP2009-48 and CP2009-49. Under those circumstances, the new contracts need not be designated as a new product. Accordingly, the new contracts in Docket Nos. CP2009-48 and CP2009-49 will be included in the Global Plus 2 product and become the “baseline” for future functional equivalency analyses regarding that product. *Other considerations.* If the agreement terminates earlier than anticipated, the Postal Service shall promptly inform the Commission of the new termination date. In conclusion, the Commission finds that the negotiated service agreement submitted in Docket No. CP2009-48 is appropriately included within the Global Plus 2 product. V. Ordering Paragraphs *It is ordered:* 1. The contract filed in Docket No. CP2009-48 is included within the Global Plus 2 product (MC2008-7 and CP2009-48). 2. The existing Global Plus 2 product (MC2008-7, CP2008-16 and CP2008-17) is removed from the product list. 3. As discussed in the body of this Order, future contract filings which rely on materials filed under seal in other dockets should be self contained. 4. The Postal Service shall notify the Commission if the termination date changes as discussed in this Order. List of Subjects in 39 CFR Part 3020 Administrative practice and procedure; Postal Service. Issued: July 31, 2009. By the Commission. Ann C. Fisher, Acting Secretary. For the reasons stated in the preamble, under the authority at 39 U.S.C. 503, the Postal Regulatory Commission amends 39 CFR part 3030 as follows: PART 3020—PRODUCT LISTS 1. The authority citation for part 3020 continues to read as follows: Authority: 39 U.S.C. 503; 3622; 3631; 3642; 3682. 2. Revise Appendix A to Subpart A of Part 3020—Mail Classification Schedule to read as follows: Appendix A to Subpart A of Part 3020—Mail Classification Schedule Part A—Market Dominant Products 1000 Market Dominant Product List First-Class Mail Single-Piece Letters/Postcards Bulk Letters/Postcards Flats Parcels Outbound Single-Piece First-Class Mail International Inbound Single-Piece First-Class Mail International Standard Mail (Regular and Nonprofit) High Density and Saturation Letters High Density and Saturation Flats/Parcels Carrier Route Letters Flats Not Flat-Machinables (NFMs)/Parcels Periodicals Within County Periodicals Outside County Periodicals Package Services Single-Piece Parcel Post Inbound Surface Parcel Post (at UPU rates) Bound Printed Matter Flats Bound Printed Matter Parcels Media Mail/Library Mail Special Services Ancillary Services International Ancillary Services Address List Services Caller Service Change-of-Address Credit Card Authentication Confirm International Reply Coupon Service International Business Reply Mail Service Money Orders Post Office Box Service Negotiated Service Agreements HSBC North America Holdings Inc. Negotiated Service Agreement Bookspan Negotiated Service Agreement Bank of America Corporation Negotiated Service Agreement The Bradford Group Negotiated Service Agreement Inbound International Canada Post—United States Postal Service Contractual Bilateral Agreement for Inbound Market Dominant Services Market Dominant Product Descriptions First-Class Mail [Reserved for Class Description] Single-Piece Letters/Postcards [Reserved for Product Description] Bulk Letters/Postcards [Reserved for Product Description] Flats [Reserved for Product Description] Parcels [Reserved for Product Description] Outbound Single-Piece First-Class Mail International [Reserved for Product Description] Inbound Single-Piece First-Class Mail International [Reserved for Product Description] Standard Mail (Regular and Nonprofit) [Reserved for Class Description] High Density and Saturation Letters [Reserved for Product Description] High Density and Saturation Flats/Parcels [Reserved for Product Description] Carrier Route [Reserved for Product Description] Letters [Reserved for Product Description] Flats [Reserved for Product Description] Not Flat-Machinables (NFMs)/Parcels [Reserved for Product Description] Periodicals [Reserved for Class Description] Within County Periodicals [Reserved for Product Description] Outside County Periodicals [Reserved for Product Description] Package Services [Reserved for Class Description] Single-Piece Parcel Post [Reserved for Product Description] Inbound Surface Parcel Post (at UPU rates) [Reserved for Product Description] Bound Printed Matter Flats [Reserved for Product Description] Bound Printed Matter Parcels [Reserved for Product Description] Media Mail/Library Mail [Reserved for Product Description] Special Services [Reserved for Class Description] Ancillary Services [Reserved for Product Description] Address Correction Service [Reserved for Product Description] Applications and Mailing Permits [Reserved for Product Description] Business Reply Mail [Reserved for Product Description] Bulk Parcel Return Service [Reserved for Product Description] Certified Mail [Reserved for Product Description] Certificate of Mailing [Reserved for Product Description] Collect on Delivery [Reserved for Product Description] Delivery Confirmation [Reserved for Product Description] Insurance [Reserved for Product Description] Merchandise Return Service [Reserved for Product Description] Parcel Airlift
(PAL)[Reserved for Product Description] Registered Mail [Reserved for Product Description] Return Receipt [Reserved for Product Description] Return Receipt for Merchandise [Reserved for Product Description] Restricted Delivery [Reserved for Product Description] Shipper-Paid Forwarding [Reserved for Product Description] Signature Confirmation [Reserved for Product Description] Special Handling [Reserved for Product Description] Stamped Envelopes [Reserved for Product Description] Stamped Cards [Reserved for Product Description] Premium Stamped Stationery [Reserved for Product Description] Premium Stamped Cards [Reserved for Product Description] International Ancillary Services [Reserved for Product Description] International Certificate of Mailing [Reserved for Product Description] International Registered Mail [Reserved for Product Description] International Return Receipt [Reserved for Product Description] International Restricted Delivery [Reserved for Product Description] Address List Services [Reserved for Product Description] Caller Service [Reserved for Product Description] Change-of-Address Credit Card Authentication [Reserved for Product Description] Confirm [Reserved for Product Description] International Reply Coupon Service [Reserved for Product Description] International Business Reply Mail Service [Reserved for Product Description] Money Orders [Reserved for Product Description] Post Office Box Service [Reserved for Product Description] Negotiated Service Agreements [Reserved for Class Description] HSBC North America Holdings Inc. Negotiated Service Agreement [Reserved for Product Description] Bookspan Negotiated Service Agreement [Reserved for Product Description] Bank of America Corporation Negotiated Service Agreement The Bradford Group Negotiated Service Agreement Part B—Competitive Products 2000 Competitive Product List Express Mail Express Mail Outbound International Expedited Services Inbound International Expedited Services Inbound International Expedited Services 1 (CP2008-7) Inbound International Expedited Services 2 (MC2009-10 and CP2009-12) Priority Mail Priority Mail Outbound Priority Mail International Inbound Air Parcel Post Royal Mail Group Inbound Air Parcel Post Agreement Parcel Select Parcel Return Service International International Priority Airlift
(IPA)International Surface Airlift
(ISAL)International Direct Sacks—M-Bags Global Customized Shipping Services Inbound Surface Parcel Post (at non-UPU rates) Canada Post—United States Postal service Contractual Bilateral Agreement for Inbound Competitive Services (MC2009-8 and CP2009-9) International Money Transfer Service International Ancillary Services Special Services Premium Forwarding Service Negotiated Service Agreements Domestic Express Mail Contract 1 (MC2008-5) Express Mail Contract 2 (MC2009-3 and CP2009-4) Express Mail Contract 3 (MC2009-15 and CP2009-21) Express Mail Contract 4 (MC2009-34 and CP2009-45) Express Mail & Priority Mail Contract 1 (MC2009-6 and CP2009-7) Express Mail & Priority Mail Contract 2 (MC2009-12 and CP2009-14) Express Mail & Priority Mail Contract 3 (MC2009-13 and CP2009-17) Express Mail & Priority Mail Contract 4 (MC2009-17 and CP2009-24) Express Mail & Priority Mail Contract 5 (MC2009-18 and CP2009-25) Express Mail & Priority Mail Contract 6 (MC2009-31 and CP2009-42) Express Mail & Priority Mail Contract 7 (MC2009-32 and CP2009-43) Express Mail & Priority Mail Contract 8 (MC2009-33 and CP2009-44) Parcel Return Service Contract 1 (MC2009-1 and CP2009-2) Priority Mail Contract 1 (MC2008-8 and CP2008-26) Priority Mail Contract 2 (MC2009-2 and CP2009-3) Priority Mail Contract 3 (MC2009-4 and CP2009-5) Priority Mail Contract 4 (MC2009-5 and CP2009-6) Priority Mail Contract 5 (MC2009-21 and CP2009-26) Priority Mail Contract 6 (MC2009-25 and CP2009-30) Priority Mail Contract 7 (MC2009-25 and CP2009-31) Priority Mail Contract 8 (MC2009-25 and CP2009-32) Priority Mail Contract 9 (MC2009-25 and CP2009-33) Priority Mail Contract 10 (MC2009-25 and CP2009-34) Priority Mail Contract 11 (MC2009-27 and CP2009-37) Priority Mail Contract 12 (MC2009-28 and CP2009-38) Priority Mail Contract 13 (MC2009-29 and CP2009-39) Priority Mail Contract 14 (MC2009-30 and CP2009-40) Outbound International Direct Entry Parcels Contracts Direct Entry Parcels 1 (MC2009-26 and CP2009-36) Global Direct Contracts (MC2009-9, CP2009-10, and CP2009-11) Global Expedited Package Services
(GEPS)Contracts GEPS 1 (CP2008-5, CP2008-11, CP2008-12, and CP2008-13, CP2008-18, CP2008-19, CP2008-20, CP2008-21, CP2008-22, CP2008-23, and CP2008-24) Global Plus Contracts Global Plus 1 (CP2008-8, CP2008-46 and CP2009-47) Global Plus 2 (MC2008-7 and CP2009-48) Inbound International Inbound Direct Entry Contracts with Foreign Postal Administrations (MC2008-6, CP2008-14 and CP2008-15) International Business Reply Service Competitive Contract 1 (MC2009-14 and CP2009-20) Competitive Product Descriptions Express Mail [Reserved for Group Description] Express Mail [Reserved for Product Description] Outbound International Expedited Services [Reserved for Product Description] Inbound International Expedited Services [Reserved for Product Description] Priority [Reserved for Product Description] Priority Mail [Reserved for Product Description] Outbound Priority Mail International [Reserved for Product Description] Inbound Air Parcel Post [Reserved for Product Description] Parcel Select [Reserved for Group Description] Parcel Return Service [Reserved for Group Description] International [Reserved for Group Description] International Priority Airlift
(IPA)[Reserved for Product Description] International Surface Airlift
(ISAL)[Reserved for Product Description] International Direct Sacks—M-Bags [Reserved for Product Description] Global Customized Shipping Services [Reserved for Product Description] International Money Transfer Service [Reserved for Product Description] Inbound Surface Parcel Post (at non-UPU rates) [Reserved for Product Description] International Ancillary Services [Reserved for Product Description] International Certificate of Mailing [Reserved for Product Description] International Registered Mail [Reserved for Product Description] International Return Receipt [Reserved for Product Description] International Restricted Delivery [Reserved for Product Description] International Insurance [Reserved for Product Description] Negotiated Service Agreements [Reserved for Group Description] Domestic [Reserved for Product Description] Outbound International [Reserved for Group Description] Part C—Glossary of Terms and Conditions [Reserved] Part D—Country Price Lists for International Mail [Reserved] [FR Doc. E9-19757 Filed 8-17-09; 8:45 am] BILLING CODE 7710-FW-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2009-0294; FRL-8944-7] Approval of Implementation Plans of Michigan: Clean Air Interstate Rule AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. SUMMARY: EPA is approving revisions to the Michigan State Implementation Plan
(SIP)submitted on July 16, 2007, and on June 10, 2009. Together, the revisions address the requirements for an abbreviated Clean Air Interstate Rule
(CAIR)SIP. EPA is also providing notice that the December 20, 2007, conditional approval of the July 16, 2007, submittal automatically converted to a disapproval. DATES: This direct final rule will be effective October 19, 2009, unless EPA receives adverse comments by September 17, 2009. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the **Federal Register** informing the public that the rule will not take effect. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-OAR-2009-0294, by one of the following methods: 1. *http://www.regulations.gov* : Follow the online instructions for submitting comments. 2. *E-mail: mooney.john@epa.gov* . 3. *Fax:*
(312)692-2551. 4. *Mail:* John M. Mooney, Chief, Criteria Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. 5. *Hand Delivery:* John M. Mooney, Chief, Criteria Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Deliveries are only accepted during the regional office normal hours of operation, and special arrangements should be made for deliveries of boxed information. The regional office official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays. *Instructions:* Direct your comments to Docket ID No. EPA-R05-OAR-2009-0294. 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 through *http://www.regulations.gov* or e-mail, information that you consider to be CBI or otherwise protected. 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 and any form of encryption and should 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 electronic docket are listed in the *http://www.regulations.gov* index. Although listed in the index, some information is not publicly available, *i.e.* , CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy at the U.S. Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. We recommend that you telephone Douglas Aburano, Environmental Engineer, at
(312)353-6960, before visiting the Region 5 office. FOR FURTHER INFORMATION CONTACT: Douglas Aburano, Environmental Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604,
(312)353-6960, *aburano.douglas@epa.gov* . SUPPLEMENTARY INFORMATION: Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows: Table of Contents I. What Action Is EPA Taking? II. What Is the Regulatory History of CAIR and the CAIR Federal Implementation Plans (FIPs)? III. What Are the General Requirements of CAIR and the CAIR FIPs? IV. What Are the Types of CAIR SIP Submittals? V. Analysis of Michigan's CAIR SIP Submittal VI. Disapproval Notice and Approval Action VII. Statutory and Executive Order Reviews I. What Action Is EPA Taking? EPA is approving two revisions to Michigan's abbreviated CAIR SIP and at the same time is providing notice that one of those revisions, which EPA had conditionally approved, converted to a disapproval on December 20, 2008. The revision that was automatically disapproved does not fulfill the CAIR requirements on its own but does when considered in conjunction with the second revision. On July 16, 2007, Michigan submitted a SIP revision to address the CAIR requirements. EPA conditionally approved the SIP submittal because the majority of Michigan's SIP submittal was approvable but there were several minor deficiencies that needed to be corrected. After the Michigan Department of Environmental Quality
(MDEQ)failed to address all the issues in EPA's December 20, 2007, conditional approval of the submittal, the conditional approval lapsed to disapproval on December 20, 2008. Today's action provides notice of the disapproval. On April 13, 2009, MDEQ submitted a proposed SIP revision to address the deficiencies in the July 16, 2007, submittal. MDEQ requested that EPA process the April 13, 2009, submittal while the State completed the State rule adoption process. Additionally, in a letter dated May 7, 2009, MDEQ requested that “EPA reconsider the conditional approval given to the original SIP submitted in July 2007.” MDEQ completed the State adoption process for the rules submitted to EPA on April 13, 2009, and submitted the adopted rules as a complete SIP revision on June 10, 2009, in place of the April 13, 2009, submittal. Since the conditional approval automatically converted to a disapproval on December 20, 2008, EPA cannot “reconsider the conditional approval” as requested by MDEQ. However, it is clear from the aforementioned correspondence with the State, as well as correspondence accompanying the June 10, 2009, submittal, that the State intends that EPA should act on the July 16, 2007, submittal in conjunction with the June 10, 2009, SIP revision request. The combination of these two submittals fulfills the CAIR requirements for abbreviated SIPs. The July 16, 2007, submittal generally meets the CAIR requirements, and the June 10, 2009, submittal corrects certain deficiencies EPA found with the July 16, 2007, submittal. The automatic disapproval of the July 16, 2007, submittal is inconsequential because, as explained above, we are approving both the July 16, 2007, and June 10, 2009, submittals. II. What Is the Regulatory History of CAIR and the CAIR Federal Implementation Plans (FIPs)? EPA published CAIR on May 12, 2005 (70 FR 25162). In this rule, EPA determined that 28 States and the District of Columbia contribute significantly to nonattainment and interfere with maintenance of the national ambient air quality standards (NAAQS) for fine particles (PM <sup>2.5</sup> ) and/or 8-hour ozone in downwind States in the eastern part of the country. As a result, EPA required those upwind States to revise their SIPs to include control measures that reduce emissions of sulfur dioxide (SO <sup>2</sup> ), which is a precursor to PM <sup>2.5</sup> formation, and/or nitrogen oxides (NO <sup>X</sup> ), which is a precursor to both ozone and PM <sup>2.5</sup> formation. For jurisdictions that contribute significantly to downwind PM <sup>2.5</sup> nonattainment, CAIR sets annual State-wide emission reduction requirements ( *i.e.* , budgets) for SO <sup>2</sup> and NO <sup>X</sup> . Similarly, for jurisdictions that contribute significantly to 8-hour ozone nonattainment, CAIR sets State-wide emission budgets for NO <sup>X</sup> for the ozone season (May 1st to September 30th). Under CAIR, States may implement these reduction requirements by participating in the EPA-administered cap-and-trade programs or by adopting any other control measures. The CAIR establishes requirements that must be included in SIPs to address the requirements of section 110(a)(2)(D) of the Clean Air Act
(CAA)with regard to interstate transport for ozone and PM <sup>2.5</sup> . On May 25, 2005, EPA made national findings that the States had failed to submit SIPs meeting the requirements of section 110(a)(2)(D). The SIPs were due in July 2000, three years after the promulgation of the 8-hour ozone and PM <sup>2.5</sup> NAAQS. These findings started a two-year clock for EPA to promulgate a FIP to address the requirements of section 110(a)(2)(D). Under CAA section 110(c)(1), EPA may issue a FIP anytime after such findings are made, and must do so within two years unless EPA has approved a SIP revision correcting the deficiency before the FIP is promulgated. On April 28, 2006, EPA promulgated FIPs for all States covered by CAIR to ensure that the emissions reductions required by CAIR are achieved on schedule. The CAIR FIPs require electric generating units
(EGUs)to participate in the EPA-administered CAIR SO <sup>2</sup> , NO <sup>X</sup> annual, and NO <sup>X</sup> ozone season trading programs, as appropriate. The CAIR FIP trading programs impose essentially the same requirements as, and are integrated with, the respective CAIR SIP trading programs. The integration of the FIP and SIP trading programs means that these trading programs will work together to create a single trading program for each regulated pollutant (SO <sup>2</sup> , NO <sup>X</sup> annual, and NO <sup>X</sup> ozone season) in all States covered by CAIR FIP or SIP trading programs for that pollutant. Further, as provided in a rule published by EPA on November 2, 2007 (72 FR 62338), a State's CAIR FIP is automatically withdrawn when EPA approves a SIP revision as fully meeting the requirements of CAIR. Where only portions of the SIP revision are approved, the corresponding portions of the FIPs are automatically withdrawn and the remaining portions of the FIP stay in place. Finally, the CAIR FIPs also allow States to submit abbreviated SIP revisions that, if approved by EPA, automatically replace or supplement certain CAIR FIP provisions ( *e.g.* , the methodology for allocating NO <sup>X</sup> allowances to sources in the *State* ), while the CAIR FIP remains in place for all other provisions. On October 19, 2007, EPA amended CAIR and the CAIR FIPs to clarify the definition of “cogeneration unit” and, thus, the applicability of the CAIR trading program to cogeneration units. EPA was sued by a number of parties on various aspects of CAIR, and on July 11, 2008, the U.S. Court of Appeals for the District of Columbia Circuit issued its decision to vacate and remand both CAIR and the associated CAIR FIPs in their entirety. *North Carolina* v. *EPA* , 531 F.3d 836 (DC Cir. Jul. 11, 2008). However, in response to EPA's petition for rehearing, the Court issued an order remanding CAIR to EPA without vacating either CAIR or the CAIR FIPs. *North Carolina* v. *EPA* , 550 F.3d 1176 (DC Cir. Dec. 23, 2008). The Court thereby left CAIR in place in order to “temporarily preserve the environmental values covered by CAIR” until EPA replaces it with a rule consistent with the Court's opinion. *Id* . at 1178. The Court directed EPA to “remedy CAIR's flaws” consistent with its July 11, 2008, opinion, but declined to impose a schedule on EPA for completing that action. *Id* . Therefore, because EPA has not fully approved any CAIR SIP for Michigan, CAIR and the CAIR FIP are currently in effect in Michigan. III. What Are the General Requirements of CAIR and the CAIR FIPs? CAIR, which establishes State-wide emission budgets for SO <sup>2</sup> and NO <sup>X</sup> , is to be implemented in two phases. The first phase of NO <sup>X</sup> reductions starts in 2009 and continues through 2014, while the first phase of SO <sup>2</sup> reductions starts in 2010 and continues through 2014. The second phase of reductions for both NO <sup>X</sup> and SO <sup>2</sup> starts in 2015 and continues thereafter. CAIR requires *State* s to implement the budgets by either:
(1)Requiring EGUs to participate in the EPA-administered cap-and-trade programs; or
(2)adopting other control measures of the *State* 's choosing and demonstrating that such control measures will result in compliance with the applicable *State* SO <sup>2</sup> and NO <sup>X</sup> budgets. The May 12, 2005, and April 28, 2006, CAIR rules provide model rules that *State* s must adopt (with certain limited changes, if desired) if they want to participate in the EPA-administered trading programs. With two exceptions, only *State* s that choose to meet the requirements of CAIR through methods that exclusively regulate EGUs are allowed to participate in the EPA-administered trading programs. One exception is for *State* s that adopt the opt-in provisions of the model rules to allow non-EGUs individually to opt into the EPA-administered trading programs. The other exception is for *State* s that include all non-EGUs from their NO <sup>X</sup> SIP Call trading programs into their CAIR NO <sup>X</sup> ozone season trading programs. IV. What Are the Types of CAIR SIP Submittals? States have the flexibility to choose the type of control measures they will use to meet the requirements of CAIR. EPA anticipates that most *State* s will choose to meet the CAIR requirements by selecting an option that requires EGUs to participate in the EPA-administered CAIR cap-and-trade programs. For such *State* s, EPA has provided two approaches for submitting and obtaining approval for CAIR SIP revisions. States may submit full SIP revisions that adopt the model CAIR cap-and-trade rules. If approved, these SIP revisions will fully replace the CAIR FIPs. Alternatively, States may submit abbreviated SIP revisions. These SIP revisions will not replace the CAIR FIPs; however, the CAIR FIPs provide that, when approved, the provisions in these abbreviated SIP revisions will be used instead of, or, if appropriate, in conjunction with the corresponding provisions of the CAIR FIPs ( *e.g.* , the NO <sup>X</sup> allowance allocation methodology). Michigan has submitted its CAIR SIP submittals as an abbreviated CAIR SIP. V. Analysis of Michigan's CAIR SIP Submittals A. History of the July 16, 2007, Submittal EPA conditionally approved Michigan's July 16, 2007, submittal on December 20, 2007 (72 FR 72256). Due to the uncertainty created by the Court's decisions to vacate and then remand CAIR, Michigan was unable to complete the rulemaking process and address the requirements of EPA's conditional approval by the December 20, 2008, deadline, and the conditional approval automatically converted to a disapproval on that date. Therefore, we are providing the required notice that the July 16, 2007, submittal automatically converted to a disapproval without further action by EPA because the December 20, 2008, deadline passed. As provided in the conditional approval, we are publishing a notice informing the public of the disapproval. On April 13, 2009, MDEQ submitted a SIP revision addressing the issues from the December 20, 2007, conditional approval. However, because of the disapproval of the July 16, 2007, submittal, in a letter dated May 7, 2009, Michigan requested that EPA consider the July 16, 2007, submittal and the April 13, 2009, submittal together as fully meeting the CAIR requirements. At the time Michigan submitted the April 13, 2009 SIP revision request, the rule revisions were not completely adopted by the *State* ; therefore, MDEQ requested that EPA parallel process the submittal. On June 10, 2009, MDEQ submitted fully adopted rules for approval. B. Analysis of the July 16, 2007, and June 10, 2009, Submittals The rationale for now approving Michigan's July 16, 2007, submittal is the same as when we originally conditionally approved it. (Please see the original proposal and final notices for the analysis of that submittal, 72 FR 52038 and 72 FR 72256, respectively.) EPA identified several minor deficiencies in Michigan's July 16, 2007, rules. In the June 10, 2009, submittal, MDEQ corrects the deficiencies identified by EPA, corrects other typographical errors, and clarifies portions of the rule. These minor deficiencies and the manner in which MDEQ corrected each deficiency are as follows: 1. In the December 20, 2007, conditional approval, EPA stated “in rule 803(3), Michigan needs to add a definition for `commence operation.' This definition, and the revised definition of `commence commercial operation,' are necessary to take account of NO <sup>X</sup> SIP Call units brought into the CAIR NO <sup>X</sup> ozone season trading program that do not generate electricity for sale and to ensure that they have appropriate deadlines for certification of monitoring systems under 40 CFR Part 97.” *Correction:* MDEQ has added the definition of “commence operation” and has also revised the definition of “commence commercial operation.” Both definitions now adopt by reference the definitions found in 40 CFR 97.102 and 40 CFR 97.302. Adopting these definitions ensures consistency with EPA definitions and addresses the deficiency. 2. In the December 20, 2007, conditional approval, EPA stated “in rule 803(3)(c), Michigan needs to revise the definition for `commence commercial operation,' as described in Condition 1, above.” *Correction:* Corrected as described above for deficiency 1. 3. In the December 20, 2007, conditional approval, EPA stated “in rule 803(3)(d)(ii), Michigan needs to revise the definition of `electric generating unit' or `EGU.' EPA interprets Michigan's current rule 803 as properly including in the CAIR NOx ozone season trading program all EGUs in Michigan that were subject to the NOx SIP Call trading program. Michigan must revise the rule to clarify that all EGUs in Michigan that were subject to the NOx SIP Call trading program are included in the CAIR NOx ozone season trading program.” *Correction:* MDEQ has added language to clarify that all EGUs in Michigan that were subject to the NOx SIP Call trading program are included in the CAIR NOx ozone season trading program. 4. In the December 20, 2007, conditional approval, EPA stated, “in rule 823(5)(c), Michigan needs to reference `subrule (1)(a), (b), (c), and (d)' of the rule. While EPA interprets Michigan's current rule as limiting the new unit set-aside allocations to the amount of allowances in the set-aside, Michigan must revise this provision to clarify the mechanism for implementing this limitation on such allocations.” *Correction:* MDEQ has changed this provision to correctly reference subrule (1)(a), (b),
(c)and
(d)of the rule. MDEQ has made other changes that correct terminology and typographical errors. MDEQ has also clarified language in parts of the rule and in the submittal letter. These changes are in addition to the changes required by EPA for approval but they do not significantly alter the rule and are, therefore, also being approved. VI. Disapproval Notice and Approval Action EPA is providing notice that Michigan's July 16, 2007, abbreviated CAIR SIP submittal was automatically disapproved because MDEQ did not meet the December 20, 2008, deadline to correct certain deficiencies. This disapproval is inconsequential because EPA is approving both the July 16, 2007 and the June 10, 2009, submittals, in combination, as meeting the CAIR requirements. The June 10, 2009, submittal makes the required changes to Michigan's CAIR SIP and also makes additional minor changes to Michigan's CAIR rule that correct typographical errors and that clarify Michigan's CAIR rule. We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this **Federal Register** publication, we are publishing a separate document that will serve as the proposal to approve the *State* plan if relevant adverse written comments are filed. This rule will be effective October 19, 2009 without further notice unless we receive relevant adverse written comments by September 17, 2009. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on the proposed action. The EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. If we do not receive any comments, this action will be effective October 19, 2009. VII. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and, therefore, is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves *State* law as meeting Federal requirements and would impose no additional requirements beyond those imposed by State law. Accordingly, the Administrator certifies that this rule would not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601, *et seq.* ). Because this action approves pre-existing requirements under *State* law and would not impose any additional enforceable duty beyond that required by *State* law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have Tribal implications because it 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, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it would not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a State rule implementing a Federal standard and to amend the appropriate appendices in the CAIR FIP trading rules to note that approval. It does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it would approve a *State* rule implementing a Federal standard. In reviewing SIP submissions, EPA's role is to approve *State* choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the *State* to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272, note) do not apply. This rule would not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, *et seq.* ). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Electric utilities, Incorporated by reference, Intergovernmental relations, Nitrogen oxides, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide. Dated: August 4, 2009. Bharat Mathur, Acting Regional Administrator, Region 5. 40 CFR part 52 is amended as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart X—Michigan 2. In § 52.1170, the table in paragraph
(c)entitled “EPA—Approved Michigan Regulations” is amended by revising entries in Part 8 “R 336.1802a”, “R 336.1803”, “R 336.1821 through R 336.1826”, and “R 336.1830 through 336.1834” and adding entry “R 336.1801” in Part 8 to read as follows: § 52.1170 Identification of plan.
(c)* * * EPA-Approved Michigan Regulations Michigan citation Title State effective date EPA approval date Comments * * * * * * * Part 8. Emission Limitations and Prohibitions—Oxides of Nitrogen R 336.1801 Emission of oxides of nitrogen from non-sip call stationary sources 5/28/09 8/18/09, [Insert page number where the document begins] R 336.1802a Adoption by reference 5/28/09 8/18/09, [Insert page number where the document begins] R 336.1803 Definitions 5/28/09 8/18/09, [Insert page number where the document begins] R 336.1821 CAIR NO <sup>X</sup> ozone and annual trading programs; applicability determinations 5/28/09 8/18/09, [Insert page number where the document begins] R 336.1822 CAIR NO <sup>X</sup> ozone season trading program; allowance allocations 5/28/09 8/18/09, [Insert page number where the document begins] R 336.1823 New EGUs, new non-EGUs, and newly affected EGUs under CAIR NO <sup>X</sup> ozone season trading program; allowance allocations 5/28/09 8/18/09, [Insert page number where the document begins] R 336.1824 CAIR NO <sup>X</sup> ozone season trading program; hardship set-aside 6/25/07 8/18/09, [Insert page number where the document begins] R 336.1825 CAIR NO <sup>X</sup> ozone season trading program; renewable set-aside 6/25/07 8/18/09, [Insert page number where the document begins] R 336.1826 CAIR NO <sup>X</sup> ozone season trading program; opt-in provisions 6/25/07 8/18/09, [Insert page number where the document begins] R 336.1830 CAIR NO <sup>X</sup> annual trading program; allowance allocations 5/28/09 8/18/09, [Insert page number where the document begins] R 336.1831 New EGUs under CAIR NO <sup>X</sup> annual trading program; allowance allocations 5/28/09 8/18/09, [Insert page number where the document begins] R 336.1832 CAIR NO <sup>X</sup> annual trading program; hardship set-aside 5/28/09 8/18/09, [Insert page number where the document begins] R 336.1833 CAIR NO <sup>X</sup> annual trading program; compliance supplement pool 5/28/09 8/18/09, [Insert page number where the document begins] R 336.1834 Opt-in provisions under the CAIR NO <sup>X</sup> annual trading program 6/25/07 8/18/09, [Insert page number where the document begins] * * * * * * * [FR Doc. E9-19805 Filed 8-17-09; 8:45 am] BILLING CODE 6560-50-P 74 158 Tuesday, August 18, 2009 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2009-0687; Directorate Identifier 2009-NM-033-AD] RIN 2120-AA64 Airworthiness Directives; Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model ERJ 170 and ERJ 190 Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for the products listed above that would supersede an existing AD. This proposed AD results from mandatory continuing airworthiness information
(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: It has been found the occurrence of two events of aircraft being dispatched with the cargo door opened without indication. In one of the events the aircraft took off with the cargo door opened. The unsafe condition is a cargo door opening during flight, which could result in reduced structural integrity and consequent rapid decompression of the airplane. The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by September 17, 2009. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the instructions for submitting comments. • *Fax:*
(202)493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-40, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. For service information identified in this proposed AD, contact Empresa Brasileira de Aeronautica S.A. (EMBRAER), Technical Publications Section (PC 060), Av. Brigadeiro Faria Lima, 2170—Putim—12227-901 São Jose dos Campos—SP—BRASIL; *telephone:* +55 12 3927-5852 or +55 12 3309-0732; *fax:* +55 12 3927-7546; *e-mail: distrib@embraer.com.br; Internet: http://www.flyembraer.com.* You may review copies of the referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington. For information on the availability of this material at the FAA, call 425-227-1221 or 425-227-1152. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov;* or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone
(800)647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Kenny Kaulia, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-2848; fax
(425)227-1149. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2009-0687; Directorate Identifier 2009-NM-033-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments. We will post all comments we receive, without change, to *http://www.regulations.gov;* including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion On April 17, 2007, we issued AD 2007-06-53, Amendment 39-15035 (72 FR 21088, April 30, 2007). That AD requires actions intended to address an unsafe condition on the products listed above. The preamble to AD 2007-06-53 specifies that we consider the requirements “interim action” and that the manufacturer is developing a modification to address the unsafe condition. That AD explains that we might consider further rulemaking if a modification is developed, approved, and available. The manufacturer now has developed such a modification, and we have determined that further rulemaking is indeed necessary; this proposed AD follows from that determination. The Agência Nacional de Aviação Civil (ANAC), which is the aviation authority for Brazil, has issued Brazilian Airworthiness Directives 2007-03-01R1, effective June 9, 2008, and 2007-03-02R2, effective November 21, 2008 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: It has been found the occurrence of two events of aircraft being dispatched with the cargo door opened without indication. In one of the events the aircraft took off with the cargo door opened. The unsafe condition is a cargo door opening during flight, which could result in reduced structural integrity and consequent rapid decompression of the airplane. Required actions include repetitive inspections of the forward and aft cargo doors to detect signs of interference between the lock handle and the aft edge liner assembly and reworking the assembly; a one-time inspection for signs of damage of the lateral roller fitting on the forward and aft cargo door frames at the fuselage and replacement of the roller if necessary, and modification of the cargo door, which ends the repetitive inspections. After accomplishing the modification, the actions include incorporating information into the maintenance program to include the operational
(OPC)and functional
(FNC)checks of the forward and aft cargo doors and accomplishing repetitive OPC and FNC checks. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information Embraer has issued Alert Service Bulletins 170-52-A036 (for Model ERJ 170 airplanes) and 190-52-A018 (for Model ERJ 190 airplanes); both Revision 01, both dated March 23, 2007. Embraer Alert Service Bulletins 170-52-A036 and 190-52-A018, both dated March 12, 2007, were referred to in the existing AD for accomplishing the required actions. No additional work is necessary for airplanes on which the original issue of the service information has been done. Embraer has also issued Service Bulletins 170-52-0041, Revision 01, dated June 13, 2008, and 170-52-0044, dated January 18, 2008 (for Model ERJ 170 airplanes); and Service Bulletins 190-52-0023, Revision 02, dated March 11, 2008, and 190-52-0027 dated March 20, 2008 (for Model ERJ 190 airplanes). The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of This Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a note within the proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 145 products of U.S. registry. The actions that are required by AD 2007-06-53 and retained in this proposed AD take about 1 work-hour per product, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the currently required actions is $80 per product. We estimate that it would take about 7 work-hours per product to comply with the new basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $17,162 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $2,569,690, or $17,722 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. *For the reasons discussed above, I certify this proposed regulation:* 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by removing Amendment 39-15035 (72 FR 21088, April 30, 2007) and adding the following new AD: **Empresa Brasileira De Aeronautica S.A. (EMBRAER):** Docket No. FAA-2009-0687; Directorate Identifier 2009-NM-033-AD. Comments Due Date
(a)We must receive comments by September 17, 2009. Affected ADs
(b)The proposed AD supersedes AD 2007-06-53, Amendment 39-15035. Applicability
(c)This AD applies to EMBRAER Model ERJ 170-100 LR, -100 STD, -100 SE, -100 SU, -200 LR, -200 STD, and -200 SU airplanes; and ERJ 190-100 STD, -100 LR, -100 IGW, -200 LR, -200 STD, and -200 IGW airplanes; certificated in any category. Subject
(d)Air Transport Association
(ATA)of America Code 52: Doors. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: It has been found the occurrence of two events of aircraft being dispatched with the cargo door opened without indication. In one of the events the aircraft took off with the cargo door opened. The unsafe condition is a cargo door opening during flight, which could result in reduced structural integrity and consequent rapid decompression of the airplane. Required actions include repetitive inspections of the forward and aft cargo doors to detect signs of interference between the lock handle and the aft edge liner assembly and reworking the assembly; a one-time inspection for signs of damage of the lateral roller fitting on the forward and aft cargo door frames at the fuselage and replacement of the roller if necessary, and modification of the cargo door, which ends the repetitive inspections. After accomplishing the modification, the actions include incorporating information into the maintenance program to include the operational
(OPC)and functional
(FNC)checks of the forward and aft cargo doors and accomplishing repetitive OPC and FNC checks. Compliance
(f)Required as indicated, unless accomplished previously. Restatement of Requirements of AD 2007-06-53, With New Service Information Preflight Verification of Correct Door Closure
(g)For Model ERJ 170-100 LR, -100 STD, -100 SE, -100 SU, -200 LR, -200 STD, and -200 SU airplanes; and ERJ 190-100 STD, -100 LR, and -100 IGW airplanes: As of 24 hours after May 7, 2007 (the effective date of AD 2007-06-53), before each flight after closing the cargo doors, verify that the forward and aft cargo doors are closed flush with the fuselage skin, and that all 4 latched and locked indicators at the bottom of each door are green. Persons qualified to do this verification are mechanics and flightcrew members. If it cannot be verified that both doors are closed flush with the fuselage skin, and that all 4 latched and locked indicators at the bottom of each door are green, repair before further flight. Repeat the verification before every flight until accomplishment of the actions required by paragraph
(h)of this AD. Inspection for Interference and Damage
(h)For Model ERJ 170-100 LR, -100 STD, -100 SE, -100 SU, -200 LR, -200 STD, and -200 SU airplanes; and ERJ 190-100 STD, -100 LR, and -100 IGW airplanes: Within 10 days after May 7, 2007, do the actions specified in paragraphs (h)(1), (h)(2), and (h)(3) of this AD, in accordance with the Accomplishment Instructions of Embraer Alert Service Bulletins 170-52-A036 (for Model ERJ 170 airplanes) or 190-52-A018 (for Model ERJ 190 airplanes), both dated March 12, 2007; or Revision 01, both dated March 23, 2007; as applicable. As of the effective date of this AD, use Revision 01 of the service bulletins.
(1)Remove the roller fitting cover plate on the forward and aft cargo door frames.
(2)Perform a detailed inspection of the forward and aft cargo doors to detect signs of interference between the lock handle and the aft edge liner assembly. Then rework the aft edge liner assembly at the applicable time specified in paragraph (h)(2)(i) or (h)(2)(ii) of this AD.
(i)If any sign of interference is detected: Rework the assembly before further flight.
(ii)If no sign of interference is detected: Rework the assembly within 150 flight cycles after the inspection.
(3)Perform a detailed inspection for signs of damage of the lateral roller fitting on the forward and aft cargo door frames at the fuselage. If any damage is found, replace the lateral roller fitting before further flight with a new roller fitting having the same part number, in accordance with the applicable service bulletin.
(4)Actions done before May 7, 2007, in accordance with Embraer Alert Service Bulletin 170-52-A036 or 190-52-A018, both dated March 12, 2007, are acceptable for compliance with the corresponding requirements of this AD. Note 1: For the purposes of this AD, a detailed inspection is: “An intensive examination of a specific item, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at an intensity deemed appropriate. Inspection aids such as mirror, magnifying lenses, etc., may be necessary. Surface cleaning and elaborate procedures may be required.” Note 2: Embraer Alert Service Bulletins 170-52-A036 and 190-52-A018 refer to Embraer Service Bulletins 170-50-0006 and 190-50-0006, respectively, as additional sources of service information for the rework and roller fitting cover plate removal. Embraer Service Bulletins 170-50-0006 and 190-50-0006 are currently at Revision 01, dated March 13, 2007. Repetitive Inspections for Damage
(i)For Model ERJ 170-100 LR, -100 STD, -100 SE, -100 SU, -200 LR, -200 STD, and -200 SU airplanes; and ERJ 190-100 STD, -100 LR, and -100 IGW airplanes: Repeat the inspection specified in paragraph (h)(3) of this AD at intervals not to exceed 150 flight cycles until the terminating action specified in paragraph (k)(3) of this AD has been accomplished. Parts Installation
(j)For Model ERJ 170-100 LR, -100 STD, -100 SE, -100 SU, -200 LR, -200 STD, and -200 SU airplanes; and ERJ 190-100 STD, -100 LR, and -100 IGW airplanes: As of May 7, 2007, no person may install a roller fitting cover plate on the forward and aft cargo door frames on any airplane. New Requirements of This AD: Actions and Compliance
(k)Unless already done, do the following actions.
(1)For Model ERJ 190-200 LR, -200 STD, and -200 IGW airplanes: As of 24 hours after the effective date of this AD, before each flight after closing the cargo doors, verify that the forward and aft cargo doors are closed flush with the fuselage skin, and that all 4 latched and locked indicators at the bottom of each door are green. Persons qualified to do this verification are mechanics and flightcrew members. If it cannot be verified that both doors are closed flush with the fuselage skin, and that all 4 latched and locked indicators at the bottom of each door are green, repair before further flight. Repeat the verification before every flight until accomplishment of the actions required by paragraph (k)(2) of this AD.
(2)For Model ERJ 190-200 LR, -200 STD, and -200 IGW airplanes: Within 10 days after the effective date of this AD, do the actions specified in paragraphs (k)(2)(i), (k)(2)(ii), and (k)(2)(iii) of this AD, in accordance with the Accomplishment Instructions of Embraer Alert Service Bulletin 190-52-A018, Revision 01, dated March 23, 2007. Repeat the inspection specified in paragraph (k)(2)(iii) of this AD at intervals not to exceed 150 flight cycles until the terminating action specified in paragraph (k)(3) of this AD has been accomplished.
(i)Remove the roller fitting cover plate on the forward and aft cargo door frames.
(ii)Perform a detailed inspection of the forward and aft cargo doors to detect signs of interference between the lock handle and the aft edge liner assembly. Then rework the aft edge liner assembly at the applicable time specified in paragraph (k)(2)(ii)(A) or (k)(2)(ii)(B) of this AD.
(A)*If any sign of interference is detected:* Rework the assembly before further flight.
(B)*If no sign of interference is detected:* Rework the assembly within 150 flight cycles after the inspection.
(iii)Perform a detailed inspection for signs of damage of the lateral roller fitting on the forward and aft cargo door frames at the fuselage. If any damage is found, replace the lateral roller fitting before further flight with a new roller fitting having the same part number, in accordance with Embraer Alert Service Bulletin 190-52-A018, Revision 01, dated March 23, 2007.
(3)*For all airplanes:* Within 5,000 flight cycles after the effective date of this AD, do the actions specified in paragraphs (k)(3)(i) and (k)(3)(ii) of this AD on the forward and aft cargo doors. Accomplishing the actions in this paragraph terminates the repetitive inspections required by paragraphs
(i)and (k)(2) of this AD.
(i)Relocate the cargo door closed indication sensor in accordance with the Accomplishment Instructions of Embraer Service Bulletin 170-52-0041, Revision 01, dated June 13, 2008; or 190-52-0023, Revision 02, dated March 11, 2008; as applicable.
(ii)Modify the cargo door lock handle mechanism and replace the forward and aft cargo door roller fittings having part number (P/N) 170-92569-401 and 170-85452-401 with new fittings having P/N 170-92569-403 and 170-85452-403, as applicable. Do the modification in accordance with the Accomplishment Instructions of Embraer Service Bulletins 170-52-0044, dated January 18, 2008; or 190-52-0027, dated March 20, 2008; as applicable.
(4)Actions done before the effective date of this AD in accordance with Embraer Service Bulletin 170-52-0041, dated September 6, 2007; or 190-52-0023, dated September 6, 2007, or Revision 01, dated December 6, 2007; as applicable; are acceptable for compliance with the corresponding requirements of this AD.
(5)Within 12 months after the effective date of this AD or 12 months after accomplishing the modification required by paragraph (k)(3) of this AD, whichever occurs later: Incorporate information into the maintenance program to include the operational
(OPC)and functional
(FNC)checks of the forward and aft cargo doors; in accordance with a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the Agência Nacional de Aviação Civil (or its delegated agent). Within 6,000 flight hours after doing the actions required by paragraph (k)(3) of this AD, do the OPC and FNC checks and repeat the checks thereafter at intervals not to exceed 6,000 flight hours. Note 3: Guidance on the OPC and FNC checks specified in paragraph (k)(5) of this AD can be found in Table 1 of this AD, as applicable. Table 1—OPC and FNC Guidance Manual— Task— Date— Embraer 170 Aircraft Maintenance Manual 52-31-00-710-801-A/500 July 15, 2008. 52-31-20-720-801-A/500 July 15, 2008. 52-32-00-710-801-A/500 July 15, 2008. 52-32-20-720-801-A/500 July 15, 2008. Embraer 190 Aircraft Maintenance Manual 52-31-00-710-801-A/500 July 15, 2008. 52-31-20-720-801-A/500 July 15, 2008. 52-32-00-710-801-A/500 July 15, 2008. 52-32-20-720-801-A/500 July 15, 2008. Note 4: For the purposes of this AD, a functional check
(FNC)is: “A quantitative check to determine if one or more functions of an item perform within specified limits.” Note 5: For the purposes of this AD, an operational check
(OPC)is: “A task to determine if an item is fulfilling its intended purpose. Since it is a failure finding task, it does not require quantitative tolerances.” FAA AD Differences Note 6: This AD differs from the MCAI and/or service information as follows: Where the MCAI includes a compliance time of “after accomplishment of the modification” for revising the maintenance program for Model ERJ-170 airplanes, we have determined that a compliance time of “within 12 months after the effective date of the AD or within 12 months after accomplishment of the modification, whichever occurs later” is appropriate. This compliance time is equivalent to the compliance time required for Model ERJ-190 airplanes. The manufacturer and ANAC agree with this compliance time. Other FAA AD Provisions
(l)The following provisions also apply to this AD:
(1)*Alternative Methods of Compliance (AMOCs):* The Manager, International Branch, 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: Kenny Kaulia, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone
(425)227-2848; fax
(425)227-1149. Before using any approved AMOC on any airplane to which the AMOC applies, notify your principal maintenance inspector
(PMI)or principal avionics inspector (PAI), as appropriate, or lacking a principal inspector, your local Flight Standards District Office. The AMOC approval letter must specifically reference this AD. AMOCs approved previously in accordance with AD 2007-06-53, are approved as AMOCs for the corresponding provisions of paragraph
(i)of this AD.
(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
(m)Refer to Brazilian Airworthiness Directives 2007-03-01R1, dated June 9, 2008, and 2007-03-02R2, dated November 21, 2008; and the service information contained in Table 2 of this AD for related information. Table 2—Service Information Service Bulletin Revision Date Embraer Alert Service Bulletin 170-52-A036 01 March 23, 2007. Embraer Alert Service Bulletin 190-52-A018 01 March 23, 2007. Embraer Service Bulletin 170-52-0041 01 June 13, 2008. Embraer Service Bulletin 170-52-0044 Original January 18, 2008. Embraer Service Bulletin 190-52-0023 02 March 11, 2008. Embraer Service Bulletin 190-52-0027 Original March 20, 2008. Issued in Renton, Washington, on August 7, 2009. Stephen P. Boyd, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E9-19655 Filed 8-17-09; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 168 [Docket No. USCG-2006-23556, Formerly CGD91-202a] RIN 1625-AA10, Formerly RIN 2115-AE56 Escort Vessels in Certain U.S. Waters AGENCY: Coast Guard, DHS. ACTION: Proposed rule; withdrawal. SUMMARY: The Coast Guard is withdrawing its proposed rule concerning the extension of escort vessel requirements in place for single hulled oil tankers in Prince William Sound, Alaska, and Puget Sound, Washington, to other U.S. waters and to other types of vessels. The Coast Guard has concluded that a rulemaking of national scope, such as this, is neither necessary nor advisable given the existence of more locally oriented options for considering escort vessel requirements. DATES: The proposed rule is withdrawn on August 18, 2009. ADDRESSES: The docket for this withdrawn rulemaking is available for inspection or copying at 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. You may also find this docket on the Internet by going to *http://www.regulations.gov,* selecting the Advanced Docket Search option on the right side of the screen, inserting USCG-2006-23556 in the Docket ID box, pressing Enter, and then clicking on the item in the Docket ID column. FOR FURTHER INFORMATION CONTACT: If you have questions about this notice, call Lieutenant Bryson Spangler at
(202)372-1357. If you have questions on viewing material in the docket, call Ms. Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826. SUPPLEMENTARY INFORMATION: Background The Coast Guard has broad authority under the Ports and Waterways Safety Act (PWSA, 33 U.S.C. 1221 *et seq.* ) to control vessel traffic in navigable waters of the United States. In addition, section 4116(c) of the Oil Pollution Act of 1990 (OPA 90, Pub. L. 101-380) required the Coast Guard to initiate a rulemaking “to define those areas [including Prince William Sound, Alaska and Puget Sound, Washington] on which single hulled tankers over 5,000 gross tons transporting oil in bulk shall be escorted by at least two towing vessels * * * or other vessels considered appropriate by the Secretary.” The present rulemaking was opened in response to the OPA 90 § 4116(c) requirement and also in order to consider escort vessel requirements under PWSA. This rulemaking was split off from another rulemaking in 1993; for the history of the parent rulemaking see its final rule (70 FR 55728, Sep. 23, 2005). For this rulemaking, we previously published an advance notice of proposed rulemaking (ANPRM; 58 FR 25766, Apr. 27, 1993), a notice of meeting and request for comments (59 FR 65741, Dec. 21, 1994), and a notice of withdrawal and request for comments (73 FR 20232, Apr. 15, 2008). Further background information appears in the April 2008 notice. The April 2008 notice proposed the withdrawal of this rulemaking, based on our tentative conclusion that nationwide Coast Guard action to extend statutory escort vessel requirements is not advisable, and that escort vessel requirements for waters other than Puget and Prince William Sounds, or for vessels other than single hulled oil tankers, should be imposed only after local level Coast Guard consideration of specific local needs, conditions, and available alternatives. We asked for public comment on the proposed withdrawal. Discussion of Comments In response to our April 2008 notice, we received 17 letters containing 55 comments. We thank those who commented for their interest. Twelve comments concerned the need for specific action in Cook Inlet, Alaska, or other local waters. We acknowledge these comments, but restate our position that the need for escort vessels or other protective measures in specific waters should be assessed under PWSA. Therefore, requests for protective measures in specific waters should be addressed to the local Coast Guard sector commander. A list of Coast Guard sectors appears, as part of a comprehensive list of Coast Guard units, at *http://www.uscg.mil/top/units/.* Five comments asserted that we have not satisfied our obligations under § 4116(c) of OPA 90, or that withdrawal of the rulemaking at this stage would violate OPA 90. We do not agree that further action is required under OPA 90 or that withdrawal of this rulemaking would violate that act. In 2000, the United States Court of Appeals for the District of Columbia Circuit stated that “it is not at all obvious whether § 4116(c) actually forces the Coast Guard itself to come up with the names of, and instigate rulemaking regarding possible ‘other waters,’” and held that that section “does not create a sufficiently clear duty regarding ‘other waters' to merit mandamus relief.” *In re Bluewater Network,* 234 F.3d 1305 at 1306 (DC Cir. 2000). Nevertheless, the Coast Guard sought to comply with any possible requirement for regulatory action under § 4116(c) by initiating this rulemaking. After considering public comment on our 1993 ANPRM, we concluded in 1994 that “there is no need to prescribe an absolute minimum of two escort vessels” in other waters, and that “designating any other U.S. waters for escorting requirements will be accomplished using the Coast Guard's authority under * * * PWSA, which allows greater flexibility concerning the ships to be escorted and the number of escort vessels to be required.” 59 FR at 65743. The Coast Guard stands by its conclusion that § 4116(c) of OPA 90 requires no further consideration under this rulemaking. Nine comments criticized our proposed reliance on local assessments under PWSA. These comments pointed to alleged flaws in the local assessment process or argued for national standards and timelines to guide local assessments, and most stated that PWSA is not an adequate substitute for continuing this rulemaking under OPA 90. Later in this document, we discuss the Coast Guard PWSA assessment process and provide links to additional information. The PWSA assessment process provides a uniform methodology that can be applied across the nation, and we are always open to considering specific ideas for improving it. To address two specific concerns that critics of the PWSA process raised: First, the process generally allows for more public input than some commenters realize. It provides a structured way to make sure all significant local stakeholders are represented and participate. Assessment workshops are locally publicized, open to the public, and allow for public comment. Second, it is true that PWSA assessments may not lead to immediate action, because the implementation of assessment recommendations may carry its own procedural requirements. However, those additional procedural requirements serve public purposes of their own, and compliance with those requirements within the focused context of a specific body of water may take less time than compliance on a national basis. For example, it could be quicker and easier to prepare National Environmental Policy Act documentation for a specific bay or inlet than it would be to do so for all U.S. bays or inlets. For these reasons, we conclude that the PWSA process is an adequate substitute for analysis under OPA 90. Two comments disagreed with our notice's tentative conclusion that national scope rulemaking is neither appropriate nor beneficial, and suggested that established OPA 90 performance standards, and operational requirements under 33 CFR 168.50, provide a suitable framework for national action. We do not agree. OPA 90 mandated escort vessel protection for Puget Sound and Prince William Sound, and 33 CFR 168.40 makes 33 CFR 168.50 applicable only to those waters. As previously discussed, we determined in 1994 that there was no need to extend those requirements to other waters. In 1994, we also noted several limitations or potential problems with applying OPA 90 standards to other waters, where those standards “may significantly increase costs without any commensurate increase in environmental protection” and could even be counterproductive. 59 FR at 65742. Two comments cited 46 U.S.C. 3703(a)(5) as requiring the Coast Guard to regulate vessel maneuvering and stopping ability, and other features that reduce the possibility of marine casualties, and contended that this statute clearly contemplates a nationwide rule regarding the use of escort vessels. The cited statute does not require the use of escort vessels, and is implemented in pertinent part by Coast Guard navigation safety regulations in 33 CFR Part 164. Five comments took issue with our notice's reference to 33 CFR 1.05-20, which provides for citizen petitions for Coast Guard rulemaking. These comments said that Congress gave the Coast Guard responsibility for investigating escort vessel needs, and that it is inappropriate for the Coast Guard to shift that responsibility to the public. We do not mean to imply that 33 CFR 1.05-20 transfers any responsibilities from the Coast Guard to the public. However, it does provide a way for people to direct the Coast Guard's attention to specific issues and to hear from us on how we intend to respond. If we agree that the petition merits regulatory action, we will initiate that action, and if we do not agree, we will inform the petitioner and maintain the response in a public file open for inspection. Three comments criticized our notice for implying that the proposed withdrawal reflects Coast Guard resource constraints, suggesting that we approach Congress for additional resources or draw on Oil Spill Liability Trust Fund money to overcome those constraints. Our notice stated that a “nationwide risk assessment program may be a good idea but it would be very expensive and time-consuming to implement.” However, our reasons for not pursuing such a program were broader than its expense or difficulty. Rather, we noted that a nationwide risk assessment program “would be hard to validate, making its usefulness questionable,” and that it would be a “conceptual exercise” relative to assessments of the need for “specific resources in specific waters.” These statements were in line with our 1994 conclusion that there was no need to continue national assessments under OPA 90 and that PWSA would be the basis for any further Coast Guard assessment of protective measures in specific waters. Seven comments requested that, if we proceed with withdrawal, we expressly state that this action would not preempt States from imposing their own escort vessel requirements. The Coast Guard's position is that States are preempted from imposing their own escort vessel requirements in certain waters where we have either established or declined to establish special navigation or other requirements based on our assessment of the conditions in those waters. However, the withdrawal of this rulemaking, in and of itself, is not intended to have a preemptive or non-preemptive effect, one way or the other, on any particular State escort requirement, as it is not an assessment of the conditions of any specific waters. One comment offered numerous criteria that could guide local Coast Guard units in determining which waters should have escort vessel requirements, and numerous suggestions for how local assessments should be conducted. As we discuss later in this document, our current PWSA assessment methodology has been professionally developed, tested, and refined, and provides a satisfactory uniform tool for assessing local needs and safety control measures. Two comments called for extending escort vessel requirements to other cargos, or based on specific factors, which were discussed in those comments. These comments do not affect our conclusion that this particular rulemaking should be withdrawn, but they could have relevance in any future assessment of the needs of specific waters. If you think certain cargos or factors need to be addressed with protective measures for a specific waterway, please contact your local Coast Guard sector commander. A list of Coast Guard sectors appears, as part of a comprehensive list of Coast Guard units, at *http://www.uscg.mil/top/units/.* One comment urged us to give shippers an early indication that further escort vessel requirements are contemplated, so that they can design multipurpose escort vessels to meet multiple regulatory requirements. As part of the rulemaking process the Coast Guard evaluates and solicits comments on the most efficient manner of implementation and would do the same with any new vessel escort requirements. One comment criticized the proposed withdrawal as part of a disturbing Coast Guard trend to leave rulemakings unfinished and environmental and safety objectives unmet. The Coast Guard does not agree with this characterization. We will not impose new regulations without adequate evidence that they are warranted, especially if they have a national scope. In this case, we have concluded that this rulemaking should be withdrawn, and that the needs of specific waters should be assessed under PWSA. Environmental protection of local waters and the overall marine safety of those waters are best placed in the hands of local Coast Guard officials, who can best provide oversight and vigilance in these matters. Two comments requested additional documentation of the rationale for our April 2008 notice, and one of these requested an extension of that notice's public comment period in order to provide time to review the additional documentation. There is no additional documentation of any relevance. The rationale for withdrawal of this rulemaking is fully provided in the April 2008 notice and in previous notices published under this rulemaking, and we do not think an extension of the public comment period would provide any public benefit. One comment asked for a response to a 1995 rulemaking petition regarding the expansion of escort vessel requirements in the western region of the Strait of Juan de Fuca, and asked for the response to take into account all relevant studies conducted since 1995. We have been unable to locate any documentation of such a petition, but will entertain a new petition submitted under 33 CFR 1.05-20. Petitions should be addressed to the Executive Secretary, Marine Safety and Security Council (CG-0943), U.S. Coast Guard, 2100 Second St., SW., Stop 7121, Washington, DC 20593-7121. One comment from the Makah Tribal Council, an Indian Tribe, requested government-to-government consultation with the Coast Guard prior to withdrawal. That consultation took place on April 23, 2009, and is documented as Document ID USCG-2006-23556-0050.1 in the docket for this rulemaking. One comment expressed support for our proposed withdrawal. PWSA Assessments Under PWSA, the principal Coast Guard tool for assessing and controlling risks in local waterways is the Ports and Waterways Safety Assessment (PAWSA). Since 1998, the Coast Guard has conducted almost 40 PAWSAs for waterways around the country, and in a typical year there is funding for three additional PAWSAs, with priority given to waterways likely to be at greatest risk. PAWSAs employ a uniform methodology that was developed by academic experts and refined through four years of workshops involving stakeholders from industry, port authorities, and the environmental community among others. The goal, throughout, was to develop a process that could evaluate risk and work toward long term solutions, tailored to local circumstances, that is both cost effective and meets the needs of waterway users and stakeholders. The PAWSA methodology provides a formal structure for identifying risk factors and evaluating potential mitigation measures through expert inputs. Each PAWSA is conducted in a public workshop setting that brings together local waterway users, environmentalists, public safety figures, economic experts, and other local stakeholders. The methodology supplies a weighting tool to take into account the relative expertise of each workshop participant. During the workshop, participants discuss and assign numerical ratings to the local waterway's safety risks in the following areas: • Quality of local vessels and crews; • Number of vessels and their interaction with each other; • Winds, currents, and weather; • Physical properties affecting vessel maneuverability; • Likely immediate impacts of a waterway accident, such as a collision or hazardous material spill; and • Possible long term vessel traffic, economic, or environmental consequences of a waterway accident. Security risks are not included in the PAWSA risk analysis because they are analyzed separately by the Coast Guard through port vulnerability and security assessments. PAWSA workshop participants also discuss and assign numerical ratings to navigational systems, emergency response capabilities, and other measures currently in place, or that could be adopted, to control each risk. PAWSA computer software uses input from the workshop participants to generate risk assessments in several categories, and to assess the effectiveness of current or potential control measures. Workshop participants then review the computer-generated results, and can revise their input if they feel their initial ratings produced a false picture of local conditions. You can get more information about PAWSAs, including contact information for the Coast Guard's Office of Waterways Management PAWSA Project Officer, at *http://www.navcen.uscg.gov/mwv/projects/pawsa/PAWSA_home.htm,* or read reports on any of the PAWSAs conducted to date at * http://www.navcen.uscg.gov/mwv/projects/pawsa/PAWSA_FinalReports.htm.* If you have comments or suggestions about PAWSAs generally, contact the Project Officer. If you think a specific waterway should be the focus of a future PAWSA, contact the Project Officer, or contact the relevant Coast Guard sector commander. In your recommendation, you should address the bulleted local waterway safety risks cited earlier in this discussion, as fully and specifically as possible. A list of Coast Guard sectors, as part of a comprehensive list of Coast Guard units, can be found at * http://www.uscg.mil/top/units/.* Withdrawal The Coast Guard withdraws this rulemaking, which concerns the extension, to other U.S. waters and to other types of vessels, of those escort vessel requirements that apply to single hulled oil tankers in Prince William Sound, Alaska, and Puget Sound, Washington. We have concluded that a rulemaking of national scope under the authority of OPA 90 is neither necessary nor advisable given the availability of PWSA assessments of the needs, in specific local waters, for escort vessels or other protective measures. Authority We issue this notice of withdrawal under the authority of the Ports and Waterways Safety Act, 33 U.S.C. 1221 *et seq.,* and section 4116(c) of the Oil Pollution Act of 1990, Public Law 101-380. Dated: August 11, 2009. F. J. Sturm, Acting Director, Commercial Regulations and Standards, U.S. Coast Guard. [FR Doc. E9-19705 Filed 8-17-09; 8:45 am] BILLING CODE 4910-15-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2009-0294; FRL-8944-8] Approval of Implementation Plans of Michigan: Clean Air Interstate Rule AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve revisions to the Michigan abbreviated State Implementation Plan
(SIP)submitted on July 16, 2007 and on June 10, 2009. Together, the revisions address the requirements for an abbreviated Clean Air Interstate Rule
(CAIR)SIP. EPA is also providing notice that the December 20, 2007 conditional approval of the July 16, 2007 submittal automatically converted to a disapproval. DATES: Comments must be received on or before September 17, 2009. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-OAR-2009-0294, by one of the following methods: 1. *http://www.regulations.gov:* Follow the on-line instructions for submitting comments. 2. *E-mail: mooney.john@epa.gov.* 3. *Fax:*
(312)692-2551. 4. * Mail:* John M. Mooney, Chief, Criteria Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. 5. *Hand Delivery:* John M. Mooney, Chief, Criteria Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Deliveries are only accepted during the regional office normal hours of operation, and special arrangements should be made for deliveries of boxed information. The regional office official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays. Please see the direct final rule which is located in the Final Rules section of this **Federal Register** for detailed instructions on how to submit comments. FOR FURTHER INFORMATION CONTACT: Douglas Aburano, Environmental Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604,
(312)353-6960, *aburano.douglas@epa.gov.* SUPPLEMENTARY INFORMATION: In the Final Rules section of this **Federal Register,** EPA is approving the State's SIP submittal as a direct final rule without prior proposal because EPA views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this rule, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period; therefore, any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. For additional information, see the direct final rule which is located in the Final Rules section of this **Federal Register.** Dated: August 4, 2009. Bharat Mathur, Acting Regional Administrator, Region 5. [FR Doc. E9-19467 Filed 8-17-09; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R2-ES-2008-0131; MO 9221050083-B2] Endangered and Threatened Wildlife and Plants; Partial 90-Day Finding on a Petition To List 206 Species in the Midwest and Western United States as Threatened or Endangered with Critical Habitat AGENCY: Fish and Wildlife Service, Interior. ACTION: Notice of 90-day petition finding. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on 38 species from a petition to list 206 species in the mountain-prairie region of the United States as threatened or endangered under the Endangered Species Act of 1973, as amended (Act). For 9 of the 38 species, we find that the petition did not present substantial information indicating that listing may be warranted. For 29 of the 38 species, we find that the petition does present substantial scientific or commercial information indicating that listing may be warranted. Therefore, with the publication of this notice, we are initiating a status review of the 29 species to determine if listing is warranted. To ensure that the review is comprehensive, we are soliciting scientific and commercial information regarding these 29 species. DATES: To allow us adequate time to conduct a status review, we request that we receive information on or before October 19, 2009. ADDRESSES: You may submit information by one of the following methods: • *Federal rulemaking Portal: http://www.regulations.gov* . Follow the instructions for submitting comments to Docket no. FWS-R2-ES-2008-0131. • *U.S. Mail or hand delivery:* Public Comments Processing, Attn: FWS-R6-ES-2008-0131, Division of Policy and Directives Management, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, Suite 222, Arlington, VA 22203. We will post all information received on *http://www.regulations.gov* . This generally means that we will post any personal information you provide us ( *see* the Information Solicited section below for more information). FOR FURTHER INFORMATION CONTACT: Ann Carlson, Listing Coordinator, Mountain-Prairie Regional Ecological Services Office (see ADDRESSES ); telephone 303-236-4264. If you use a telecommunications device for the deaf (TDD), please call the Federal Information Relay Service
(FIRS)at 800-877-8339. SUPPLEMENTARY INFORMATION: Information Solicited When we make a finding that a petition presents substantial information indicating that a species may be warranted, we are required to promptly commence a review of the status of the species. To ensure that the status review is complete and based on the best available scientific and commercial information, we are soliciting information concerning the status of the 29 species for which we found that the petition provides substantial information that listing may be warranted. We request information from the public, other concerned governmental agencies, Tribes, the scientific community, industry, or any other interested parties concerning the status of the species. We are seeking information regarding the species' historical and current status and distribution, their biology and ecology, ongoing conservation measures for the species and their habitats, and threats to the species or their habitats. Please note that comments merely stating support or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act (16 U.S.C. 1533 (b)(1)(A)) directs that determinations as to whether any species is a threatened or endangered species must be made “solely on the basis of the best scientific and commercial data available.” At the conclusion of the status review, we will issue a 12-month finding on the petition, as provided in section 4(b)(3)(B) of the Act (16 U.S.C. 1533(b)(3)(B)). You may submit your information concerning this 90-day finding or the 29 species by one of the methods listed in the ADDRESSES section. We will not consider submissions sent by e-mail or fax or to an address not listed in the ADDRESSES section. If you submit information via *http://www.regulations.gov* , your entire submission—including any personal identifying information—will be posted on the website. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on *http://www.regulations.gov* . Information and materials we receive, as well as supporting documentation used in preparing this 90-day finding, will be available for public inspection on *http://www.regulations.gov* , or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Mountain-Prairie Regional Ecological Services Office ( *see* FOR FURTHER INFORMATION CONTACT ). Background Section 4(b)(3)(A) of the Act (16 U.S.C. 1531 *et seq.* ) requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that a petitioned action may be warranted. We are to base this finding on information provided in the petition. To the maximum extent practicable, we are to make the finding within 90 days of our receipt of the petition, and publish our notice of this finding promptly in the **Federal Register.** Our standard for “substantial information,” as defined in the Code of Federal Regulations at 50 CFR 424.14(b), with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted.” If we find that substantial information was presented, we are required to promptly commence a status review of the species. In making this finding, we based our decision on information provided by the petitioner that we determined to be reliable after reviewing sources referenced in the petition and otherwise available in our files. We evaluated that information in accordance with 50 CFR 424.14(b). Our process for making this 90-day finding under section 4(b)(3)(A) of the Act is limited to a determination of whether the information in the petition meets the “substantial information” threshold. Petition On July 30, 2007, we received a formal petition dated July 24, 2007, from Forest Guardians (now WildEarth Guardians) requesting that the Service:
(1)Consider all full species in our Mountain Prairie Region ranked as G1 or G1G2 by the organization NatureServe, except those that are currently listed, proposed for listing, or candidates for listing; and
(2)list each species as either endangered or threatened. The petition incorporated all analysis, references, and documentation provided by NatureServe in its online database at *http://www.natureserve.org/* into the petition. The petition clearly identified itself as a petition and included the identification information, as required in 50 CFR 424.14(a). We sent a letter to the petitioners, dated August 24, 2007, acknowledging receipt of the petition and stating that, based on preliminary review, we found no compelling evidence to support an emergency listing for any of the species covered by the petition. On March 19, 2008, WildEarth Guardians filed a complaint (1:08-CV-472-CKK) indicating that the Service failed to comply with its mandatory duty to make a preliminary 90-day finding on their two multiple species petitions—one for mountain-prairie species, and one for southwest species. We subsequently published two initial 90-day findings on January 6, 2009 (74 FR 419), and February 5, 2009 (74 FR 6122). On March 13, 2009, the Service and WildEarth Guardians filed a stipulated settlement in the District of Columbia Court, agreeing that the Service would submit to the **Federal Register** a finding as to whether WildEarth Guardians' petition presents substantial information indicating that the petitioned action may be warranted for 38 mountain-prairie species by August 9, 2009. This finding meets that portion of the settlement. On June 18, 2008, we received a petition from WildEarth Guardians, dated June 12, 2008, to emergency list 32 species under the Administrative Procedure Act
(APA)and the Endangered Species Act. Of those 32 species, 11 were included in the July 24, 2007, petition to be listed on a non-emergency basis. Although the Act does not provide for a petition process for an interested person to seek to have a species emergency listed, section 4(b)(7) of the Act authorizes the Service to issue emergency regulations to temporarily list a species. In a letter dated July 25, 2008, we stated that the information provided in both the 2007 and 2008 petitions and in our files did not indicate that an emergency situation existed for any of the 11 species. The Service's decisions whether to exercise its authority to issue emergency regulations to temporarily list a species are not judicially reviewable. *See Fund for Animals* v. *Hogan,* 428 F.3d 1059 (DC Cir. 2005). The following discussion presents our evaluation of a portion of the species included in the July 24, 2007, petition, based on information provided in the petition and our current understanding of the species. The 2007 petition included a list of 206 species. Two species, *Cymopterus beckii* (pinnate spring-parsley) and *Camissonia gouldii* (Diamond Valley suncup), also were included in a separate petition to list 475 species in our Southwest Region that we received on June 18, 2007. We reviewed the species files for *Cymopterus beckii* and *Camissonia gouldii* under the June 18, 2007, petition, and in an initial response to the petition for 475 species included them in a 90-day finding for 270 species published on January 6, 2009 (74 FR 419), concluding that the petition did not present substantial scientific or commercial information indicating that listing of the species may be warranted. We addressed an additional 165 species (from the petition to list 206 species) in a 90-day finding that published on February 5, 2009 (74 FR 6122), concluding that the petition did not present substantial scientific or commercial information indicating that listing of the species may be warranted. The petitions for 206 and 475 species each included *Sphaeralcea gierischii* (Gierisch mallow). We found this species is currently a candidate species for listing and that action was initiated through a candidate assessment completed by the Southwest Region headquartered in Albuquerque, New Mexico. We have sufficient information on biological vulnerability and threats to support a proposal to list as endangered or threatened ( *i.e.,* it met our definition of a candidate species); however, preparation and publication of a proposed rule is precluded by higher-priority listing actions—existing candidates with listing priority numbers of 2 and additional factors such as International Union for Conservation of Nature
(IUCN)rankings. The species was included in the Candidate Notice of Review that published on December 10, 2008 (73 FR 75176). The threats to *S. gierischii* are high in magnitude, because survival of the species is threatened throughout its entire range in Arizona by gypsum mining, and the two largest populations exist in areas that are being actively mined. Loss of those two populations would significantly reduce the total number of individuals throughout the range, threatening the long-term viability of the species. The threats are imminent, because they are ongoing in Arizona. Therefore, we assigned a listing priority number of 2 to this species. Species Information The petitioners presented two tables that collectively listed the 206 species for consideration and requested that the Service incorporate all analysis, references, and documentation provided by NatureServe in its online database into the petition. The information presented by NatureServe ( *http://www.natureserve.org/* ) is found in peer-reviewed professional journal articles and is considered to be a reputable source of scientific information. We judge this source to be reliable with regard to the information it presents. However, NatureServe indicates on their Web Site that information in their database is not intended for determining whether species are warranted for listing under the Act, and we found that the information cited was limited in its usefulness for this process. We accessed the NatureServe database on August 10, 2007. We saved hardcopies of each species' file and used this information, including references cited within these files, during our review. Therefore, all information we used from the species files in NatureServe was current to that date. All of the petitioned species were ranked by NatureServe as G1 (critically imperiled) or G1G2 (between critically imperiled and imperiled). We reviewed all references cited in the NatureServe database species files that were available to us. Some literature cited was not readily available through known sources, and we requested these directly from the petitioner. For some species in NatureServe, there is a “Local Programs” link to the Web Sites of the State programs that contribute information to NatureServe. We found this “Local Programs” link to have additional information for very few of the 206 species. We reviewed information in references cited in NatureServe and information readily available in our files that was directly relevant to the information raised in the petition. We have already assessed 168 of the 206 species. This petition addresses the remaining 38 species, which are listed below in Table 1. Table 1—List of 38 Species Included in This Finding Scientific name Common name Range Group Species for which Substantial Information was not Presented: *Amnicola sp. 2* Washington duskysnail ID, MT, WA Mollusk. *Camissonia exilis* Cottonwood Spring suncup AZ, UT Plant. *Discus brunsoni* Lake disc MT Mollusk. *Frasera gypsicola* Sunnyside green-gentian NV, UT Plant. *Lomatium latilobum* Canyonlands lomatium CO, UT Plant. *Lygodesmia doloresensis* Dolores River skeletonplant CO, UT Plant. *Oreohelix sp. 4* Drummond mountainsnail MT Mollusk. *Oreohelix amariradix* Bitterroot mountainsnail MT Mollusk. *Oreohelix carinifera* Keeled mountainsnail MT Mollusk. Species for which Substantial Information was Presented: *Abronia ammophila* Yellowstone sand verbena WY Plant. *Agrostis rossiae* Ross' bentgrass WY Plant. *Astragalus hamiltonii* Hamilton milkvetch CO, UT Plant. *Astragalus iselyi* Isely milkvetch UT Plant. *Astragalus microcymbus* Skiff milkvetch CO Plant. *Astragalus proimanthus* Precocious milkvetch WY Plant. *Astragalus sabulosus* Cisco milkvetch UT Plant. *Astragalus schmolliae* Schmoll milkvetch CO Plant. *Boechera (Arabis) pusilla* Fremont County rockcress WY Plant. *Catinella gelida* Frigid ambersnail IA, IL, IN, KY (Extirpated), MI, MO, MS, OH, SD, WI Mollusk. *Corispermum navicula* Boat-shaped bugseed CO Plant. *Cryptantha semiglabra* Pine Springs cryptantha AZ, UT Plant. *Draba weberi* Weber whitlowgrass CO Plant. *Eriogonum brandegeei* Brandegee's wild buckwheat CO Plant. *Eriogonum soredium* Frisco buckwheat UT Plant. *Ironoquia plattensis* Platte River caddisfly NE Invertebrate. *Lednia tumana* Meltwater lednian stonefly CAN: MB USA: MT, ND, WA Invertebrate. *Lepidium ostleri* Ostler's peppergrass UT Plant. *Lepidomeda copei* Northern leatherside Chub ID, NV, UT, WY Fish. *Lesquerella navajoensis* (No common name) AZ, NM, NN, UT Plant. *Oreohelix sp. 3* Bearmouth mountainsnail MT Mollusk. *Oreohelix sp. 31* Byrne Resort mountainsnail MT Mollusk. *Penstemon flowersii* Flowers penstemon UT Plant. *Penstemon gibbensii* Gibben's beardtongue CO, UT, WY Plant. *Pyrgulopsis anguina* Longitudinal gland pyrg NV, UT Mollusk. *Pyrgulopsis hamlinensis* Hamlin Valley pyrg UT Mollusk. *Pyrgulopsis saxatilis* Sub-globose snake pyrg UT Mollusk. *Sisyrinchium sarmentosum* Pale blue-eyed grass ND, OR, WA Plant. *Trifolium friscanum* Frisco clover UT Plant. Five-Factor Evaluation Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations at 50 CFR 424 set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. A species, subspecies, or distinct population segment of vertebrate taxa may be determined to be endangered or threatened due to one or more of the five factors described in section 4(a)(1) of the Act:
(A)The present or threatened destruction, modification, or curtailment of its habitat or range;
(B)overutilization for commercial, recreational, scientific, or educational purposes;
(C)disease or predation;
(D)the inadequacy of existing regulatory mechanisms; or
(E)other natural or manmade factors affecting its continued existence. Listing actions may be warranted based on any of the above factors, singly or in combination. Under the Act, a threatened species is defined as a species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. An endangered species is defined as a species that is in danger of extinction throughout all or a significant portion of its range. In making this 90-day finding, we evaluated whether information on each of the 38 species, as presented in the petition and other information in our files is substantial, indicating that listing any of the 38 species as threatened or endangered may be warranted. Our evaluation is presented below. We separately addressed each species with respect to the five factors described in section 4(a)(1) of the Act. For each species, we fully evaluated all information available to us through the NatureServe website, and in our files. Because so little information was available in our files for these, typically rare, species, we did not distinguish between information obtained from the website and our files. Species for Which Substantial Information Was Not Presented Amnicola sp. 2 (Washington Duskysnail) Currently, three locations of the Washington duskysnail exist ─ two in Washington and one in Montana. Washington duskysnail ( *Amnicola sp. 2* ) may be the same as a species included in a separate petition to list 32 species of mollusks, also called Washington duskysnail ( *Lyogyrus sp.* 2). The historical range of *Amnicola sp. 2* is hypothesized to include a larger area; according to Frest and Johannes (1995, p. 158), the species is declining in populations and number of individuals; however, this information is speculative because the authors based their analysis of the species' historical range on geographic characteristics, not on actual survey data. *Factor A:* According to the NatureServe database, the species' survival is thought to be affected by poor water quality associated with residential development, grazing, logging, and intentional aquatic organism control activities and fish reintroductions that occur in potential habitat or existing areas of occurrence. These activities, which potentially adversely affect water quality are general, and no quantification, verification, or subsequent effect to the species was presented. *Factors B, C, D, and E:* No information was presented in the petition concerning threats to this species from the factors. Based on our evaluation of the information provided in the petition and in our files, we have determined that the petition does not present substantial information to indicate that listing of Washington duskysnail may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range due to activities affecting water quality. Cammissonia exilis (Cottonwood Spring Suncup) *Camissonia exilis* is endemic to gypsiferous soils in Kane County, Utah, and Coconino and Mohave Counties, Arizona. The species is a narrow endemic, which may affect its ability to persist when faced with habitat reductions. Not much is known about this species. *Factor A:* According to the NatureServe database, off-road vehicle
(ORV)use and woodcutting are known to occur at some sites occupied by the species; however, no quantification, verification, or effect to the species was presented. *Factors B, C, D, and E:* No information was presented in the petition concerning threats to this species from the factors. Based on our evaluation of the information provided in the petition and in our files, we have determined that the petition does not present substantial information to indicate that listing of *Camissonia exilis* may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range due to ORV use or woodcutting. Discus brunsoni (Lake Disc) The lake disc is a mollusk found only on the north shore of McDonald Lake in the Mission Range, Lake County, Montana. The species is a highly localized endemic. Limited survey information exists, and population trends are unknown. The species has been consistently present at the location from 1948 to 1997 (Hendricks 2003a, p. 10). Although extensive surveys have been performed, only 1 location of approximately 100 by 300 yards (91 by 274 meters) in size is known (Brunson 1956, p. 17; Hendricks 2003a, pp. 9-11). As additional information is gathered on the requirements of the species, more occupied locations may be determined; however, the species is difficult to detect even when present and with significant survey effort (Brunson 1956, entire; Hendricks 2003b, p. 10). *Factor A:* Fire and subsequent talus destabilization above and below the occupancy site of this species could threaten its habitat (Frest and Johannes 1995, p. 98), but substantial information on these potential threats was not presented. Much of the Mission Range has been logged, or is slated for logging, but this potential threat likely does not affect the species because it is associated with loose rock talus slopes that support lichens and mosses (Brunson 1956, p. 17), and low canopy cover but not trees (Hendricks 2003b p. 9). Other snail species are found in duff at the sides of talus slides, but the lake disc has not been found in duff (Hendricks 2003a, p. 5). Livestock generally avoid unstable rocky slopes and, therefore, the species is not likely to be affected by them (Hendricks 2003a, p. 5). A recreation trail exists at the site (Hendricks 2003a, p. 11), but effects related to it have not been documented or linked to the species. *Factors B, C, and D:* No information was presented in the petition concerning threats to this species from the factors. *Factor E:* The species has had a limited geographic range since 1948. However, no information was presented either in NatureServe or the petition indicating that a restricted range may be a threat to the species. Based on our evaluation of the information provided in the petition and in our files, we have determined that the petition does not present substantial information to indicate that listing of *Discus brunsoni* may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range due to fire, talus destabilization, logging, livestock, recreational use, or due to the species' restricted range. Frasera gypsicola (Sunnyside Green-Gentian) *Frasera gypsicola* grows on white calcareous barrens and Pleistocene spring-mounds in Millard County, Utah, and Nye and White Counties, Nevada. The White River Valley of Nevada contains 9 previously known sites (Smith 2000, p. 8) and 17 newly discovered sites (Forbis 2007, pp. 2-3). Populations include approximately 69,000 individuals on 321 hectares
(ha)(793 acres (ac)) (Smith 1994, p. 8). The size of the Utah population is unknown, but considered to be much smaller (England pers. comm. 2008). *Factor A:* Potential threats include livestock trampling, road widening, seismic exploration, juniper cutting, and agricultural or ORV use (Smith 2000, p. 14). However, no evidence was presented to indicate that any of these activities currently pose a threat to any of the known populations (Smith 2000, pp. 14-15). *Factors B and C:* No information was presented in the petition concerning threats to this species from the factors. *Factor D:* The species is protected by the State of Nevada, and is managed by the Bureau of Land Management
(BLM)as a sensitive species. Two Areas of Critical Environmental Concern have been designated that include substantial habitat for the species (Forbis 2007, p. 2). Neither the petition nor NatureServe present any information concerning the adequacy of this designation as a regulatory mechanism. *Factor E:* The species may be sensitive to climate-change-induced drought and resulting habitat changes (Smith 2000, p. 15); however, no information was presented in the petition or exists in our files to verify this. Based on our evaluation of the information provided in the petition and in our files, we have determined that the petition does not present substantial information to indicate that listing of *Frasera gypsicola* may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range resulting from livestock trampling, road widening, seismic exploration, juniper cutting, and agricultural or ORV use; due to the inadequacy of existing regulatory mechanisms; or due to other natural or manmade factors affecting its continued existence. Lomatium latilobum (Canyonlands Lomatium) *Lomatium latilobum* is endemic to sand substrates at low elevations in Grand and San Juan Counties, Utah, and Mesa County, Colorado. There are 4,000 plants in 14 occurrences in Utah (Franklin 1995, appendix C) and 1,825 plants in 5 occurrences in Colorado (Colorado Natural Heritage Program 2008a, p. 1). *Factor A:* According to the NatureServe database, potential threats to the species include ORV use, cattle grazing, hikers, and mountain bikes, but no quantification, verification, or effects to the species were presented. *Factors B and C:* No information was presented in the petition concerning threats to this species from the factors. *Factor D:* The species is listed as sensitive by the National Park Service, U.S. Forest Service, and BLM. Neither the petition nor NatureServe present any information concerning the adequacy of this designation as a regulatory mechanism. *Factor E:* No information was presented in the petition concerning threats to this species from the factor. Based on our evaluation of the information provided in the petition and in our files, we have determined that the petition does not present substantial information to indicate that listing of *Lomatium latilobum* may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range resulting from ORV use, cattle grazing, hikers, or mountain bikes; or due to the inadequacy of existing regulatory mechanisms. Lygodesmia doloresensis (Dolores River Skeletonplant) *Lygodesmia doloresensis* is a narrow endemic limited to the Dolores River Canyon in Grand County, Utah, and Mesa and San Miguel Counties in Colorado, and one location outside the Dolores River Canyon in Rabbit Valley, Colorado. There are 17 known occurrences; 12 of these are in Colorado, although 2 are considered historical because they have not been seen in over 20 years (Colorado Natural Heritage Program 2008b, p. 21). In Colorado, population estimates are available for only 6 of the 12 occurrences, totaling 2,580 plants (Colorado Natural Heritage Program 2008b, p. 21). The remaining occurrences occur along the Dolores River in Utah, near the Colorado border. The taxonomy of *L. doloresensis* is currently being reviewed (Tomb 1980, pp. 48-50; Welsh *et al.* 2003, pp. 210-211). *Factor A:* According to the NatureServe database, potential threats include livestock grazing, road maintenance, and nonnative plants, but no quantification, verification, or effect to the species was presented. *Factors B and C:* No information was presented in the petition concerning threats to this species from the factors. *Factor D:* The species is listed as sensitive by BLM. Neither the petition nor NatureServe present any information concerning the adequacy of this designation as a regulatory mechanism. *Factor E:* No information was presented in the petition concerning threats to this species from the factor. Based on our evaluation of the information provided in the petition and in our files, we have determined that the petition does not present substantial information to indicate that listing of *Lygodesmia doloresensis* may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range resulting from livestock grazing, road maintenance, or nonnative plants; or due to the inadequacy of existing regulatory mechanisms. Oreohelix sp. 4 (Drummond Mountainsnail) The Drummond mountainsnail is an extremely rare, local endemic with one small site known to persist, and an uncertain historical distribution in Granite and Powell Counties, Montana. Potentially, additional sites are occupied. According to Frest and Johannes (1995, p. 116), the population trend is downward in number of sites and individuals based on extirpation in previously-occupied areas; however, this information is somewhat speculative because it is difficult to survey for snails—they tend to be cyclic, depending on weather and other natural factors. *Factor A:* According to the NatureServe database, human activities such as logging, highway construction, roadside spraying, and grazing potentially cause population declines, but no quantification, verification, or effect to the species was presented. *Factors B, C, and D:* No information was presented in the petition concerning threats to this species from the factors. *Factor E:* The species has a limited geographic range. However, no information was presented either in NatureServe or the petition indicating that habitat disturbance caused by stochastic events, exacerbated by small population sizes and a restricted range, may be a threat to the species. Based on our evaluation of the information provided in the petition and in our files, we have determined that the petition does not present substantial information to indicate that listing of the Drummond mountainsnail may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range resulting from logging, highway construction, roadside spraying, or grazing. Oreohelix amariradix (Bitterroot Mountainsnail) The Bitterroot mountainsnail is a local endemic with at least two known occurrences in the Lolo Creek drainage in Missoula County, Montana. There appears to be inconsistency in population and location information. Errors in locations and species identification (confusion with other *Oreohelix* species) cited in previous reports bring into question range, threat, and population trend information (Hendricks 2003a, pp. 21-22). According to Frest and Johannes (1995, p. 105), the species is possibly declining based on absolute numbers, number of known and potential sites, and known habitat loss; however, this information is speculative due to past misidentifications. *Factor A:* According to the NatureServe database, much of the Bitterroot Mountains have been logged, followed by intensified grazing. Roadside spraying for weed control could affect the species. Portions of the Lolo Pass and lower Lolo Creek area were subject to fires in 1991 and 1993. Highway improvements resulted in removal of extensive portions of the taluses in the Lolo Creek drainage. However, no evidence exists to indicate that any of these activities currently pose a threat to any of the known populations. *Factors B, C, D, and E:* No information was presented in the petition concerning threats to this species from the factors. Based on our evaluation of the information provided in the petition and in our files, we have determined that the petition does not present substantial information to indicate that listing of the Bitterroot mountainsnail may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range resulting from logging, grazing, roadside spraying, fires, or highway improvements. Oreohelix carinifera (Keeled Mountainsnail) The keeled mountainsnail persists in a portion of its type locality (area where the species was first found and that is used to define the species' habitat). Four known sites exist near the Clark Fork River in Powell County, Montana, including a portion of the type locality. The species has been extirpated over parts of its range (Frest and Johannes 1995, p. 105), although shell remains can still be found, suggesting recent population declines (Frest and Johannes 1995, p. 106). Limited survey information or effort exists. No published estimates of population size or relative abundance exist. *Factor A:* The type locality has been reduced by highway and urban encroachment due to the expansion of the City of Garrison, and additional threats cited as potentially affecting the species include grazing, logging, and road construction and maintenance (Frest and Johannes 1995, pp. 105-106; Hendricks 2003a, p. 26). However, no evidence exists to indicate that any of these activities currently pose a threat to any of the known populations or may do so in the future. *Factors B, C, and D:* No information was presented in the petition concerning threats to this species from the factors. *Factor E:* Factor A threats could be exacerbated by recent drought. The species' occupied and potential habitat and the type locality colony have been reduced (Frest and Johannes 1995, pp. 105-106; Hendricks 2003a, p. 26). However, neither NatureServe nor the petition presented any information indicating that this is a threat. Based on our evaluation of the information provided in the petition and in our files, we have determined that the petition does not present substantial information to indicate that listing of the keeled mountainsnail may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range resulting from highway and urban encroachment, grazing, logging, or road construction; or other natural or manmade factors affecting its continued existence. Species for Which Substantial Information Was Presented Abronia ammophila (Yellowstone Sand Verbena) *Abronia ammophila* is endemic to Yellowstone National Park (Fertig 2000a, p. 1; Whipple 2002, p. 257). The one known population consists of three locations along Yellowstone Lake (Fertig 2000a, p. 1). Habitat for this species consists of open, sandy, and sparsely vegetated shorelines, with the habitat likely maintained by wave action or erosion (Fertig 2000a, p. 1; Whipple 2002, p. 256). In 1998, the total population was conservatively estimated at 8,325 plants, with 96 percent of them in 1 location (Fertig 2000a. p. 2). Trend data are lacking (Fertig 1997, unpubl. data), but the plant has been extirpated from at least one other known location as a result of human trampling associated with recreation (Fertig 1996, unpubl. data). *Factor A:* Yellowstone Lake is a high-use recreational area. Human impacts to the sandy habitats may pose a threat to the species (Whipple 2002, p. 267). *Factors B, C, and D:* No information was presented in the petition concerning threats to this species from the factors. *Factor E:* The references within the NatureServe database indicated that habitat- disturbance caused by stochastic events, exacerbated by small population sizes and a restricted range, may be a threat to the species (Fertig 2000a, p. 1; Whipple 2002, p. 260). Based on our evaluation of the information provided in the petition and in our files, we have determined that the petition presents substantial information to indicate that listing of *Abronia ammophila* may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range resulting from recreational impacts. The possible threats to the species may be exacerbated by its small population size and a restricted range. Agrostis rossiae (Ross' bentgrass) *Agrostis rossiae* is endemic to the Upper Geyser Basin of Yellowstone National Park (Dorn 1980, p. 59; Clark *et al.* 1989, p. 8), where four known populations exist (Fertig *et al.* 1994, unpaginated). The species occurs in warm soils around hot springs and geysers (Fertig *et al.* 1994, unpaginated; Fertig 2000b, p. 2). In 1995, the total population was estimated at 5,000 to 7,500 individuals (Fertig 2000b, p. 2). However, the ephemeral nature of the thermal habitats occupied by this species may result in rapid population fluctuation, making estimates difficult (Fertig 2000b, p. 2). *Factor A:* Park visitor activity, through trampling, is cited as a threat to the species (Fertig 2000b, p. 2). In addition, invasion of *Agrostis scabra* (rough bentgrass), which may be facilitated by park visitors, may be reducing the distribution of the species through displacement (Fertig 2000b, p. 2). *Factors B, C, and D:* No information was presented in the petition concerning threats to this species from the factors. *Factor E:* The changing thermal activity in occupied areas may affect habitat suitability for the species; one colony in Midway Geyser Basin was extirpated in the 1980s, likely due to a change in soil temperature resulting from a change in geyser activity (Fertig 2000b, p. 2). Small population sizes within a very restricted range make *A. rossiae* vulnerable to stochastic extinction events (Dorn 1980, p. 59). Based on our evaluation of the information provided in the petition and in our files, we have determined that the petition presents substantial information to indicate that listing of *Agrostis rossiae* may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range resulting from park visitation and competition from invasive species; and due to other natural or manmade factors affecting its continued existence resulting from thermal activity. Astragalus hamiltonii (Hamilton milkvetch) *Astragalus hamiltonii* is endemic to low-elevation clay soils in Colorado and Uintah County, Utah, where 10 element occurrences exist. Only one of these element occurrences exists in Colorado. Element occurrences are part of scientific methodology established by Natural Heritage programs, and are the spatial representation of a species population as documented through voucher specimens or other methods. Population estimates are 10,000 to 15,000 individuals (Colorado Natural Heritage Program 2008c, p. 1). *Factor A:* Energy exploration and development are planned, and can impact the landscape where *Astragalus hamiltonii* exists (Neese and Smith 1982; Heil and Melton 1995; BLM 2008, pp. 4-239 to 4-245). Oil and gas geophysical exploration usually involves either drilling holes and detonating explosives, or using a vibrating pad that is driven across an area using heavy vehicles. The extent of impact from either exploration method is unknown, but the vibrations and potential soil impacts may impact habitat and any species in the area. Oil and gas development involves staging a drilling rig, setting up additional equipment, and building roads to access each site, which may fragment the species' habitat. Similarly, soil disturbance occurs in oil and gas fields and would impact the habitat that lies within the footprint of well pads and roads, and areas disturbed during the development of that infrastructure. Any soil that is moved may have a direct impact on *A. hamiltonii* individuals that are present. Once a rig is in place, the drilling process creates vibrations that may impact habitat and any plants in the area. Once a well has been drilled and is producing, energy companies make regular trips to well pads to monitor production, conduct maintenance, or collect extracted resources. These regular trips may disturb *A. hamiltonii* plants present at or near well pads and roads. The introduction and spread of nonnative plants may result from energy development activities, and this would negatively impact *A. hamiltonii.* Over 90 percent of the species' population is associated with surface mineable deposits of the Little Water, Spring Hollow, and Cow Wash Tar Sand deposits (BLM 2008a, pp. 3-50, 3-174; Neese and Smith 1982; Heil and Melton 1995; BLM 2008, pp. 4-239 to 4-245). ORV use and nonnative plants are potential threats to the species (Heil and Melton 1995, p. 16). *Factor B, C, D, and E:* No information was presented in the petition concerning threats to this species from the factors. Based on our evaluation of the information provided in the petition and in our files, we have determined that the petition presents substantial information to indicate that listing of *Astragalus hamiltonii* may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range resulting from energy exploration and development. Astragalus iselyi (Isely milkvetch) *Astragalus iselyi* is endemic to low-elevation clay soils in Grand and San Juan Counties in southeastern Utah. The species has a narrow range and a small population estimated at approximately 2,500 individuals. *Factor A:* Uranium mining was once a threat, and uranium mining is again proposed for the area and is a potential threat to the existing population (Franklin 2003 pp. 1, 2, 35, 46). ORV use occurs within sites occupied by the species and is a potential threat (Hreha 1982, pp. 16-17; Franklin 2003, pp. 1, 2, 9, 37; Heil *et al.* 1991, p. 9; Thompson 1987, p. 3). The species' narrow range and small population size renders it vulnerable to any habitat disturbing activity (Franklin 2003, pp. 1, 2). *Factors B, C, D, and E:* No information was presented in the petition concerning threats to this species from the factors. Based on our evaluation of the information provided in the petition and in our files, we have determined that the petition presents substantial information to indicate that listing of *Astragalus iselyi* may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range resulting from uranium mining and possibly ORV use within the occupied sites. Astragalus microcymbus (Skiff milkvetch) *Astragalus microcymbus* exists in 4 element occurrences within a range of about 24 kilometers
(km)(15 miles (mi)) that includes an estimated 10,322 individuals (Colorado Natural Heritage Program 2008d, pp. 4-5). Its habitat is found mainly on Federal land in a BLM Area of Critical Environmental Concern, and in a Colorado Natural Area. A 1994 not-substantial finding on a petition to list this species indicated that drought and herbivory could not be clearly shown to present a substantial threat to the species. However, four demographic monitoring plots show an overall decline in numbers. The decline occurred from 1995 to 2002, and then a relatively stable trend occurred from 2003 until 2007 (Denver Botanic Gardens 2007, p. 4). The cause of 1995 to 2002 decline is unknown but may have been due to herbivory (Denver Botanic Gardens 2007, p. 7). *Factors A, C, and E:* A population viability analysis conducted in 2007 predicted a loss of all four monitored populations by 2030 (Denver Botanic Gardens, p. 7); the reasons for this predicted decline are undocumented, but potentially include lack of precipitation, herbivory (primarily from rabbits), and episodic fruit production (Denver Botanic Gardens, p. 7). ORV use occurs within occupied habitat and could negatively impact habitat of *A. microcymbus* (Colorado Natural Heritage Program 2008d, p. 3). *Factors B and D:* No information was presented in the petition concerning threats to this species from the factors. Based on our evaluation of the information provided in the petition and in our files, we have determined that the petition presents substantial information to indicate that listing of *Astragalus microcymbus* may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range resulting from ORV use; or due to other natural or manmade factors affecting its continued existence resulting from drought. Astragalus proimanthus (precocious milkvetch) *Astragalus proimanthus* is restricted to the bluffs of the Henry's Fork River near McKinnon, Sweetwater County, Wyoming (Roberts 1977, p. 63; WYNDD 2001, p. 2). The species' global distribution is limited to less than 130 ha (320 ac) on BLM land (WYNDD 2001, pp. 2, 3). This milkvetch occurs in plant communities on rocky clay and shale soils along rims, bluffs, and rocky ridges (Fertig *et al.* 1994, unpaginated; WYNDD 2001, p. 2). In 2000, the entire population was estimated at 10,500 to 13,000 individuals, a reduction from estimates in the 1980s of 22,000 to 40,000 individuals (WYNDD 2001, p. 3); however, trend data are inconsistent between monitoring plots (WYNDD 2001, p. 3). *Factor A:* Purported threats to this species include road construction, ORV use, oil and gas exploration and development, garbage dumps, livestock grazing, and range improvement projects (WYNDD 2001, p. 3). While the impacts of these threats were not quantified, the species is located in an area incurring substantial energy development (Fertig and Welp 2001, p. 16). Impacts from energy development to *Astraglaus proimanthus* are the same as shown under Factor A analysis for *Astragalus hamiltonii* above; activities are the same and would have the same effect on each plant species. These threats exist within the habitat of *A. proimanthus,* and are acting on the species to some degree. *Factors B, C, D, and E:* No information was presented in the petition concerning threats to this species from the factors. Based on our evaluation of the information provided in the petition and in our files, we have determined that the petition presents substantial information to indicate that listing of *Astragalus proimanthus* may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range resulting from energy exploration and development. Astragalus sabulosus (Cisco milkvetch) *Astragalus sabulosus* is a narrow endemic found in five locations in Grand County, Utah, that occur in a total area of approximately 320 ha (800 ac) (Atwood 1995, pp. 3, 4; Franklin 1988, p. 5). The species' population size is highly variable from year to year depending, presumably, on winter and spring precipitation. The total population is an estimated 25,000 individuals (Atwood 1995, pp. 5-6). *Factor A:* Potential threats to the species include ORV use, oil and gas development, uranium mining, and natural gas development (Atwood 1995, pp. 7-9). Energy exploration and development and mining are planned in the population area, and can impact the landscape where the species exists (Atwood 1995, pp. 7-9). Impacts from energy development to *Astraglaus sabulosus* are the same as shown under Factor A analysis for *Astragalus hamiltonii* above; activities are the same and would have the same effect on each plant species. These threats exist within the habitat of *A. sabulosus,* and are acting on the species to some degree. *Factors B, C, D, and E:* No information was presented in the petition concerning threats to this species from the factors. Based on our evaluation of the information provided in the petition and in our files, we have determined that the petition presents substantial information to indicate that listing of *Astragalus sabulosus* may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range resulting from energy exploration and development. Astragalus schmolliae (Schmoll milkvetch) *Astragalus schmolliae* is known only from Chapin Mesa in Mesa Verde National Park
(MVNP)and the Ute Mountain Ute Reservation in Montezuma County, Colorado. The 6 element occurrences include roughly 294,499 individuals, all of which are in MVNP (Colorado Natural Heritage Program 2008e, pp. 8-9). Populations are likely to occur on the Ute Mountain Ute Reservation, but no survey data exist from this location. *Factor A:* A potential threat to the species is the invasion of nonnative species into burned areas it occupies. *Carduus nutans* (musk thistle) is particularly invasive in burned areas of southern MVNP, and has been observed invading areas occupied by *A. schmolliae* (summarized in Anderson 2004, p. 61). *Bromus tectorum* (cheatgrass) also is invading occupied burned areas (Anderson 2004, pp. 60-61). The Chapin 5 fire in 1996, and the Long Mesa Fire in 2002, impacted a large portion of the occurrences in MVNP. Burning may not have significantly impacted plant mortality, but long-term impacts of fire, such as nonnative invasion, are likely to cause a decline in populations (Anderson 2004, pp. 60-61). Data on the species' response to nonnative invasions since 2006 are not readily available. Visitor impacts to the species within MVNP are localized and minimal, limited to trampling of an occasional plant growing adjacent to a trail or road (Anderson 2004, p. 72). Outside MVNP boundaries, threats from road construction and grazing may exist (O'Kane 1988, p. 444). *Factors B, C, and D:* No information was presented in the petition concerning threats to this species from the factors. *Factor E: A. schmolliae* has declined 39 percent from 2001-2003; the decline was attributed to drought (Anderson 2004, p. 37 and Table 5). Based on our evaluation of the information provided in the petition and in our files, we have determined that the petition presents substantial information to indicate that listing of *Astragalus schmolliae* may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range resulting from impacts of fire and nonnative invasions, and possibly road construction and grazing; and due to other natural or manmade factors affecting its continued existence resulting from drought. Boechera (formerly Arabis) pusilla (Fremont County rockcress) *Boechera pusilla* is known from one location in the southern Wind River Range, Fremont County, Wyoming (Fertig 2000c; p. 1; Heidel 2005, p. 6). The genus was changed from *Arabis* to *Boechera* in 2002 (Heidel 2005, p. 1). Its habitat consists of crevices and sparsely vegetated granitic soils in granite-pegmatite outcrops, at an elevation of 2,438 to 2,469 meters (8,000 to 8,100 feet) (Fertig 2000c, p. 1; Heidel 2005, pp. 8-9). Population estimates have varied from 800 to 1,000 individuals in 1988, to 600 in 1990, to 100 to 150 plants in 2003 (Heidel 2005, p. 14). Occupied habitat is limited to 2.4 to 6.5 ha (6 to 16 ac) (Dorn 1990, p. 8; Heidel 2005, p. 15), entirely on BLM land. The Service previously identified *B. pusilla* as a candidate species for listing as endangered in 1992 due to small population numbers, restricted range, recreational activities, and existence of six mining claims within the species' habitats. Due to conservation measures implemented by the BLM, *B. pusilla* was withdrawn from candidate status in 1999. It is currently unclear whether conservation measures are adequate to protect the species. *Factor A:* ORV use occurs in the habitat of this species, and is likely affecting the species to some extent (Dorn 1990, p. 11; Fertig 2000c, p. 2; Heidel 2005, p. 17). Mining historically occurred in the area, but it is not clear if mining directly affected this species (Heidel 2005, p. 17). *Factors B, C, D, and E:* No information was presented in the petition concerning threats to this species from the factors. Based on our evaluation of the information provided in the petition and in our files, we have determined that the petition presents substantial information to indicate that listing of *Boechera pusilla* may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range resulting from ORV use. Catinella gelida (Frigid ambersnail) The Frigid ambersnail is known from 14 sites in Iowa (Frest 1991, p. 17), 12 sites in the Black Hills of South Dakota (Frest and Johannes 2002, p. 74), and 19 sites in Wisconsin (Nekola, 2003, p. 8). According to the NatureServe database, the species is possibly extirpated in Missouri, Michigan, Indiana, Ohio, and Mississippi, and is presumed extirpated in Kentucky. The Frigid ambersnail could be a difficult species to sample because it is present in low densities, and is typically located 3 to 15 centimeters (1 to 6 inches) beneath the talus field surface (Frest 1991, p. 16). While information presented in the petition was not substantial, we have sufficient information in our files indicating that threats are impacting the Frigid ambersnail (Ostlie 2009, pp. 49 and 50). As such, we have already initiated a status review on several mollusk species, including this one. *Factor A:* The species may be found near roads, although this could be an artifact of survey bias, and in areas subject to livestock grazing and logging disturbances (Frest and Johannes 1993, p. 53; Frest and Johannes 2002, p. 73). Populations are small at all Iowa sites making the species more vulnerable to current threats of human and livestock trampling, and landslides (Frest 1991, p. 16; Frest and Johannes 1993, p. 53; Frest and Johannes 2002, p. 73). Wisconsin sites could be disturbed by development in the future (Nekola 2003, p. 21), but this threat is currently unsubstantiated. Known South Dakota sites are located near highways and roads, and most are subject to livestock trampling and effects of timber harvest (Frest and Johannes 2002, p. 73). *Factors B, C, D, and E:* No information was presented in the petition concerning threats to this species from the factors. The petition did not present substantial information regarding the presence of the threats identified above. However, our files contain substantial information indicating that the petitioned action may be warranted. Generally, land snail individuals and colonies are vulnerable to land-use activities due to their small body size and specific habitat requirements. The species is State-listed as endangered in Iowa, and as a Species of Special Concern in Wisconsin. Based on our identification of likely threats, and indications that they are likely impacting the species to some degree, we have determined that substantial information exists to indicate that listing of Frigid ambersnail may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range resulting from the effects from roads, livestock trampling, and logging disturbances. Corispermum navicula (boat-shaped bugseed) According to the NatureServe database, the taxonomy of *Corispermum navicula* is currently being questioned. The only two element occurrences are recorded in Jackson County, Colorado, and include an unknown number of plants on two active sand dune complexes covering about 15.5 km 2 (6 mi 2 ); total occupied habitat is about 173 ha (427 ac) (Colorado Natural Heritage Program 2008f, p. 12). *Factor A:* Heavy ORV use is allowed on one of the two dune complexes, and has negatively impacted the species by disturbing the habitat and destroying plants (Colorado Natural Heritage Program 2008f, p. 12). *Factors B, C, D, and E:* No information was presented in the petition concerning threats to this species from the factors. Based on our evaluation of the information provided in the petition and in our files, we have determined that the petition presents substantial information to indicate that listing of *Corispermum navicula* may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range resulting from ORV use. *Cryptantha semiglabra* (Pipe Springs cryptantha) *Cryptantha semiglabra* is endemic to clay soils in Washington County, Utah, and Coconino and Mohave Counties, Arizona. No population data are currently available. *Factor A:* According to the NatureServe database, all populations of this species exist within 11 km (7 mi) of Fredonia, Arizona, which is undergoing expansion. As a result, *C. semiglabra* may be facing threats resulting from development, but this potential threat has not been adequately identified by any source. The habitat of the species is subject to disturbance from garbage dumping, ORV use, and trampling (AGFD 2004, p. 3). No information was available concerning the status of this species in Utah. *Factors B, C, D, and E:* No information was presented in the petition concerning threats to this species from the factors. Based on our evaluation of the information provided in the petition and in our files, we have determined that the petition presents substantial information to indicate that listing of *Cryptantha semiglabra* may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range resulting from livestock grazing and ORV use. Draba weberi (Weber whitlowgrass) One occurrence of *Draba weberi* was recorded in 1969, in Summit County, Colorado, and this remains the only known location. The number of plants appears to have diminished from about 100 to 20 or 30 between the 1980s and 2006 (Decker 2006, p. 3). *Factor A:* The plants are found in shallow rock crevices easily accessed from a parking lot that is a popular point of access for climbers, hikers, and backcountry skiers (Decker 2006, p. 20); this level of recreational activity is likely to result in trampling. The population depends on water flowing from an outflow pipe below a dam that enters a relatively natural creek bed; under most circumstances, water flows from the outlet pipe into the stream channel (Decker 2006, p. 20). A municipal water company owns the property; road and dam construction and maintenance are potential threats to the species (Decker 2006, p. 7). *Factors B and C:* No information was presented in the petition concerning threats to this species from the factors. *Factor D:* The dam property owners are aware of the plants and have no plans that would affect the habitat, but no conservation plans or agreements have been developed; therefore, the water flowing to the creek bed is not reliable (Decker 2006, pp. 7, 20). *Factor E:* No information was presented in the petition concerning threats to this species from the factor. Based on our evaluation of the information provided in the petition and in our files, we have determined that the petition presents substantial information to indicate that listing of *Draba weberi* may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range resulting from recreational activities, and possibly activities related to road construction and dam maintenance. Eriogonum brandegeei (Brandegee's wild buckwheat) Eight occurrences of *Eriogonum brandegeei* are currently considered extant, with an additional three considered historical because they have not been seen in over 20 years (Colorado Natural Heritage Program 2008g, p. 15). The habitat consists of barren outcrops of white to grayish bentonite soils in Fremont and Chaffee Counties, Colorado. The 6 occurrences for which we have plant estimates total 33,465 individuals (Colorado Natural Heritage Program 2008g, p. 15), but some observer estimates have placed this number much higher, up to several million plants (Anderson 2006, pp. 3, 11). The species was made a candidate in 1993, but removed from candidate status in 1996 (61 FR 7460) as a result of additional information collected from survey work (Anderson 2006, p. 11). A conservation assessment was completed for the species in 2006 by the Colorado Natural Heritage Program (Anderson 2006, entire). Population estimates in the millions are noted in the conservation assessment, and in our removal of the species from candidate status, but we lack survey documentation of these higher population estimates. *Factor A:* ORV and other recreational uses threaten some occurrences of *Eriogonum brandegeei,* and curtailment of these activities in plant occurrences would likely provide the greatest conservation benefit to the species (Anderson 2006, p. 3). Residential and commercial development has encroached on one of the healthiest occurrences, and could affect most of the species' range in the future; road construction related to increased development creates an additional threat to its habitat (Anderson 2006, p. 37). According to the NatureServe database, timber thinning and extraction is expected to cause direct mortality of plants, erosion, and invasion of nonnative plants; mining and oil and gas development are potential activities in this area, but the possible effects have not been assessed; bentonite mining resulted in habitat destruction in the past, but is not occurring now. Protection of plants is not considered prior to right-of-way maintenance because rights-of-way are outside the area assessed for project work; however, this activity affects a small portion of the total population (Anderson 2006, p. 39). Grazing is a small threat, and invasive nonnative species pose a high but undocumented threat (Anderson 2006, p. 39). *Factors B and C:* No information was presented in the petition concerning threats to this species from the factor. *Factor D:* Four of the eight occurrences are partially within two BLM Areas of Critical Environmental Concern that also are State Natural Areas. Neither the petition nor NatureServe present any information concerning the adequacy of these designations as a regulatory mechanism. Some ORV route restrictions apply in these areas, but no restrictions apply to the remaining habitat, and therefore ORV use poses a potential threat to the species and its habitat. *Factor E:* No information was presented in the petition concerning threats to this species from the factor. Based on our evaluation of the information provided in the petition and in our files, we have determined that the petition presents substantial information to indicate that listing of *Eriogonum brandegeei* may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range resulting from recreational activities, ORV use, development, and road construction; and due to the inadequacy of existing regulatory mechanisms related to ORV use. *Eriogonum soredium* (Frisco buckwheat) *Eriogonum soredium* is a narrow endemic with small populations (Evenden 1998, p. 5). The three element occurrences are restricted to limestone outcrops on Grampian Hill in Beaver County, Utah (Evenden 1998, appendix C). Estimates of the area of occupied habitat of the species range from 70 ha (170 ac) (Evenden 1998, appendix C) to 160 ha (400 ac) (Kass 1992, pp. 7-8). Estimates of the species' total population are 2,000 individuals (Kass 1992, p. 8) to approximately 30,000 individuals (Evenden 1998, appendix C). These numbers are only estimates because approximately 90 percent of the species' habitat is on private land, and access to these areas to survey for the plant is limited. *Factor A:* Mineralized limestone substrates that sustain the species were subject to habitat destruction from precious metals mining. Over 90 percent of the species' habitat is located on lands having private, patented mining claims (Evenden 1998 p. 9; Kass 1992, p. 9). This high-value substrate on private lands to which we have no access is likely to be impacted by continued mining, and the future of *E. soredium* on those lands is tenuous. A small portion of the species' habitat may exist on adjacent BLM land; however, we currently have no information on the number of individuals or the magnitude of threats to the species on that land. *Factors B, C, D, and E:* No information was presented in the petition concerning threats to this species from the factors. Based on our evaluation of the information provided in the petition and in our files, we have determined that the petition presents substantial information to indicate that listing of *Eriogonum soredium* may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range resulting from mining activities. Ironoquia plattensis (Platte River caddisfly) The Platte River caddisfly is endemic to an approximately 75-km (46-mi) segment of the central Platte River that extends from approximately Gibbon, Buffalo, and Kearney Counties, Nebraska, to Central City, Merrick County, Nebraska, comprising approximately 63,940 ha (158,000 ac) (Goldowitz 2004, p. 4). One population has likely been lost (Reins and Hoback 2008, p. 1). The species inhabits intermittent wetland habitats that are associated with the central Platte River. Intermittent wetland hydrology is affected by precipitation, periodic flooding, and groundwater levels as influenced by the nearby Platte River. Intermittent wetlands used by the Platte River caddisfly may contain water 75 to 90 percent of the time, but can typically go dry during the summer (Goldowitz 2004, p. 2), and completely freeze over during the winter (Alexander and Whiles 2000, p. 2). *Factor A:* Hydrologic regimes, which are increasingly altered by regulation of the Platte River for hydroelectric and agricultural purposes, influence the hydroperiod in intermittent wetlands and, therefore, the abundance and distribution of the Platte River caddisfly and other macroinvertebrates that rely on this habitat (Goldowitz 2004, p. 2). For example, construction of impoundments, dewatering the Platte River for irrigation, installation of new irrigation wells in the floodplain, land restoration and management projects, and channel modification pose threats to the longevity of intermittent wetland habitat utilized by the Platte River caddisfly (Goldowitz 2004, p. 2). An increase in row crop agriculture or vegetation control can increase nutrient, toxic, and pesticide runoff that could have direct or cumulative effects on the species; heavy grazing pressure in wetland and grassland habitats can result in removal and degradation of wetland habitats critical for larval development (Goldowitz 2004, p. 9). *Factors B, C, D, and E:* No information was presented in the petition concerning threats to this species from the factors. Based on our evaluation of the information provided in the petition and in our files, we have determined that the petition presents substantial information to indicate that listing of Platte River caddisfly may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range resulting from construction of impoundments, dewatering the Platte River for irrigation, installation of new irrigation wells in the floodplain, land restoration and management projects, and channel modification. Lednia tumana (meltwater lednian stonefly) The meltwater lednian stonefly is a narrow endemic found in two known occurrences, both in Glacier National Park in Montana. No information exists to indicate that the species exists in other locations. The species is associated with glacier melt-water streams. An extensive survey in 1979 did not result in any additional occurrences (Baumann and Stewart 1980, p. 658). A 1980 survey showed moderate abundance (Baumann and Stewart 1980, p. 658); no more refined quantification occurred and no further information has been available. *Factors A and E:* Climate-change-related ecosystem modeling predicts the loss of glaciers in Glacier National Park by 2030 (Hall and Fagre 2003, p. 138). This loss of glaciers could result in the loss or significant reduction of glacier melt-water streams, resulting in reduced habitat for the meltwater lednian stonefly. Glacier melt provides water and temperature moderation in high altitude streams. *Factors B, C, and D:* No information was presented in the petition concerning threats to this species from the factors. Based on our evaluation of the information provided in the petition and in our files, we have determined that the petition presents substantial information to indicate that listing of meltwater lednian stonefly may be warranted due to other natural or manmade factors affecting its continued existence resulting from climate-change-induced glacier loss. Lepidium ostleri (Ostler's peppergrass) *Lepidium ostleri* is a narrow endemic with small populations (Evenden 1998, p. 5). The four element occurrences are restricted to limestone outcrops on Grampian Hill in Beaver County, Utah (Evenden 1998, appendix C). Estimates of occupied habitat within the species' range are 80 ha (200 ac) (Evenden 1998, appendix C) to 160 ha (400 ac) (Kass 1992b, p. 7). Estimates of the species' total population are 700 individuals (Kass 1992b, p. 8) to approximately 10,000 individuals (Evenden 1998, appendix C). These numbers are only estimates because approximately 90 percent of the species' habitat is on private land, and access to these areas to survey for the plant is limited. Population estimates from Evenden and Kass are more than a decade old, and no verification of their survey results has been made. *Factor A:* Mineralized limestone substrates that sustain the species were subject to habitat destruction from precious metals mining. Over 90 percent of the species' habitat is located on lands having private, patented mining claims (Evenden 1998 p. 9; Kass 1992, p. 9). This high-value substrate on private lands to which we have no access is likely to be impacted by continued mining, and the future of *L. ostleri* on those lands is tenuous. A small portion of the species' habitat may exist on adjacent BLM land; however, we currently have no information on the number of individuals or the magnitude of threats to the species on that land. *Factors B, C, D, and E:* No information was presented in the petition concerning threats to this species from the factors. Based on our evaluation of the information provided in the petition and in our files, we have determined that the petition presents substantial information to indicate that listing of *Lepidium ostleri* may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range resulting from mining activities. Lepidomeda copei (northern leatherside chub) The northern leatherside chub's historical range encompassed the northeastern margins of the Bonneville Basin in Utah, Idaho, and Wyoming; the Pacific Basin, Goose Creek, Wood and Raft Rivers in Idaho and Nevada; and the Snake River above Shoshone Falls in Idaho and Wyoming (UDWR 2009, p. 28). The current range includes fragmented populations in the Bear River drainage, the Snake River drainage, and introduced populations in the Colorado River Basin, including the Fremont River, Pleasant Creek, Dirty Devil River, and Quitchupah Creek in Utah (UDWR 2009, p. 29). Some taxonomic uncertainty exists; two evolutionarily distinct species of leatherside chub have recently been recognized (Johnson *et al.* 2004, pp. 841-855; Belk *et al.* 2005, p. 182). This taxon was formerly considered to be conspecific with the southern leatherside chub, and to be in the genus *Gila* (as cited in IDFG 2005, Appendix F, p. 25). A Conservation Agreement and Strategy on the species in its current range has recently been finalized by a coalition of Federal and State agencies, and nongovernmental organizations; a technical team is assessing issues related to the northern leatherside chub (UDWR 2009, entire). *Factor A:* According to the NatureServe database, potential threats to the species include habitat degradation, fragmentation, and loss from water developments ( *e.g.* , irrigation projects, dewatering); stream alterations ( *e.g.,* channelization, barriers); siltation; grazing; and nonnative brown trout. The conservation agreement further describes these threats; surveys indicate that the species is declining due to fragmentation from human-caused activities, including water diversions, nonnative species, and grazing (IDFG 2005, p. 5; Appendix F, p. 26). *Factors B, C, D, and E:* No information was presented in the petition concerning threats to this species from the factors. Based on our evaluation of the information provided in the petition and in our files, we have determined that the petition presents substantial information to indicate that listing of northern leatherside chub may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range resulting from water developments, stream alterations, livestock trampling, and nonnative brown trout. Lesquerella navajoensis (no common name) *Lesquerella navajoensis* is endemic to Todilto limestone outcrops in Kane County, Utah; Apache County, Arizona; and McKinley County, New Mexico. Little is known about populations or distribution of this species beyond the two known occurrences. *Factor A:* According to the NatureServe database, mining is considered a threat to the species, outcrops of Todilto limestone are not abundant in the area, and are actively mined in New Mexico for road base material. Habitat at one of the two known population sites in New Mexico has been quarried, and the species exists there only on a narrow remnant of the mesa rim (New Mexico Rare Plant Technical Council 1999, Web site). No information on this species in Utah or Arizona was available. *Factors B, C, D, and E:* No information was presented in the petition concerning threats to this species from the factors. Based on our evaluation of the information provided in the petition and in our files, we have determined that the petition presents substantial information to indicate that listing of *Lesquerella navajoensis* may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range resulting from mining. Oreohelix sp. 3 (bearmouth mountainsnail) The bearmouth mountainsnail is a local endemic with one small site known in Granite and Powell Counties, Montana (Frest and Johannes 1995, p. 115). The NatureServe database indicates that the species has been in decline in absolute numbers and number of sites, potentially due to human activities (Frest and Johannes 1995, p. 115); however, no population numbers were cited, and further information has not been available since 1995. *Factor A:* According to the NatureServe database, potential threats to the species' habitat include talus disturbance, and construction and maintenance of highways. Effects from highways and associated frontage roads have impacted known sites (Frest and Johannes 1995, p. 115). Grazing has been cited as a potential threat (Frest and Johannes 1995, p. 115); however, the species exists in rocky habitat not suited to livestock grazing. *Factors B, C, D, and E:* No information was presented in the petition concerning threats to this species from the factors. Based on our evaluation of the information provided in the petition and in our files, we have determined that the petition presents substantial information to indicate that listing of bearmouth mountainsnail may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range resulting from highways and associated activities. Oreohelix sp. 31 (Byrne Resort mountainsnail) The Byrne Resort mountainsnail is a local endemic known only in one site in the Clark Fork River Valley in Granite County, Montana. Additional occurrences may exist on neighboring national forest land, but survey information is not available. Based on survey data, previously known sites have been extirpated, and a decline of populations and absolute numbers has occurred (Frest and Johannes 1995, p. 140). *Factor A:* The species occurs at the base of talus sites that are subject to removal for road construction and fill. Effects from highways and associated frontage roads have impacted known occurrence sites, resulting in extirpation at some sites (Frest and Johannes 1995, p. 140). According to the NatureServe database, extensive alteration of the area has occurred from recreational resort activities, grazing, and highway construction; however, uncertainty exists as to whether the species has been directly affected by recreational activities and grazing. *Factors B, C, D, and E:* No information was presented in the petition concerning threats to this species from the factors. Based on our evaluation of the information provided in the petition and in our files, we have determined that the petition presents substantial information to indicate that listing of Byrne Resort mountainsnail may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range resulting from road construction. Penstemon flowersii (flowers penstemon) *Penstemon flowersii* is endemic to fine soils derived from the Uinta Formation at low elevations in the Uinta Basin in Duchesne and Uintah Counties, Utah. Little is known about this species. It is a narrow endemic, and all known habitat is on private and Ute Tribe lands (Heil and Melton 1995, pp. 8-10). Heil and Melton (1995, p. 13) estimate the species population at 15,000 to 20,000 individuals. *Factor A:* The species is impacted by ORV use (Heil and Melton 1995, p. 15). Energy exploration and development are planned in the landscape where *Penstemon flowersii* exists (Heil and Melton 1995, pp. 15-16). Impacts from energy development to *A. flowersii* are the same as shown under Factor A analysis for *Astragalus hamiltonii* above; activities are the same and would have the same effect on each plant species. These threats exist within the habitat of *P. flowersii,* and are acting on the species to some degree. *Factors B, C, D, and E:* No information was presented in the petition concerning threats to this species from the factors. Based on our evaluation of the information provided in the petition and in our files, we have determined that the petition presents substantial information to indicate that listing of *Penstemon flowersii* may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range resulting from ORV use and energy exploration and development. Penstemon gibbensii (Gibben's beardtongue) *Penstemon gibbensii* is endemic to south-central Wyoming and adjacent northeastern Utah, and northwestern Colorado (Fertig 2000d, p. 2). Most of the species' known range exists in Wyoming, in Sweetwater and Carbon Counties, and encompasses approximately 40 ha (100 ac) (Fertig 2000d, p. 2). Habitat for this species is primarily sparsely vegetated shale or sandstone slopes (Fertig *et al.* 1994, unpaginated; Fertig and Neighbors 1996, p. 109), associated with the Browns Park Formation and Green River shale (Fertig 2000d, p. 2). In Wyoming, four populations are known (Fertig 2000d, p. 2). Only one known population has been identified in Colorado, in Brown's Park; this population extends into Daggett County, Utah (Fertig and Neighbors 1996, p. 6). In 1995, 3 of the Wyoming populations were estimated to have a total population of 8,600 to 8,900 plants, and a 1999 survey of the fourth Wyoming population resulted in an estimated 4,500 to 5,000 plants (Fertig 2000d, p. 2). Long-term trend data are lacking (Fertig 2000d, p. 2). *P. gibbensii* was formerly designated as a C2 candidate species for listing. The C2 designation was used for species for which there was evidence of vulnerability, but for which the Service lacked sufficient biological data to support a listing proposal. In 1996, the Service ceased using the C2 designation (61 FR 64481; December 5, 1996). *Factor A:* Potential threats to the species include habitat loss and degradation resulting from land uses that cause soil erosion, particularly grazing, mineral development (primarily oil and gas exploration), and recreation (Fertig and Neighbors 1996, pp. 19-20; Fertig 2000d, p. 3). Grazing is the primary threat to the species (WYNDD 2000, p. 27). ORV use affects the species; although it may colonize disturbed areas at the margins, it cannot become established where direct vehicle use occurs (WYNDD 2000, p. 28). Oil and gas development has increased greatly in the species' habitat in recent years (WYNDD 2000, p. 27). The magnitude of effects from energy development is unknown, because the species tends to occur on slopes that are too unstable to support oil drilling platforms (Fertig and Neighbors 1996, p. 20). *Factors B, C, and D:* No information was presented in the petition concerning threats to this species from the factors. *Factor E:* According to the references contained in NatureServe, drought may be a threat to the species (WYNDD 2000, pp. 3, 28). Based on our evaluation of the information provided in the petition and in our files, we have determined that the petition presents substantial information to indicate that listing of *Penstemon gibbensii* may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range resulting from energy exploration and development, livestock grazing, and ORV use. Pyrgulopsis anguina (longitudinal gland pyrg) The longitudinal gland pyrg is a freshwater snail endemic to Snake Valley, a large valley that straddles the Nevada-Utah border (Hershler 1998, p. 110). This species is known from spring systems in White Pine County, Nevada, and Millard County, Utah (Hershler 1998, p. 111; Bio-West 2007, pp. 86-87). *Factors A and E:* Bio-West (2007, p. 91) characterized disturbances at species' sites (spring diversion, domestic livestock grazing, impacts from roads and residences, drought) as moderate to high in 2007. Additional potential threats include agricultural development (State of Utah 2007, p. 88) and habitat changes ( *e.g.,* reduction in spring discharge) that may result from climate change or groundwater withdrawal by the Southern Nevada Water Authority in Snake and Spring Valleys (Congdon 2006, pp. 3, 15; Elliot *et al.* 2006, pp. 44, 157). *Factors B, C, and D:* No information was presented in the petition concerning threats to this species from the factors. Based on our evaluation of the information provided in the petition and in our files, we have determined that the petition presents substantial information to indicate that listing of longitudinal gland pyrg may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range resulting from spring diversions, livestock trampling, roads, and development; and due to other natural or manmade factors affecting its continued existence resulting from drought and effects of climate change. Pyrgulopsis hamlinensis (Hamlin Valley pyrg) The Hamlin Valley pyrg is a freshwater snail that is a narrow endemic found in only one location in Beaver County, Utah. *Factors A and E:* Herschler (1998, p. 105) characterized disturbances at springs inhabitated by freshwater snails throughout the region, including Hamlin Valley pyrg, as including spring diversion, domestic livestock grazing, impacts from roads and residences, and drought. Additional potential threats include agricultural development (State of Utah 2007, p. 88) and habitat changes ( *e.g.,* reduction in spring discharge) that may result from climate change or groundwater contamination from several sources, including water filings by the Central Iron County Water Conservancy District in Utah, and Southern Nevada Water Authority projects in the Snake and Spring Valleys (Congdon 2006, pp. 3, 15; Elliot *et al.* 2006, pp. 44, 157). These threats exist within the habitat of the Hamlin Valley pyrg, and are acting on the species to some degree. *Factors B, C, and D:* No information was presented in the petition concerning threats to this species from the factors. Based on our evaluation of the information provided in the petition and in our files, we have determined that the petition presents substantial information to indicate that listing of Hamlin Valley pyrg may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range resulting from spring diversions, livestock trampling, roads, and development; and due to other natural or manmade factors affecting its continued existence resulting from drought and effects of climate change. Pyrgulopsis saxatilis (sub-globose snake pyrg) The sub-globose snake pyrg is a freshwater snail that is a narrow endemic known from one spring in Millard County, Utah. *Factors A and E:* Herschler (1998, p. 105) characterized disturbances at springs inhabitated by freshwater snails throughout the region, including the sub-globose snake pyrg, as including spring diversion, domestic livestock grazing, impacts from roads and residences, and drought. Additional potential threats include agricultural development (State of Utah 2007, p. 88), the presence of the invasive mollusk *Melanoides,* and habitat changes ( *e.g.,* reduction in spring discharge) that may result from climate change or groundwater contamination from several sources, including water filings by the Central Iron County water Conservancy District in Utah, and Southern Nevada Water Authority projects in the Snake and Spring Valleys (Congdon 2006, pp. 3, 15; Elliot *et al.* 2006, pp. 44, 157). These threats exist within the habitat of the sub-globose snake pyrg, and are acting on the species to some degree. *Factors B, C, and D:* No information was presented in the petition concerning threats to this species from the factors. Based on our evaluation of the information provided in the petition and in our files, we have determined that the petition presents substantial information to indicate that listing of sub-globose snake pyrg may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range resulting from spring diversions, livestock trampling, roads, and development; and due to other natural or manmade factors affecting its continued existence resulting from drought and effects of climate change. Sisyrinchium sarmentosum (Pale blue-eyed grass) *Sisyrinchium sarmentosum* is a narrow endemic that exists in Klickitat and Skamania Counties in southcentral Washington, and Clackamas County in northern Oregon. Records of this plant existing in North Dakota are suspect, and likely inaccurate. According to the NatureServe database, the species is currently known from about 18 occurrences, and the total number of individuals is thought to be 5,000 to 7,000. The species is listed as threatened by Washington State (WNHP 2009, Web site). Insufficient historical data exist to determine an overall trend in species abundance and distribution. *Factor A:* According to the NatureServe database, the species has shown some ability to withstand disturbance, but development and agricultural activities have limited the amount of suitable habitat. The smaller occurrences are probably threatened by plant succession leading to canopy closure (Thomas 2009, pers. comm.). Some degree of threat may be posed by ORV use of the meadows where the species occurs (Thomas 2009, pers. comm.). *Factor B:* No information was presented in the petition concerning threats to this species from the factor. *Factor C:* Grazing directly impacts the plant's ability to reproduce by seed and, therefore, to broaden its genetic variability by reproduction through cross-pollination with other plants (Thomas 2009, pers. comm.). When seeds are consumed by grazing animals, the plant shifts its reproductive strategy to vegetative reproduction. Vegetative reproduction narrows the genetic makeup of plants, and the species does not benefit from cross pollination with other neighboring plants. *Factor D:* No information was presented in the petition concerning threats to this species from the factor. *Factor E:* The species is threatened by a genetic bottleneck and reduction in genetic flow, leading to reduced genetic variation (Thomas 2009, pers. comm.). Because of the reduction in genetic exchange it faces in the wild, the species is less capable of withstanding other environmental stressors like drought, or climate change (Thomas 2009, pers. comm.). Based on our evaluation of the information provided in the petition and in our files, we have determined that the petition presents substantial information to indicate that listing of *Sisyrinchium sarmentosum* may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range resulting from development, livestock trampling, plant succession, and possibly ORV use; and due to other natural or manmade factors affecting its continued existence resulting from genetic reduction, drought, and effects of climate change. Trifolium friscanum (Frisco clover) *Trifolium friscanum* is a narrow endemic with small populations (Evenden 1998, p. 6). The two element occurrences are restricted to limestone outcrops on Grampian Hill in Beaver County, Utah (Evenden 1998, appendix C), and in the nearby Tunnel Spring Mountains (Evenden 1999, pp. 6-7). Estimates of the area of occupied habitat vary from 30 ha (75 ac) (Evenden 1998, appendix C; Evenden 1999, appendix B) to 225 ha (560 ac) (Kass 1992, pp. 7-8). Estimates of the species' total population vary from 2,000 individuals (Kass 1992, p. 7) to approximately 3,500 individuals (Evenden 1998, appendix C; Evenden 1999, appendix B). *Factor A:* Mineralized limestone substrates that sustain the species were historically subjected to habitat destruction from precious metals mining. Over 80 percent of the species' habitat is located on lands having private, patented mining claims (Evenden 1998, p. 9; Kass 1992, p. 9). *Factors B, C, D, and E:* No information was presented in the petition concerning threats to this species from the factors. Based on our evaluation of the information provided in the petition and in our files, we have determined that the petition presents substantial information to indicate that listing of *Trifolium friscanum* may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range resulting from mining. Finding We reviewed and evaluated 38 of the 206 petitioned species, based on the information in the petition and the literature cited in the petition, and we have evaluated the information to determine whether the sources cited support the claims made in the petition relating to the five listing factors. We also reviewed reliable information in our files. We find that the petition does not present substantial information that listing may be warranted for nine species: Washington duskysnail ( *Amnicola sp. 2* ), *Camissonia exilis* (Cottonwood Spring suncup), lake disc ( *Discus brunsoni* ), *Frasera gypsicola* (Sunnyside green-gentian), *Lomatium latilobum* (Canyonlands lomatium), *Lygodesmia doloresensis* (Dolores river skeletonplant), Drummond mountainsnail ( *Oreohelix sp. 4* ), Bitterroot mountainsnail ( *Oreohelix amariradix* ), and keeled mountainsnail ( *Oreohelix carinifera* ). We find that the petition presents substantial scientific or commercial information that listing the remaining 29 of the 38 species that we evaluated as threatened or endangered under the Act may be warranted. Therefore, we are initiating a status review to determine whether listing these 29 species under the Act is warranted. We previously determined that emergency listing of any of the 38 species is not warranted. However, if at any time we determine that emergency listing of any of the species is warranted, we will initiate an emergency listing. The petitioners also request that critical habitat be designated for the species concurrent with final listing under the Act. If we determine in our 12-month finding, following the status review of the species, that listing is warranted, we will address the designation of critical habitat in the subsequent proposed rule. References Cited A complete list of references cited is available on the Internet at Docket No. FWS-R2-ES-2008-0131 at *http://www.regulations.gov* and upon request from the Mountain-Prairie Region Ecological Services Office (see ADDRESSES ). Author The primary authors of this document are the staff members of the Mountain-Prairie Region Ecological Services Offices ( *see* ADDRESSES ). Authority The authority for this action is the Endangered Species Act of 1973, as amended (U.S.C. 1531 *et seq.* ). Dated: * August 6, 2009.* Jerome Ford, Acting Director, U.S. Fish and Wildlife Service. [FR Doc. E9-19494 Filed 8-17-09; 8:45 am] BILLING CODE 4310-55-P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R8-ES-2009-0044; 92210-1117-0000-FY09-B4] RIN 1018-AU23 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Sonoma County Distinct Population Segment of California Tiger Salamander (Ambystoma californiense) AGENCY: Fish and Wildlife Service, Interior. ACTION: Proposed rule; public hearing announcement. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to designate critical habitat for the Sonoma County distinct population segment
(DPS)of the California tiger salamander ( *Ambystoma californiense* ) under the Endangered Species Act of 1973, as amended (Act). In total, approximately 74,223 acres (30,037 hectares) are being proposed for designation as critical habitat. The proposed critical habitat is located in Sonoma County, California. DATES: We will accept comments received or postmarked on or before October 19, 2009. We must receive requests for public hearings, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by October 2, 2009. ADDRESSES: You may submit comments by one of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov* . Follow the instructions for submitting comments to Docket No. FWS-R8-ES-2009-0044. • *U.S. mail or hand-delivery:* Public Comments Processing, Attn: FWS-R8-ES-2009-0044; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203. We will not accept e-mail or faxes. We will post all comments on *http://www.regulations.gov* . This generally means that we will post any personal information you provide us ( *see* the Public Comments section below for more information). FOR FURTHER INFORMATION CONTACT: Susan Moore, Field Supervisor, U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office, Cottage Way, W-2605, Sacramento, CA 95825; telephone 916-414-6600; facsimile 916-414-6713. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service
(FIRS)at 800-877-8339. SUPPLEMENTARY INFORMATION: Public Comments We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from the public, other concerned governmental agencies, the scientific community, industry, or other interested party concerning this proposed rule. We particularly seek comments concerning:
(1)The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Endangered Species Act of 1973, as amended
(Act)(16 U.S.C. 1531 *et seq.* ) including whether there are threats to the species from human activity, the degree of which can be expected to increase due to the designation, and whether that increase in threat outweighs the benefit of designation such that the designation of critical habitat is not prudent;
(2)Specific information on: • The amount and distribution of California tiger salamander
(CTS)habitat, • What areas occupied at the time of listing and that contain features essential to the conservation of the species we should include in the designation and why, and • What areas not occupied at the time of listing are essential for the conservation of the species and why.
(3)Additional information concerning the range, distribution, and population size of this species, including the locations of any additional populations of this species that would help us further refine boundaries of critical habitat;
(4)Information that may assist us in clarifying the primary constituent elements;
(5)Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat;
(6)Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation. We are particularly interested in any impacts on small entities or families, and the benefits of including or excluding areas that exhibit these impacts;
(7)Information on whether the benefit of exclusion of any particular area, such as areas covered by habitat conservation plans or other types of management agreements, outweighs the benefit of inclusion under section 4(b)(2) of the Act; and
(8)Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments. You may submit your comments and materials concerning this proposed rule by one of the methods listed in the ADDRESSES section. We will not consider hand-delivered comments that we do not receive, or mailed comments that are not postmarked, by the date specified in the DATES section. We will post your entire comment—including your personal identifying information—on *http://www.regulations.gov* . If you provide personal identifying information, such as your street address, phone number, or e-mail address, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on *http://www.regulations.gov* , or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office ( *see* FOR FURTHER INFORMATION CONTACT ). Background It is our intent to discuss only those topics directly relevant to the designation of critical habitat in this proposed rule. For more information on the California tiger salamander, a physical description of the California tiger salamander and other information about its taxonomy, distribution, life history, and biology is included in the Background section of the final rule to list California tiger salamander as a threatened species, published in the **Federal Register** on August 4, 2004 (69 FR 47212). Additional relevant information may be found in the final rules to list the Santa Barbara County Distinct Population Segment
(DPS)(65 FR 57242; September 21, 2000) and the Sonoma County DPS of California tiger salamander (68 FR 13498; March 19, 2003); the proposed rules to designate critical habitat for the California tiger salamander in Santa Barbara County (69 FR 3064; January 22, 2004) and the Central population of the species range (69 FR 48570; August 10, 2004); and the final rules to designate critical habitat for the California tiger salamander in Santa Barbara County (69 FR 68568; November 24, 2004) and the Central population (70 FR 49380; August 23, 2005). The information contained in those previous **Federal Register** documents was used in developing this rule. Previous Federal Actions On August 4, 2004, we listed the Central California population of the California tiger salamander as a DPS as threatened (69 FR 47211). At that time we reclassified the California tiger salamander as threatened throughout its range (69 FR 47211), removing the Santa Barbara County and Sonoma County populations as separately listed DPSs (69 FR 47241). On August 18, 2005, as a result of litigation of the August 4, 2004, final rule (69 FR 47211) on the reclassification of the California tiger salamander DPSs ( *Center for Biological Diversity et al.* v. *United States Fish and Wildlife Service et al.* (Case No. C-04 4324 WHA (N.D. Cal. 2005))), the District Court of Northern California sustained the portion of the 2004 final rule pertaining to listing the Central California tiger salamander as threatened with a special rule, vacated the 2004 rule with regard to the Santa Barbara County and Sonoma County DPSs, and reinstated their prior listing as endangered. We are making the necessary changes to the information included in the Code of Federal Regulations
(CFR)in the Regulatory section of this rule and will finalize the changes in the final critical habitat for the Sonoma County DPS of the California tiger salamander. With respect to critical habitat, on October 13, 2004, a complaint was filed in the U.S. District Court for the Northern District of California ( *Center for Biological Diversity et al.* v. *U.S. Fish and Wildlife Service et al.* (Case No. C-04 4324 FMS (N.D. Cal. 2005)), which in part challenged the failure of designating critical habitat for the California tiger salamander in Sonoma County. On February 3, 2005, the District Court approved a settlement agreement that required the Service to submit a final determination on the proposed critical habitat designation for publication in the **Federal Register** on or before December 1, 2005. On August 2, 2005 (70 FR 44301), the Service published a proposed rule to designate approximately 74,223 acres
(ac)(30,037 hectares (ha)) of critical habitat, and on November 17, 2005, we published a revised proposed rule indicating we were considering approximately 21,298 acres for the final designation (70 FR 69717). On December 14, 2005, the Service published a final rule in the **Federal Register** (70 FR 74138), which excluded all proposed critical habitat, resulting in a designation of zero acres of critical habitat. On February 29, 2008, we received a notice of intent to sue from the Center for Biological Diversity that challenged the Service's final designation of critical habitat claiming that it was not based on the best available scientific information. On May 5, 2009, the Court approved a stipulated settlement agreement where the Service agreed to publish a revised proposed rule within 90 days that encompasses the same geographic area as the August 2005 proposal. This revised proposed rule complies with the May 1, 2009, stipulated agreement. Critical Habitat Background Critical habitat is defined in section 3 of the Act as:
(i)The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features
(I)Essential to the conservation of the species and
(II)Which may require special management considerations or protection; and
(ii)Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking. Critical habitat receives protection under section 7 of the Act through the prohibition against Federal agencies carrying out, funding, or authorizing the destruction or adverse modification of critical habitat. Section 7(a)(2) requires consultation on Federal actions that may affect critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner seeks or requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the applicant is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat. For inclusion in a critical habitat designation, the habitat within the geographical area occupied by the species at the time it was listed must contain the physical and biological features essential to the conservation of the species, and be included only if those features may require special management considerations or protection. Critical habitat designations identify, to the extent known using the best scientific and commercial data available, habitat areas that provide essential life-cycle needs of the species (areas on which are found the physical and biological features laid out in the appropriate quantity and spatial arrangement for the conservation of the species). Under the Act and regulations at 50 CFR 424.12, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed only when we determine that those areas are essential for the conservation of the species and that designation limited to those areas occupied at the time of listing would be inadequate to ensure the conservation of the species. Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the **Federal Register** on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines, provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat. When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, or other unpublished materials and expert opinion or personal knowledge. Habitat is often dynamic, and species may move from one area to another over time. Furthermore, we recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be required for recovery of the species. Areas that are important to the conservation of the species, but are outside the critical habitat designation, will continue to be subject to conservation actions we implement under section 7(a)(1) of the Act. Areas that support populations are also subject to the regulatory protections afforded by the section 7(a)(2) jeopardy standard, as determined on the basis of the best available scientific information at the time of the agency action. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome. Primary Constituent Elements
(PCEs)In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12(b), in determining which areas occupied by the species at the time of listing to propose as critical habitat, we consider those physical and biological features that are essential to the conservation of the species that may require special management considerations or protection. We consider the physical and biological features to be the primary constituent elements
(PCEs)laid out in the appropriate quantity and spatial arrangement for the conservation of the species. The PCEs include, but are not limited to:
(1)Space for individual and population growth and for normal behavior;
(2)Food, water, air, light, minerals, or other nutritional or physiological requirements;
(3)Cover or shelter;
(4)Sites for breeding, reproduction, or rearing (or development) of offspring; and
(5)Habitats that are protected from disturbance or are representative of the historic, geographical, and ecological distributions of a species. We derive the specific PCEs from the California tiger salamander's biological needs. The physical and biological features are those PCEs essential to the conservation of the species, laid out in the appropriate quantity and spatial arrangement. All areas proposed as critical habitat for the Sonoma population are within the species' historical range and contain one or more of the PCEs identified as essential for the conservation of the species. Critical habitat for the Sonoma population includes aquatic habitat, upland nonbreeding habitat with underground refugia, and dispersal habitat connecting occupied California tiger salamander locations. The critical habitat we have proposed is designed to allow for an increase in the size of California tiger salamander populations in Sonoma County. Standing bodies of fresh water (including natural and manmade ( *e.g.* , stock)) ponds, vernal pools, and other ephemeral or permanent water bodies that typically support inundation during winter rains and hold water for a minimum of 12 consecutive weeks in a year of average rainfall, are features that are essential for Sonoma population breeding and for providing space, food, and cover necessary to sustain early life-history stages of larval and juvenile California tiger salamander. The 12 consecutive week timeframe includes the timing of winter rains initially fill pools or ponds and signal adults to move to these areas for breeding. Spring rains then maintain pool inundation which allows larvae time needed to grow into metamorphosed juveniles so they can become capable of surviving in upland habitats. During periods of drought or less-than-average rainfall, these sites may not hold water long enough for individuals to complete metamorphosis; however, these sites still meet the definition of critical habitat for the species because they constitute breeding habitat in years of average rainfall. Without areas that have these essential features, the Sonoma population would not survive, reproduce, and develop juveniles that could grow into adult individual salamanders that can complete their life cycles. Stock ponds and vernal pools provide a significant amount of habitat for the Sonoma population remaining in the Santa Rosa Plain. Manmade stock ponds have joined or, in some areas, replaced vernal pools as breeding habitat. A landscape that supports a California tiger salamander population is typically interspersed with vernal pools or stockponds that remain inundated for at least 12 weeks in a year with average rainfall. Upland habitats containing underground refugia have features that are essential for the survival of adult salamanders and juvenile salamanders that have recently undergone metamorphosis. Adult and juvenile California tiger salamanders are primarily terrestrial. Adult California tiger salamanders enter aquatic habitats only for relatively short periods of time to breed. For the majority of their life cycle, California tiger salamanders depend on upland habitats containing underground refugia in the form of small mammal burrows or other underground structures for their survival. These burrows provide protection from the hot, dry weather typical of California in the nonbreeding season. California tiger salamanders also find food in these refugia and rely on them for protection from predators. The presence of small burrowing mammal populations is a key element for the survival of the California tiger salamander because they construct burrows used by California tiger salamanders. Because California tiger salamanders do not construct burrows of their own, without the continuing presence of small mammal burrows in upland habitats, California tiger salamanders would not be able to survive. Upland areas associated with the water bodies are an important source of nutrients to stock ponds or vernal pools (Swanson 1974, p. 406). These nutrients provide the foundation for the aquatic community's food chain, which includes invertebrate and vertebrate animals constituting important food sources for salamanders (Morin 1987, p. 184). Dispersal habitats for this species are generally upland areas adjacent to aquatic habitats which provide connectivity among California tiger salamander suitable aquatic and upland habitats. While California tiger salamander can bypass many obstacles, and do not require a particular type of habitat for dispersal, the habitats connecting essential aquatic and upland habitats need to be accessible (no physical or biological attributes that prevent access to adjacent areas) to function effectively. Agricultural lands such as row crops, orchards, vineyards, and pastures do not constitute barriers to the dispersal of California tiger salamanders, however, a busy highway or interstate may constitute a barrier. The extent to which any attribute is a barrier is a function of the specific geography of the area and its contribution to limiting salamander access to a greater or lesser extent. Dispersal habitats are needed for the conservation of the California tiger salamander. Protecting the ability of California tiger salamanders to move freely across the landscape in search of suitable aquatic and upland habitats is essential in maintaining gene flow and for recolonization of sites that may become temporarily extirpated. Lifetime reproductive success for the California tiger salamander and other tiger salamanders may be naturally low. Trenham *et al.* (2000, p. 372) found the average female bred 1.4 times and produced 8.5 young that survived to metamorphosis per reproductive effort. This reproduction resulted in roughly 12 metamorphic offspring over the lifetime of a female. In part, this low reproductive rate may be due to the extended time it takes for California tiger salamanders to reach sexual maturity; most do not breed until 4 or 5 years of age. While individuals may survive for more than 10 years, it is possible that many breed only once. This presumed low breeding rate, combined with a hypothesized low survivorship of metamorphosed individuals, indicates that reproductive output may not be sufficient to maintain populations. Dispersal habitats help to preserve the population structure of the California tiger salamander. The life history and ecology of the California tiger salamander make it likely that this species has a metapopulation structure. A metapopulation is a set of breeding sites within an area, where typical migration from one local occurrence or breeding site to other areas containing suitable habitat is possible, but not routine. Movement between areas containing suitable upland and aquatic habitats ( *i.e.,* dispersal) is restricted due to inhospitable conditions around and between areas of suitable habitats. Because many of the areas of suitable habitats may be small and support small numbers of salamanders, local extinction of these small units may be common. The persistence of a metapopulation depends on the combined dynamics of these local extinctions and the subsequent recolonization of these areas through dispersal (Hanski and Gilpin 1991, pp. 7-9; Hanski 1994, p. 151). Based on the above needs and our knowledge of the life history, biology, and ecology of the species and the requirements of the habitat to sustain the essential life-history functions of the species, we have determined that the primary constituent elements for the California tiger salamander in Sonoma County are:
(1)Standing bodies of fresh water (including natural and manmade ( *e.g.,* stock)) ponds, vernal pools and other ephemeral or permanent water bodies that typically support inundation during winter/early spring and hold water for a minimum of 12 consecutive weeks in a year of average rainfall.
(2)Upland habitats adjacent and accessible to and from breeding ponds that contain small mammal burrows or other underground refugia that California tiger salamanders depend upon for food, shelter, and protection from the elements and predation.
(3)Accessible upland dispersal habitat between occupied locations that allow for movement between such sites. Methods This proposal is an updating of the 2005 proposed critical habitat designation for the Sonoma County DPS of the California tiger salamander. As required by section 4(b)(1)(A) of the Act, we used the best scientific and commercial data available in determining areas that contain the features that are essential to the conservation of the California tiger salamander in Sonoma County. We reviewed the overall approach to the conservation of the California tiger salamander undertaken by local, State, and Federal agencies operating within the species' range within Sonoma County and those efforts related to the conservation strategy being undertaken by the resource agencies, local governments, and representatives from the environmental and building communities. We based the extent of the proposed critical habitat for the California tiger salamander in Sonoma County on historical and current range of the species as well as the Santa Rosa Plain conservation strategy. Historical records for the species and/or its habitat have been documented throughout the Santa Rosa Plain and into the Petaluma River watershed. Additional criteria used in refining the extent of the critical habitat were the specific soil types associated with habitat for the species and below the 200-foot (61-meter) elevation. Major water courses or floodplains were used to delineate boundaries where information on their location and extent was available. In addition, we used aerial photography to examine historic and current habitat as well as land use patterns. We have also reviewed available information that pertains to the upland and aquatic habitat requirements of this species. Based on the best available information, we included areas where the species historically occurred, or currently occurs, or has the potential to occur based on the suitability of habitat. We identified areas that represent the range of environmental, ecological, and genetic variation of the California tiger salamander in Sonoma County and contain the primary constituent elements ( *see Primary Constituent Elements* ). After identifying the PCEs, we used the PCEs in combination with information on California tiger salamander locations, geographic distribution, vegetation, topography, geology, soils, distribution of California tiger salamander occurrences within and between vernal pool types, watersheds, current land uses, scientific information on the biology and ecology of the California tiger salamander, and conservation principles to identify essential habitat. As a result of this process, the proposed critical habitat unit possesses a combination of occupied and potential aquatic and upland habitat types, including topography, landscape features, and surrounding land uses, and represents the geographical range and environmental variability of habitat for the California tiger salamander. This proposed unit was delineated by digitizing a polygon (map unit) using ArcView (Environmental Systems Research Institute, Inc.) GIS program. The polygon was created by modifying the Potential Range of the California tiger salamander polygon as identified in the *Santa Rosa Plain Conservation Strategy Map* (California Department of Fish and Game 2005, p. 1). We evaluated the historic and current geographic range and potential suitable habitat, and identified areas of nonessential habitat ( *i.e.,* not containing PCEs) ( *see Primary Constituent Elements* ). Those undeveloped areas within and adjacent to developed areas that contain the PCEs are considered potential critical habitat for the species. Special Management Considerations or Protections When designating critical habitat, we assess whether the areas within the geographical area occupied at the time of listing contain features essential to the conservation of the species that may require special management considerations or protection. Within the single unit proposed as critical habitat, we find that the features essential to the conservation of the California tiger salamander may require special management considerations or protection because of the threats outlined below:
(1)Activities that would threaten the utility of California tiger salamander breeding ponds in Sonoma County, such as introduction of nonnative predators, including bullfrogs and nonnative fish;
(2)Activities that could disturb aquatic breeding habitats during the breeding season, such as heavy equipment operation, ground disturbance, maintenance projects ( *e.g.,* pipelines, roads, powerlines), off-road travel, or recreation;
(3)Activities that impair the water quality of aquatic breeding habitat;
(4)Activities that would reduce small mammal populations to the point that there are insufficient underground refugia used by California tiger salamander in Sonoma County for foraging, protection from predators, and shelter from the elements;
(5)Activities that create barriers impassable for salamanders or increase mortality in upland habitat between extant occurrences in breeding habitat; and
(6)Activities that disrupt vernal pool complexes' ability to support California tiger salamander breeding function. In the case of the California tiger salamander in Sonoma County, natural repopulation is likely not possible without human assistance and landowner cooperation. Examples of such proactive activities that benefit the California tiger salamander include enhancement or creation of breeding ponds and control of nonnative predators. These are the types of proactive, voluntary conservation efforts that are necessary to prevent the extinction and promote the recovery of many other species (Wilcove and Lee 2004, p. 639; Shogren *et al.* 1999, p. 1260; Wilcove and Chen 1998, p. 1260; Wilcove *et al.,* 1996, pp. 3-5). Criteria Used To Identify Critical Habitat As required by section 4(b) of the Act and according to section 424.12 of our implementing regulations in the Code of Federal Regulations, we used the best scientific data available in determining areas within the geographical area occupied at the time of listing that contain the features essential to the conservation of the California tiger salamander, and areas outside of the geographical area occupied at the time of listing that are essential for the conservation of the California tiger salamander. We are proposing for designation of critical habitat lands that we have determined were occupied at the time of listing and contain the features essential to the conservation of the California tiger salamander in Sonoma County. When determining proposed critical habitat boundaries within this proposed rule, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack PCEs for the California tiger salamander. The scale of the map we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this proposed rule have been excluded by text in the proposed rule and are not proposed for designation as critical habitat. Therefore, if the critical habitat is finalized as proposed, a Federal action involving these undesignated lands would not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the PCEs in the adjacent designated critical habitat. Proposed Critical Habitat Designation We are proposing to designate as a single unit critical habitat for the California tiger salamander in the Santa Rosa Plain Region. The critical habitat area described below constitutes our current best assessment of the areas that meet the definition of critical habitat for the California tiger salamander. The approximate area encompassed within the proposed critical habitat is 74,223 acres
(ac)(30,037 hectares (ha)), including approximately 887 ac (359 ha) of State lands (676 ac (274 ha) California Department of Fish and Game lands and 211 ac (85 ha) State Commission lands), 26 ac (10.5 ha) of County Regional Park land, and 73,336 ac (29,678 ha) of private and other lands. The area estimate reflects all land within the critical habitat unit boundary. No Federal lands are included in this proposed unit. We present a brief unit description below and an explanation why it meets the definition of critical habitat for California tiger salamander in Sonoma County. The unit is located in central Sonoma County, bordered on the west by the Laguna de Santa Rosa, on the south by Skillman Road northwest of Petaluma, on the east by the foothills, and on the north by Windsor Creek. The Santa Rosa Plain and adjacent areas are characterized by vernal pools, seasonal wetlands, and associated grassland habitat. This proposed designation represents the northernmost part of the geographic distribution of California tiger salamander and includes lands that support California tiger salamander breeding in various vernal pool complexes. This unit contains the physical and biological features essential to the conservation of the California tiger salamander in Sonoma County. The proposed designation encompasses nine vernal pool complexes, each of which contains wetlands that currently support breeding California tiger salamander in Sonoma County. At the time of listing (2003), eight of these complexes were known breeding sites, a ninth breeding location was determined subsequent to listing. The physical and biological features essential to the conservation of the California tiger salamander in Sonoma County may require special management considerations or protections to minimize impacts from: nonnative predators; disturbance of aquatic breeding habitats; activities that impair the water quality of aquatic breeding habitat; activities that reduce underground refugia; creation of impassable barriers; and disruption of vernal pool complex processes ( *see Special Management Considerations or Protections* section above). Effects of Critical Habitat Designation Section 7 Consultation Section 7 of the Act requires Federal agencies, including the Service, to ensure that actions they fund, authorize, or carry out are not likely to destroy or adversely modify critical habitat. Decisions by the Fifth and Ninth Circuits Court of Appeals have invalidated our definition of “destruction or adverse modification” (50 CFR 402.02) ( *see Gifford Pinchot Task Force* v. *U.S. Fish and Wildlife Service,* 378 F. 3d 1059 (9th Cir. 2004) and *Sierra Club* v. *U.S. Fish and Wildlife Service et al.,* 245 F.3d 434, 442 (5th Cir. 2001)), and we do not rely on this regulatory definition when analyzing whether an action is likely to destroy or adversely modify critical habitat. Under the statutory provisions of the Act, we determine destruction or adverse modification on the basis of whether, with implementation of the proposed Federal action, the affected critical habitat would remain functional (or retain those PCEs that relate to the ability of the area to periodically support the species) to serve its intended conservation role for the species. If a species is listed or critical habitat is designated, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or to destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. As a result of this consultation, we document compliance with the requirements of section 7(a)(2) through our issuance of:
(1)A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or
(2)A biological opinion for Federal actions that may affect, and are likely to adversely affect, listed species or critical habitat. When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species or destroy or adversely modify critical habitat, we also provide reasonable and prudent alternatives to the project, if any are identifiable. We define “Reasonable and prudent alternatives” at 50 CFR 402.02 as alternative actions identified during consultation that: • Can be implemented in a manner consistent with the intended purpose of the action; • Can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction; • Are economically and technologically feasible; and • Would, in the Director's opinion, avoid jeopardizing the continued existence of the listed species or destroying or adversely modifying critical habitat. Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable. Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where we have listed a new species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law). Consequently, Federal agencies may sometimes need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat. Federal activities that may affect the California tiger salamander or its designated critical habitat require section 7 consultation under the Act. Activities on State, Tribal, local, or private lands requiring a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 *et seq.* ) or a permit from us under section 10 of the Act) or involving some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency) are subject to the section 7 consultation process. Federal actions not affecting listed species or critical habitat, and actions on State, Tribal, local, or private lands that are not Federally funded, authorized, or permitted, do not require section 7 consultations. Application of the “Adverse Modification” Standard The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would continue to serve its intended conservation role for the species, or retain those PCEs that relate to the ability of the area to periodically support the species. Activities that may destroy or adversely modify critical habitat are those that alter the PCEs to an extent that appreciably reduces the conservation value of critical habitat for the California tiger salamander. As discussed above, the role of critical habitat is to support the life-history needs of the species and provide for the conservation of the species. Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation. Activities that, when carried out, funded, or authorized by a Federal agency, may affect critical habitat and therefore should result in consultation for the California tiger salamander include, but are not limited to:
(1)Actions that would significantly compromise the function of vernal pools, swales, ponds, and other seasonal wetlands as described in the *Primary Constituent Elements* section ( *see* PCE number 1). Such activities could include, but are not limited to, constructing new structures, vineyards, and roads; disking; grading; and water diversion. These activities could destroy California tiger salamander breeding sites, reduce the hydrological regime necessary for successful larval metamorphosis, and/or eliminate or reduce the habitat necessary for the growth and reproduction of the California tiger salamander.
(2)Actions that would significantly fragment and isolate aquatic and upland habitat. Such activities could include, but are not limited to, constructing new structures and new roads. These activities could limit or prevent the dispersal of California tiger salamanders from breeding sites to upland habitat or vice versa due to obstructions to movement composed of structures, certain types of curbs, or increased traffic density. These activities could compromise the metapopulation structure of the Sonoma population by reducing opportunities for recolonization of some sites that may have experienced natural local extinctions. All lands proposed for designation as critical habitat are within the geographic area occupied by the species, and may be used by the California tiger salamander, whether for foraging, breeding, growth of larvae and juveniles, dispersal, migration, genetic exchange, or sheltering. Areas within the Santa Rosa Plain proposed critical habitat unit that contain the PCEs are essential to the conservation of the California tiger salamander. Federal agencies already consult with us on activities in areas currently occupied by the species or if the species may be affected by the action to ensure that their actions do not jeopardize the continued existence of the species. Consultations could arise if a project is proposed within a currently unoccupied portion of a critical habitat unit and the PCEs of the designated critical habitat may be adversely affected by the project. Exemptions Application of Section 4(a)(3) of the Act The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) required each military installation that includes land and water suitable for the conservation and management of natural resources to complete an integrated natural resource management plan (INRMP) by November 17, 2001. An INRMP integrates implementation of the military mission of the installation with stewardship of the natural resources found on the base. Each INRMP includes: • An assessment of the ecological needs on the installation, including the need to provide for the conservation of listed species; • A statement of goals and priorities; • A detailed description of management actions to be implemented to provide for these ecological needs; and • A monitoring and adaptive management plan. Among other things, each INRMP must, to the extent appropriate and applicable, provide for fish and wildlife management; fish and wildlife habitat enhancement or modification; wetland protection, enhancement, and restoration where necessary to support fish and wildlife; and enforcement of applicable natural resource laws. The National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136) amended the Act to limit areas eligible for designation as critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) now provides: “The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.” There are no Department of Defense lands within the proposed critical habitat designation; therefore, there are no exemptions in this proposed rule. Exclusions Application of Section 4(b)(2) of the Act Section 4(b)(2) of the Act states that the Secretary must designate and revise critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the legislative history is clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor. Under section 4(b)(2) of the Act, we may exclude an area from designated critical habitat based on economic impacts, impacts on national security, or any other relevant impacts. In considering whether to exclude a particular area from the designation, we must identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and determine whether the benefits of exclusion outweigh the benefits of inclusion. If based on this analysis, we make the determination that the benefits of exclusion outweigh the benefits of inclusion, we can exclude the area only if such exclusion would not result in the extinction of the species. Exclusions Based on Economic Impacts Under section 4(b)(2) of the Act, we consider the economic impacts of specifying any particular area as critical habitat. In order to consider economic impacts, we are preparing an analysis of the economic impacts of the proposed critical habitat designation and related factors. We will announce the availability of the draft economic analysis in the **Federal Register** as soon as it is completed, at which time we will seek public review and comment. At that time, copies of the draft economic analysis will be available for downloading from the Internet at *http://www.regulations.gov* , or by contacting the Sacramento Fish and Wildlife Office directly ( *see* FOR FURTHER INFORMATION CONTACT ). During the development of a final designation, we will consider economic impacts, public comments, and other new information, and areas may be excluded from the final critical habitat designation under section 4(b)(2) of the Act and our implementing regulations at 50 CFR 424.19. Exclusions Based on National Security Impacts Under section 4(b)(2) of the Act, we consider whether there are lands owned or managed by the Department of Defense
(DOD)where a national security impact might exist. In preparing this proposal, we have determined that the lands within the proposed designation of critical habitat for the California tiger salamander are not owned or managed by the DOD, and therefore, anticipate no impact to national security. There are no areas proposed for exclusion based on impacts on national security. Exclusions Based on Other Relevant Impacts Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security. We consider a number of factors including whether the landowners have developed any HCPs or other management plans for the area, or whether there are conservation partnerships that would be encouraged by designation of, or exclusion from, critical habitat. In addition, we look at any Tribal issues, and consider the government-to-government relationship of the United States with Tribal entities. We also consider any social impacts that might occur because of the designation. In preparing this proposal, we are requesting comments on the benefit to the California tiger salamander from the Sonoma County Office of Education's Low-Effect HCP, which covers approximately 4.42 ac (1.79 ha) in Santa Rosa, California; however, at this time, we are not proposing the exclusion of any areas in the proposed revised critical habitat for the Sonoma population of the California tiger salamander. We also request comments or information on any other management plans for the California tiger salamander within the proposed critical habitat unit. We have determined that the proposed designation does not include any Tribal lands or trust resources, and we anticipate no impact to Tribal lands or trust resources from this proposed critical habitat designation. Peer Review In accordance with our joint policy published in the **Federal Register** on July 1, 1994 (59 FR 34270), we will seek the expert opinions of at least three appropriate and independent specialists regarding this proposed rule. The purpose of such review is to ensure that our critical habitat designation is based on scientifically sound data, assumptions, and analyses. We have invited these peer reviewers to comment during this public comment period on the data used, specific assumptions, and conclusions regarding the proposed designation of critical habitat. We will consider all comments and information received during the comment period on this proposed rule during preparation of a final rulemaking. Accordingly, the final rule may differ from this proposed rule. Public Hearing The Act provides for one or more public hearings on this proposal, if requested. Requests must be received within 45 days after the date of publication of this proposed rule in the **Federal Register** . Such requests must be sent to the address shown in FOR FURTHER INFORMATION CONTACT . We will schedule public hearings on this proposal, if any are requested, and announce the dates, times, and places of those hearings, as well as how to obtain reasonable accommodations, in the **Federal Register** and local newspapers at least 15 days before the hearing. Required Determinations Regulatory Planning and Review Executive Order 12866 requires Federal agencies to submit proposed and final significant rules to the Office of Management and Budget
(OMB)prior to publication in the FR. The Executive Order defines a rule as significant if it meets one of the following four criteria:
(a)The rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government;
(b)The rule will create inconsistencies with other Federal agencies' actions;
(c)The rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients; or
(d)The rule raises novel legal or policy issues. It has been determined that this rule is not “significant.” Regulatory Flexibility Act Under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* , as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities ( *i.e.* , small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the Regulatory Flexibility Act
(RFA)to require Federal agencies to provide a statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities. At this time, we lack the available economic information necessary to provide an adequate factual basis for the required RFA finding. Therefore, we defer the RFA finding until completion of the draft economic analysis prepared under section 4(b)(2) of the Act and E.O. 12866. This draft economic analysis will provide the required factual basis for the RFA finding. Upon completion of the draft economic analysis, we will announce availability of the draft economic analysis of the proposed designation in the **Federal Register** and reopen the public comment period for the proposed designation. We will include with this announcement, as appropriate, an initial regulatory flexibility analysis or a certification that the rule will not have a significant economic impact on a substantial number of small entities accompanied by the factual basis for that determination. We have concluded that deferring the RFA finding until completion of the draft economic analysis is necessary to meet the purposes and requirements of the RFA. Deferring the RFA finding in this manner will ensure that we make a sufficiently informed determination based on adequate economic information and provide the necessary opportunity for public comment. Unfunded Mandates Reform Act In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 *et seq.* ), we make the following findings:
(a)This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, Tribal governments, or the private sector and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or Tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and [T]ribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or [T]ribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except
(i)a condition of Federal assistance or
(ii)a duty arising from participation in a voluntary Federal program.” The designation of critical habitat does not impose a legally binding duty on non-Federal government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply; nor would critical habitat shift the costs of the large entitlement programs listed above on to State governments.
(b)We do not believe that this rule will significantly or uniquely affect small governments. The lands being proposed for critical habitat are mostly private lands with some other local government lands. Given the distribution of this species, small governments will not be uniquely affected by this proposed rule. Small governments will not be affected at all unless they propose an action requiring Federal funds, permits, or other authorization. Any such activity will require that the involved Federal agency ensure that the action is not likely to adversely modify or destroy designated critical habitat. However, as discussed above, Federal agencies are currently required to ensure that any such activity is not likely to jeopardize the species, and no further regulatory impacts from the designation of critical habitat are anticipated. Because we believe this rule will not significantly or uniquely affect small governments, a Small Government Agency Plan is not required. However, we will further evaluate this issue as we conduct our economic analysis, and review and revise this assessment if appropriate. Takings In accordance with Executive Order 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have analyzed the potential takings implications of designating critical habitat for the California tiger salamander in a takings implications assessment. The takings implications assessment concludes that this designation of critical habitat for the California tiger salamander does not pose significant takings implications for lands within or affected by the designation. Federalism In accordance with Executive Order 13132, the rule does not have significant Federalism effects. A Federalism assessment is not required. In keeping with DOI and Department of Commerce policy, we requested information from, and coordinated development of, this proposed critical habitat designation with appropriate State of California resource agencies. The designation may have some benefit to these governments in that the areas essential to the conservation of the species are more clearly defined, and the primary constituent elements of the habitat necessary to the survival of the species are specifically identified. This information does not alter where and what Federally sponsored activities may occur. However, it may assist local governments in long-range planning (rather than having them wait for case-by-case section 7 consultations to occur). Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Civil Justice Reform In accordance with E.O. 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. We have proposed designating critical habitat in accordance with the provisions of the Endangered Species Act. This proposed rule uses standard property descriptions and identifies the primary constituent elements within the designated areas to assist the public in understanding the habitat needs of the California tiger salamander. Paperwork Reduction Act of 1995 This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. 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. National Environmental Policy Act
(NEPA)It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses as defined by NEPA (42 U.S.C. 4321 *et seq.* ) in connection with designating critical habitat under the Act. We published a notice outlining our reasons for this determination in the **Federal Register** on October 25, 1983 (48 FR 49244). This position was upheld by the U.S. Court of Appeals for the Ninth Circuit ( *Douglas County* v. *Babbitt* , 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)). Clarity of the Rule We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(a)Be logically organized;
(b)Use the active voice to address readers directly;
(c)Use clear language rather than jargon;
(d)Be divided into short sections and sentences; and
(e)Use lists and tables wherever possible. If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, *etc.* Government-to-Government Relationship With Tribes In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and the Department of Interior's Manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act”, we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that Tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes. We have determined that there are no Tribal lands essential for the conservation of the California tiger salamander. Therefore, designation of critical habitat for the Sonoma population of the California tiger salamander has not been designated on Tribal lands. Energy Supply, Distribution, or Use On May 18, 2001, the President issued an Executive Order (E.O. 13211; Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) on regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. Based on the previous proposal and final designation of critical habitat in this area, we do not expect it to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required. However, we will further evaluate this issue as we conduct our economic analysis, and review and revise this assessment as warranted. References Cited A complete list of all references cited in this rulemaking is available on the Internet at *http://www.regulations.gov* and upon request from the Field Supervisor, Sacramento Fish and Wildlife Office ( *see* FOR FURTHER INFORMATION CONTACT ). Authors The primary authors of this package are the staff members of the Sacramento Fish and Wildlife Office ( *see* FOR FURTHER INFORMATION CONTACT ). List of Subjects in 50 CFR Part 17 Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation. Proposed Regulation Promulgation Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below: PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS 1. The authority citation for part 17 continues to read as follows: Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted. 2. In § 17.11(h), revise the entry for “Salamander, California tiger” under “AMPHIBIANS” in the List of Endangered and Threatened Wildlife to read as follows: § 17.11 Endangered and threatened wildlife.
(h)* * * Species Common name Scientific name Historic range Vertebrate population where endangered or threatened Status When listed Critical habitat Special rules * * * * * * * AMPHIBIANS * * * * * * * Salamander, California tiger Ambystoma californiense U.S.A.
(CA)U.S.A. (CA-Santa Barbara County) E 667E, 702 17.95(d) NA. Do ......do ......do U.S.A. (CA-Sonoma County) E 729E, 734 ......do ......do Do ......do ......do T ......do 17.43(c). * * * * * * * U.S.A. (CA-Central) 744 3. Amend § 17.95(d) by revising critical habitat for the California tiger salamander ( *Ambystoma californiense* ) in Sonoma County to read as follows: § 17.95 Critical habitat—fish and wildlife.
(d)*Amphibians.* California Tiger Salamander (Ambystoma californiense) California Tiger Salamander in Sonoma County
(52)The critical habitat unit for Sonoma County, CA, is depicted on the map below.
(53)The primary constituent elements of critical habitat for the Sonoma County population of the California tiger salamander are the habitat components that provide:
(i)Standing bodies of fresh water (including natural and manmade ( *e.g.* , stock)) ponds, vernal pools, and other ephemeral or permanent water bodies that typically support inundation during winter and early spring and hold water for a minimum of 12 weeks in a year of average rainfall.
(ii)Upland habitats adjacent and accessible to and from breeding ponds that contain small mammal burrows, or other underground refugia that California tiger salamanders depend upon for food, shelter, and protection from the elements and predation.
(iii)Accessible upland dispersal habitat between occupied locations that allow for movement between such sites.
(54)Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on the effective date of this rule.
(55)Critical Habitat Unit: Santa Rosa Plain Unit, Sonoma County, CA. Data layers defining the map unit were created on a base of USGS 7.5′ quadrangles, and the critical habitat unit was then mapped using Universal Transverse Mercator
(UTM)coordinates.
(56)Santa Rosa Plain Unit, Sonoma County, CA. From USGS 1:24,000 quadrangle map Healdsburg, Sebastopol, Santa Rosa, Two Rock, Cotati, Petaluma, and Mark West Springs, CA. *Note:* Map of Santa Rosa Plain Unit follows: BILLING CODE 4310-55-P EP18AU09.000 Dated: August 3, 2009. Jane Lyder, Deputy Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. E9-18885 Filed 8-17-09; 8:45 am] BILLING CODE 4310-55-C 74 158 Tuesday, August 18, 2009 Notices DEPARTMENT OF AGRICULTURE Food and Nutrition Service Agency Information Collection Activities: Proposed Collection; Comment Request—Form FNS-143, Claim for Reimbursement (Summer Food Service Program); Correction AGENCY: Food and Nutrition Service, USDA. ACTION: Notice; correction. SUMMARY: The Department of Agriculture's Food and Nutrition Service published a document in the **Federal Register** on August 7, 2009, concerning requests for comments on the Summer Food Service Program Claim for Reimbursement, Form FNS-143. The document contained an incorrect date. FOR FURTHER INFORMATION CONTACT: Mrs. Lynn Rodgers-Kuperman at
(703)305-2590. Correction In the **Federal Register** of August 7, 2009, in FR/Vol. 74, No. 151 on page 39609, the second column, correct the “Expiration Date” caption to read: Expiration Date: January 31, 2010. Dated: August 11, 2009. Julia Paradis, Administrator, Food and Nutrition Service. [FR Doc. E9-19766 Filed 8-17-09; 8:45 am] BILLING CODE 3410-30-P DEPARTMENT OF AGRICULTURE Forest Service Boundary Establishment for North Fork Smith and Upper Rogue National Wild and Scenic Rivers, Rogue River-Siskiyou National Forest, Jackson, Douglas, Klamath, and Josephine Counties, OR AGENCY: Forest Service, USDA. ACTION: Notice of availability. SUMMARY: On August 4, 2009, in accordance with 16 U.S.C. 127 1-1287 (section 3(b) of the Wild and Scenic Rivers Act), the USDA Forest Service, Washington Office, transmitted the final boundaries of the North Fork Smith and Upper Rogue National Wild and Scenic Rivers to Congress. As specified by law, the boundaries will not be effective until ninety days after Congress receives the transmittal. FOR FURTHER INFORMATION CONTACT: Information may be obtained by contacting the Rogue River Siskiyou National Forest, P.O. Box 520, Medford, Oregon 97501, 541-858-2200. SUPPLEMENTARY INFORMATION: The North Fork Smith and Upper Rogue National Wild and Scenic Rivers boundaries are available for review at the following offices: USDA Forest Service, Recreation, Yates Building, 14th and Independence Avenues, SW., Washington, DC 20024; USDA Forest Service, Pacific Northwest Region, 333 SW. 1st Ave., Portland, OR 97208; and, Rogue River-Siskiyou National Forest, 333 West 8th Street, Medford, Oregon. The Omnibus Oregon Wild and Scenic Rivers Act of 1988 (Pub. L. 100-557) of October 28, 1988, designated the North Fork Smith and the Upper Rogue River, Oregon, as National Wild and Scenic Rivers, to be administered by the Secretary of Agriculture. Dated: August 7, 2009. Claire Lavendel, Regional Director of Recreation, Lands and Minerals. [FR Doc. E9-19512 Filed 8-17-09; 8:45 am] BILLING CODE 3410-11-M DEPARTMENT OF AGRICULTURE Commodity Credit Corporation Notice of Finding of No Significant Impact on the Final Programmatic Environmental Assessment for the Farm Storage Facility Loan Program AGENCY: Commodity Credit Corporation and Farm Service Agency, USDA. ACTION: Notice; Finding of No Significant Impact. SUMMARY: This notice announces that the Farm Service Agency (FSA), on behalf of the Commodity Credit Corporation (CCC), has completed a Final Programmatic Environmental Assessment
(PEA)and is issuing a Finding of No Significant Impact (FONSI) with respect to the implementation of changes to the Farm Storage Facility Loan
(FSFL)program enacted by the Food, Conservation, and Energy Act of 2008 (2008 Farm Bill). DATES: We will consider comments that we receive by September 17, 2009. ADDRESSES: We invite you to submit comments on this Final PEA. In your comments, include the volume, date, and page number of this issue of the **Federal Register** . You may submit comments by any of the following methods: • *E-mail: FSFLPEA@geo-marine.com.* • *Online:* Go to the Web site at *http://public.geo-marine.com* . Follow the online instructions for submitting comments. • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* . Follow the online instructions for submitting comments. • *Fax:*
(757)873-3703. • *Mail:* FSFL Program PEA, c/o Geo-marine Incorporated, 2713 Magruder Boulevard Suite D, Hampton, VA 23666. • *Hand Delivery or Courier:* Deliver comments to the above address. Comments may be inspected in the Office of the Director, CEPD, FSA, USDA, 1400 Independence Ave., SW., Room 4709 South Building, Washington, DC, between 8 a.m. and 4:30 p.m., Monday through Friday, except holidays. A copy of the FONSI and Final PEA is available through the FSA home page at *http://www.fsa.usda.gov/FSA/webapp?area=home&subject=ecrc&topic=nep-cd* . FOR FURTHER INFORMATION CONTACT: Matthew Ponish, National Environmental Compliance Manager, USDA, FSA, CEPD, Stop 0513, 1400 Independence Ave., SW., Washington, DC 20250-0513,
(202)720-6853, or e-mail: *Matthew.Ponish@wdc.usda.gov* . Persons with disabilities who require alternative means for communication (Braille, large print, audio tape, *etc.* ) should contact the USDA Target Center at
(202)720-2600 (voice and TDD). SUPPLEMENTARY INFORMATION: The FSFL program provides, through the FSA county offices, low-interest loans to eligible producers for the purposes of constructing or upgrading on-farm storage facilities for storing eligible facility loan commodities that such producers produce. The FSFL program is authorized under the CCC Charter Act (15 U.S.C. 714-714p). FSA, on behalf of CCC, administers the FSFL program. The 2008 Farm Bill (Pub. L. 110-246) includes several changes to the FSFL program. The Final PEA assesses the potential environmental impacts associated with implementing changes to provisions of the FSFL program as required by sections 1404 and 1614 of the 2008 Farm Bill (7 U.S.C. 8789). The 2008 Farm Bill specifies the increases to the maximum term of a farm storage facility loan and the maximum loan amount, identifies additional commodities eligible for storage, specifies the required loan security, allows for partial disbursement of loans, and no longer requires a severance agreement if certain conditions are met. In addition, the 2008 Farm Bill gives the Secretary discretionary authority to determine other eligible facility loan commodities. The need for the Proposed Action is to implement provisions of the 2008 Farm Bill that revise the FSFL program. The specific changes to the FSFL program include: • Adding hay and renewable biomass as eligible facility loan commodities and making the appropriate storage facilities eligible for loans; • Extending the maximum loan term to 12 years; • Increasing the maximum loan amount to $500,000; • Allowing one partial loan disbursement and the final disbursement; • Specifying the loan security requirements and allowing the borrower the option to increase the down payment on a loan, instead of requiring a severance agreement from the holder of any prior lien on the real estate where the storage facility is located; and • As a discretionary provision, adding vegetables and fruits that require cold storage facilities as eligible facility loan commodities. FSA analyzed the No Action Alternative (continuation of the FSFL program as currently implemented) as an environmental baseline. The Final PEA also provides a means for the public to voice any suggestions they may have about the program and any ideas for rulemaking. The Final PEA can be reviewed online at: *http://www.fsa.usda.gov/FSA/webapp?area=home&subject=ecrc&topic=nep-cd* . The Final PEA was completed as required by the National Environmental Policy Act (NEPA, 42 U.S.C. 4321-4347), the Council on Environmental Quality
(CEQ)Regulations for Implementing the Procedural Provisions of NEPA (40 CFR parts 1500-1508), and FSA's policy and procedures (7 CFR part 799). Additional analysis under NEPA of potential impacts associated with certain implementation alternatives not included in the PEA may be conducted, as appropriate. Determination In consideration of the analysis documented in the Final PEA and the reasons outlined in the FONSI, the preferred alternative (proposed action) would not constitute a major State or Federal action that would significantly affect the human environment. In accordance with NEPA, 40 CFR part 1502.4, “Major Federal Actions Requiring the Preparation of Environmental Impact Statements,” and 7 CFR part 799, “Environmental Quality and Related Environmental Concerns—Compliance with the National Environmental Policy Act,” and the regulations of the Council on Environmental Quality (40 CFR parts 1500-1508), I find that neither the proposed action nor any of the alternatives analyzed constitute a major Federal action significantly affecting the quality of the human environment. Therefore, no environmental impact statement will be prepared. Signed in Washington, DC, on August 11, 2009. Jonathan W. Coppess, Acting Administrator, Farm Service Agency, and Acting Executive Vice President, Commodity Credit Corporation. [FR Doc. E9-19644 Filed 8-17-09; 8:45 am] BILLING CODE 3410-05-P DEPARTMENT OF AGRICULTURE Natural Resources Conservation Service Notice of Proposed Change to Section IV of the Virginia State Technical Guide AGENCY: Natural Resources Conservation Service (NRCS), U.S. Department of Agriculture. ACTION: Notice of availability of proposed changes in the Virginia NRCS State Technical Guide for review and comment. SUMMARY: It has been determined by the NRCS State Conservationist for Virginia that changes must be made in the NRCS State Technical Guide specifically in practice standards: #500, Obstruction Removal; #326, Clearing and Snagging; #460, Land Clearing; #572, Spoil Spreading; #466, Land Smoothing; #521C, Pond Sealing or Lining, Bentonite Sealant; #521B, Pond Sealing or Lining, Soil Dispersant; #521A, Pond Sealing or Lining, Flexible Membrane; #521D, Pond Sealing, Compacted Clay Treatment. These practices will be used to plan and install conservation practices on cropland, pastureland, woodland, and wildlife land. DATES: Comments will be received for a 30-day period commencing with the date of this publication. FOR FURTHER INFORMATION CONTACT: Inquire in writing to John A. Bricker, State Conservationist, Natural Resources Conservation Service (NRCS), 1606 Santa Rosa Road, Suite 209, Richmond, Virginia 23229-5014; Telephone number
(804)287-1691; Fax number
(804)287-1737. Copies of the practice standards will be made available upon written request to the address shown above or on the Virginia NRCS Web site: *http://www.va.nrcs.usda.gov/technical/draftstandards.html.* SUPPLEMENTARY INFORMATION: Section 343 of the Federal Agriculture Improvement and Reform Act of 1996 states that revisions made after enactment of the law to NRCS State technical guides used to carry out highly erodible land and wetland provisions of the law shall be made available for public review and comment. For the next 30 days, the NRCS in Virginia will receive comments relative to the proposed changes. Following that period, a determination will be made by the NRCS in Virginia regarding disposition of those comments and a final determination of change will be made to the subject standards. Dated: August 11, 2009. W. Ray Dorsett, Acting State Conservationist, Natural Resources Conservation Service, Richmond, Virginia. [FR Doc. E9-19765 Filed 8-17-09; 8:45 am] BILLING CODE 3410-16-P DEPARTMENT OF COMMERCE Submission for OMB Review; Comment Request The Department of Commerce will submit to the Office of Management and Budget
(OMB)for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35). *Agency:* Bureau of Industry and Security (BIS). *Title:* Short Supply—Unprocessed Western Red Cedar. *OMB Control Number:* 0694-0025. *Form Number(s):* None. *Type of Request:* Extension of a currently approved collection without change. *Burden Hours:* 35. *Number of Respondents:* 35. *Average Hours per Response:* 1 hour. *Needs and Uses:* Section 7(i) of the Export Administration Act
(EAA)of 1979, as amended, prohibits the export of unprocessed western red cedar
(WRC)harvested from State or Federal lands, except for unprocessed WRC harvested under contracts entered into before September 30, 1979. To enforce this prohibition, section 754.4 of the Export Administration Regulations requires a validated license for the export of unprocessed WRC harvested from private lands or from State or Federal lands under contracts entered into prior to October 1, 1979. Applications for export licenses must include affidavits, supported by a certificate of inspection issued by a log scaling and grading bureau, to prove the applicant's compliance with the EAA. *Affected Public:* Business and other for-profit organizations. *Frequency:* On occasion. *Respondent's Obligation:* Required to obtain or retain benefits. *OMB Desk Officer:* Jasmeet Seehra,
(202)395-3123. Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer,
(202)482-0266, Department of Commerce, Room 7845, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at *dHynek@doc.gov).* Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to Jasmeet Seehra, OMB Desk Officer, FAX number
(202)395-5167 or via the Internet at *Jasmeet_K._Seehra@omb.eop.gov* . Dated: August 12, 2009. Gwellnar Banks, Management Analyst, Office of the Chief Information Officer. [FR Doc. E9-19728 Filed 8-17-09; 8:45 am] BILLING CODE 3510-33-P DEPARTMENT OF AGRICULTURE Rural Utilities Service RIN 0572-ZA01 DEPARTMENT OF COMMERCE National Telecommunications and Information Administration RIN 0660-ZA28 Broadband Initiatives Program; Broadband Technology Opportunities Program AGENCY: Rural Utilities Service (RUS), Department of Agriculture, and National Telecommunications and Information Administration (NTIA), Department of Commerce. ACTION: Notice of Funds Availability; extension of application closing deadline for pending electronic applications. SUMMARY: RUS and NTIA announce that the application closing deadline for the Broadband Initiatives Program
(BIP)and the Broadband Technology Opportunities Program
(BTOP)is extended until 5 p.m. Eastern Time
(ET)on August 20, 2009, for any electronic applications pending as of 5 p.m. ET on August 14, 2009. There are no changes to the filing instructions for paper applications. DATES: An applicant that is submitting an application for the BIP and BTOP electronically will be permitted to complete electronic submission of its application until 5 p.m. ET on August 20, 2009, so long as its application was pending in the Easygrants® System as of 5 p.m. ET on August 14, 2009 (application closing deadline). FOR FURTHER INFORMATION CONTACT: For general inquiries regarding BIP, contact David J. Villano, Assistant Administrator Telecommunications Program, Rural Utilities Service, e-mail: *bip@wdc.usda.gov* , telephone:
(202)690-0525. For general inquiries regarding BTOP, contact Anthony Wilhelm, Deputy Associate Administrator, Infrastructure Division, Office of Telecommunications and Information Applications, National Telecommunications and Information Administration, e-mail: *btop@ntia.doc.gov, telephone:*
(202)482-2048. SUPPLEMENTARY INFORMATION: On July 9, 2009, RUS and NTIA published a Notice of Funds Availability
(NOFA)and Solicitation of Applications in the **Federal Register** announcing general policy and application procedures for the BIP and BTOP. 74 FR 33104 (2009). In the NOFA, RUS and NTIA encouraged all applicants to submit their applications electronically and required that certain applications be filed electronically through an online application system at *http://www.broadbandusa.gov.* 74 FR at 33118. RUS and NTIA established an application window for these grant programs from July 14, 2009, at 8 a.m. ET through August 14, 2009, at 5 p.m. ET (application closing deadline). Over the last several days, the online application system (Easygrants® System) has experienced service delays due to the volume of activity from potential applicants. The agencies have added additional servers to address these capacity issues. Nevertheless, in an effort to give applicants that have already started the electronic application submission process prior to the application closing deadline an opportunity to complete the submission of those applications, RUS and NTIA announce that an applicant with an application pending in the Easygrants® System as of 5 p.m. ET on August 14, 2009, will be given until 5 p.m. ET on August 20, 2009, to complete the electronic submission of its application. Please note that an applicant must have completed the following steps, at a minimum, to be recognized as having a pending application in the Easygrants® System: 1. Log into the Easygrants® System at *www.broadbandusa.gov;* 2. Select “Start a new application” under “Apply for a new grant/loan;” 3. Select one of the two choices for available funding opportunities; 4. Select “Continue;” and 5. Select “ok” when prompted “Are you sure you want to apply for the program.” All other requirements for electronic submissions set forth in the NOFA remain unchanged. There are no changes to the filing instructions, requirements, or application deadline for paper submissions. Dated: August 13, 2009. Jonathan Adelstein, Administrator, Rural Utilities Service. Anna M. Gomez, Acting Assistant Secretary for Communications and Information, National Telecommunications and Information Administration. [FR Doc. E9-19750 Filed 8-13-09; 4:15 pm] BILLING CODE P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XQ97 Endangered and Threatened Species; Take of Anadromous Fish AGENCY: NOAA's National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), U. S. Department of Commerce. ACTION: Issuance of an enhancement permit. SUMMARY: Notice is hereby given that NMFS has issued Permit 14159 to NMFS Protected Resource Division
(PRD)in Long Beach, CA. ADDRESSES: The permit application, the permit, and related documents are available for review, by appointment, at the foregoing address at: Protected Resources Division, NMFS, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 90802 (ph: 562-980-4026, fax: 562-980-4027, e-mail at: *Matthew.McGoogan@noaa.gov* ).. The permit application is also available for review online at the Authorizations and Permits for Protected Species website at *https://apps.nmfs.noaa.gov* . FOR FURTHER INFORMATION CONTACT: Matt McGoogan at 562-980-4026, or e-mail: Matthew.McGoogan@noaa.gov. SUPPLEMENTARY INFORMATION: Authority The issuance of permits, as required by the Endangered Species Act of 1973 (16 U.S.C. 1531-1543) (ESA), is based on a finding that such permits/modifications:
(1)are applied for in good faith,;
(2)would not operate to the disadvantage of the listed species which are the subject of the permits; and,
(3)are consistent with the purposes and policies set forth in section 2 of the ESA. Authority to take listed species is subject to conditions set forth in the permits. Permits and modifications are issued in accordance with and are subject to the ESA and NMFS regulations (50 CFR parts 222-226) governing listed fish and wildlife permits. Species Covered in This Notice This notice is relevant to federally endangered Southern California Distinct Population Segment of steelhead ( *Oncorhynchus mykiss* ). Permits Issued A notice of the receipt of an application for Permit 14159 was published in the **Federal Register** on March 26, 2009 (74 FR 13192). Permit 14159 was issued to NMFS PRD on June 11, 2009. Permit 14159 authorizes NMFS PRD to conduct and oversee steelhead rescue activities for the endangered steelhead in coastal streams from the Santa Maria River south to the Mexican border. The purpose of this permit is for the enhancement of survival of endangered steelhead. Criteria are defined in the permit application to provide an objective biological basis for determining whether a steelhead rescue is reasonable and necessary to enhance the population. These criteria include instream characteristics and conditions within the affected area, the cause for any observed or projected streamflow decreases or dewatering, the availability of suitable instream areas to safely harbor the rescued steelhead (i.e., relocation areas), and the abundance of steelhead within the affected area. The permit will be applicable only in the following situations: when a rapid response is crucial to steelhead survival, and when mortality of steelhead, if not rescued and relocated, is reasonably certain; and, when take authorization has not been granted, or is not expected, under Section 7 or Section 10 of the ESA. The permit application further defines criteria to increase the likelihood that the permit will not be misused. NMFS' specific responsibilities under the rescue and relocation activities involves:
(1)serving as the permit holder, principal investigator, and the primary contact,
(2)designating and collaborating with the California Department of Fish and Game
(CDFG)as a co-investigator,
(3)determining the need for a steelhead rescue and relocation, and
(4)providing written authorization for undertaking steelhead rescue and relocation. NMFS will retain discretion as principal investigator under the permit for determining, either individually or in collaboration with CDFG, whether a steelhead rescue and relocation are warranted using the established rescue criteria. With regard to authorizing steelhead rescue and relocation, the permit grants NMFS the authority to legally allow its own qualified biologists or those of the CDFG to conduct and oversee operations to capture and relocate steelhead when an imminent threat to the survival of individuals exists and when the rescue criteria are met. Once the determination has been made that a steelhead rescue is needed, NMFS will coordinate the rescue and relocation operation with its own biologists and
(or)those of the CDFG. NMFS and CDFG biologists listed on the permit may enlist help of other qualified individuals to participate in steelhead rescue operations. However, at least one NMFS or CDFG biologist listed on the permit must be present at all times during rescue operations (i.e., persons not listed on the permit cannot conduct fish rescue activities without a permitted NMFS or CDFG representative present). Permit 14159 authorizes NMFS PRD an annual non-lethal take of up to 2000 juvenile steelhead and 100 adult steelhead. The permit also authorizes an annual collection and possession of up to 100 steelhead tissue samples as well as permission to recover up to 20 carcasses per year (if found). All samples and carcasses will be sent to NMFS science center for genetic research and possessing. No intentional lethal take has been authorized for this permit. The authorized unintentional lethal take (mortalities) that may occur during rescue activities is up to100 juvenile steelhead per year. Permit 14159 expires on December 31, 2019. Dated: August 12, 2009. Therese Conant, Acting Division Chief, Endangered Species Division Chief, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. E9-19772 Filed 8-17-09; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE International Trade Administration Energy Efficiency Trade Mission to India (November 16-20, 2009) AGENCY: Department of Commerce. ACTION: Notice. Mission Description Ro Khanna, Deputy Assistant Secretary for Domestic Operations, U.S. and Foreign Commercial Service, will lead an Energy Efficiency Trade Mission to India, November 16-20, 2009. Organized by the United States Department of Commerce, International Trade Administration, U.S. and Foreign Commercial Service (CS), in partnership with the U.S. Department of Energy
(DOE)and U.S. Agency for International Development (USAID), the mission will introduce U.S. manufacturers of energy efficient products and technologies to opportunities in the Indian market. Delegation members will participate in a major DOE and USAID event called “U.S.-India Energy Efficiency Technology Cooperation Conference” in New Delhi. The mission will include appointments, briefings and site visits in New Delhi, Chennai and Mumbai, some of India's most progressive cities dealing with energy efficiency. Trade mission participants will have customized business matchmaking appointments with potential clients, end-users, and partners, and meetings with key Government of India
(GOI)and local government officials. Commercial Setting India is increasingly exploring energy efficient ways of expanding its power supply, due to very limited natural resources and chronic power shortages. In May 2008, the Ministry of Power stated that the energy conservation potential with today's technologies could be 20,000 MW. The Government of India (GOI), aligned with five-year plans, saved only 877 MW from 2002-2007, but from 2007-2012, the target is 10,000 MW. With some of the highest energy prices in the world, Indian companies already have a strong incentive to save on these costs. New GOI targets will soon accelerate the growth of the energy efficiency market in India. To reduce both energy costs and waste, the National Action Plan on Climate Change will soon regulate large energy users such as railways and the aluminum, cement, chlor-alkali, pulp and paper, fertilizer and steel industries, as well as power generation plants. The GOI Bureau of Energy Efficiency will establish sector targets by March 2010, after which point large energy users will be regulated on their energy usage as per the industry targets. This provides tremendous potential for U.S. manufacturers of energy efficient products and energy service companies to tap into these lucrative opportunities. While energy efficiency has many applications in India, recruitment efforts for the trade mission will focus on two of the most promising: • *Industrial:* The energy intensity, or the amount of energy used, in India is generally very high due to obsolete and inefficient energy technologies. The industrial sector comprises 50 percent of India's commercial energy use. According to the Asian Development Bank, the market potential for industrial energy efficiency is approximately $27 billion (with energy savings of 7000 MW). To reduce energy consumption, the GOI plans to analyze the energy requirements of 750 large industrial installations across the above-mentioned energy-intensive sectors, which will be an opportunity for U.S. companies to participate in upgrading equipment and processes. Best prospects for U.S. firms include energy efficient compressors, boilers, turbines, combined cycle power production, heat recovery technology, process control systems, hydraulics, cogeneration equipment, meters, sensors/controls, heating/cooling
(HVAC)systems, lighting units, pumps, appliances, steam systems/generators, and related IT and energy services. • *Construction/green building:* India's green building market is expected to grow to $3.1 billion by 2010. In 2008, fifteen LEED (Leader in Energy and Environmental Design)-certified green buildings were erected in India, with over 1,000 green-friendly buildings expected by 2010. The certifications were made by the CII-Green Business Centre based on standards established by the U.S. Green Building Council. Additionally, many of the industrial installations mentioned above will likely adopt some green building techniques to further cut down their energy costs to meet the new industry energy-usage standards. Green buildings lend a cachet for large Indian companies and multinationals in their development plans. Best prospects include, but are not limited to, heating/cooling
(HVAC)systems, lighting units, pumps, appliances, steam systems/generators, roofing systems, windows, recycled building materials, efficient water technologies, renewable energy technologies, landscape design and effective controls and building management systems. • The mission stops will focus on three of the most promising cities in India for energy efficiency: New Delhi, Chennai and Mumbai, with matchmaking in all three cities. New Delhi, as India's capital, will offer the aforementioned DOE/USAID conference and meetings with GOI officials to learn more about policies and opportunities in India. Chennai, an industrial/manufacturing hub, has enormous potential for energy efficiency. Likewise, Mumbai has many energy-intensive industries that could benefit from energy efficient products and services. Mission Goals The goal of the Energy Efficiency Trade Mission to India is to
(1)facilitate deals by match-making U.S. companies with pre-screened industry representatives and potential clients, customers and partners; and
(2)introduce U.S. companies to industry and government officials in India to learn about policy initiatives that will ease the implementation and financing of energy efficiency projects. Mission Scenario The first stop on the mission itinerary is New Delhi. The delegates will participate in a DOE/USAID conference on Energy Efficiency, which will allow them to network and learn about policies and market opportunities in India. Additionally, the Commercial Service office in India (CS India) will work with the conference organizers to include the U.S. trade mission participants as speakers for the appropriate technical sessions of the conference. The conference will be attended by top decision makers from the Government of India and executives of large companies. The policy recommendations from the last conference in 2006 were influential in helping the Indian Government to formulate its Integrated Energy Strategy later that year. After (and during) the conference, the CS office in New Delhi will arrange one day of matchmaking for each company. Then the group will travel to Chennai, a state with chronic power shortages, for matchmaking meetings and a networking reception. Given its power woes, energy efficiency is a top political priority for the state. Moreover, Chennai is the base for many large Indian and foreign manufacturing installations, which could benefit from energy efficient services and technologies, and home to India's National Energy Efficiency Center of Excellence. Additionally, the green building concept has also gained prominence in Chennai as some of the most recent LEED-certified buildings were built there in 2008. Finally, the delegation will visit Mumbai to participate in one day of matchmaking meetings. As the business and financial capital of the country, Mumbai is home to many energy-intensive industrial sectors and many of the leading design/architecture firms that promote green building in India. The Commercial Service office in Mumbai will arrange matchmaking meetings with potential end-users as well as joint venture partners, and will also organize a roundtable session to discuss financing mechanisms for energy efficiency projects in India. Participation in the mission will include the following: • Pre-travel briefings/webinar on subjects ranging from business practices in India to security; • Pre-scheduled meetings with potential partners, distributors, end-users, or local industry contacts in New Delhi, Chennai and Mumbai; • Transportation to airports in New Delhi, Chennai and Mumbai; • Conference in New Delhi; • Meetings with Indian Government officials; • Participation in industry receptions in New Delhi and Chennai and a financing roundtable luncheon in Mumbai; and • Meetings with CS India's energy efficiency industry specialists in New Delhi, Chennai and Mumbai. Proposed Mission Timetable Companies will be encouraged to arrive Saturday to allow time to rest after their long trip and adjust to the time change before the mission program begins on Monday, November 16. Monday November 16 New Delhi Welcome briefing by U.S. Departments of Commerce and State, Participation in DOE/AID Energy Efficiency Conference, One-on-one business matchmaking appointments, Networking reception. Tuesday November 17 New Delhi Participation in DOE/AID Energy Efficiency Conference, One-on-one business matchmaking appointments. Wednesday November 18 New Delhi/Chennai Morning flight to Chennai, One-on-one business matchmaking appointments, Networking reception. Thursday November 19 Chennai/Mumbai One-on-one business matchmaking appointments, Optional site visit, Evening flight to Mumbai. Friday November 20 Mumbai One-on-one business matchmaking appointments, Roundtable on financing mechanisms for energy efficiency projects in India. Participation Requirements All parties interested in participating in the Energy Efficiency Trade Mission to India must complete and submit an application for consideration by the Department of Commerce. All applicants will be evaluated on their ability to meet certain conditions and best satisfy the selection criteria as outlined below. The mission will be open on a first come first served basis to 12 qualified U.S. companies. *Fees and Expenses:* After a company has been selected to participate on the mission, a payment to the Department of Commerce in the form of a participation fee is required. The participation fee will be $3,500 for small or medium-sized enterprises (SME), * and $4,200 for large firms, which includes one principal representative. The fee for each additional firm representative (large firm or SME) is $750. Expenses for lodging, some meals, incidentals, and travel (except for transportation to and from airports in-country, previously noted) will be the responsibility of each mission participant. The conference fee is included in the trade mission cost. * An SME is defined as a firm with 500 or fewer employees or that otherwise qualifies as a small business under SBA regulations ( *see http://www.sba.gov/services/contracting opportunities/sizestandardstopics/index.html* ). Parent companies, affiliates, and subsidiaries will be considered when determining business size. The dual pricing schedule reflects the Commercial Service's user fee schedule that became effective May 1, 2008 (for additional information see *http://www.export.gov/newsletter/march2008/initiatives.html* ). *Conditions for Participation:* • An applicant must submit a completed and signed mission application and supplemental application materials, including adequate information on the company's products and/or services, primary market objectives, and goals for participation. • Each applicant must also certify that the products and services it seeks to export through the mission are either produced in the United States, or, if not, marketed under the name of a U.S. firm and have at least fifty-one percent U.S. content. *Selection Criteria for Participation:* Selection will be based on the following criteria: • Suitability of a company's products or services to the mission's goals • Applicant's potential for business in India, including likelihood of exports resulting from the trade mission • Consistency of the applicant's goals and objectives with the stated scope of the trade mission Any partisan political activities (including political contributions) of an applicant are entirely irrelevant to the selection process. Timeframe for Recruitment and Applications Mission recruitment will be conducted in an open and public manner, including publication in the **Federal Register** , posting on the Commerce Department trade mission calendar ( *http://www.ita.doc.gov/doctm/tmcal.html* ) and other Internet Web sites, press releases to general and trade media, direct mail, notices by industry trade associations and other multiplier groups, and publicity at industry meetings, symposia, conferences, and trade shows. Recruitment for the mission will begin immediately and conclude no later than September 30, 2009. The mission will be open on a first come first served basis. Applications received after that date will be considered only if space and scheduling constraints permit. *Contacts:* *Houston Export Assistance Center:* Ms. Nyamusi Igambi, *Nyamusi.Igambi@mail.doc.gov* , *Ph:* 713-209-3112, *Fax:* 713-209-3135. *U.S. Commercial Service in India:* Mr. Vaidyanathan Purushothaman, U.S. Commercial Service Chennai, *Ph:* 91-44-2857-4031, *Fax:* 91-44-2857-4212, *Vaidyanathan.purushothaman@mail.doc.gov* . Sean Timmins, Global Trade Programs, Commercial Service Trade Missions Program. [FR Doc. E9-19777 Filed 8-17-09; 8:45 am] BILLING CODE 3510-FP-P DEPARTMENT OF COMMERCE International Trade Administration [A-570-863] Seventh Administrative Review of Honey From the People's Republic of China: Extension of Time Limit for the Preliminary Results AGENCY: Import Administration, International Trade Administration, Department of Commerce. DATES: *Effective Date:* August 18, 2009. FOR FURTHER INFORMATION CONTACT: Blaine Wiltse, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington DC 20230; telephone-
(202)482-6345. SUPPLEMENTARY INFORMATION: Background On February 2, 2009, the Department of Commerce (“Department”) published a notice of initiation of an administrative review of honey from the People's Republic of China (“PRC”), covering the period December 1, 2007 through November 30, 2008. *See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocation in Part* , 74 FR 5821 (February 2, 2009). On March 6, 2009, after receiving comments on U.S. Customs and Border Protection data, the Department selected Anhui Native Produce Import & Export Corp. (“Anhui Native”) and Qinhuangdao Municipal Dafeng Industrial Co., Ltd. (“QMD”) as the mandatory respondents for this review. The Department sent its antidumping questionnaire to Anhui Native and QMD on March 9, 2009. The Department was unable to deliver its questionnaire to QMD due to incorrect addresses. *See* Memorandum to the File from Blaine Wiltse, Case Analyst, RE: Seventh Administrative Review of Honey from the People's Republic of China (“PRC”): Incorrect Addresses for QMD, dated March 27, 2009. On March 30, 2009, Dongtai Peak Honey Industry Co., Ltd. (“Dongtai Peak”) requested treatment as a voluntary respondent, and submitted its Section A response to the Department. On April 13, 2009, the Department selected Dongtai Peak as a voluntary respondent for this review. On April 14, 2009, Dongtai Peak submitted its Sections C and D response to the Department. On April 15, 2009, Anhui Native withdrew its participation from the current review. On June 8, 2009, and June 16, 2009, the Department sent its Supplemental Sections A, C, and D Questionnaire and its Importer Specific Supplemental Questionnaire to Dongtai Peak. On July 8, 2009, and July 13, 2009, Dongtai Peak submitted its response to the Department's Importer Specific Supplemental Questionnaire and Supplemental Sections A, C, and D Questionnaire. The preliminary results of this administrative review are currently due on September 2, 2009. Extension of Time Limit for the Preliminary Results The Department determines that completion of the preliminary results of this review within the statutory time period is not practicable. The Department requires more time to gather and analyze surrogate value information pertaining to this company. Additionally, the Department intends to provide additional time for interested parties to provide comments on supplemental questionnaires and suggested surrogate values. Lastly, the Department requires additional time to analyze the questionnaire responses and to issue additional supplemental questionnaires, if necessary. Therefore, in accordance with section 751(a)(3)(A) of the Tariff Act of 1930, as amended (“Act”), we are extending the time period for issuing the preliminary results of review by 60 days until November 2, 2009. 1 The final results continue to be due 120 days after the publication of the preliminary results. 1 Sixty days from September 2, 2009, is November 1, 2009. However, Department practice dictates that where a deadline falls on a weekend, the appropriate deadline is the next business day. *See Notice of Clarification: Application of “Next Business Day” Rule for Administrative Determination Deadlines Pursuant to the Tariff Act of 1930, As Amended* , 70 FR 24533 (May 10, 2005). This notice is published pursuant to section 751(a)(3)(A) of the Act and 19 CFR 351.213(h)(2). Dated: August 12, 2009. John M. Andersen, Acting Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations. [FR Doc. E9-19780 Filed 8-17-09; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration [A-201-836] Final Results of Antidumping Duty Changed Circumstances Review: Light-Walled Rectangular Pipe and Tube From Mexico AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: On June 18, 2009, the Department of Commerce (the Department) made its preliminary determination that Ternium Mexico S.A. de C.V. (Ternium) is the successor-in-interest to Hylsa S.A. de C.V. (Hylsa) and should be treated as such for antidumping duty cash deposit purposes. *See Notice of Preliminary Results of Antidumping Duty Changed Circumstances Review: Light-Walled Rectangular Pipe and Tube from Mexico* , 74 FR 28887 (June 18, 2009) *(Preliminary Results)* . For purposes of these final results of review, the Department has determined that Ternium is the successor-in-interest to Hylsa and, as a result, should be accorded the same treatment previously accorded to Hylsa in regard to the antidumping duty order on light-walled rectangular pipe and tube (LWRPT) from Mexico as of the date of publication of this notice in the **Federal Register** . DATES: *Effective Date:* August 18, 2009. FOR FURTHER INFORMATION CONTACT: John Drury or Brian Davis, AD/CVD Operations, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone:
(202)482-0195 or
(202)482-7924, respectively. SUPPLEMENTARY INFORMATION: Background On September 3, 2008, Ternium requested that the Department conduct a changed circumstances review of the antidumping duty order of LWRPT from Mexico to determine whether Ternium is the successor-in-interest to Hylsa and should be treated as such for antidumping duty cash deposit purposes. *See Notice of Initiation of Antidumping Duty Changed Circumstances Review: Light-Walled Rectangular Pipe and Tube from Mexico* , 73 FR 63686 (October 27, 2008) ( *Notice of Initiation* ). On June 18, 2009, the Department preliminarily determined that Ternium is the successor-in-interest to Hylsa and should be treated as such for antidumping duty cash deposit purposes. *See Preliminary Results* . On July 13, 2009, the Department published in the **Federal Register** a notice extending the time limit for these final results to August 17, 2009. *See Light-Walled Rectangular Pipe and Tube from Mexico; Extension of Time Limit for Final Results of Antidumping Duty Changed Circumstances Review* , 74 FR 33406 (July 13, 2009). In the *Preliminary Results* , we stated that interested parties could request a hearing no later than 30 days after the publication of the *Preliminary Results* , submit case briefs to the Department no later than 30 days after the publication of the Preliminary Results, and submit rebuttal briefs, limited to the issues raised in those case briefs, five days subsequent to the case briefs' due date. We did not receive any hearing requests or comments on the *Preliminary Results* . Scope of the Order The merchandise subject to this order is certain welded carbon quality light-walled steel pipe and tube, of rectangular (including square) cross section, having a wall thickness of less than 4 mm. The term carbon-quality steel includes both carbon steel and alloy steel which contains only small amounts of alloying elements. Specifically, the term carbon-quality includes products in which none of the elements listed below exceeds the quantity by weight respectively indicated: 1.80 percent of manganese, or 2.25 percent of silicon, or 1.00 percent of copper, or 0.50 percent of aluminum, or 1.25 percent of chromium, or 0.30 percent of cobalt, or 0.40 percent of lead, or 1.25 percent of nickel, or 0.30 percent of tungsten, or 0.10 percent of molybdenum, or 0.10 percent of niobium, or 0.15 percent vanadium, or 0.15 percent of zirconium. The description of carbon-quality is intended to identify carbon-quality products within the scope. The welded carbon-quality rectangular pipe and tube subject to this order is currently classified under the Harmonized Tariff Schedule of the United States (HTSUS) subheadings 7306.61.50.00 and 7306.61.70.60. While HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of this order is dispositive. Final Results of Changed Circumstances Review Based on the information provided by Ternium, the Department's analysis in the *Preliminary Results* , and the fact that interested parties did not submit any briefs during the comment period, the Department hereby determines that Ternium is the successor-in-interest to Hylsa for antidumping duty cash deposit purposes. Instructions to U.S. Customs and Border Protection The Department will instruct U.S. Customs and Border Protection to continue to suspend liquidation of all shipments of the subject merchandise produced and exported by Ternium entered, or withdrawn from warehouse, for consumption, on or after the publication date of this notice in the **Federal Register** at 3.76 percent ( *i.e.* , Hylsa's cash deposit rate). This deposit requirement shall remain in effect until further notice. Notification Regarding Administrative Protective Order This notice also serves as a reminder to parties subject to administrative protective orders
(APOs)of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.306. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is herby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation. We are issuing and publishing these final results and notice in accordance with sections 751(b)(1) and 777(i)(1) and
(2)of the Tariff Act of 1930, as amended, and 19 CFR 351.216. Dated: August 11, 2009. Carole Showers, Acting Deputy Assistant Secretary For Policy and Negotiations. [FR Doc. E9-19822 Filed 8-17-08; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration [A-201-805] Final Results of Antidumping Duty Changed Circumstances Review: Certain Circular Welded Non-Alloy Steel Pipe and Tube from Mexico AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: On June 18, 2009, the Department of Commerce (the Department) made its preliminary determination that Ternium Mexico S.A. de C.V. (Ternium) is the successor-in-interest to Hylsa S.A. de C.V. (Hylsa) and should be treated as such for antidumping duty cash deposit purposes. *See Notice of Preliminary Results of Antidumping Duty Changed Circumstances Review: Certain Circular Welded Non-Alloy Steel Pipe and Tube from Mexico* , 74 FR 28883 (June 18, 2009) ( *Preliminary Results)* . For purposes of these final results of review, the Department has determined that Ternium is the successor-in-interest to Hylsa and, as a result, should be accorded the same treatment previously accorded to Hylsa in regard to the antidumping duty order on certain circular welded non-alloy steel pipe and tube (standard pipe and tube) from Mexico as of the date of publication of this notice in the **Federal Register** . DATES: *Effective Date:* August 18, 2009. FOR FURTHER INFORMATION CONTACT: John Drury or Brian Davis, AD/CVD Operations, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone:
(202)482-0195 or
(202)482-7924, respectively. SUPPLEMENTARY INFORMATION: Background On September 3, 2008, Ternium requested that the Department conduct a changed circumstances review of the antidumping duty order on standard pipe and tube from Mexico to determine whether Ternium is the successor-in-interest to Hylsa and should be treated as such for antidumping duty cash deposit purposes. *See Notice of Initiation of Antidumping Duty Changed Circumstances Review: Circular Welded Non-Alloy Steel Pipe and Tube* , 73 FR 63682 (October 27, 2008) *(Notice of Initiation)* . On June 18, 2009, the Department made its preliminary determination that Ternium is the successor-in-interest to Hylsa and should be treated as such for antidumping duty cash deposit purposes. *See Preliminary Results* . On July 14, 2009, the Department published in the **Federal Register** a notice extending the time limit for these final results to August 17, 2009. *See Circular Welded Non-Alloy Steel Pipe and Tube from Mexico; Extension of Time Limit for Final Results of Antidumping Duty Changed Circumstances Review* , 74 FR 33994 (July 14, 2009). In the *Preliminary Results* , we stated that interested parties could request a hearing no later than 30 days after the publication of the *Preliminary Results* , submit case briefs to the Department no later than 30 days after the publication of the *Preliminary Results* , and submit rebuttal briefs, limited to the issues raised in those case briefs, five days subsequent to the case briefs' due date. We did not receive any hearing requests or comments on the *Preliminary Results* . Scope of the Order The products covered by this order are circular welded non-alloy steel pipes and tubes, of circular cross-section, not more than 406.4 millimeters (16 inches) in outside diameter, regardless of wall thickness, surface finish (black, galvanized, or painted), or end finish (plain end, beveled end, threaded, or threaded and coupled). These pipes and tubes are generally known as standard pipes and tubes and are intended for the low-pressure conveyance of water, steam, natural gas, and other liquids and gases in plumbing and heating systems, air conditioning units, automatic sprinkler systems, and other related uses, and generally meet ASTM A-53 specifications. Standard pipes and tubes may also be used for light load-bearing applications, such as for fence tubing, and as structural pipe tubing used for framing and support members for reconstruction or load-bearing purposes in the construction, shipbuilding, trucking, farm equipment, and related industries. Unfinished conduit pipe is also included in this order. All carbon steel pipes and tubes within the physical description outlined above are included within the scope of this order, except line pipe, oil country tubular goods, boiler tubing, mechanical tubing, pipe and tube hollows for redraws, finished scaffolding, and finished conduit. Standard pipe and tube that is dual or triple certified/stenciled that enters the United States as line pipe of a kind used for oil or gas pipelines is also not included in this order. Imports of the products covered by this order are currently classifiable under the following Harmonized Tariff Schedule
(HTS)subheadings: 7306.30.10.00, 7306.30.50.25, 7306.30.50.32, 7306.30.50.40, 7306.30.50.55, 7306.30.50.85, and 7306.30.50.90. Although the HTS subheadings are provided for convenience and customs purposes, our written description of the scope of this order is dispositive. Final Results of Changed Circumstances Review Based on the information provided by Ternium, the Department's analysis in the *Preliminary Results* , and the fact that interested parties did not submit any briefs during the comment period, the Department hereby determines that Ternium is the successor-in-interest to Hylsa for antidumping duty cash deposit purposes. Instructions to U.S. Customs and Border Protection The Department will instruct U.S. Customs and Border Protection to continue to suspend liquidation of all shipments of the subject merchandise produced and exported by Ternium entered, or withdrawn from warehouse, for consumption, on or after the publication date of this notice in the **Federal Register** at 10.38 percent ( *i.e.* , Hylsa's cash deposit rate). This deposit requirement shall remain in effect until further notice. Notification Regarding Administrative Protective Order This notice also serves as a reminder to parties subject to administrative protective orders
(APOs)of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.306. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is herby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation. We are issuing and publishing these final results and notice in accordance with sections 751(b)(1) and 777(i)(1) and
(2)of the Tariff Act of 1930, as amended, and 19 CFR 351.216. Dated: August 11, 2009. Carole Showers, Acting Deputy Assistant Secretary for Policy and Negotiations. [FR Doc. E9-19783 Filed 8-17-09; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XQ23 Fisheries in the Western Pacific; Marine Conservation Plan for Pacific Insular Areas; American Samoa AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice of agency decision. SUMMARY: NMFS announces the approval of a marine conservation plan
(MCP)for American Samoa. DATES: This agency decision is effective August 11, 2009, through August 10, 2012. ADDRESSES: Copies of the MCP are available from the Western Pacific Fishery Management Council (Council), 1164 Bishop St., Suite 1400, Honolulu, HI 96813, tel 808-522-8220, fax 808-522-8226. FOR FURTHER INFORMATION CONTACT: Jarad Makaiau, Sustainable Fisheries, NMFS Pacific Islands Region, at 808-944-2108. SUPPLEMENTARY INFORMATION: Under Section 204(e)(1)(A)of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the Secretary of State, with the concurrence of the Secretary of Commerce (Secretary) and in consultation with the Council, may negotiate and enter into a Pacific Insular Area fishery agreement (PIAFA) to allow foreign fishing within waters of the U.S. Exclusive Economic Zone
(EEZ)adjacent to American Samoa, Guam, or the Northern Mariana Islands, and at the request and with the concurrence of, and in consultation with, the Governor of the Pacific Insular Area to which the PIAFA applies. Section 204(e)(4) of the Magnuson-Stevens Act requires that prior to entering into a PIAFA, the appropriate Governor and the Council shall develop a three-year MCP detailing the uses for any funds collected by the Secretary under the PIAFA. Any payments received under a PIAFA shall be deposited into the United States Treasury and then covered over to the Treasury of the Pacific Insular Area for which funds were collected. In the case of violations by foreign fishing vessels occurring within the EEZ off any Pacific Insular Area, any amount received by the Secretary which is attributable to fines and penalties imposed under the Magnuson-Stevens Act, including such sums collected from the forfeiture and disposition or sale of property seized subject to its authority, after payment of direct costs of the enforcement action to all entities involved in such action, shall be deposited into the Treasury of the Pacific Insular Area adjacent to the EEZ in which the violation occurred, to be used for fisheries enforcement and for implementation of an MCP. The MCP to be approved by the Secretary must be consistent with the Council's fishery management plans, identify conservation and management objectives (including criteria for determining when such objectives have been met), and prioritize planned marine conservation projects. At its 144 th meeting in March 2009, the Council reviewed and approved the MCP for American Samoa and recommended its submission to the Secretary for approval. NMFS, designee of the Secretary, received the MCP on June 22, 2009. The American Samoa MCP contains seven broad conservation and management objectives that are consistent with the Council's fishery management plans. The MCP also identifies 37 individual projects that would be funded under a PIAFA. The objectives and projects are listed below, in priority order: • Objective 1: Promote responsible domestic fisheries development to provide long term economic growth and stability and local food production. 1. Construct dock for commercial fishing vessels; 2. Construct cold storage and fish processing facilities; 3. Purchase ice making equipment to support local and export markets; 4. Develop fish marketing plan; 5. Longline permit, reporting and quota utilization program; 6. Fish handling and HACCP training; 7. Develop American Samoa Fishermen's Cooperative; 8. Deploy fish aggregation devices for non-LL vessels; 9. Upgrade technology for AS bottomfish fleet; and 10. Promote American Samoa as a sport fishing destination through tournaments. • Objective 2: Support quality research and obtain the most complete scientific information available to assess and manage fisheries. 1. Acquire catch and effort information, and establish online permit and reporting; 2. Conduct reef shark movement study; 3. Improve fisheries data collection through Matai system; 4. Improve fisheries data collection on Ofu, Olosega, and Tau; 5. Study fish spawning in Pala Lagoon; 6. Establish monitoring baseline and economic valuation of mangroves at Nuuuli and Leone Pala; 7. Assess risk of cannery closure on local fishery and ecosystem; 8. Assess risk and determine sustainability of increased commercial fishing due to availability of cold storage; and 9. Set additional regulations after cannery closure. • Objective 3: Promote ecosystem approach in fisheries management, reduce waste in fisheries, and minimize interactions between fisheries and protected species. 1. Assess bycatch and interactions in local fisheries; 2. Assess distribution and population abundance of marine mammals; 3. Study spatio-temporal patterns in abundance, distribution, and movement of green and hawksbill turtles; 4. Determine reef carrying capacity through modeling; 5. Determine extent and quality of deep reef habitat; and 6. Study feasibility of requiring bycatch mitigation methods. • Objective 4: Foster broad and direct public participation in the Council's decision-making process. (No projects for this objective.) • Objective 5: Recognize the importance of island culture and traditional fishing in managing fishery resources, and foster opportunities for participation. 1. Promote traditional fishing practices; 2. Revise American Samoa fishing regulations; and 3. Enhance enforcement capabilities of village by deputizing community members. • Objective 6: Promote regional cooperation to manage inter-jurisdictional fisheries. 1. Establish high school marine fisheries resource management course; 2. Develop local marine science integrated curriculum; 3. Develop educational tools on reef shark conservation; 4. Create video documentary of coral reefs and fisheries; 5. Enhance research training capabilities of local staff; 6. Hold regional collaborative meetings with South Pacific Territories; and 7. Promote junior biologist scientific exchange. • Objective 7: Encourage development of technologies and methods to achieve the most effective level of enforcement and to ensures safety at sea. 1. Install radar to monitor vessel movement; and 2.Improve enforcement of MPAs. This notice announces that NMFS has determined that the MCP for American Samoa satisfies the requirements of the Magnuson-Stevens Act and has approved the MCP for the three-year period August 11, 2009, through August 10, 2012. Dated: August 12, 2009. Kristen C. Koch, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 09-19773 Filed 8-17-09; 8:45 am]
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- SHORT TITLE.§ 801
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- Public information; agency rules, opinions, orders, records, and proceedings§ 552
- Open meetings§ 552b
- Definitions§ 2351
- Federal Aviation Administration§ 106
- Administration§ 8145
- Regulations§ 8149
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- Death gratuity: death after discharge or release from duty or training§ 1476
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- Death gratuity: eligible survivors§ 1477
- Death gratuity for injuries incurred in connection with employee’s service with an Armed Force§ 8102a
- Time for making claim§ 8122
- Repealed. Pub. L. 116–283, div. A, title XVIII, § 1806(d), Jan. 1, 2021, 134 Stat. 4155]§ 2302
- Humanitarian and civic assistance provided in conjunction with military operations§ 401
- Compensation in case of death§ 8133
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- Transferred§ 403k
- EXPEDITED PROCESSING OF REQUESTS FOR JAPANESE IMPERIAL GOVERNMENT RECORDS.§ 804
- New animal drugs§ 360b
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- Action of the Governors§ 3632
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- Congressional declaration of goals and policy§ 1251
- Cooperative plan for conservation and rehabilitation§ 670a
- Definitions§ 658
- Hunting and fishing; rules and regulations; punishment§ 127
CFR
- Definitions.§ 300.3
- Confidential commercial information.§ 4.9
- May I address the unsafe condition in a way other than that set out in the airworthiness directive?§ 39.19
- General.§ 97.20
- Under what authority does the Office of Workers' Compensation Programs operate?§ 1.1
- What evidence is needed to establish a claim?§ 10.115
- Semduramicin.§ 558.555
- Confidentiality of data and information in a new animal drug application file.§ 514.11
- Animal drugs.§ 25.33
- Sabine River.§ 117.493
- Delegation of rulemaking authority.§ 1.05-1
- Performance and operational requirements.§ 168.50
- Applicable waters and number of escort vessels.§ 168.40
- Petitions for rulemaking.§ 1.05-20
- Administrative review of orders and suspension agreements under section 751(a)(1) of the Act.§ 351.213
- Use of business proprietary information.§ 351.306
- Changed circumstances review under section 751(b) of the Act.§ 351.216
72 references not yet in our index
- 7 CFR 1436
- Pub. L. 110-246
- 7 CFR 3015
- 15 USC 714-714p
- Pub. L. 111-5
- 123 Stat. 115
- 13 CFR 313
- 13 CFR 315
- 29 USC 2832
- 15 CFR 4
- 14 CFR 39
- 1 CFR 51
- 14 CFR 97
- 20 CFR 10
- Pub. L. 110-181
- 10 USC 1475-1480
- Pub. L. 85-861
- 72 Stat. 1452
- 5 USC 601-612
- 58 FR 51735
- Pub. L. 109-234
- Pub. L. 104-208
- 21 CFR 558
- 21 CFR 20
- 5 USC 801-808
- 33 CFR 117
- Pub. L. 104-121
- 44 USC 3501-3520
- 2 USC 1531-1538
- 42 USC 4321-4370f
- 39 CFR 3020
- 39 CFR 3015.5
- 39 CFR 3015.5(c)(2)
- 39 CFR 3030
- 40 CFR 52
- 531 F.3d 836
- 550 F.3d 1176
- 40 CFR 97
- 40 CFR 97.102
- 40 CFR 97.302
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F. App'x550 F.3d 1176
F. App'x234 F.3d 1305
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