The Office of Government Ethics is amending its FOIA regulation to indicate certain designations under Executive Order 13392 of December 14, 2005 on Improving Agency Disclosure of Information, to update telephone and contact numbers, and to add OGE's e-mail address for FOIA requesters who want to send their requests electronically.

Pursuant to 5 U.S.C. 553(b) and (d), as Director of the Office of Government Ethics, I find good cause exists for waiving the general notice of proposed rulemaking, opportunity for public comment and 30-day delay in effectiveness as to these amendments. The notice, comment and delayed effective date provisions are being waived because these technical FOIA regulation amendments concern matters of agency organization, practice and procedure.

As Director of the Office of Government Ethics, I certify under the Regulatory Flexibility Act (5 U.S.C. chapter 6) that this rulemaking will not have a significant economic impact on a substantial number of small entities because it only technically amends designation and contact portions of OGE's FOIA rules.

The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply because this amendatory rulemaking does not contain information collection requirements that require the approval of the Office of Management and Budget.

For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. chapter 25, subchapter II), this rule will not significantly or uniquely affect small governments and will not result in increased expenditures by State, local, and tribal governments, or by the private sector, of $100 million or more (as adjusted for inflation) in any one year.

The Office of Government Ethics has determined that this amendatory rulemaking is a nonmajor rule under the Congressional Review Act (5 U.S.C. chapter 8) and will submit a report thereon to the U.S. Senate, House of Representatives and Government Accountability Office in accordance with that law when the rule is transmitted to the Office of the Federal Register for publication.

In promulgating these technical amendments, OGE has adhered to the regulatory philosophy and the applicable principles of regulation set forth in section 1 of Executive Order 12866, Regulatory Planning and Review. These amendments have not been reviewed by the Office of Management and Budget under that Executive order, since they are not deemed “significant” thereunder.

As Director of the Office of Government Ethics, I have reviewed this final amendatory regulation in light of section 3 of Executive Order 12988, Civil Justice Reform, and certify that it meets the applicable standards provided therein.

This rule is issued under Marketing Order Nos. 916 and 917, both as amended (7 CFR parts 916 and 917), regulating the handling of nectarines and peaches grown in California, respectively, hereinafter referred to as the “orders.” The orders are effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

USDA is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This final rule continues in effect the provisions of an interim final rule action that: (1) Eliminated grade, size, maturity, pack, container and inspection requirements for all California nectarines and peaches except those packed in containers labeled “California Well Matured” or “CA WELL MAT;” (2) made seasonal adjustments to the handling requirements applicable to California Well Matured fruit; and (3) removed certain handler reporting requirements that are deemed no longer necessary.

These changes allow industry handlers to reduce costs and provide them greater flexibility in meeting buyer preferences. Also, adjustments are made in light of the newly implemented California State marketing program.

Sections 916.52 and 917.41 of the orders provide authority for handling regulations for fresh California nectarines and peaches. The regulations may include grade, size, maturity, quality, pack, and container requirements. The orders also provide that whenever such requirements are in effect, the fruit subject to such regulation must be inspected by the Federal or Federal-State Inspection Service (FSIS) and certified as meeting the applicable requirements.

The nectarine order has been in effect since 1939, and the peach program has been in effect since 1958. The orders have been used over the years to establish a quality control program that includes minimum grades, sizes, and maturity standards. That program has helped improve the quality of product moving from the farm to market, and has helped growers and handlers more effectively market their crops. Additionally, the orders have been used to ensure that only satisfactory quality nectarines and peaches reach the consumer. This has helped increase and maintain market demand over the years.

Sections 916.53 and 917.42 authorize the modification, suspension, or termination of regulations issued under 916.52 and 917.41, respectively. Changes in regulations have been implemented to reflect changes in industry operating practices and to solve marketing problems as they arise. The committees, which are responsible for local administration of the orders, meet whenever needed, but at least annually, to discuss the orders and the various regulations in effect and to determine if, or what, changes may be necessary to reflect industry needs. As a result, regulatory changes have been made numerous times over the years to address industry changes and to improve program operations.

The industry has struggled to reduce costs in recent years. In its efforts to reduce costs, the industry considered adopting audit-based inspection programs in lieu of traditional inspection programs. Ultimately, the industry determined that these programs would not presently provide sufficient savings to the industry. More recently, the industry considered replacing the existing Federal marketing orders with programs under the State of California that would not require Federal or Federal-State inspection of nectarines and peaches. In 2006, at the request of the industry, the California Department of Food and Agriculture promulgated a State program authorizing voluntary inspections for the nectarine and peach industry.

Beginning with the 2007 season, under the State program, all fruit must meet at least a modified U.S. No.1 grade and be “mature” as defined in the United States Standards for Grades of Nectarines (7 CFR 51.3145 through 51.3160) and United States Standards for Grades of Peaches (7 CFR 51.1210 through 51.1223) (hereinafter referred to as the “Standards”). Inspection costs under the program are minimal because inspection is not mandatory. The industry has also shifted its data collection and promotional activities over to the State program.

The industry subsequently discussed removing all handling regulations under the Federal orders. This would have also resulted in the elimination of all inspection requirements and expenses under the Federal orders. However, the industry believes that buyers value the committees' “CA WELL MAT” mark as an indicator of high quality and may be willing to pay a premium price for fruit marked as such. The “CA WELL MAT” certification mark is owned by the California Tree Fruit Agreement, the management organization of the Peach Commodity Committee (PCC), which also manages the Nectarine Administrative Committee (NAC). Accordingly, the committees decided to maintain all Federal marketing order handling requirements, including inspection and certification requirements, for “California well matured” fruit. The committees, thus, recommended revising the handling regulations to cover only nectarines and peaches packed in containers marked “CA WELL MAT” or “California Well Matured.”

The term “well matured” is defined in the orders' rules and regulations, and has been used for many years by the industry to describe a level of maturity higher than the definition of “mature” in the Standards. The FSIS has been providing certification that these products meet the definition. Containers of nectarines and peaches bearing the certification mark must meet all of the requirements entailed in the definition of “well matured.” Thus, nectarines and peaches must continue to meet the grade and size requirements set forth in the orders' rules and regulations.

The committees met on February 9, 2007, and unanimously recommended that the handling requirements be revised for the 2007 season, which began in April. The committees recommended a crop estimate of 19,000,000 containers of nectarines and 20,000,000 containers of peaches at their May 1, 2007, meetings.

Sections 916.52 and 917.41 of the orders authorize the establishment of pack and container requirements for nectarines and peaches, respectively. Such requirements appear in §§ 916.115, 916.350, 917.150 and 917.442 of the orders' rules and regulations.

Prior to implementation of the interim final rule, §§ 916.115 and 917.150 required that all containers of nectarines and peaches, respectively, be stamped with an FSIS lot stamp number showing that such fruit has been inspected. Since only nectarines and peaches marked “CA WELL MAT” or “California Well Matured” are subject to inspection requirements beginning in the 2007 season, §§ 916.115 and 917.150 were revised to specify that lot stamping is only required on containers so marked.

This rule also continues in effect a revision to paragraph (a)(3) of §§ 916.350 and 917.442 to remove references to “U.S. Mature” and “US MAT” container markings. These references are no longer needed since only fruit packed in containers marked “CA WELL MAT” or “California Well Matured” are subject to handling regulations under the orders this season.

Sections 916.350 and 917.442 also establish weight-count standards for packed containers of nectarines and peaches, respectively. These regulations define a maximum number of nectarines or peaches in a sample when such fruit, which may be packed in tray-packed containers, is converted to volume-filled containers. The regulations also specify how the containers must be marked. In paragraph (a)(8) of § 916.350 and (a)(9) of § 917.442, weight marking requirements are established for nectarines and peaches packed in volume-filled Euro style containers.

According to the committees, some retailers have requested handlers to supply volume-filled Euro containers with a net weight that is equal to the weight of tray-packed Euro containers. By eliminating the net weight requirement for volume-filled Euro containers, handlers are allowed to increase or decrease the amount of fruit in the container to match the net weight of fruit in a tray-packed Euro container, thus giving them more flexibility when marketing their fruit.

Sections 916.52 and 917.41 of the orders authorize the establishment of grade and quality requirements for nectarines and peaches, respectively. Prior to the interim final rule, nectarines and peaches were subject to a modified U.S. No. 1 grade requirement. Handlers were also able to pack to “CA Utility” quality standards, subject to container labeling requirements. The committees recommended continued use of these grade and quality requirements.

However, they recommended that these requirements only be applied to nectarines and peaches packed in containers marked “CA WELL MAT” or “California Well Matured.” This rule continues in effect revisions to paragraph (a) of §§ 916.356 and 917.459 to specify such requirements only for containers of nectarines and peaches marked “CA WELL MAT” or “California Well Matured” during the 2007 and subsequent seasons.

These changes allow industry handlers to reduce inspection costs by removing inspection and certification requirements on containers not marked “CA WELL MAT” and provide them greater flexibility in meeting buyer preferences.

This rule also continues in effect revisions of paragraph (a)(1) of § 916.356 to add an additional tolerance for Peento-type nectarines. Peento-type nectarines, also known as donut® nectarines due to their flattened shape, are prone to growth cracks, which emanate from the blossom end of the fruit. The committees believe that this is a minor defect that does not affect the edibility of the fruit. Thus, this action makes more Peento-type nectarines available to consumers without materially impacting the overall quality of the fruit.

Sections 916.52 and 917.41 of the orders also authorize the establishment of maturity requirements for nectarines and peaches, respectively. The minimum maturity level currently specified for nectarines and peaches is “mature” as defined in the Standards. The regulations also define a higher level of maturity (“well-matured”) that can be used at the option of handlers.

For most varieties, “well-matured” determinations for nectarines and peaches are made using maturity guides (e.g., color chips) along with other maturity tests as may be applied by inspectors. These maturity guides are reviewed each year by the FSIS to determine whether they need to be changed, based upon the most recent information available on the individual characteristics of each nectarine and peach variety.

These maturity guides appear in Table 1 in paragraphs (a)(1)(iv) of §§ 916.356 and 917.459, for nectarines and peaches, respectively. Seasonal adjustments being made to the maturity guide are described below.

Nectarines: Requirements for “well-matured” nectarines are specified in § 916.356 of the order's rules and regulations. This rule revises Table 1 of paragraph (a)(1)(iv) of § 916.356 to add maturity guides for four varieties of nectarines. Specifically, the FSIS recommended adding maturity guides for the Larry's Red, September Bright, and WF 1 varieties to be regulated at the J maturity guide, and for the Prima Diamond VII variety to be regulated at the L maturity guide.

Peaches: Requirements for “well-matured” peaches are specified in § 917.459 of the order's rules and regulations. This rule revises Table 1 of paragraph (a)(1)(iv) of § 917.459 to add maturity guides for 11 peach varieties. Specifically, the FSIS recommended adding maturity guides for the Super Chief and Sweet Crest varieties to be regulated at the H maturity guide; the Junelicious variety to be regulated at the I maturity guide; the Burpeachfourteen (Spring Flame® 20), Henry III, Sharise, Sierra Rich, Sweet Blaze and Sweet Kay varieties to be regulated at the J maturity guide; and the Bright Princess and Summer Fling varieties to be regulated at the L maturity guide.

The committees recommended these maturity guide requirements based on the FSIS's continuing review of individual maturity characteristics and identification of the appropriate maturity guide corresponding to the “well-matured” level of maturity for nectarine and peach varieties in production.

Both orders provide authority (in §§ 916.52 and 917.41) to establish size requirements. Size regulations encourage producers to leave fruit on the tree longer, which improves both size and maturity of the fruit. Acceptable fruit size provides greater consumer satisfaction and promotes repeat purchases, thereby increasing returns to producers and handlers. In addition, increased fruit size results in increased numbers of packed containers of nectarines and peaches per acre, which is also a benefit to producers and handlers.

Several years ago the committees recommended revisions to allow handlers of late season nectarine and peach varieties to pack smaller sized fruit as long as the fruit was “well matured.” This rule continues in effect revisions to the size regulations in paragraphs (a)(6)(i), (a)(6)(ii), (a)(9)(i), and (a)(9)(ii) of § 916.356 and paragraphs (a)(6)(i) and (a)(6)(ii) to remove size options since only containers marked “CA WELL MAT” or “California Well Matured” are subject to the size regulations under the orders.

Varieties recommended for specific size regulations have been reviewed and such recommendations are based on the specific characteristics of each variety. The committees conduct studies each season on the range of sizes attained by the regulated varieties and those varieties with the potential to become regulated, and determine whether revisions to the size requirements are appropriate.

Nectarines: Section 916.356 of the order's rules and regulations specifies minimum size requirements for fresh nectarines in paragraphs (a)(2) through (a)(9). This rule continues in effect revisions to paragraphs (a)(3), (a)(4), and (a)(6) of § 916.356 to establish variety-specific minimum size requirements for 14 varieties of nectarines that were produced in commercially significant quantities of more than 10,000 containers for the first time during the 2006 season.

For example, one of the varieties recommended for addition to the variety-specific minimum size requirements is the Burnectfive (Spring Flare® 21) variety of nectarines, recommended for regulation at a minimum size 96. Studies of the size ranges attained by the Burnectfive (Spring Flare® 21) variety revealed that 100 percent of the containers met the minimum size of 96 during the 2005 and 2006 seasons. Sizes ranged from size 50 to size 96, with 5.8 percent of the fruit in the 50 sizes, 15.7 percent of the packages in the 60 sizes, 28.6 percent in the 70 sizes, 34.1 percent in the 80 sizes, and 16.8 percent in the 90 sizes.

A review of other varieties with the same harvesting period indicated that the Burnectfive (Spring Flare® 21) variety was also comparable to those varieties in its size ranges for that time period. Discussions with handlers known to handle the variety confirmed this information regarding minimum size and harvesting period. Thus, the recommendation to place the Burnectfive (Spring Flare® 21) variety in the variety-specific minimum size regulation at a minimum size 96 was appropriate. This recommendation results from size studies conducted by the committees over a two-year period.

Historical data such as this provides the committee with the information necessary to recommend the appropriate sizes at which to regulate various nectarine varieties. In addition, producers and handlers of the varieties affected are personally invited to comment when such size recommendations are deliberated. Producer and handler comments are also considered at both NAC and subcommittee meetings when the staff receives such comments, either in writing or verbally.

For reasons similar to those discussed in the preceding paragraph, paragraph (a)(3) of § 916.356 is revised to include the Burnectfive (Spring Flare® 21) variety; paragraph (a)(4) of § 916.356 was revised to include the Burnecttwelve (Sweet Flare® 21), Early Pearl, and Rose Bright varieties; and paragraph (a)(6) of § 916.356 was revised to include the August Bright, Burnectseventeen (Summer Flare® 32), Candy Pearl, Grand Candy, Honey Diva, Larry's Red, Prima Diamond VII, Spring Pearl TM , Sugarine, and Zephyr nectarine varieties.

Peaches: Section 917.459 of the order's rules and regulations specifies minimum size requirements for fresh peaches in paragraphs (a)(2) through (a)(6), and paragraphs (b) and (c). This rule continues to revise paragraphs (a)(2), (a)(3), (a)(4), (a)(5), and (a)(6) of § 917.459 to establish variety-specific minimum size requirements for 11 peach varieties that were produced in commercially significant quantities of more than 10,000 containers for the first time during the 2006 season. This rule also continues to remove the variety-specific minimum size 16 requirements for seven varieties of peaches whose shipments fell below 5,000 containers during the 2006 season.

For example, one of the varieties recommended for addition to the variety-specific minimum size requirements was the May Snow variety of peaches, which was recommended for regulation at a minimum size 88. Studies conducted by the committees on the size ranges attained by the May Snow variety revealed that 97.8 percent of the containers met the minimum size of 88 during the 2005 and 2006 seasons. The sizes ranged from size 40 to size 88, with 11.6 percent of the containers meeting the size 40, 19.2 percent meeting the size 50, 45.7 percent meeting the size 60, 15.1 percent meeting the size 70, 3.4 percent meeting the size 80, 2.3 percent meeting the size 84, and 0.5 percent meeting the size 88 in the 2006 season.

A review of other varieties with the same harvesting period indicated that the May Snow variety was also comparable to those varieties in its size ranges for that time period. Discussions between the committees and handlers known to pack the variety confirmed this information regarding minimum size and the harvesting period. Thus, the recommendation to place the May Snow variety in the variety-specific minimum size regulation at a minimum size 88 is appropriate.

Historical data such as this provides the committee with the information necessary to recommend the appropriate sizes at which to regulate various peach varieties. In addition, producers and handlers of the varieties affected are personally invited to comment when such size recommendations are deliberated. Producer and handler comments are also considered at committee meetings when the staff receives such comments, either in writing or verbally.

For reasons similar to those discussed in the preceding paragraph, paragraph (a)(2) of § 917.459 was revised to include the Snow Angel peach variety; paragraph (a)(3) of § 917.459 was revised to include the May Snow peach variety; paragraph (a)(4) of § 917.459 was revised to include the May Saturn (Early Saturn) peach variety; paragraph (a)(5) of § 917.459 was revised to include the Candy Red, Raspberry, and Sugar Jewel peach varieties; and paragraph (a)(6) of § 917.459 was revised to include the Burpeachfifteen (Summer Flame® 34), Burpeachsixteen, Burpeachtwenty (Summer Flame®), Galaxy, and Snow Magic peach varieties.

Section (a)(4) is reserved for any varieties which will be regulated at a size 84. The May Saturn (Early Saturn) variety, as noted above, is regulated at size 84 under (a)(4).

This rule revises paragraph (a)(5) of § 917.459 to remove the May Sun and Snow Prince peach varieties and paragraph (a)(6) of § 917.459 to remove the 24-SB, Crimson Queen, Jupiter, Red Giant, and Spring Gem peach varieties from the variety-specific minimum size requirements because less than 5,000 containers of each of these varieties was produced during the 2006 season.

Peach varieties removed from the peach variety-specific minimum size requirements are subject to the non-listed variety size requirements specified in paragraphs (b) and (c) of § 917.459.

The committees recommended these changes in the minimum size requirements based on a continuing review of the sizing and maturity relationships for these nectarine and peach varieties, and the consumer acceptance levels for various fruit sizes. This rule is designed to establish minimum size requirements for fresh nectarines and peaches consistent with expected crop and market conditions.

Sections 916.60 and 917.50 of the orders authorize the establishment of reporting requirements for nectarines and peaches, respectively. Prior to the interim rule, under 19 sections 916.160, 917.178, and 917.179, handlers are required to file certain reports pertaining to daily packouts, annual shipments, and shipment destinations. The collection and dissemination of statistical information has been a valuable component of the programs, as it provides growers and handlers with information which enhances their decision-making ability.

However, as a State marketing program has recently been implemented for the California peach and nectarine industries, which includes the collection and dissemination of statistical information, there is no longer a need to require these handler reports under the orders. Therefore, at their February 9, 2007, meetings, the committees recommended removing current handler reporting requirements, beginning with the 2007 season. The committees have implemented a memorandum of understanding to share information with the new State marketing order, so information collected by the State program can be utilized by the committees.

This rule continues in effect revisions removing reporting requirements in § 916.160 for nectarines and §§ 917.178 and 917.179 for peaches. This action reduces handler costs under the orders.

This rule reflects the need to revise the handling and reporting requirements for California nectarines and peaches. This rule is intended primarily to reduce costs and should therefore have a beneficial impact on producers, handlers, and consumers of fresh California nectarines and peaches. This rule is also intended to maintain the perceived value of the “California well matured” certification mark by maintaining current grade, size, quality, pack, container and inspection requirements on fruit packed and labeled as “California Well Matured” or “CA WELL MAT.”

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 175 California nectarine and peach handlers subject to regulation under the orders covering nectarines and peaches grown in California, and about 676 producers of these fruits in California. Small agricultural service firms, which include handlers, are defined by the Small Business Administration (SBA) (13 CFR 121.201) as those whose annual receipts are less than $6,500,000. Small agricultural producers are defined by the SBA as those having annual receipts of less than $750,000. A majority of these handlers and producers may be classified as small entities.

The committees' staff has estimated that there are fewer than 26 handlers in the industry who would not be considered small entities. For the 2006 season, the committees' staff estimated that the average handler price received was $9.00 per container or container equivalent of nectarines or peaches. A handler would have to ship at least 722,223 containers to have annual receipts of $6,500,000. Given data on shipments maintained by the committees' staff and the average handler price received during the 2006 season, the committees' staff estimates that small handlers represent approximately 85 percent of all the handlers within the industry.

The committees' staff has also estimated that fewer than 68 producers in the industry would not be considered small entities. For the 2006 season, the committees estimated the average producer price received was $4.50 per container or container equivalent for nectarines and peaches. A producer would have to produce at least 166,667 containers of nectarines and peaches to have annual receipts of $750,000. Given data maintained by the committees' staff and the average producer price received during the 2006 season, the committees' staff estimates that small producers represent more than 90 percent of the producers within the industry.

With an average producer price of $4.50 per container or container equivalent, and a combined packout of nectarines and peaches of 36,388,996 containers, the value of the 2006 packout is estimated to be $163,750,482. Dividing this total estimated grower revenue figure by the estimated number of producers (676) yields an estimate of average revenue per producer of about $242,234 from the sales of peaches and nectarines.

Under authority provided in §§ 916.52 and 917.41 of the orders, grade, size, maturity, pack, and container marking requirements are established for fresh shipments of California nectarines and peaches, respectively. Such requirements are in effect on a continuing basis. The committees met on February 9, 2007, and unanimously recommended that these handling requirements be revised for the 2007 season. This final rule continues in effect the provisions of an interim final rule action that: (1) Eliminated grade, size, maturity, pack, container and inspection requirements for all California nectarines and peaches except those packed in containers labeled “California Well Matured” or “CA WELL MAT”; (2) makes seasonal adjustments to the handling requirements applicable to California Well Matured fruit; and (3) removes certain handler reporting requirements that are deemed no longer necessary.

Sections 916.350 and 917.442 establish container and pack requirements. The committees discussed removing all handling regulations under the Federal orders, including inspection requirements. However, the industry believes that buyers value the committees' “CA WELL MAT” mark as an indicator of high quality and may be willing to pay a premium price for fruit marked as such. Accordingly, they decided to maintain current grade, quality, maturity, size container, pack and inspection requirements for “well matured” fruit. The committees, thus, recommended revising the handling regulations to cover only nectarines and peaches packed in containers marked “CA WELL MAT” or “California Well Matured.”

Sections 916.115 and 917.150 establish lot stamping requirements. This rule continues in effect lot stamping requirements to require such markings only on containers labeled “CA WELL MAT” or “California Well Matured.” An alternative would be to leave the existing lot stamping requirements unchanged, but the requirements would not be consistent with the other recommended changes and would result in unnecessary expenses for industry handlers. Based on this, the committees recommended revising lot stamping requirements to require such markings only on containers labeled “CA WELL MAT” or “California Well Matured.”

Sections 916.350 and 917.442 also establish weight marking requirements for nectarines and peaches packed in Euro type volume-filled containers. These require each five down Euro container of loose-filled nectarines or peaches to be marked with the words “29 pounds net weight.”

In the past, handlers' sales to their retail customers have been based on set net weights for most pack styles. With the changing marketing environment, some retailers want volume-filled pack styles that have the same net weight as tray pack styles, especially for the Euro type containers.

Handlers either respond to the requests of the retailers or risk losing business from those retailers. The committees agreed that weight markings are no longer necessary; and, in turn, at their February 9, 2007, meetings recommended eliminating the Euro type container weight marking requirement.

Without the weight marking requirements, nectarines and peaches packed in Euro style volume-filled containers can be packed to the buyers' preferences. The committees believe that the elimination of marking requirements will satisfy the stated needs of retailers and will open additional market opportunities for the industry.

Sections 916.356 and 917.459 establish minimum grade and quality requirements. The NAC and PCC previously discussed removing all handling regulations under the orders in favor of regulations under the newly-promulgated State marketing order. However, the industry still wanted to retain quality standards for fruit marketed as “CA WELL MAT,” a term which has value to buyers and the industry. One alternative the committees discussed was to allow handlers to use the mark under a licensing agreement with CTFA. Taking into account enforcement concerns, this approach was not considered feasible.

At their February 9, 2007, meetings, the committees recommended revising the grade and quality requirements to apply only to nectarines and peaches packed in containers marked “CA WELL MAT” or “California Well Matured” beginning with the 2007 season. This action ensures that fruit packed in containers marked “CA WELL MAT” or “California Well Matured” is inspected and meets applicable grade and quality requirements. For this reason, the committees unanimously recommended the revisions in this final rule and believe that they will help accomplish the goals of the industry.

Sections 916.356 and 917.459 establish minimum fruit maturity levels. This rule continues in effect adjustments to the maturity requirements for several varieties of nectarines and peaches. Maturity requirements are based on measurements suggested by maturity guides (e.g., color chips), as reviewed and recommended by the FSIS annually to determine the appropriate guide for each nectarine and peach variety. These annual adjustments reflect refinements in measurements of the maturity characteristics of nectarines and peaches as observed during previous seasons' inspections. Adjustments in the guides utilized ensure acceptable fruit maturity and increased consumer satisfaction while benefiting nectarine and peach producers and handlers.

Sections 916.356 and 917.459 of the orders' rules and regulations also specify minimum sizes for various varieties of nectarines and peaches. This rule continues in effect adjustments to the minimum sizes authorized for certain varieties of each commodity for the 2007 season. Minimum size regulations are put in place to encourage producers to leave fruit on the trees for a longer period of time, increasing both maturity and fruit size. Increased fruit size increases the number of packed containers per acre, and coupled with heightened maturity levels, also provides greater consumer satisfaction, which in turn fosters repeat purchases that benefit producers and handlers alike.

Annual adjustments to minimum sizes of nectarines and peaches, such as these, are recommended by NAC and PCC based upon historical data, producer and handler information regarding sizes attained by different varieties, and trends in consumer purchases.

An alternative to such action would include not establishing minimum size regulations for these new varieties. Such an action, however, would be a significant departure from the committees' past practices and represent a significant change in the regulations as they currently exist. For these reasons, this alternative was not recommended.

Sections 916.356 and 917.459 of the orders' rules and regulations also specify size requirements for handlers of late season nectarine and peach varieties wishing to pack smaller sized fruit as long as the fruit was “well matured.” Since only containers marked “CA WELL MAT” or “California Well Matured” are subject to minimum size requirements, this rule also continues in effect revisions to the size regulations which remove these obsolete size options.

Sections 916.160 and 917.178 establish reporting requirements for nectarine and peach handlers, respectively. Similar reporting requirements have been established under the newly-implemented California State marketing program. Accordingly, collection of this information under the Federal orders is no longer necessary. The committees have implemented a memorandum of understanding to share information with the new State marketing order, so information collected by the State program can be utilized by the committees. An alternative would be to maintain the reporting requirements, but this would result in an unnecessary reporting burden. For this reason, the removal of reporting requirements was unanimously recommended by both committees.

The committees make recommendations regarding the revisions in handling and reporting requirements after considering all available information, including comments received by committee staff. At the meetings, the impact of and alternatives to these recommendations are deliberated. The committees consist of individual producers and handlers with many years of experience in the industry who are familiar with industry practices and trends. All committee meetings are open to the public and comments are widely solicited. In addition, minutes of all meetings are distributed to committee members and others who have requested them, and are also available on the committees' Web site, thereby increasing the availability of this critical information within the industry.

Regarding the impact of this action on the affected entities, each of the revisions is expected to generate financial benefits for producers and handlers through reduced costs and increased fruit sales. Both large and small entities are expected to benefit from the changes, and the costs of compliance are not expected to be significantly different between large and small entities.

This rule continues in effect revisions reducing reporting and recordkeeping requirements on both small and large nectarine and peach handlers regulated under the orders. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection requirements that were removed by the interim final rule were approved by the Office of Management and Budget (OMB), under OMB No. 0581-0189, Generic OMB Fruit Crops. Removal of the reporting requirements under Parts 916 and 917 is expected to reduce the reporting burden on small or large peach and nectarine handlers by 370 hours, and should further reduce industry expenses.

AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

In addition, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

Further, the committees' meetings are widely publicized throughout the nectarine and peach industry and all interested parties are encouraged to attend and participate in committee deliberations on all issues. These meetings are held annually in the fall, winter, and spring. During the February 9, 2007, meetings, all entities, large and small, were encouraged to express views on these issues.

An interim final rule concerning this action was published in the Federal Register on April 16, 2007 (72 FR 18847) . Copies of the rule were posted on the committees' Web site. In addition, the rule was made available through the Internet by USDA and the Office of the Federal Register. That rule provided a 60-day comment period which ended June 15, 2007. Two comments were received during the comment period in response to the rule.

The first commenter, representing the committees, agrees with a majority of the changes that were outlined in the interim final rule. The commenter stated that there was one discrepancy in regards to the reporting requirements. The commenter contends that the committees' intent was to have reporting requirements suspended, not removed, in case the committees recommend reinstating the Federal orders' reporting requirements in the future. The commenter contends that if the reporting requirements are removed, the current OMB approval on the committees' reporting forms will be eliminated.

The suspension of reporting requirements without a reactivation date is essentially equivalent to the removal of reporting requirements. The reinstatement process would not be shortened by retaining the regulations. USDA will work to ensure a timely reinstatement of the reporting requirements should the committees recommend using them in the future. Accordingly, no changes have been made to the rule based on this comment.

The second commenter contends that lowering industry quality standards will adversely affect the public in a number of ways.

However, previously mentioned, beginning with the 2007 season, under the new State program, all fruit must meet at least a modified U.S. No. 1 grade and be “mature” as defined in the Standards for nectarines and peaches. Under the Federal program, all marketing order handling requirements, including inspection and certification requirements, for “California well matured” fruit are maintained. The quality standards are not being lowered; rather they are being revised to give handlers more cost-saving options. Accordingly, no changes have been made to the rule based on this comment.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at the following Web site: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

After consideration of all relevant matters presented, the information and recommendations submitted by the committees, and other information, it is found that finalizing the interim final rule, without change, as published in the Federal Register (72 FR 18847, April 16, 2007) will tend to effectuate the declared policy of the Act. With regard to revision to the rules and regulations under the order and concerning those provisions that were removed or terminated, it is found that those provisions no longer tend to effectuate the declared policy of the Act.

This rule is issued under Marketing Order No. 922 (7 CFR part 922), as amended, regulating the handling of apricots grown in designated counties in Washington, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, apricot handlers in designated counties in Washington are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein will be applicable to all assessable Washington apricots beginning April 1, 2007, and will continue until amended, suspended, or terminated. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This rule increases the assessment rate established for the Committee for the 2007-2008 and subsequent fiscal periods from $1.00 to $1.50 per ton for Washington apricots handled under the order.

The order provides authority for the Committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Committee are producers and handlers of apricots in designated counties in Washington. They are familiar with the Committee's needs and with the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed at a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.

For the 2005-2006 and subsequent fiscal periods, the Committee recommended, and the USDA approved, an assessment rate of $1.00 per ton of apricots handled. This rate continues in effect from fiscal period to fiscal period unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other information available to USDA.

The Committee met on May 24, 2007, and unanimously recommended 2007-2008 expenditures of $6,743. In comparison, the budgeted expenditures for 2006-2007 were $6,400. In addition to the budget, the Committee recommended that the $1.00 per ton assessment rate approved for the 2005-2006 and subsequent fiscal periods be increased by $0.50 to $1.50 per ton of apricots handled. The Committee recommended the higher assessment rate to cover budgeted expenses while increasing its monetary reserve to a level commensurate with program objectives and requirements.

The major expenditures recommended by the Committee for the 2007-2008 fiscal period include $4,800 for management fees, $1,000 for Committee travel, $500 for the annual financial audit, and $100 for compliance. Budgeted expenses for these items in 2006-2007 were $4,800, $1,000, $600, and $100, respectively. The Committee added $343 to its budgeted expenses this year for equipment maintenance, insurance, bonds, and miscellaneous expenses.

The assessment rate recommended by the Committee was derived by dividing its anticipated expenses of $6,743 by the projected apricot crop of 5,400 tons. Applying the $1.50 per ton assessment rate to the Committee's 5,400 ton crop estimate should provide $8,100 in assessment income. Income derived from handler assessments should adequately cover budgeted expenses while adding approximately $1,357 to the $3,980 2006-2007 fiscal year-end reserve fund. As a consequence, the projected 2007-2008 fiscal year-end reserve balance of $5,337 should be within the maximum permitted by the order of approximately one fiscal period's operational expenses.

The assessment rate will continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other available information.

Although this assessment rate will be effective for an indefinite period, the Committee will continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of the Committee's meetings are available from the Committee or USDA. The Committee's meetings are open to the public and interested persons may express their views at these meetings. USDA will evaluate the Committee's recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Committee's 2007-2008 budget and those for subsequent fiscal periods will be reviewed and, as appropriate, approved by USDA.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 300 apricot producers within the regulated production area and approximately 22 regulated handlers. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $6,500,000.

The Washington Agricultural Statistics Service has prepared a report showing that the total 5,400 ton apricot utilization sold for an average of $1,150 per ton in 2006 with a total value of approximately $6,200,000. Based on the number of producers in the production area (300), the average annual producer revenue from the sale of apricots in 2006 can thus be estimated at approximately $20,700. In addition, based on information from the Committee and USDA's Market News Service, 2006 f.o.b. prices ranged from $15.00 to $20.00 per 24-pound loose-pack container, and from $16.00 to $18.00 for 2-layer tray-pack containers. During the 2006 season, approximately 3,728 tons of fresh apricots were packed. Of this total, about 1,569 tons were packed in loose-pack containers and about 2,159 tons were packed in tray-pack containers (weighing an average of about 20 pounds each). The total receipts for 2006 were less than $6,500,000. Thus, the majority of producers and handlers of Washington apricots may be classified as small entities.

This rule increases the assessment rate established for the Committee and collected from handlers for the 2007-2008 and subsequent fiscal periods from $1.00 to $1.50 per ton for apricots handled under authority of the order. The Committee also unanimously recommended 2007-2008 expenditures of $6,743. With the 2007-2008 Washington apricot crop estimate of 5,400 tons, the Committee anticipates assessment income of $8,100. The Committee recommended the assessment rate increase to cover budgeted expenses and to increase the monetary reserve. With the $1.50 per ton assessment rate and the $6,743 budget of expenditures, the Committee should add about $1,357 to its monetary reserve. Thus, the Committee projects a reserve balance of approximately $5,337 on March 31, 2008. This amount is within the maximum permitted by the order of approximately one fiscal period's operational expenses.

The major expenditures recommended by the Committee for the 2007-2008 fiscal period include $4,800 for management fees, $1,000 for Committee travel, $500 for the annual financial audit, and $100 for compliance. Budgeted expenses for these items in 2006-2007 were $4,800, $1,000, $600, and $100, respectively. The Committee added $343 to its budgeted expenses this year for equipment maintenance, insurance, bonds, and miscellaneous expenses.

The Committee discussed alternatives to this assessment rate increase. Leaving the assessment at the $1.00 per ton rate was discussed, but not seriously considered since such a rate would have further eroded the Committee's reserves. Higher and lower rates were also considered but not recommended because the $1.50 rate not only meets the Committee's objectives for the 2007-2008 season, but also increases the reserve to a level commensurate with order provisions.

A review of historical information and preliminary information pertaining to the upcoming crop year indicates that the producer price for the 2007-2008 season could average about $1,000 per ton for fresh Washington apricots. Therefore, the estimated assessment revenue for the 2007-2008 fiscal period as a percentage of total producer revenue is 0.15 percent for Washington apricots.

This action increases the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. Some of the additional costs may be passed on to producers. However, these costs are offset by the benefits derived by the operation of the order.

The Committee's meeting was widely publicized throughout the Washington apricot industry and all interested persons were invited to attend and participate in Committee deliberations on all issues. Like all Committee meetings, the May 24, 2007, meeting was a public meeting and all entities, both large and small, were able to express views on the budget and assessment rate issues.

This rule imposes no additional reporting or recordkeeping requirements on either small or large Washington apricot handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. Furthermore, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

A proposed rule regarding this action was published in the Federal Register on July 13, 2007 (72 FR 38496). Copies of the proposed rule were made available to industry members by the Committee, and by the USDA and the Office of the Federal Register through the Internet. A 10-day comment period ending July 23, 2007, was provided for interested persons to respond to the proposal. No comments were received.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

After consideration of all relevant material presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

Pursuant to 5 U.S.C. 553, it is also found and determined that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) The 2007-2008 fiscal period began on April 1, 2007, and the order requires that the assessment rate for each fiscal period apply to all assessable apricots handled during such fiscal period; (2) the Washington apricot harvest and shipping season is currently under way; (3) the Committee needs to have sufficient funds to pay its expenses, which are incurred on a continuous basis; (4) handlers are aware of this action, which was recommended by the Committee at a public meeting and is similar to other assessment rate actions issued in past years; and (5) a 10-day comment period was provided for in the proposed rule.

This rule is issued under Marketing Agreement No. 143 and Order No. 959, both as amended (7 CFR part 959), regulating the handling of onions grown in South Texas, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

USDA is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This action, which was unanimously recommended by the Committee, continues in effect the action that extended the regulatory period when minimum grade, size, quality, and maturity requirements apply to onions grown under the order in South Texas.

Under the terms of the order, fresh market shipments of onions grown in a 35-county production area in South Texas were, prior to implementation of the interim final rule, subject to handling regulations during the period March 1 through June 4 of each year. According to the Committee, changes in available varieties, growing seasons, and marketing opportunities over the years have resulted in a prolonged onion shipping season that extended beyond June 4 into mid-July. Because the previous regulatory period did not cover the production season completely, not all onion shipments occurring after June 4 were subject to order requirements.

According to USDA Market News data, 40 percent of South Texas onions shipped in 2005 from District 2, or roughly 11 percent of total shipments for the production area, occurred after June 4. In 2006, 30 percent of onions shipped from District 2, or approximately 10 percent of total shipments for the production area, were shipped after June 4.

Section 959.110 of the order's rules and regulations apportions the 35 counties between two onion-growing areas known as District 1, designated as the Coastal Bend-Lower Valley area, and District 2, designated as the Laredo-Winter Garden area. District 1 is comprised of the counties of Victoria, Calhoun, Goliad, Refugio, Bee, Live Oak, San Patricio, Aransas, Jim Wells, Nueces, Kleberg, Brooks, Kenedy, Duval, McMullen, Cameron, Hidalgo, Starr, and Willacy. District 2 includes the counties of Zapata, Webb, Jim Hogg, De Witt, Wilson, Atascosa, Karnes, Val Verde, Frio, Kinney, Uvalde, Medina, Maverick, Zavala, Dimmit, and LaSalle.

Section 959.52(b) of the order provides authority to limit the handling of any grade, size, quality, maturity, or pack of onions within the production area during any period. Section 959.322 outlines the regulatory requirements authorized under § 959.52(b). Such grade requirements are based on the U.S. Standards for Grades of Bermuda-Granex-Grano Type Onions (7 CFR part 51.3195-3212), or the U.S. Standards for Grades of Onions (Other than Bermuda-Granex-Grano and Creole Types) (7 CFR part 51.2830-2854).

Currently, these handling regulations provide that shipments may not exceed 20 percent defects of U.S. No. 1 grade. In percentage grade lots, tolerances for serious damage shall not exceed 10 percent including not more than 2 percent decay. Double the lot tolerance is permitted in individual packages in percentage grade lots. Applications of tolerances in U.S. onion standards apply to in-grade lots.

Minimum size requirements for different size designations are outlined in the regulations. Specifically, for white onions only, the minimum diameter is 1 inch to 2 1/4 inches maximum diameter. For other than white onions, the minimum diameter for repacker onions is 1 3/4 inches to 3 inches maximum with 60 percent or more 2 inches in diameter or larger, 2 to 3 1/2 inches for medium, 3 inches or larger for jumbo or large onions, and 3 3/4 inches or larger for colossal.

The regulations further specify that tolerances for size in the U.S. onion standards shall apply except that for repacker and medium sizes, not more than 20 percent, by weight, of onions in any lot may be larger than the maximum diameter specified.

The previous South Texas regulatory period during which the aforementioned regulations were in effect ran from March 1 through June 4, annually. A final rule published on May 17, 1996 (61 FR 24877), established that regulatory period to promote the orderly marketing of onions.

Extending the end date of the regulatory period from June 4 to July 15 each year provides the consumer with quality onions for a longer period of time because the entire production area will be regulated throughout its shipping period. Normally, South Texas onion handlers continued to voluntarily request inspection of their onions after June 4 to ensure product quality past the previous regulatory period. Because the industry was already voluntarily having their onions inspected, the extension is not expected to negatively impact the industry and this change aligns order requirements with actual industry operations.

Collecting assessments for an additional five weeks provides the Committee with additional assessment revenue. Based on USDA Market News shipment 2005 data, an additional 1,086,600 fifty-pound equivalent cartons would have been assessed if the extended regulatory period had been in effect. At the current assessment rate of $0.02 per carton, this amount would have generated an additional $21,732 in assessment revenue. Similarly, Market News data for 2006 indicates that an additional 863,400 cartons would have been assessed between June 4 and July 15, and would have resulted in $17,268 of additional assessment revenue.

The additional revenue collected as a result of an extended regulatory period in 2007 allows the Committee to further promote onions and conduct more research projects, making it advantageous to the industry as well as the consumer. All producers will realize a better return for a quality pack through research and market development projects funded by the collection of assessments through July 15.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions so that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility. Small agricultural growers have been defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts of less than $750,000. Small agricultural service firms are defined as those with annual receipts of less than $6,500,000.

There are approximately 114 producers of onions in the production area and approximately 38 handlers subject to regulation under the order.

Most of the handlers are vertically integrated corporations involved in producing, shipping, and marketing onions. For the 2005-06 marketing year, the industry's 38 handlers shipped onions produced on 17,694 acres with the average and median volume handled being 182,148 and 174,437 fifty-pound equivalents, respectively. In terms of production value, total revenues for the 38 handlers were estimated to be $44.2 million, with average and median revenues being $1.6 million and $1.12 million, respectively.

The South Texas onion industry is characterized by producers and handlers whose farming operations generally involve more than one commodity, and whose income from farming operations is not exclusively dependent on the production of onions. Alternative crops provide an opportunity to utilize many of the same facilities and equipment not in use when the onion production season is complete. For this reason, typical onion producers and handlers either produce multiple crops or alternate crops within a single year.

Based on the SBA's definition of small entities, the Committee estimates that all of the 38 handlers regulated by the order would be considered small entities if only their onion revenues are considered. However, revenues from other productive enterprises would likely push a number of these handlers above the $6,500,000 annual receipt threshold. All of the 114 producers may be classified as small entities based on the SBA definition if only their revenue from onions is considered.

This rule continues in effect the action that extended the end date of the order's regulatory period from June 4 to July 15 of each year for Texas onions shipped to the fresh market. This action, which was unanimously recommended by the Committee, continues in effect the action that extended the regulatory period when minimum grade, size, quality, and maturity requirements apply to onions grown under the order. Authorization to implement such regulations is provided in § 959.52(b) of the order. Regulatory requirements authorized under this section are provided in § 959.322.

This action provides that fresh onion shipments from the entire South Texas onion production area will meet all order requirements from March 1 through July 15 of each year. Prior to implementation of the interim final rule, the regulations required that onions grown in the production area meet order requirements from March 1 through June 4 of each year.

According to the Committee, changes in available varieties, growing seasons, and marketing opportunities over the years have resulted in a prolonged onion shipping season that extended beyond June 4 into mid-July. Because the previous regulatory period did not cover the production season completely, not all onion shipments occurring after June 4 were subject to mandatory inspection under the order. Extending the regulatory period ensures that all South Texas onions will be inspected to order specifications.

Prior to implementation of the interim final rule, many South Texas onion handlers voluntarily requested inspection of their onions after June 4 to ensure product quality. Because the industry was already voluntarily having their onions inspected, the extension is not expected to negatively impact the industry and this change aligns order requirements with present day industry operations.

According to USDA Market News data, 40 percent of South Texas onions shipped in 2005 from District 2, or roughly 11 percent of total shipments for the production area, occurred after June 4. In 2006, 30 percent of onions shipped from District 2, or approximately 10 percent of total shipments for the production area, were shipped after June 4.

This action is also expected to support Committee promotional and research activities and benefit consumers. The Committee has indicated that collecting assessments for an additional five weeks will provide them with additional assessment revenue.

Based on USDA Market News shipment 2005 data, an additional 1,086,600 fifty-pound equivalent cartons would have been assessed if the extended regulatory period had then been in effect. At the current assessment rate of $0.02 per carton, this amount would have generated an additional $21,732 in assessment revenue. Similarly, Market News data for 2006 indicates that an additional 863,400 cartons would have been assessed between June 4 and July 15, 2006, and would have resulted in $17,268 of additional assessment revenue.

The additional revenue allows the Committee to further promote onions and conduct more research projects, making it advantageous to the industry as well as the consumer. All producers will realize a better return for a quality pack through research and market development projects funded by the collection of assessments through July 15.

The additional five weeks of assessment collection is not expected to significantly burden South Texas onion handlers. A burden calculation of the additional assessments that would have been collected in 2006 if the regulatory period had been in effect for that season indicates that the additional assessment payments by handlers would have equaled 0.039 percent of the total of 2006 production value [($17,268/$44.2 million) × 100 = 0.039]. Total 2006 revenues for the 38 handlers were estimated to be $44.2 million, with average and median revenues being $1.6 million and $1.12 million, respectively.

Extending the end date of the regulatory period from June 4 to July 15 each year will also provide the consumer with quality onions for a longer period of time because the entire production area will be regulated throughout its shipping period.

One alternative to this action would have been to not extend the regulatory period beyond the prior end date of June 4. However, the Committee believed that not extending the regulatory period would have resulted in a significant portion of the South Texas onion crop not being consistently regulated.

While most handlers were extending inspection beyond the June 4 regulatory deadline on a voluntary basis, such inspection was not required. By extending the regulatory period, such inspection became mandatory. Mandatory inspection ensures orderly marketing of all South Texas onions since all handlers and product will be required to fulfill the same inspection requirements and product standards under the order for the entire production period. Therefore, USDA determined that the end date of the regulatory period for South Texas onions should be extended from June 4 to July 15.

While this action will impose some additional costs on South Texas onion handlers and producers, the costs are expected to be minimal, and will be offset by the benefits of the action. The Committee believes that this modification benefits consumers, producers, and handlers. The benefits of this action are not expected to be disproportionately greater or lesser for small entities than for large entities.

This rule will not impose any additional reporting or recordkeeping requirements on either small or large onion handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. In addition, as noted in the initial regulatory flexibility analysis, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.

The AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

Further, the Committee's meeting was widely publicized throughout the South Texas onion industry and all interested persons were invited to attend the meeting and participate in Committee deliberations. All Committee meetings were public meetings and all entities, both large and small, were able to express their views. Furthermore, interested persons were invited to submit information on the regulatory and informational impacts of this action on small businesses.

An interim final rule concerning this action was published in the Federal Register on May 7, 2007. Copies of the rule were mailed by the Committee's staff to all Committee members, onion handlers, and interested persons. In addition, the rule was made available through the Internet by USDA and the Office of the Federal Register. That rule provided for a 60-day comment period which ended July 6, 2007. No comments were received.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

This rule continues in effect the action that extended the regulatory period under the South Texas onion marketing order.

After consideration of all relevant material presented, including the Committee's recommendation, and other information, it is found that finalizing the interim final rule, without change, as published in the Federal Register (72 FR 25677, May 7, 2007) will tend to effectuate the declared policy of the Act.

On December 16, 2005 (70 FR 74950), the NRC published a proposed rule, E-Filing, to require that submissions in any adjudicatory hearing governed by 10 CFR part 2, Subpart C, part 13, or part 110 be made electronically. NRC's Electronic Information Exchange (EIE), a component of the E-Filing system, permits users to make electronic submissions to the agency in a secure manner using digital signature technology to authenticate documents and validate the identity of the person submitting the information. Upon receipt of a transmission, the E-Filing system time-stamps documents transmitted to the NRC and sends the submitter an e-mail notice confirming receipt of the documents.

In crafting the rule, the NRC relied upon its past experience with electronic submissions and also examined Federal court practices. These experiences are derived from the “Electronic Maintenance and Submission of Information” final rule (“E-Rule”), issued October 10, 2003 (68 FR 58792), and the 10 CFR part 2, Subpart J procedures for electronic filing in high-level waste proceedings. The NRC also looked to the use of electronic filing by Federal courts. E-Filing adopts some technical and procedural provisions nearly verbatim from the E-Rule, 10 CFR part 2, Subpart J, and the procedures adopted by the Federal courts.

The E-Filing rule is accompanied by Guidance for Electronic Submissions to the NRC (Guidance), a guidance document that is currently available at http://www.nrc.gov/site-help/e-submittals.html . This guidance document consolidates previous guidance set forth for electronic submittal of information to the agency, and sets forth the technical standards for electronic transmission and for formatting electronic documents as well as instructions on how to obtain and use the agency-provided digital identification (ID) certificate that a participant must have to submit or retrieve an electronic filing through the E-Filing system. These standards have not been included in the rule so that it will be easier and faster for the NRC to amend the Guidance, when warranted, to allow use of the most current technology. Information on accessing and using the E-Filing system is also available on the NRC Web site, http://www.nrc.gov .

E-Filing represents a major revision to the NRC's methods of filing and service in adjudicatory proceedings governed by the Part 2, Subpart C and Part 13 requirements, and a minor revision to Part 110 requirements. The final rule is generally explained in section III of this document; section IV provides a section-by-section analysis of changes made from the proposed rule to the final rule. A thorough explanation of the concepts involved in E-Filing can be found in the proposed E-Filing rule (70 FR 74950; Dec. 16, 2005).

Filing and service involve the transfer of a document from one participant to the presiding officer, the other participants in the proceeding, and the Secretary of the Commission for inclusion in the official proceeding docket. Two types of electronic filing and service exist under E-Filing: fully electronic and partially electronic. Fully electronic filing and service involves the electronic transmission of an electronic document. Partially electronic filing and service entails the physical delivery or mailing of optical storage media (OSM) (such as a CD-ROM) containing an electronic document. While E-Filing permits partially electronic filing and service in cases where necessary, the rule generally calls for fully electronic filing (with certain exceptions permitted by the rule and further described in the Guidance).

The benefits of electronic filing and service originate from the use of electronic transmission and electronic documents. The electronic transmission of documents is more cost effective and faster than physical delivery of paper mail. While the added cost and delay of physically delivering or mailing one document may be small, the total cost and delay could be significant over the course of a proceeding with many filings and a large service list.

In addition, compared to paper documents, electronic documents save resources and increase efficiency. Electronic documents are less expensive to produce, store, transport, and retrieve than paper documents. Electronic documents also have text-searching capability, which allows users to review many documents quickly and find those sections that are relevant to their needs, along with text-capture capability, which enables users to transport entire passages from one document to another quickly. Finally, the filing of electronic documents in the appropriate and uniform format benefits the NRC because the agency already processes filings into electronic formats for storage as official agency records.

Under E-Filing, a participant wishing to file a document is required to convert the document into the appropriate electronic format and electronically transmit it via the agency's EIE to an electronic system monitored by the NRC, called the E-Filing system. The NRC established the E-Filing system, which can be accessed on the NRC's public E-Submittal Web site at http://www.nrc.gov/site-help/e-submittals.html . The system receives, stores, and distributes documents filed in proceedings covered by this final rule for which an electronic hearing docket has been established.

To electronically submit a filing, a participant with an agency-provided digital certificate completes the Adjudicatory Document Submittal form on the E-Submittal system web page and selects the appropriate proceeding docket from a provided drop-down list, which lists all dockets in which that person is a participant. In the case of all initial petitions to intervene or requests for hearings, the potential submitter will follow the instructions in the Notice of Opportunity for Hearing for the proposed licensing activity or as stated on the NRC Web page for obtaining a digital certificate. In essence, the stated process will require the potential submitter of an initial document in a proceeding to contact the NRC Office of the Secretary (SECY) and obtain authorization to apply for a digital certificate. At that time, the initial filing submitter must identify for SECY the matter in which it wants to file an intervention petition or hearing request, including the licensing docket involved and the Federal Register notice, if any, that provides an opportunity for hearing. After SECY is contacted and authorizes obtaining a digital certificate, SECY will establish a docket to receive the intervention petition or other initial filing and any responses thereto filed using the E-Submittal form. If an initial filing submitter already has a digital ID certificate, he or she must still contact SECY so that it can establish a docket to receive the initial filing. Upon being authorized to obtain a digital certificate, the first time submitter, following the procedures on the E-Submittal Web site, will then select the appropriate docket for filing the submission. SECY will also establish a service list that will include those who are identified for service in the Notice of Opportunity for a Hearing.

Thereafter, the participant attaches, signs using the agency-provided digital ID certificate, and transmits the document. For a filing submitted under an order of the presiding officer that prevents the disclosure of certain information except to certain individuals (a protective order) the submitter selects the participants to be served electronically from the electronic distribution list, which is a list of the Atomic Safety and Licensing Board members and other individuals involved in the proceeding as participants or party representatives. For a public filing, the submitter may view the list of participants to be served electronically but cannot alter the list. The transmission process can be performed either by the participant signing the document or another authorized individual, such as a secretary or clerk.

The E-Filing system serves all the persons selected by the submitter (or pre-selected in the case of a public filing) to receive service by sending an e-mail notifying them that a document has been filed and providing them with a temporary link from which they can view and save the document until it is made permanently available though the Publicly Available Record System (PARS) or the Electronic Hearing Docket (EHD). This e-mail constitutes service of the document upon the participants to whom it was sent. Finally, the E-Filing system will send an electronic acknowledgment to the filer, which is an e-mail that confirms receipt of the filing and reports that an e-mail has been sent to the selected persons on the electronic distribution list.

A person filing electronically may seek assistance through the “Contact Us” link located on the NRC Web site at http://www.nrc.gov/site-help/e-submittals.html or by calling the NRC technical help line, which is available during normal business hours. The help line number is 1 (800) 397-4209 or locally, (301) 415-4737.

The EHD is a database that houses a visual presentation of the docket for a particular proceeding and a link to all the filings in that proceeding. The EHD can be accessed through the “Electronic Reading Room” link on the NRC homepage. After an electronic docket has been established, SECY will inform the participants of the docket's existence. SECY will maintain that docket and all publicly available filings will be accessible from the electronic hearing docket site.

Although the electronic hearing docket established by SECY after the initial intervention petition or hearing request will bear the licensing docket number under which the proceeding was designated in the Federal Register notice, after a presiding officer is assigned to the proceeding, SECY will replace the licensing docket number with a proceeding docket number. The proceeding docket number will be exactly the same numerical digits as the licensing docket number, except that a two- or three-letter suffix is added to differentiate between multiple hearings involving the same facility. SECY will inform the participants of the modified proceeding docket number and will instruct them to use the proceeding docket number rather than the licensing docket number when accessing documents.

To access the E-Filing system, a participant must obtain a digital ID certificate from the NRC, which will be supplied at no cost. A digital ID certificate is a unique file downloaded onto a participant's computer that identifies the participant to the E-Filing system. A digital ID verifies the participant's identity for the E-Filing system when making an electronic filing, and enables the participant to digitally sign documents submitted to the system. Digital ID certificates are linked to the e-mail address submitted by the individual when applying for a certificate. Therefore, if a participant changes his or her e-mail address, he or she must apply for a new certificate.

A participant must request a digital ID certificate from the NRC before submitting its first electronic filing with the NRC. If the participant is an organization, the digital ID is assigned to a participant representative, rather than the organization. The notices of opportunity for hearing that the NRC publishes in the Federal Register will remind potential participants of the requirement to obtain a digital ID certificate. After contacting SECY to obtain authorization for a digital ID, a participant should apply for a digital ID on the NRC Web site at http://www.nrc.gov/site-help/e-submittals.html . A participant will be able to seek assistance in obtaining a digital ID certificate through the “Contact Us” link on the “Electronic Submittals” page located on the NRC Web site at http://www.nrc.gov/site-help/e-submittals.html or through the NRC technical help line. After a digital ID certificate is assigned, that ID will provide the participant with access to all the E-Filing proceedings to which it is a participant; therefore, only one digital ID certificate with the appropriate level of access certification is required per participant regardless of the number of proceedings in which that participant is involved. The NRC reserves the right to revoke a digital ID certificate if it is being abused. An individual or organization who anticipates participation in NRC proceedings is encouraged to request a digital ID certificate prior to publication of a notice of opportunity for hearing.

In addition to digital ID certificates assigned to individuals, Group digital ID certificates may be assigned to firms or other organizations. Group digital ID certificates, which can be downloaded onto several computers, allow multiple individuals who do not have an individual digital ID certificate to be served with a filing to the E-Filing system, thus permitting those individuals to retrieve documents filed in the proceeding. Because Group digital ID certificates are assigned to entities, the Group digital ID certificate does not have an electronic signature associated with it and, thus, cannot be used to electronically sign filings submitted to the E-Filing system. Thus, at least one representative of the group must obtain an individual digital ID certificate to be able to file electronically. Further, group digital ID certificates cannot be used to receive filings subject to a protective order because only those who have signed a non-disclosure agreement will receive these filings. Participants or their representatives who have signed non-disclosure agreements must obtain individual digital ID certificates to be served with filings subject to a protective order.

Each proceeding with an electronic docket will have a distribution (electronic service) list, which includes the presiding officer, as well as all of the participants (such as the intervenor(s), applicant/licensee, interested government participant(s), and NRC staff) taking part electronically in that specific proceeding. Upon receiving an initial filing from a participant, SECY will add the participant to the electronic distribution list, thereby providing the participant notification of and access to documents that will be filed in the proceeding and enabling the participant to electronically file and serve the presiding officer and others on the distribution list. Participants may retrieve documents filed more than 14 days previously from the EHD Web site.

E-filing requires that submitters attach a certificate of service, including a service list, to their filings to inform the recipients of the entities who received the filing and how they were served. This procedure is particularly important for protective order filings because the E-Filing system will not automatically select a list of the entities to receive the filing. That responsibility will be left to the submitter to perform under the requirements of the protective order governing filings and restrictions pertaining to service of protected filings on recipients identified in the order or related disclosure agreements. Also, the electronic distribution list may not be an all-inclusive list of the participants in the proceeding because it will not include any participants permitted to file and be served by paper.

10 CFR 2.304(d) provides that all electronic documents must be signed with the assigned digital ID certificate of a participant or a participant's representative or attorney. It also allows for additional signatures by participant representatives or attorneys using a typed designation, as discussed below. The document, however, does not need to be electronically signed and electronically submitted by the same person with the same digital ID certificate. For example, an attorney or participant's representative may electronically sign a document using his or her digital ID certificate, but a secretary may submit the document, using his or her own digital ID certificate.

The Commission considers documents that have been electronically signed following the procedures outlined below to be the equivalent of traditional signed paper documents. To sign a filing with a digital ID certificate, § 2.304(d)(1)(i) requires that a signature block be added to the electronic document before it is submitted. The signature block will consist of the phrase “Signed (electronically) by,” followed by the signer's name and the capacity in which the person is signing. It will also contain the date of signature and the signer's postal address, phone number, and e-mail address. The participant will not need to sign a paper document. The digital signature will be added at the time of submittal to the E-Filing system by the participant clicking on the “Click to Digitally Sign Documents” button.

If additional signatures are added to an electronic document, these signatures must be added using a typed “Executed in Accord with 10 CFR 2.304(d)” designation. To execute a pleading or other submitted document with a typed-in “Executed in Accord with 10 CFR 2.304(d)” designation, the participant would add a signature block, as described above, for the additional signatories and type in the phrase “Executed in Accord with 10 CFR 2.304(d)” on the signature line of the signature blocks for each added signer. As section 2.304(d)(1) indicates, a person executing a pleading or other similar document submitted by a participant using this designation is making a representation that the document has been subscribed in the capacity specified with full authority, that he or she has read it and knows the contents, that to the best of his or her knowledge, information, and belief the statements made in it are true, and that it is not interposed for delay. The Commission also considers documents that have been signed following this procedure to be the equivalent of traditional signed paper documents. Therefore, in a change from the proposed rule, the Commission will not require participants to retain paper copies of handwritten signatures. The NRC staff could also use this method for providing additional signatures, but would type in “/RA/,” meaning “Record Approved,” which is the agency's current method of signing digitally stored documents.

Documents signed under oath or affirmation, such as affidavits, should be executed in the form specified in 28 U.S.C. 1746 and signed with the “Executed in Accord with 10 CFR 2.304(d)” designation as well, which § 2.304(d) now would specify is, in accord with 28 U.S.C. 1746, a representation that, under penalty of perjury, the document is true and correct to the best of that individual's knowledge and belief. The guidance document provides further explanation of signing documents under oath or affirmation.

Under E-Filing, participants should convert their documents into the appropriate electronic formats detailed by the Guidance and electronically transmit these documents to the presiding officer, the other participants, and SECY. The Guidance sets technical standards for filing and service under the rule and defines the file sizes and formats for electronic transmissions. By putting the technical provisions in the Guidance, the Commission is able to update the electronic transmission standards to keep pace with technology and the changing needs of the NRC and the participants in its adjudication without additional rulemaking. Exemptions to the electronic transmission requirement are discussed below. (See section II.K. of this document).

Because the E-Filing system can accept documents only in specified electronic formats, E-Filing has specific electronic document standards that are enumerated in the Guidance for Electronic Submissions to the NRC (“Guidance”), which is available on the NRC Web site, http://www.nrc.gov. This guidance document replaces all previous agency guidance on electronic submittals to the agency, including Appendix A: Guidance for Electronic Submissions to the Commission (which accompanied the E-Rule), Guidance for Submission of Electronic Documents Under 10 CFR Part 2, Subpart J (which applies to the high-level waste repository proceeding), and the E-Filing/E-Submittal Proposed Guidance. For the foreseeable future, the only technically compatible formats are certain types of portable document format (PDF) file formats. In addition, individual submissions cannot exceed 50 megabytes (approximately 5000 pages of text), which the NRC considers the current upper limit for practical Internet transmissions.

The Guidance creates three categories of documents: simple, large, and complex. Simple documents are documents filed in a PDF format and transmittable to the E-Filing system in a single transmission.

Large documents, meaning documents exceeding 50 megabytes, are also filed in a PDF format. The Guidance currently recommends that these large documents should be segmented into smaller files that meet the 50 megabyte limit and then transmitted to the E-Filing system, which reunites the files as a package. Document size limits provided in the Guidance are subject to change, to keep pace with the most current technology. Participants are also asked to physically deliver to all the participants in the proceeding OSMs containing the large document, in its entirety, in a unified form that could be used as a reference copy.

Complex documents are those that (1) are not entirely in an acceptable PDF format; (2) contain Classified National Security Information or Safeguards Information; or (3) exceed the 50 megabyte limit and cannot be segmented. The Guidance asks participants to electronically submit to the E-Filing system the sections of a complex document that are in PDF, do not contain Classified National Security Information or Safeguards Information, and can be segmented into less than 50 megabytes. The Guidance also asks participants to deliver the entire complex document on an OSM to all authorized participants in the proceeding.

As was previously noted, the Guidance recognizes that only certain forms of PDF are technically compatible with the NRC E-Filing system. As part of the development of the NRC E-Filing system, the NRC chose PDF formats over other formats based on the following considerations:

(1) The format is a type that can be entered as an official agency record;

(2) The format behaves consistently over a broad range of operating systems and platforms (meaning pagination remains identical regardless of the printer used);

(3) The format can be easily accessed by most users;

(4) The format is one to which other document formats can be easily converted;

(5) The format supports images, text, and other types of documentary material that can be useful in a hearings context; and

(6) The format has text-searching and text-capture capabilities.

PDF has all of these features. Further, the National Archives has identified certain PDF versions as acceptable for transfer of permanent records to the archives.

In recent years, almost all participants in NRC adjudications have been filing and serving documents via e-mail in addition to submitting paper copies, which are generally regarded as the “official” versions of the documents. This use of e-mail submissions exists because a vast majority of the participants in NRC proceedings have ready access to computers, word- processing programs, and the Internet. This has led the NRC to conclude that almost all participants are ready to take the next step and move to a fully electronic environment. The NRC recognizes that implementing a rule governing electronic submission could entail initial costs for some persons because participants would need ready access to a computer with word-processing software, software that will save/render documents in PDF format, and the Internet. However, the participants are expected to recoup these expenses through cost savings in labor, copying, and mailing paper documents to multiple participants.

Despite these advantages, the NRC recognizes that some individuals may conclude that they are not able to file electronically for a variety of reasons. The NRC, therefore, will allow exemptions from the E-Filing rule for certain participants in appropriate circumstances. To participate using traditional paper filing and service, a participant must request an exemption from the electronic filing requirement and should submit a request for authorization from the presiding officer with its first filing in the proceeding. “Good cause” for such an exemption would depend on the participant's circumstances and could include such matters as: disability, lack of readily-available Internet access, or the cost of purchasing the necessary equipment or software. The presiding officer will determine if a participant has demonstrated good cause on a case-by-case basis.

If, after submitting its first filing electronically, a participant wishes to request an exemption, the participant will, in addition to the requisite showing of good cause, have to show that granting the exemption late is in the interest of fairness. A participant may meet this standard by demonstrating an unforeseen change in circumstances that makes filing via the E-Filing system especially onerous. Until the presiding officer rules on the request, the participant must continue to file electronically.

E-Filing provides exemptions from the requirement to send the filing to the E-Filing system electronically as well as from the requirement to submit documents in computer file format. These are discussed below.

A participant willing to submit a document formatted in PDF, but capable only of delivering the PDF document via OSM, can request an exemption from electronic transmission over the Internet to the E-Filing system. This participant's filings would be exempt from the requirement of being sent to the E-Filing system.

A participant can also request an exemption from the requirement to file documents formatted in PDF as well as the electronic transmission requirement through the E-Filing system. This participant would physically file and serve paper documents on the presiding officer and other participants in a manner determined by the presiding officer. In return, the presiding officer, other participants and SECY would physically serve paper documents on a participant who has been granted this exemption.

Although these exemptions are available for participants in NRC proceedings, the NRC believes that the cost savings from electronic filing generally will exceed electronic filing associated equipment/software/Internet access procurement costs and, thus, encourages potential participants to move to electronic filing and service, whenever possible, rather than seeking an exemption. When a participant is granted either a document exemption or a transmission exemption, E-Filing permits a mixed service proceeding, which is discussed in the next section.

The Commission recognizes the possibility that there could be a proceeding in which a participant will receive an exemption permitting the participant to file and serve paper copies, while the other participants will file and serve documents electronically. As mentioned previously, if an exemption from electronic filing and formatting is granted, the NRC prefers mixed service proceedings to traditional proceedings that rely solely on paper. Mixed service proceedings are those in which some, but not all, of the participants file and serve by the same non-electronic method. For example, rather than requiring that all participants physically serve and file paper documents when one participant to the proceeding is granted an electronic documents exemption, mixed service proceedings allow the exempted participant to file, serve, and be served physically, while the rest of the participants file and serve each other electronically according to the standards in the Guidance. Standards concerning timeliness and the number of days for service will be established by the presiding officer who grants the electronic filing exemption on a case-by-case basis as fairness and efficiency considerations dictate. However, § 2.306(c) specifies that documents served in person or by expedited mail must be served by 5:00 p.m. Eastern Time and a document served through the E-Filing system must be served by 11:59 p.m. Eastern Time.

Under § 2.302(d)(1), filing by electronic transmission is considered complete “when the filer performs the last act that it must perform to transmit a document, in its entirety, electronically.” For electronic transmissions, the “last act” would occur when the participant hits the “submit/transmission” or “send” button. The language in § 2.302(d)(1) and the meaning of “last act” are taken from the Advisory Committee Notes to the 2002 amendments to Rule 25(c)(4) of the Federal Rules of Appellate Procedure, which covers service requirements. The NRC adopted the “last act” standard for several reasons. First, the “last act” standard, which penalizes a party only for events within its control, is fair. Upon selecting the send or transmit button, a participant relinquishes all control over a document and cannot be certain when the document will be received by the NRC's system. Making completeness of filing dependent upon receipt of the transmission would subject participants to the vagaries of electronic transmission, which may include such problems as the filer's Internet connection being slower on the day of filing, the filer's Internet service disconnecting during transmission, or the filer's connection to the E-Filing system server failing to connect because the allotted time for connection expired.

Second, the “last act” standard conceptually coincides with the standard for filing by mail, when a filing is considered complete upon depositing the document, in its entirety, in a mailbox. In effect, the “last act” of depositing the document in the mailbox is equivalent to hitting the “submit/transmission” or “send” button.

When two or more methods of filing are permitted in a mixed proceeding, § 2.302(d)(4) indicates that filing is complete when all the methods of filing used are complete. For example, if a participant needs to make a filing consisting of three electronic documents, one of which is entirely Classified National Security Information, the filer is to submit the two non-classified documents by electronic transfer and all three documents on an OSM. If the participant mails the OSM on Monday and performs the electronic transfer on Tuesday, filing would be complete Tuesday. Although the OSM mailed Monday would contain the entire filing, a filing would not be complete until all required filing methods have been completed.

Upon receiving an electronic filing, the E-Filing system will send an e-mail notification to all persons on the electronic distribution list. The e-mail will notify those on the list that a filing has been made in the proceeding and will provide a link to the document that will stay active for 14 days. Each person with access via an individual or Group digital ID certificate can click on the link to access the document for viewing and/or saving in PDF compatible software and can save the document to his or her own computer. Thereafter, to re-open the document, the person need only access it from his or her own computer. Alternatively, once it is processed into the agency's ADAMS system (usually within 72 hours of submission), a person can access a publicly available document by logging onto the EHD located in the Electronic Reading Room, which is available at http://www.nrc.gov/reading-rm.html. The EHD is a publicly available Web site; no digital ID certificate is required to retrieve documents from the EHD. A link to the EHD will be available on the NRC Web site.

This rule will become effective on October 15, 2007. Although this rule is legally applicable only to proceedings noticed after October 15, 2007, participants in ongoing proceedings may follow the rule upon agreement of all participants and the presiding officer, but may submit documents via the E-Filing system only after the effective date of this rule. The NRC encourages participants in ongoing proceedings to follow the rule.

The NRC held a public meeting on January 10, 2006, to discuss and receive comments on the proposed rule and to demonstrate electronic filings. The NRC also received written comments on the proposed E-Filing rule, which were due to the agency by March 1, 2006. The NRC received comments on various areas of the proposed rule, including comments on technical aspects of electronic filing contained in the proposed E-Filing Guidance. The following summarizes the comments either verbalized at the public meeting or submitted to the NRC in writing and the agency's responses. Suggested editorial changes have been reflected in the final rule and are not individually responded to below. No commenter opposed the proposal to require electronic filing or asserted that they would seek an exemption from the presiding officer if they were seeking to participate in a proceeding in which the rule was applicable.

Comment. Is the E-Filing rule satisfied when a participant files by attaching the document to electronic mail?

Response. No. The rule requires that filings in adjudicatory proceedings must be submitted by attaching a document to the Adjudicatory Docket Submission Form on the E-Submittal Web page. Therefore, a document attached to an e-mail will not be accepted as a properly submitted filing unless otherwise provided by order of the presiding officer.

Comment. What exactly is being certified when the certificate of service is submitted to the E-Filing system? Is there a way to verify that the filing will be served on the people on the service list?

Response. Certifying an electronic certificate of service has the same effect as certifying a paper copy certificate of service. The E-Filing system automatically generates the service list for particular proceedings and allows the participant to review the service list before submitting a filing. For public filings, participants will be able to review the service list but not change those people designated to be served with the filing. For filings subject to a protective order, participants can review the service list and must designate those who should be served with the filing. In either instance, however, as noted previously, a service list identical to the traditional paper service list (i.e., listing those persons or entities served) should also be included as part of the electronic filing or submission.

Comment. When attaching declarations or affidavits signed under oath and affirmation to a filing, must the person signing the affidavit also electronically sign the filing?

Response. No. An oath or affirmation document should conclude with a statement to this effect:

“I declare under penalty of perjury that the foregoing is true and correct. Executed on [date].”

Comment. Will there be a help desk to answer questions on E-Filings?

Response. Yes, assistance will be available through the “Contact Us” link located on the NRC Web site at http://www.nrc.gov/site-help/e-submittals.html or by calling NRC technical support, which is available during normal business hours. The help line number is 1 (800) 397-4209 or locally, (301) 415-4737.

Comment. Does the E-filing rule contain provisions for filing proprietary information?

Response. Although the rule itself does not address handling of proprietary information for electronic filing, the Guidance accompanying the rule does. The guidance document provides that sensitive information that is not Safeguards or Classified National Security Information may be filed electronically to the E-Filing system under the system's protective order file regime. Each sensitive document should be clearly marked, and the cover letter should indicate the sensitivity of each document. Once transmitted to the E-Filing system, sensitive documents will be protected by being placed in specific folders in the Electronic Hearing Docket (EHD) that permit access only to those participants who have been authorized to receive and review the sensitive material.

Comment. The Guidance contemplates filing Classified National Security Information on an OSM. However, neither the rule nor the Guidance provides an exemption for paper filing of classified documents. What if the participant submitting the filing has the appropriate security clearance to possess the classified information, but does not have an NRC-approved classified computer system to process the information on electronic media?

Response. The presiding officer in each proceeding will issue an order, as necessary, that will establish the procedures for the preparation, submission, and service of documents containing classified information. Accordingly, participants who cannot provide electronic versions of documents containing classified information should bring this issue to the attention of the presiding officer at the appropriate time.

Comment. How will documents filed under protective order be accessed through the EHD? Once accessed through the EHD, may these documents be printed?

Response. Those seeking to file and access protective order file materials will be required to obtain a digital ID certificate from the agency. The EHD will recognize a participant's digital ID certificate as one that may have access to documents filed under protective order. Once in the EHD, a secure login screen will appear only to those who may access documents filed under a particular protective order, prompting the participant to enter a login ID and password. With the exception of NRC employees, who because of their responsibility under NRC regulations not to disclose proprietary or other sensitive information covered by a protective order generally are not asked to sign non-disclosure agreements required by protective orders, SECY will give the password only to those participants who have signed the non-disclosure agreement required by the protective order in that particular case. After the login ID and password are verified by the EHD system, the participant may access documents filed under the protective order by which that participant has been granted access.

Participants who have been granted an exemption from electronic filing and, therefore, do not have digital certificates, but who have signed a non-disclosure agreement required by a protective order, may be granted access to protective order filings on the EHD on a case-by-case basis in accordance with procedures specified by the protective order. Documents under protective order may be printed from EHD, but must be controlled as specified by the terms of the governing protective order.

Comment. Is there a specified alternative method of filing that should be used if the E-Filing system is unavailable due to technical issues?

Response. Neither the rule nor the guidance document addresses alternative methods for filing if the E-Filing system is unavailable. Instead, the presiding officer in each proceeding will issue an order that specifies a backup method for filing if the E-Filing system is unavailable.

Comment. When changing to a new computer, must the participant re-register for a digital certificate?

Response. Not necessarily. Digital ID certificates can be downloaded and saved on a disk or memory stick so that when switching to a different computer, the participant may import it off of the disk or memory stick onto the new computer. However, digital ID certificates are linked to a participant's e-mail address. If a participant's e-mail address changes, the participant must apply for a new digital certificate.

Comment. What is the need for group digital ID certificates, and how would individuals belonging to a group ID be notified of a filing by the E-Filing system?

Response. Group IDs may be assigned to law firms or other organizations and can be downloaded onto several computers. This allows multiple individuals who do not have an individual digital ID certificate to be served with a filing to the E-Filing system and permits those individuals to retrieve documents filed in the proceeding. Notification of the filing would be sent to the e-mail address associated with the Group ID, which generally would be a central mailbox that the individuals belonging to the Group ID would be able to access.

Comment. Proposed § 2.306(b)(3) would give additional time to all participants in a proceeding when multiple service methods are used. The additional time would be computed based on the service method used to deliver the entire document. There could be a circumstance where not all participants receive the “entire” document. For example, if part of the document is proprietary information under protective order and is filed on a CD-ROM, a participant who has not signed the protective order would not be served with that CD-ROM; thus, the participant would not receive the “entire” document.

Response. Because a participant who has not signed the protective order is not entitled to see the proprietary information, it is not clear why, for service purposes, this participant has not received the “entire” document after a version containing all the nonproprietary portions of the document has been provided (if such a version can be provided appropriately). The agency believes that this scenario would be a rare occurrence. Therefore, the presiding officer will have discretion to set forth, on a case-by-case basis, the calculation of additional time when a participant may not be entitled to receive an entire filing served by multiple methods. This section of the final rule has been revised to provide for this possibility.

Comment. Section 2.306(b)(5) of the proposed rule would add a day to the response time for a document hand-delivered after 5:00 p.m. but not for a document served by the E-Filing system at midnight. The same additional day should be provided for any responses hand-served or served by the E-Filing system after 5:00 p.m.

Response. The agency has reconsidered the computation of time set forth in §§ 2.306(b)(5), 13.27(c)(5) and 110.90(c)(5) of the proposed rule. The agency has decided that, for fairness and efficiency, the computation of time will begin the following day after the document is served, unless the presiding officer in that proceeding determines otherwise.

For example, if a pleading is served on Monday, regardless of the time of day or method of service, the number of days to respond will be calculated beginning on Tuesday. Sections 2.306(c), 13.27(d) and 110.90(d) of the final rule have been revised to eliminate the computation of time method set forth in the proposed rule. This aspect of the final rule also represents a change from current practice, which allows an extra day for documents received electronically after 5:00 p.m.

These sections of the final rule also now specify that if a document is served by the E-Filing system or by electronic mail, it must be served by 11:59 p.m. Eastern Time of the day it is due in order to be considered timely. The reason for this change is that the E-Filing system requires periodic maintenance that is generally scheduled after midnight Eastern Time on weekdays and results in the system being temporarily unavailable. To ensure that electronic submittals are not impacted by these post-midnight maintenance outages, the NRC is mandating an 11:59 p.m. Eastern Time filing deadline. If a document is served in person or by expedited service, the final rule mandates that it must be served by 5 p.m. Eastern Time of the day it is due in order to be considered timely.

Comment. Section 2.306(b)(5) of the proposed rule also appears to afford “all participants” an additional day even if only one participant is served by hand delivery after 5 p.m. This appears to be impractical because it would be difficult for one participant to know that another participant had been hand-served after 5 p.m., thus affording all participants one additional day.

Response. The final rule has been revised to specify that, to be considered timely, a document must be hand- served by 5 p.m. Eastern Time, or served by the E-Filing system by 11:59 p.m. Eastern Time. As discussed above, redesignated § 2.306(c) of the final rule has revised the computation of time method outlined in the proposed rule so that it will begin the day after a document is served. This will eliminate any ambiguity as to whether, depending on the time a document has been served, the participants will be afforded an additional day.

Comment. The proposed rule uses the term “participant” but does not define this term. “Participant” should be defined in § 2.4.

Response. The definition of “Participant” has been added to § 2.4 of the final rule.

Comment. How will the E-Filing rule affect the use of the Digital Document Management System (DDMS) in agency proceedings?

Response. The E-Filing rule will not affect the DDMS. The DDMS is the Atomic Safety and Licensing Board Panel's hearing management support system that combines web-based hearing and document management with electronic evidence presentation, real-time transcription, and digital recording to provide users with continual electronic access to searchable evidentiary material and video transcripts, and a means to present most evidence in an electronic fashion. In the near future, the DDMS will be used by the Pre-License Application Presiding Officer Board in the high level-waste repository licensing proceeding as well as in other proceedings.

Comment. Must electronically-filed documents be in a certain PDF format?

Response. Yes. The Guidance enumerates the specific electronic document standards to be used for electronic filings. Currently, the only acceptable formats are certain types of PDFs and certain other formats used for spreadsheets, when necessary.

Comment. The naming conventions set forth in the Guidance could result in the loss of a file's interactive features. The Guidance should allow exceptions or dual submittals to allow use of the original file naming convention, and should also allow submittal of nested folders because some of the features rely on unchanged relative path files.

Response. The naming conventions in the Guidance are intended to allow the NRC's profiling process to be more efficient because it alerts the agency's Document Processing Center staff to the order in which the electronically submitted files should be arranged. This allows for easier viewing and use because files in a package will already be arranged in the correct sequential order. Therefore, participants should follow the naming conventions in the Guidance. Further, participants should not file dual submissions to the E-Filing system using different file naming conventions. If the NRC naming convention causes the loss of an interactive file feature, the participant should consider providing the necessary participants with, for example, courtesy CD-ROM copies of the document, using the original file naming convention.

Comment. Using an Adobe Acrobat® digital signature allows documents to be internally authenticated. Participants should be allowed to add certain digital security features in order to prevent unwanted changes to a PDF document.

Response. The agency currently rejects and will continue to reject all electronically-submitted files that contain security protections. The NRC must maintain full access and use of the files. Allowing participants to add certain digital security features would impede this function. Participants can rely on the NRC's internal security and archival processes to ensure that the integrity of submitted materials is maintained.

Comment. The proposed guidance indicates no preference for the auto-rotate setting, and should be revised to allow auto-rotate setting of “Collectively by File” or “individually.” This would optimize a PDF file for screen viewing in the case when a file contains text pages oriented in portrait layout and table pages oriented in landscape layout.

Response. The distiller settings for auto-rotate should be set to “off” as reflected in the Guidance. The NRC relies on participants to correctly rotate pages before they are submitted in order to avoid the possibility of errors attributed to the auto-correct function.

Significant changes to certain sections in 10 CFR parts 2, 13, and 110 were explained in detail in the proposed E-Filing rule ( see, 70 FR 74950; Dec. 16, 2005). Therefore, the section below will only address changes made following publication of the proposed rule. These changes were made primarily in response to public comments and agency reconsideration.

Section 2.302(d)(1) of the final rule clarifies that the last act to transmit a document electronically means that it is the last act required to transmit the entire document.

Section 2.304(d)(1) of the final rule has been revised to change the method for providing additional signatures, that is, signatures other than that of the person who is required to sign electronically using a digital ID certificate. Although the proposed rule included descriptions of signing electronic documents by digital ID certificate and by the “Original signed by” designation, the agency recognized that this provision needed clarification on the appropriate usage of the different signature methods. All electronic documents submitted via the E-Filing system must be electronically signed using a digital ID certificate. The document must include a typed signature block with the phrase “Signed (electronically) by” designating the individual who signs the document using his or her digital ID certificate. Additional signatures may be added to the document and to any attached affidavit or other similar attachment, which should be executed as instructed by the form specified in 28 U.S.C. 1746, by typing the “Executed in Accord with 10 CFR 2.304(d)” designation on the signature line. The Commission considers these typed-in designations to be official signatures under § 2.304(d)(1). Participants are no longer required to retain paper copies of these additional signatures in keeping with the paperwork reduction goal of this rule.

Currently, when parties submit pre-filed testimony and exhibits electronically via e-mail, they often submit all of these documents as one large file. For optimal use in the agency's EHD and DDMS, SECY and the Atomic Safety and Licensing Board Panel must then separate the single file into individual files so that the written testimony of each witness/witness panel constitutes one file. The same is true for each of the evidentiary exhibits. Although the presiding officer could issue orders requiring parties to submit these documents as individual files, it is more efficient generically to set forth this requirement in the rules. Therefore, the final rule adds a new paragraph (g) to the end of § 2.304. This provision requires that when written testimony or evidentiary exhibits are filed via the E- Filing system in advance of a hearing, the written testimony of each individual/panel and each exhibit must be submitted as a separate electronic file. This provision does not apply to exhibits filed at earlier stages of a proceeding, such as exhibits attached to a motion, that are not expected to become part of the evidentiary record of the proceeding.

The provisions in section 2.305(c)(4)-(5) have been combined in the final rule into § 2.305(c)(4). Proposed § 2.305(c)(4) would have required a certificate of service to accompany any document served upon participants. Proposed § 2.305(c)(5) would have required the certificate of service to state the name and address of persons served, as well as the date and method of service. These requirements remain in the final rule but have been combined into one provision for clarity and brevity.

The changes made to § 2.306 of the final rule are threefold.

First, § 2.306(b)(3) of the final rule gives the presiding officer discretion to set forth the calculation of additional time in the rare circumstance that a participant may not be entitled to receive an entire filing served by multiple methods (e.g., when part of the filing is public and part is encompassed by a protective order to which the participant is not a party). This change is being made in response to a comment on the proposed rule received by the agency, as discussed previously in this document. Second, the agency reconsidered the computation of time set forth in the proposed rule. Section 2.306(b)(5) has been redesignated as § 2.306(c) and no longer provides that an extra response day will be added for documents served after a certain time. Under the final rule, the computation of time will begin the following day after a pleading is served with no day added, unless the presiding officer determines otherwise. The agency changed the approach from that in the proposed rule for simplicity and fairness.

An additional change to this section is in § 2.306(c) of the final rule, which now sets a specific deadline for timely filings. A document served in person or by expedited service must be served by 5:00 p.m. Eastern Time of the day it is due. This deadline was implied in the proposed rule but not specifically stated, so its applicability has been clarified in the final rule. A document served by the E-Filing system or by electronic mail must be served by 11:59 p.m. Eastern Time of the day it is due. This change is necessary to accommodate overnight maintenance periods when the E-Filing system will be inoperable.

Revised § 13.2 of the final rule adopts the definitions added to § 2.4.

Section 13.26(a)(6) of the proposed rule regarding signatures has not been adopted because a new § 13.26(b) that adopts the wording of § 2.304(d) has been added to the final rule. Sections 13.26(b) and (c) of the proposed rule become §§ 13.26(c) and (d) in the final rule. Section 13.26(a)(7) of the proposed rule regarding certificates of service has not been adopted because § 13.26(c)(4) contains a similar provision. The change to § 13.26(a)(6) in the final rule (§ 13.26(a)(8) in the proposed rule) conforms the filing and service requirements of Part 13 to those in § 2.302(d)(1).

Revised §§ 13.27(c)(3) and (c)(5) of the final rule adopt the wording of §§ 2.306(b)(3) and (b)(5).

The changes to § 110.89 allow for, but do not require E-Filing, and provide a reference to §§ 2.302 and 2.305 for participants who choose to file electronically. The changes also remove telegraph as a method of service.

The changes to § 110.90 of the final rule adopt the wording of § 2.306(b) for participants who choose to file electronically. The changes also provide a new § 110.90(d) that conforms to new § 2.306(c).

New § 110.103(c) of the final rule references § 2.304 for participants who choose to file electronically. The previous subsection 110.103(c) has been redesignated § 110.103(d).

The National Technology Transfer and Advancement Act of 1995, Public Law 104-113, requires that Federal agencies use technical standards that are developed by voluntary, private sector, consensus standards bodies unless using such a standard is inconsistent with applicable law or otherwise impractical. This rule establishes requirements and standards for the submission of filings to an electronic docket in hearings under 10 CFR part 2 Subpart C. Through this rulemaking, the agency is implementing the requirement in the Government Paperwork Elimination Act, Pub. L. 105-277 (44 U.S.C. 3504, note), that Federal agencies allow electronic submissions of information where practicable; therefore, this rule does not constitute the establishment of a Government-unique standard as defined in Office of Management and Budget (OMB) Circular A-199 (1998).

This rule amends the filing and service procedures in 10 CFR part 2, Subpart C and makes conforming changes to other parts of Title 10 and, therefore, qualifies as an action eligible for the categorical exclusion from environmental review under 10 CFR 51.22(c)(1). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this final rule.

This rule does not contain information collection requirements and, therefore, is not subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

A regulatory analysis has not been prepared for this rule. The amendments below will neither impose new, nor relax existing, safety requirements and, thus, do not call for the sort of safety/cost analysis described in the agency's regulatory analysis guidelines in NUREG/BR-0058. Further, the NRC is required by the Government Paperwork Elimination Act, Pub. L. 105-277 (44 U.S.C. 3504, note), to allow electronic submissions when practicable. The rule states the requirements for electronic filing and service in NRC adjudicatory proceedings, except those conducted on a high-level radioactive waste repository application. The Commission, while strongly preferring that participants file and serve their documents electronically, nonetheless permits participants to submit paper filings if the participants establish good cause for doing so. Preparation of an analysis of costs and benefits, therefore, would not enhance the NRC's decision-making process.

The NRC believes that this rule reduces the current filing costs of persons who participate in agency adjudications. Currently, most submissions to the Commission are electronically mailed with a conforming paper copy to follow. This rule eliminates the need to mail the paper copy. Because virtually all of the participants in NRC hearings electronically mail filings, they already have most, if not all, of the requisite equipment. Also, the cost of the additional equipment and software is minimal in relation to the savings expected from eliminating the expenses of copying and postage. Although a participant may need to purchase a program that converts documents to PDF format for approximately $500 each, the savings in copying and postage costs could be hundreds, if not thousands, of dollars.

As required by the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b), the Commission certifies that this rule will not have a significant economic impact on a substantial number of small entities. It is possible that some poorly funded entities seeking to intervene would be adversely affected by this rule, but their number is likely to be small and the final rules provide for exemptions from the electronic filing requirements for good cause. In this regard, the NRC received no comments raising implementation cost issues. This rule applies in the context of Commission adjudicatory proceedings concerning nuclear reactors or nuclear materials. Reactor licensees are large organizations that do not fall within the definition of a small business found in the Small Business Regulatory Enforcement Fairness Act of 1996, 15 U.S.C. 632, within the small business standards set forth in 13 CFR part 121, or within the size standards adopted by the NRC (10 CFR 2.810). Based upon the historically low number of requests for hearings involving materials licensees, it is not expected that this rule would have any significant economic impact on a substantial number of small businesses.

The NRC has determined that the backfit rule does not apply to this rule because these amendments modify the procedures to be used in NRC adjudicatory proceedings, and do not involve any provisions that would impose backfits as defined in 10 CFR 50.109, 70.76, 72.62, and 76.76. Therefore, a backfit analysis has not been prepared for this final rule.

The NRC has determined that this is not a major rule under the Congressional Review Act, and the Office of Management and Budget has confirmed this determination.

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 29, 2007 (72 FR 29449). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

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.

We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.

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.

Based on the service information, we estimate that this AD affects about 12 products of U.S. registry. We also estimate that it takes 102 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 the AD on U.S. operators to be $97,920, or $8,160 per product.

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.

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.

You may examine the AD docket on the Internet at http://dms.dot.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.

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 6, 2007 (72 FR 31209). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

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.

We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.

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.

Based on the service information, we estimate that this AD affects about 34 products 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 the AD on U.S. operators to be $16,320, or $480 per product.

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.

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.

You may examine the AD docket on the Internet at http://dms.dot.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.

Examining the Docket

You may examine the AD docket on the Internet at http://dms.dot.gov or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Operations office (telephone (800) 647-5527) is located on the ground floor of the West Building at the DOT street address stated in the ADDRESSES section.

The FAA issued a supplemental notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to all Boeing Model 777 airplanes. That supplemental NPRM was published in the Federal Register on June 18, 2007 (72 FR 33411). That supplemental NPRM proposed to require, for the drive mechanism of the horizontal stabilizer, repetitive detailed inspections for discrepancies; repetitive lubrication of the ballnut and ballscrew; repetitive measurements of the freeplay between the ballnut and the ballscrew; and corrective action if necessary. That supplemental NPRM also proposed to add airplanes to the applicability of the proposed AD.

We provided the public the opportunity to participate in the development of this AD. We have considered the comment received. The commenter, Boeing, supports the supplemental NPRM.

We have revised this action to clarify the appropriate procedure for notifying the principal inspector before using any approved AMOC on any airplane to which the AMOC applies.

We have carefully reviewed the available data, including the comment received, and determined that air safety and the public interest require adopting the AD with the change described previously. We have determined that this change will neither increase the economic burden on any operator nor increase the scope of the AD.

There are about 596 airplanes of the affected design in the worldwide fleet. This AD affects about 203 airplanes of U.S. registry.

The required maintenance records check takes about 1 work hour per airplane, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the maintenance records check for U.S. operators is $16,240, or $80 per airplane.

The required detailed inspection takes about 1 work hour per airplane, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the inspection for U.S. operators is $16,240, or $80 per airplane, per inspection cycle.

The required freeplay measurement takes about 5 work hours per airplane, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the freeplay measurement for U.S. operators is $81,200, or $400 per airplane, per measurement cycle.

The required lubrication takes about 1 work hour per airplane, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the lubrication for U.S. operators is $16,240, or $80 per airplane, per lubrication cycle.

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.

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.

You may examine the AD docket on the Internet at http://dms.dot.gov or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Operations office (telephone (800) 647-5527) is located on the ground floor of the West Building at the DOT street address stated in the ADDRESSES section.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to certain Boeing Model 747-100, -200B, -200C, and -200F series airplanes. That NPRM was published in the Federal Register on May 24, 2007 (72 FR 29084). That NPRM proposed to require performing repetitive inspections for cracks in the fuselage skin at the cutout of the bulk cargo door light, and corrective actions if necessary. That NPRM also proposed to provide terminating action for airplanes with a certain type of damage.

We provided the public the opportunity to participate in the development of this AD. We have considered the comment received. The commenter, Boeing, supports the NPRM.

We have carefully reviewed the available data, including the comment received, and determined that air safety and the public interest require adopting the AD as proposed.

There are about 65 airplanes of the affected design in the worldwide fleet. This AD affects about 36 airplanes of U.S. registry. The required actions take about 2 work hours per airplane, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the AD for U.S. operators is $5,760, or $160 per airplane, per inspection cycle.

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.

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.

You may examine the AD docket on the Internet at http://dms.dot.gov or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Operations office (telephone (800) 647-5527) is located on the ground floor of the West Building at the DOT street address stated in the ADDRESSES section.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to certain Learjet Model 31, 31A, 35, 35A (C-21A), 36, 36A, 55, 55B, and 55C airplanes, and Model 45 airplanes. That NPRM was published in the Federal Register on April 26, 2007 (72 FR 20775). That NPRM proposed to require inspecting for unsealed gaps on the pylon side of the engine firewall and cleaning/sealing any unsealed gap; and, for certain airplanes, inspecting for unsealed gaps of the pylon trailing edge and cleaning/sealing any gap.

We provided the public the opportunity to participate in the development of this AD. We received no comments on the NPRM or on the determination of the cost to the public.

We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.

There are about 1,243 airplanes of the affected design in the worldwide fleet. This AD affects about 945 airplanes of U.S. registry. The following table provides the estimated costs for U.S. operators to comply with this AD, at an average labor rate of $80 per work hour. Parts and materials may be supplied from operator stores or procured locally.

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.

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.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain McDonnell Douglas Model DC-9-10, -20, -30, -40, and -50 series airplanes; Model DC-9-81 (MD-81), -82 (MD-82), -83 (MD-83), and -87 (MD-87) airplanes; and Model MD-88 airplanes was published as a supplemental notice of proposed rulemaking (NPRM) in the Federal Register on December 20, 2005 (70 FR 75430). That action proposed to require repetitive inspections and functional tests of the static port heater assemblies, repetitive inspections of the static port heaters and insulators, and corrective actions if necessary.

We proposed in paragraph (b)(2) of the supplemental NPRM to require repetitive inspections for proper installation of the static port heaters and insulation. This proposal was in response to a National Transportation Safety Board (NTSB) comment on the original NPRM. However, we have re-assessed the safety implications of the issue based on additional information that we received from Boeing. Although we understand the NTSB's concern, we have determined that the inspections in paragraph (b)(2) of the supplemental NPRM are not necessary to address the identified unsafe condition. We have revised paragraph (b) of this AD to remove the requirement to inspect for proper installation for the following reasons.

We have concluded that the incorrect stacking of the heater assembly does not contribute to the heater connector wire damage and is therefore not a safety concern.

We based our original decision to incorporate a one-time inspection for incorrect stacking into the original NPRM on the following statement made to the FAA in Boeing Letter C1-L4L-03-0700, dated June 3, 2003.

Then, in the supplemental NPRM, we agreed with the NTSB recommendation to require repetitive inspections to address any incorrect stacking that might occur in the future.

After Boeing commented on the supplemental NPRM (see “Comments” section below), we contacted Boeing to clarify its comments. At the same time, in order to better understand the need for a repetitive inspection for proper installation as the NTSB recommended, we asked Boeing to provide us with additional information on the cause and effect of improper installation (incorrect stacking).

We specifically requested that Boeing clarify the definition of “excessive heating” and “other damage in the bend radii areas.” Boeing confirmed that the bend radii area of the heater assembly is the internal heating element bend radii, within the laminated elastomer and is not the bend radii of the connector wire. Based on this statement, we concluded that the incorrect stacking of the heater as we understood before does not contribute to heater connector wire damage.

Our evaluation of the additional information has resulted in a better understanding of “excessive heating.” We determined that improper stack-up of the static port heater might cause the heater assembly to run longer at the high wattage setting in order to heat the static plate to the proper temperature. The heater assembly circuit design limits the absolute temperature that the element can reach. Thus, the heater assembly cannot reach temperatures significantly higher than the intended operating temperatures. Additionally, the heater circuit design incorporates a 310°F thermal fuse. However, the additional duty time or cycles caused by the improper stack-up might accelerate the normal aging of the heater assembly. Based on the above information, our previous conclusion that “excessive heating” could damage the heater connector wire is incorrect.

Furthermore, Boeing addressed the improper stack-up of the static port heater assembly in McDonnell Douglas All Operator Letter (AOL) 9-2186, dated August 15, 1991. The AOL notified the operators of an incorrect depiction of the heater/insulator installation in the DC-9 and MD-80 Airplane Maintenance Manuals (AMMs), which were also revised and corrected in 1991. We are aware of no subsequent reports of improper stack-up of the static port heater assembly.

Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received.

Boeing requests that the supplemental NPRM be withdrawn. Boeing considers its comments on the original NPRM still valid and offers these comments on the supplemental NPRM as follows.

Boeing contends that the unsafe condition no longer exists. Boeing states that the unsafe condition was addressed by Boeing Alert Service Bulletin MD90-30A023, including Appendix, dated March 14, 2001 (for Model MD-90-30 airplanes), which was mandated by AD 2001-10-11, amendment 39-12237 (66 FR 28651, May 24, 2001), and by Boeing Alert Service Bulletin MD80-30A092, including Appendix, dated March 14, 2001 (for Model DC-9-81, -82, -83, and -87 airplanes, and Model MD-88 airplanes), which was mandated by AD 2001-10-10, amendment 39-12236 (66 FR 28643, May 24, 2001). Boeing states that those ADs require inspecting the wiring of the primary and alternate static port heaters, determining if the type of insulation blanket installed is metallized Mylar, and modifying the insulation blankets if necessary.

Boeing also states that a review of operators' reports indicates only two events resulted in smoke in the cabin, both on one operator's MD-88 airplanes, with one report stating a smoke smell was “evident.” In response, Boeing issued the service bulletins described previously. Boeing notes that “in the three years since the release of these service bulletins and the related ADs, no other static port heater smoke/fire events have been reported from the entire MD-80/90 fleet.”

Boeing concludes that the unsafe condition no longer exists, and that the actions in the supplemental NPRM are purely an enhancement. Therefore, Boeing requests that the supplemental NPRM be withdrawn.

We do not agree with Boeing's request to withdraw the supplemental NPRM. Although no other static port heater smoke/fire events have been reported since all metallized Mylar insulation blankets were replaced with other insulation blankets such as Tedlar, the potential for arcing from an electrical short of the static port heater connector wire still exists.

As we previously stated, we requested clarification of this request to withdraw the supplemental NPRM in an ex parte communication with Boeing.

Boeing stated that it addressed the potential for fire by removing material known to ignite easily and propagate fire. Boeing concluded that the ignition source in the one event in 1999 was of extremely low energy. The residual risk created by the potential for the low energy arcing of the wire identified in the event does not, in itself, create an undue risk. However, Boeing acknowledges the FAA's intent to further reduce risk by requiring the actions specified in paragraph (b)(1) of the supplemental NPRM. Boeing recommends that operators perform a general visual inspection and the functional test (health check) in accordance with Boeing Service Bulletins MD90-30-026 (for MD-90-30 airplanes) and MD80-30-097 (for DC-9 airplanes).

Therefore, it is Boeing's position that incorporating the inspections/tests, specified in paragraph (b)(1) of the supplemental NPRM, into the applicable FAA-approved Maintenance Planning Document(s) is more appropriate.

In regard to the general visual inspection to verify stack-up specified in paragraph (b)(2) of the supplemental NPRM, Boeing stated that stack-up issues are not applicable to the alternate static port heater assembly. As stated previously, it is Boeing's assessment that improper stack-up of the primary static port assembly will not increase the potential for fire as described. Therefore, Boeing disagrees with the intent of paragraph (b)(2).

We concur with Boeing's recommendation that to further reduce risk, operators should perform a general visual inspection and functional test in accordance with Boeing Service Bulletin DC9-30-097, Revision 2, dated May 27, 2005. However, we do not agree that incorporation of the inspections/tests into the applicable FAA-approved Maintenance Planning Document(s) is more appropriate than issuance of this AD. We consider issuance of an AD necessary because ADs are the means to mandate accomplishment of procedures and adherence to specific compliance times.

We have determined, based on the above comments, that we will issue this AD with the requirement of repetitive inspections and the functional tests, as proposed, in accordance with Boeing Service Bulletin DC9-30-097, Revision 2, dated May 27, 2005, to identify and remove marginal static port heaters before they fail and generate sparks.

Based on the technical and economic information provided earlier, we do agree with Boeing that inspection of the heater and insulator for incorrect stacking is not necessary. We have revised paragraph (b) of this AD accordingly.

NWA suggests that the AC hi-pot test specified in Boeing DC-9 Drawing SR09340158, Change A, dated May 19, 2005, is not necessary. Boeing Drawing SR09340158 is referenced as the appropriate source of service information for doing a functional test of the left or right primary or alternate static port assemblies in Boeing Service Bulletin DC9-30-097, Revision 2, dated May 27, 2005 (which is referenced as the appropriate source of service information for accomplishing the proposed actions in the supplemental NRPM). NWA states that the high voltage required for the AC hi-pot test can be destructive to the heater element, thermostat, and thermal fuse and is not representative of airplane operating conditions. NWA contends that the insulation resistance, resistance, and current measurements specified in the drawing are adequate in assessing the health of the static port heater blanket.

We do not agree. NWA did not provide data to substantiate any change to the functional tests specified in Boeing Drawing SR09340158. In addition, Boeing has confirmed that the AC hi-pot test is necessary and will not be destructive to the heater element, thermostat, and thermal fuse. We have not revised this AD in this regard. However, under the provisions of paragraph (e) of this AD, we may consider requests for approval of an alternative method of compliance if sufficient data are submitted to substantiate that such a method would provide an acceptable level of safety.

We have revised this action to clarify the appropriate procedure for notifying the principal inspector before using any approved AMOC on any airplane to which the AMOC applies.

After the supplemental NPRM was issued, we reviewed the figures we have used over the past several years to calculate AD costs to operators. To account for various inflationary costs in the airline industry, we find it necessary to increase the labor rate used in these calculations from $65 per work hour to $80 per work hour. The cost impact information, below, reflects this increase in the specified hourly labor rate

After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule with the changes described previously. The FAA has determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

There are approximately 1,836 airplanes of the affected design in the worldwide fleet. The FAA estimates that 1,125 airplanes of U.S. registry are affected by this AD.

It will take approximately 1 work hour per airplane to accomplish the general visual inspection for wire damage and functional test, at an average labor rate of $80 per work hour. Based on these figures, the cost impact of the inspection for wire damage and functional test on U.S. operators is estimated to be $90,000, or $80 per airplane, per inspection cycle.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

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.

The regulations adopted herein 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. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this action (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. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption “ ADDRESSES .”

We have received a report indicating that the captain's seat slid aft and jammed during taxi. A subsequent investigation found that two of the three screws attaching the rear tracklock bracket broke. The broken screws allowed excessive lateral movement and disengagement of the locking pin from the floor-mounted seat track. In addition, we have received some reports of loosened screws that attach the tracklock bracket to the rear cross member of the seat base. An incorrectly aligned seat track locking pin can cause the locking pin to not fully engage the seat track. These conditions, if not corrected, could result in uncommanded movement of the flightcrew seats during acceleration and take-off of the airplane, which could result in reduced controllability of the airplane.

We previously issued AD 2004-04-03, amendment 39-13483 (69 FR 7565, February 18, 2004), applicable to certain Boeing Model 737-300, -400, and -500 series airplanes. (A correction of AD 2004-04-03 was published in the Federal Register on April 13, 2004 (69 FR 19313).) That AD requires a one-time general visual inspection of the seat locks and seat tracks of the flightcrew seats to ensure that the seats lock in position and to verify that lock nuts and bolts of adequate length are installed on the rear track lock bracket, and corrective action, if necessary.

Since issuance of AD 2004-03-03, we have determined that the same unsafe condition addressed in that AD may exist on certain additional Boeing Model 737-300, -400, and -500 series airplanes. Boeing has advised us that airplanes having variable numbers PS971 through PS978, PT187, and PT188 were omitted inadvertently from the effectivity of Boeing Alert Service Bulletin 737-25A1363, Revision 1, dated March 28, 2002 (referred to in the applicability of AD 2004-04-03 as the appropriate source of service information for identifying the affected airplanes). Therefore, these additional airplanes are also subject to the same unsafe condition addressed in AD 2004-03-03.

We have reviewed Boeing Alert Service Bulletin 737-25A1363, Revision 2, dated May 2, 2006. Revision 2 was issued to add airplanes having variable numbers PS971 through PS978, PT187, and PT188, and to make editorial changes. The procedures for inspecting the seat locks and seat tracks of the flightcrew seats, and corrective actions if necessary, are essentially identical to those in Revision 1 of the service bulletin. No more work is necessary on airplanes changed as shown in Boeing Alert Service Bulletin 737-25A1363, dated November 5, 1998, or Revision 1, dated March 28, 2002. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition.

Boeing Alert Service Bulletin 737-25A1363 refers to IPECO Service Bulletin A001-25-47, Issue 2, dated July 31, 2002, as an additional source of service information for accomplishment of the inspection and rework.

The unsafe condition described previously is likely to exist or develop on other airplanes of the same type design that may be registered in the U.S. at some time in the future. Therefore, we are issuing this AD to prevent uncommanded movement of the flightcrew seats during acceleration and take-off of the airplane, which could result in reduced controllability of the airplane. This AD requires accomplishing the actions specified in the service information described previously.

None of the airplanes affected by this action are on the U.S. Register. All airplanes affected by this AD are currently operated by non-U.S. operators under foreign registry; therefore, they are not directly affected by this AD action. However, we consider this AD necessary to ensure that the unsafe condition is addressed if any affected airplane is imported and placed on the U.S. Register in the future.

If an affected airplane is imported and placed on the U.S. Register in the future, the required actions would take between 1 and 3 work hours per airplane, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the AD would be between $80 and $240 per airplane.

No airplane affected by this AD is currently on the U.S. Register. Therefore, providing notice and opportunity for public comment is unnecessary before this AD is issued, and this AD may be made effective in less than 30 days after it is published in the Federal Register .

This AD is a final rule that involves requirements that affect flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to submit any relevant written data, views, or arguments regarding this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-29071; Directorate Identifier 2007-NM-097-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the AD that might suggest a need to modify it.

We will post all comments we receive, without change, to http://dms.dot.gov , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this AD. Using the search function of that Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78), or you may visit http://dms.dot.gov .

You may examine the AD docket on the Internet at http://dms.dot.gov , or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Operations office (telephone (800) 647-5527) is located on the ground level of the West Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the Docket Management System receives them.

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.

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 the 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 AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation.

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 6, 2007 (72 FR 31204). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

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.

We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.

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.

Based on the service information, we estimate that this AD affects about 7 products of U.S. registry. We also estimate that it takes about 10 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $80 per work-hour. Required parts cost about $0 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the AD on U.S. operators to be $5,600, or $800 per product.

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.

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.

You may examine the AD docket on the Internet at http://dms.dot.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.

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 July 6, 2007 (72 FR 36905). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

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.

We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.

We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.

We might also have required different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the AD.

We estimate that this AD will affect 7 products of U.S. registry. We also estimate that it will take about 6 work-hours per product to comply with basic requirements of this AD. The average labor rate is $80 per work-hour. Required parts will cost about $864 per product.

Based on these figures, we estimate the cost of this AD to the U.S. operators to be $9,408 or $1,344 per product.

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.

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866;

(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD Docket.

You may examine the AD docket on the Internet at http://dms.dot.gov; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

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 16, 2007 (72 FR 27491). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

We gave the public the opportunity to participate in developing this AD. We considered the comment received.

The airplane manufacturer, EMBRAER, requests that we change the proposed applicability statement from “This AD applies to EMBRAER Model EMB-135BJ airplanes, certificated in any category; except those that have previously accomplished EMBRAER Service Bulletin 145LEG-38-0015 or 145LEG-38-0020” to “This AD applies to EMBRAER Model EMB-135BJ airplanes, certificated in any category as listed in Embraer Service Bulletin 145LEG-38-0013, original issue, dated 24/Mar/2006; except those that have previously accomplished EMBRAER Service Bulletin 145LEG-38-0015 or 145LEG-38-0020.” We infer that the manufacturer wants us to restrict our applicability statement to those airplanes with an affected drain mast installed.

We agree to revise the applicability statement of this AD. The service bulletin identifies only those airplanes that have an affected drain mast installed. We have revised paragraph (c) of this AD to clarify which airplanes are affected by this AD. We have coordinated this change with Agência Nacional de Aviação Civil (ANAC).

We reviewed the available data, including the comment received, and determined that air safety and the public interest require adopting the AD with the change described previously. We determined that this change will not increase the economic burden on any operator or increase the scope of the AD.

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.

We estimate that this AD will affect 41 products of U.S. registry. We also estimate that it will take about 20 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 $9,633 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 $460,553, or $11,233 per product.

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.

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.

You may examine the AD docket on the Internet at http://dms.dot.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.

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 28, 2007 (72 FR 35368). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

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.

We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.

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.

Based on the service information, we estimate that this AD affects about 29 products of U.S. registry. We also estimate that it takes about 72 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $80 per work-hour. Required parts cost about $5,050 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 this AD on U.S. operators to be $313,490, or $10,810 per product.

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.

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.

You may examine the AD docket on the Internet at http//dms.dot.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.

A proposal to amend 14 CFR part 39 to include an AD for the specified model helicopters was published in the Federal Register on January 8, 2007 (72 FR 669). That action proposed to require reviewing the helicopter maintenance records and determining the installation dates for the push-pull rods. If the dates cannot be determined from the maintenance records, using the “Date MFD”, which is located on the helicopter data plate, was proposed to be used as the installation date for the push-pull rods. That action also proposed to require a visual inspection for corrosion on the exterior and interior of the three push-pull rods, part number (P/N) 28-16253-all dash numbers (for Model F-28A, F-28C, F-28F, 280, 280C, 280F, and 280FX helicopters) or P/N 4140532-all dash numbers (for Model TH-28, 480, and 480B helicopters), using the compliance times stated in the following table. Replacing any push-pull rod that has corrosion that is severe enough to cause pitting or has moisture inside the rod, and repairing any push-pull rod that has corrosion but no pitting, was proposed to be required before further flight. Repairing a push-pull rod consists of cleaning the push-pull rod, applying a protective coating, and sealing the push-pull rod before remarking and reinstalling it on a helicopter.

We have reviewed the following service information:

• Enstrom Helicopter Corporation Service Directive Bulletin No. 0096, dated September 10, 2003, which describes visually inspecting the push-pull rods for corrosion and internal moisture, provides for repairing light corrosion, and is applicable to Model F-28A, F-28C, F-28F, 280, 280C, 280F, and 280FX helicopters.

• Enstrom Helicopter Corporation Service Directive Bulletin No. T-019, dated September 10, 2003, which describes visually inspecting the push-pull rods for corrosion and internal moisture, provides for repairing light corrosion, and is applicable to Model TH-28, 480, and 480B helicopters.

• Enstrom Helicopter Corporation Service Information Letter (SIL) No. T-019, dated December 9, 2003, applicable to Model TH-28, 480, and 480B helicopters, which describes visually inspecting each push-pull rod for a crack, nick, scratch, dent, corrosion, damaged threads, bending, and contact wear. We are not proposing to require the inspections specified in the SIL.

• Enstrom Helicopter Corporation Service Information Letter No. 0156, dated December 9, 2003, applicable to Model F-28A, F-28C, F-28F, 280, 280C, 280F, and 280FX helicopters, which describes visually inspecting each push-pull rod for a crack, nick, scratch, dent, corrosion, damaged threads, bending, and contact wear. We are not proposing to require the inspections specified in the SIL.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were received on the proposal or the FAA's determination of the cost to the public. The FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

The FAA estimates that this AD will affect 378 helicopters of U.S. registry, and the required actions will take the following numbers of work hours to accomplish on each helicopter at an average labor rate of $80 per work hour:

• 8 work hours to remove, disassemble, and inspect the 3 push-pull rods;

• 9 work hours to repair corrosion without pitting, remark each push-pull rod, and reassemble each push-pull rod; and

• 3 work hours to reinstall 3 push-pull rods on the helicopter.

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 the 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 an economic evaluation of the estimated costs to comply with this AD. See the DMS to examine the economic evaluation.

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.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain McDonnell Douglas Model MD-90-30 airplanes was published as a supplemental notice of proposed rulemaking (NPRM) in the Federal Register on December 20, 2005 (70 FR 75435). That action proposed to require repetitive inspections and functional tests of the static port heater assemblies, repetitive inspections of the static port heaters and insulators, and corrective actions if necessary.

We proposed in paragraph (b)(2) of the supplemental NPRM to require repetitive inspections for proper installation of the static port heaters and insulation. This proposal was in response to a National Transportation Safety Board (NTSB) comment on the original NPRM. However, we have re-assessed the safety implications of the issue based on additional information that we received from Boeing. Although we understand the NTSB's concern, we have determined that the inspections in paragraph (b)(2) of the supplemental NPRM are not necessary to address the identified unsafe condition. We have revised paragraph (b) of this AD to remove the requirement to inspect for proper installation for the following reasons.

We have concluded that the incorrect stacking of the heater assembly does not contribute to the heater connector wire damage and is therefore not a safety concern.

We based our original decision to incorporate a one-time inspection for incorrect stacking into the original NPRM on the following statement made to the FAA in Boeing Letter C1-L4L-03-0700, dated June 3, 2003.

Then, in the supplemental NPRM, we agreed with the NTSB recommendation to require repetitive inspections to address any incorrect stacking that might occur in the future.

After Boeing commented on the supplemental NPRM (see “Comments” section below), we contacted Boeing to clarify its comments. At the same time, in order to better understand the need for a repetitive inspection for proper installation as the NTSB recommended, we asked Boeing to provide us with additional information on the cause and effect of improper installation (incorrect stacking).

We specifically requested that Boeing clarify the definition of “excessive heating” and “other damage in the bend radii areas.” Boeing confirmed that the bend radii area of the heater assembly is the internal heating element bend radii, within the laminated elastomer and is not the bend radii of the connector wire. Based on this statement, we concluded that the incorrect stacking of the heater as we understood before does not contribute to heater connector wire damage.

Our evaluation of the additional information has resulted in a better understanding of “excessive heating.” We determined that improper stack-up of the static port heater might cause the heater assembly to run longer at the high wattage setting in order to heat the static plate to the proper temperature. The heater assembly circuit design limits the absolute temperature that the element can reach. Thus, the heater assembly cannot reach temperatures significantly higher than the intended operating temperatures. Additionally, the heater circuit design incorporates a 310 °F thermal fuse. However, the additional duty time or cycles caused by the improper stack-up might accelerate the normal aging of the heater assembly. Based on the above information, our previous conclusion that “excessive heating” could damage the heater connector wire is incorrect.

Furthermore, Boeing addressed the improper stack-up of the static port heater assembly in McDonnell Douglas All Operator Letter (AOL) 9-2186, dated August 15, 1991. The AOL notified the operators of an incorrect depiction of the heater/insulator installation in the DC-9 and MD-80 Airplane Maintenance Manuals (AMMs), which were also revised and corrected in 1991. We are aware of no subsequent reports of improper stack-up of the static port heater assembly.

Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received.

Boeing requests that the supplemental NPRM be withdrawn. Boeing considers its comments on the original NPRM still valid and offers these following additional comments on the supplemental NPRM.

Boeing contends that the unsafe condition no longer exists. Boeing states that the unsafe condition was addressed by Boeing Alert Service Bulletin MD90-30A023, including Appendix, dated March 14, 2001 (for Model MD-90-30 airplanes), which was mandated by AD 2001-10-11, amendment 39-12237 (66 FR 28651, May 24, 2001), and by Boeing Alert Service Bulletin MD80-30A092, including Appendix, dated March 14, 2001 (for Model DC-9-81, -82, -83, and -87 airplanes, and Model MD-88 airplanes), which was mandated by AD 2001-10-10, amendment 39-12236 (66 FR 28643, May 24, 2001). Boeing states that those ADs require inspecting the wiring of the primary and alternate static port heaters, determining if the type of insulation blanket installed is metallized Mylar, and modifying the insulation blankets if necessary.

Boeing also states that a review of operators' reports indicates only two events resulted in smoke in the cabin, both on one operator's MD-88 airplanes, with one report stating a smoke smell was “evident.” In response, Boeing issued the service bulletins described previously. Boeing notes that “in the three years since the release of these service bulletins and the related ADs, no other static port heater smoke/fire events have been reported from the entire MD-80/90 fleet.”

Boeing concludes that the unsafe condition no longer exists, and that the actions in the supplemental NPRM are purely an enhancement. Therefore, Boeing requests that the supplemental NPRM be withdrawn.

We do not agree with Boeing's request to withdraw the supplemental NPRM. Although no other static port heater smoke/fire events have been reported since all metallized Mylar insulation blankets were replaced with other insulation blankets such as Tedlar, the potential for arcing from an electrical short of the static port heater connector wire still exists.

As previously stated, we requested clarification of this request to withdraw the supplemental NPRM in an ex parte communication with Boeing.

Boeing stated that it addressed the potential for fire by removing material known to ignite easily and propagate fire. Boeing concluded that the ignition source in the one event in 1999 was of extremely low energy. The residual risk created by the potential for the low energy arcing of the wire identified in the event does not, in itself, create an undue risk. However, Boeing acknowledges the FAA's intent to further reduce risk by requiring the actions specified in paragraph (b)(1) of the supplemental NPRM. Boeing recommends that operators perform a general visual inspection and the functional test (health check) in accordance with Boeing Service Bulletins MD90-30-026 and MD80-30-097.

Therefore, it is Boeing's position that incorporating the inspections/tests, specified in paragraph (b)(1) of the supplemental NPRM, into the FAA-approved Maintenance Planning Document(s) is more appropriate.

In regard to the general visual inspection to verify stack-up specified in paragraph (b)(2) of the supplemental NPRM, Boeing stated that stack-up issues are not applicable to the alternate static port heater assembly. As stated previously, it is Boeing's assessment that improper stack-up of the primary static port assembly will not increase the potential for fire as described. Therefore, Boeing disagrees with the intent of paragraph (b)(2).

We concur with Boeing's recommendation that to further reduce risk, operators should perform a general visual inspection and functional test in accordance with Boeing Service Bulletin MD90-30-026, Revision 1, dated May 27, 2005. However, we do not agree that incorporation of the inspections/tests into the applicable FAA-approved Maintenance Planning Document(s) is more appropriate than issuance of this AD. We consider issuance of an AD necessary because ADs are the means to mandate accomplishment of procedures and adherence to specific compliance times.

We have determined, based on the above comments, that we will issue this AD with the requirement of repetitive inspections and the functional tests, as proposed, in accordance with Boeing Service Bulletin MD90-30-026, Revision 1, dated May 27, 2005, to identify and remove marginal static port heaters before they fail and generate sparks.

Based on the technical and economic information provided earlier, we do agree with Boeing that inspection of the heater and insulator for incorrect stacking is not necessary. We have revised paragraph (b) of this AD accordingly.

We have revised this action to clarify the appropriate procedure for notifying the principal inspector before using any approved AMOC on any airplane to which the AMOC applies.

After the supplemental NPRM was issued, we reviewed the figures we have used over the past several years to calculate AD costs to operators. To account for various inflationary costs in the airline industry, we find it necessary to increase the labor rate used in these calculations from $65 per work hour to $80 per work hour. The cost impact information, below, reflects this increase in the specified hourly labor rate.

After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule with the changes described previously. The FAA has determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

There are approximately 116 airplanes of the affected design in the worldwide fleet. The FAA estimates that 22 airplanes of U.S. registry are affected by this AD.

It will take approximately 1 work hour per airplane to accomplish the general visual inspection for wire damage and functional test, at an average labor rate of $80 per work hour. Based on these figures, the cost impact of the inspection for wire damage and functional test on U.S. operators is estimated to be $1,760, or $80 per airplane, per inspection cycle.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

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.

The regulations adopted herein 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. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this action (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. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES .

On March 30, 2007, the FAA issued AD 2007-07-07, Amendment 39-15012 (72 FR 16998, April 6, 2007). That AD requires a onetime inspection of certain fan disks for electrical arc-out indications, replacing fan disks with electrical arc-out indications, and reducing the life limit of certain fan disks. That AD was the result of a report that in January 2007, a CF34-3B1 turbofan engine experienced an uncontained fan disk failure during flight operation. That condition, if not corrected, could result in an uncontained fan disk failure and airplane damage.

Since AD 2007-07-07 was issued, we received a comment from Star Air A/S, requesting clarification of the compliance requirement in Table C, item (ii). We published Table C as follows:

The commenter asks if we intended to state “within 5 calendar years after the effective date of the AD”, or, “within 5 years-since-new.” We intended to state “within 5 years after the effective date of the AD.” For clarification, we revised Table C as follows:

Also, since that AD was issued, GE issued revisions to the applicable ASBs to make document reference updates and accomplishment instruction updates. We reference these ASB revisions in this AD revision.

We have reviewed and approved the technical contents of GE ASB No. CF34-BJ S/B 72-A0212, Revision 3, dated June 27, 2007, ASB No. CF34-AL S/B 72-A0233, Revision 3, dated June 27, 2007, and ASB No. CF34-AL S/B 72-A0231, Revision 1, dated June 27, 2007. All three ASBs list the affected fan disks by serial number and part number. The first two ASBs describe procedures for performing fluorescent penetrant inspection (FPI), a Tactile and Enhanced Visual (TEV) inspection, and eddy current inspection (ECI) for cracks and electrical arc-out defects. The third ASB describes procedures for performing an on-wing TEV inspection of fan disks for electrical arc-out defects.

The unsafe condition described previously is likely to exist or develop on other GE CF34-1A, -3A, -3A1, -3A2, -3B, and -3B1 turbofan engines of the same type design. We are issuing this AD to prevent an uncontained fan disk failure and airplane damage. This AD requires on-wing TEV inspection of fan disks for electrical arc-out defects on fan disks installed on regional jets within 500 flight hours after the effective date of this AD. This AD also requires for all affected fan disks shop-level FPI, enhanced TEV, and ECI inspections for cracks and electrical arc-out defects. This AD also carries forward from AD 2006-05-04 the reduced life limit for certain fan disks. You must use the service information described previously to perform the actions required by this AD.

Since an unsafe condition exists that requires the immediate adoption of this AD, we have found that notice and opportunity for public comment before issuing this AD are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to send us any written relevant data, views, or arguments regarding this AD. Send your comments to an address listed under ADDRESSES . Include “AD Docket No. FAA-2007-27687; Directorate Identifier 2000-NE-42-AD” in the subject line of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify it.

We will post all comments we receive, without change, to http://dms.dot.gov , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this AD. Using the search function of the DMS Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78) or you may visit http://dms.dot.gov.

You may examine the AD docket on the Internet at http://dms.dot.gov; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone (800) 647-5527) is provided in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

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.

We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary at the address listed under ADDRESSES .

Examining the Docket

You may examine the AD docket on the Internet at http://dms.dot.gov or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Operations office (telephone (800) 647-5527) is located on the ground floor of the West Building at the DOT street address stated in the ADDRESSES section.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to certain McDonnell Douglas Model 717-200 airplanes. That NPRM was published in the Federal Register on May 25, 2007 (72 FR 29278). That NPRM proposed to require installing in-line fuel float switch fuses and wire protection at the left, right, and center forward spars.

We provided the public the opportunity to participate in the development of this AD. We have considered the comment received. The commenter, AirTran Airways, supports the NPRM.

We have carefully reviewed the available data, including the comment received, and determined that air safety and the public interest require adopting the AD as proposed.

There are about 149 airplanes of the affected design in the worldwide fleet. The following table provides the estimated costs for U.S. operators to comply with this AD.

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.

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.

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 24, 2007 (72 FR 29082). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

You may obtain further information by examining the MCAI in the AD docket.

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.

We have revised this action to clarify the appropriate procedure for notifying the principal inspector before using any approved AMOC on any airplane to which the AMOC applies.

We reviewed the available data and determined that air safety and the public interest require adopting the AD with the change described previously. We determined that this change will not increase the economic burden on any operator or increase the scope of the AD.

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.

We estimate that this AD will affect 20 products of U.S. registry. We also estimate that it will take about 15 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $80 per work-hour. Required parts will cost about $0 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $24,000 or $1,200 per product.

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.

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.

You may examine the AD docket on the Internet at http://dms.dot.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.

History

FAA Order 7400.9P, Airspace Designations and Reporting Points, effective September 15, 2006, listed Class A, B, C, D and E airspace areas; air traffic service routes; and reporting points. Due to the length of these descriptions, the FAA requested approval from the Office of the Federal Register to incorporate the material by reference in the Federal Aviation Regulations section 71.1, effective September 15, 2006, through September 15, 2007. During the incorporation by reference period, the FAA processed all proposed changes of the airspace listings in FAA Order 7400.9P in full text as proposed rule documents in the Federal Register . Likewise, all amendments of these listings were published in full text as final rules in the Federal Register . This rule reflects the periodic integration of these final rule amendments into a revised edition of Order 7400.9R, Airspace Designations and Reporting Points. The Director of the Federal Register has approved the incorporation by reference of FAA Order 7400.9R in section 71.1, as of September 15, 2007, through September 15, 2008.

This rule also explains the procedures the FAA will use to amend the airspace designations incorporated by reference in part 71. Sections 71.5, 71.15, 71.31, 71.33, 71.41, 71.51, 71.61, 71.71, and 71.901 are also updated to reflect the incorporation by reference of FAA Order 7400.9R.

This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 to reflect the approval by the Director of the Federal Register of the incorporation by reference of FAA Order 7400.9R, effective September 15, 2007, through September 15, 2008. During the incorporation by reference period, the FAA will continue to process all proposed changes of the airspace listings in FAA Order 7400.9R in full text as proposed rule documents in the Federal Register . Likewise, all amendments of these listings will be published in full text as final rules in the Federal Register . The FAA will periodically integrate all final rule amendments into a revised edition of the Order, and submit the revised edition to the Director of the Federal Register for approval for incorporation by reference in section 71.1.

The FAA has determined that this action (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. This action neither places any new restrictions or requirements on the public, nor changes the dimensions or operation requirements of the airspace listings incorporated by reference in part 71. Consequently, notice and public procedure under 5 U.S.C. 553(b) are unnecessary. Because this action will continue to update the changes to the airspace designations, which are depicted on aeronautical charts, and to avoid any unnecessary pilot confusion, I find that good cause exists, under 5 U.S.C. 553(d), for making this amendment effective in less than 30 days.

Pennfield Oil Co., 14040 Industrial Rd., Omaha, NE 68144, has requested that FDA withdraw approval of NADA 128-550 for ANCHOR Zinc Bacitracin Type A medicated article because the product is not manufactured or marketed.

In a notice published elsewhere in this issue of the Federal Register , FDA gave notice that approval of NADA 128-550 and all supplements and amendments thereto, are withdrawn, effective August 28, 2007. As provided in the regulatory text of this document, the animal drug regulations are amended to reflect the withdrawal of approval.

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.

The Millennium Challenge Corporation establishes a new Chapter XIII in Title 22 of the Code of Federal Regulations to read “Chapter XIII—Millennium Challenge Corporation”.

This interim final rule informs the public about the structure, function, operations, and quorum requirements of the Millennium Challenge Corporation.

In promulgating this rule, the Millennium Challenge Corporation finds that notice and public comment are not necessary. Section 553(b)(3)(A) of Title 5, United States Code, provides that when regulations involve matters of agency organization, procedure, or practice, the agency may publish regulations in final form. In addition, the Millennium Challenge Corporation finds, in accordance with 5 U.S.C. 553(d), that a delayed effective date is unnecessary. Accordingly, these regulations are effective upon publication.

This interim final rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.)

This interim final rule does not require the preparation of an assessment statement in accordance with the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531. This rule does not include a Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. The Coast Guard did not receive an Application for Approval of Marine Event for this event in sufficient time to conduct a notice and comment period, thereby making an NPRM impracticable. A delay or cancellation of the fireworks display in order to accommodate a full notice and comment period would be contrary to the public interest.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Any delay encountered in this regulation's effective date would be impracticable and contrary to public interest since immediate action is needed to prevent vessel traffic from transiting a navigable portion of Hog Island Channel off Village Beach Fishing Pier, Island Park, NY and to protect the maritime public from the hazards associated with this fireworks event.

The temporary zone should have minimal negative impact on the public and navigation because it will only be enforced for a two hour period on a single day and the area closed by the safety zone is minimal, thus allowing vessels to transit around the zone on Hog Island Channel off Village Beach Fishing Pier, Island Park, NY.

The Labor Day Celebration Fireworks display will be taking place off Village Beach Fishing Pier, Island Park, NY from 8 p.m. to 10 p.m. on September 1, 2007. If the fireworks display is cancelled due to inclement weather on September 1, 2007, it will take place from 8 p.m. to 10 p.m. on September 2, 2007. This safety zone is necessary to protect the life and property of the maritime public from the hazards posed by the fireworks display. It will protect the maritime public by prohibiting entry into or movement within this portion of Hog Island Channel one hour prior to, during and one hour after the stated event.

This regulation establishes a temporary safety zone on the navigable waters off Village Beach Fishing Pier, Island Park, NY within a 300-foot radius of the fireworks launch site located at approximate position 40°36′30.947″ N, 073°39′22.226″ W. The temporary safety zone will be outlined by temporary marker buoys installed by the event organizers.

This action is intended to prohibit vessel traffic in a navigable portion of Hog Island Channel off Village Beach Fishing Pier, Island Park, NY to provide for the protection of life and property of the maritime public. The safety zone will be enforced from 8 p.m. until 10 p.m. on September 1, 2007 and if the event is postponed due to inclement weather, from 8 p.m. to 10 p.m. on September 2, 2007. Marine traffic may transit safely outside of the safety zone during the event thereby allowing navigation of the rest of the Hog Island Channel except for the portion delineated by this rule.

The Captain of the Port anticipates minimal negative impact on vessel traffic because of this safety zone due to the limited area covered by this safety zone and the short enforcement period. Public notifications will be made prior to the effective period via local notice to mariners and marine information broadcasts.

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.

This regulation may have some impact on the public, but the potential impact will be minimized for the following reasons: vessels will only be excluded from the area of the safety zone for two hours and vessels will be able to operate in other areas of Hog Island Channel, Island Park, NY during the enforcement period.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule will have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in those portions of Sag Harbor covered by the safety zone. For the reasons outlined in the Regulatory Evaluation section above, this rule will not have a significant impact on a substantial number of small entities.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), the Coast Guard wants to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If this rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call Lieutenant D. Miller, Chief, Waterways Management Division, Sector Long Island Sound, at (203) 468-4596.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

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.

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.

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.

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.

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 will not concern an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

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.

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.

We have analyzed this rule under Commandant Instruction M16475.1D and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of the categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation as the rule establishes a safety zone.

A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” will be available in the docket where indicated under ADDRESSES .

Currently, references to Executive Order No. 10927, of March 18, 1961, dealing with charitable fund-raising and related matters, appear in 39 CFR 232.1(h) and 39 CFR 447.21. Those references are obsolete, since the revocation of that Order by Executive Order No. 12353, issued March 23, 1982. The Postal Service has determined it is appropriate to correct the obsolete references.

Throughout this document, “we,” “us” and “our” refer to EPA.

Table 1 lists the rules we are approving with the dates that they were adopted by the local air agencies and submitted by the California Air Resources Board (CARB).

On July 21, 2006 and October 24, 2006, respectively, EPA found that SCAQMD Rules 1178 and 1118 met the completeness criteria in 40 CFR part 51, Appendix V. The state's submittal must meet these criteria before EPA's formal review can begin.

We approved a version of Rule 1178 into the SIP on August 26, 2003 (see 68 FR 51181). Rule 1118 has not been submitted previously to EPA for SIP inclusion. There have been no intervening submittals of these rules since we acted on the prior version of Rule 1178, or since Rule 1118 was submitted.

VOCs help produce ground-level ozone and smog, which harm human health and the environment. Section 110(a) of the CAA requires states to submit regulations that control VOC emissions. Rule 1178 applies additional controls to reduce VOC emissions during the filling, storage, and emptying of large tanks at petroleum facilities. Rule 1178 applies to facilities emitting more than 20 tons/year of VOCs that have storage tanks larger than 19,815 gallons storing organic liquids with a true vapor pressure greater than or equal to 0.1 psi and establishes vapor pressure containment and control requirements for organic liquid storage tanks. Tanks and systems of tanks must have a vapor recovery system that recovers at least 95% of ROC vapors by weight or combusts excess vapors. Rule 1178 also sets specific requirements for vapor loss control devices, external floating roofs, and internal floating roofs. While some of Rule 1178's requirements are duplicative, many requirements are additive and more stringent than SCAQMD Rule 463—Organic Liquid Storage. Rule 1118 is designed to decrease VOC as well as, sulphur dioxide and nitrogen dioxide emissions from industries such as petroleum refineries, sulphur recovery plants, and hydrogen production plants. The rule also provides for monitoring and recording data related to flaring operations and flare related emissions.

EPA's technical support documents (TSD) have more information about these rules.

Generally, SIP rules must be enforceable (see section 110(a) of the Act), must require Reasonably Available Control Technology (RACT) for each category of sources covered by a Control Techniques Guidelines (CTG) document as well as each major source in nonattainment areas (see section 182(a)(2)), and must not relax existing requirements (see sections 110(l) and 193). The SCAQMD regulates an ozone nonattainment area (see 40 CFR part 81), so Rule 1178 and 1118 must fulfill RACT.

Guidance and policy documents that we use to help evaluate specific enforceability and RACT requirements consistently include the guidance documents listed below.

(1) Portions of the proposed post-1987 ozone and carbon monoxide policy that concern RACT, 52 FR 45044, November 24, 1987.

(2) “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,” EPA, May 25, 1988 (the Bluebook).

(3) “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001 (the Little Bluebook).

(4) “Control of Volatile Organic Emissions from Petroleum Liquid Storage in External Floating Roof Tanks,” EPA-450/2-78-047, USEPA, December 1978.

(5) “Control of Volatile Organic Emissions from Storage of Petroleum Liquids in Fixed-Roof Tanks, “EPA-450/2-77-036, USEPA, December 1977.

There are no relevant CTGs for minimizing flare emissions through event monitoring.

We believe these rules are consistent with the relevant policy and guidance regarding enforceability, RACT, and SIP relaxations. The amendments to Rule 1178 either clarify the rule, or strengthen its provisions in a practical manner. Rule 1118 strengthens the SIP by minimizing emissions from a previously unregulated source of VOC. The TSD has more information on our respective evaluations.

We have no recommendations for the next time the local agency modifies the rules.

As authorized in section 110(k)(3) of the Act, EPA is fully approving the submitted rules because we believe they fulfill all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this Federal Register , we are simultaneously proposing approval of the same submitted rules. If we receive adverse comments by September 27, 2007, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on October 29, 2007. This will incorporate these rules into the federally enforceable SIP.

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.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission; to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 29, 2007. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.

We are taking direct final action to approve revisions to the Texas SIP, submitted September 4, 2002, which require evaluation of the emissions from dockside vessels when applying for permits for new and modified sources and certain other administrative changes as described herein. This SIP revision requires that all dockside marine vessel emissions associated with onshore facilities or using onshore equipment be included in all permits. The emissions will require best available control technology (BACT), maximum allowable emission limitations, monitoring, testing, and ambient air impacts analysis. Such emissions originating from a dockside vessel that will be included in permits include: Loading and unloading of bulk liquid materials, liquefied gaseous materials, and solid bulk materials; cleaning and degassing liquid vessel compartments; and abrasive blasting and painting.

We are also taking direct final action to approve SIP revisions to section 116.615, submitted March 12, 2007, which relate to compliance with distance limitations, setbacks, and buffers which are to be determined at facilities that are authorized to construct or modify under an air quality standard permit. The Commission submitted this amendment to EPA to process as a revision to the Texas SIP. The revised rule provides that if a Standard Permit for a facility requires a distance setback, or buffer from other property or structure as a condition of the permit, the determination of whether the distance setback, or buffer is satisfied shall be made on conditions existing on the earlier of: The date new construction, expansion, or modification of a facility begins; or the date of any application or notice of intent is first filed with the TCEQ to obtain approval for the construction or operation of the facility.

We are approving provisions from two SIP revisions that the Texas Commission on Environmental Quality (TCEQ) submitted to EPA. These SIP revisions were dated September 4, 2002, and March 12, 2007. Copies of the revised rules as well as the Technical Support Document (TSD) can be obtained from the Docket, as discussed in the “Docket” section above. A discussion of the specific Texas rules changes that we are approving is included in the TSD and summarized below.

On September 4, 2002, the TCEQ submitted a SIP revision which requires evaluation of the emissions from dockside vessels when applying for permits for new and modified sources and certain other administrative changes. This includes revisions to 30 Texas Administrative Code (TAC) Chapter 116—Control of Air Pollution by Permits for New Construction or Modification. The TCEQ submitted revisions to section 116.10—General Definitions, section 116.111—General Application, and section 116.615—General Conditions. These sections are amended to add new definitions of “dockside vessel” and “dockside vessel emissions” in section 116.10 and to revise sections 116.111 and 116.615 to include requirements to evaluate the emissions from dockside vessels when the owner or operator applies for a permit or uses a Standard Permit for new and modified sources.

On March 12, 2007, the TCEQ submitted amendments to section 116.615 which addresses compliance with distance limitations, setbacks, and buffers at facilities that are authorized to construct or modify under an air quality standard permit. The revised rule provides that if a Standard Permit for a facility requires a distance setback or buffer from other property or structure as a condition of the permit, the determination of whether the distance setback or buffer is satisfied shall be made on conditions existing on the earlier of: The date new construction, expansion, or modification of a facility begins or the date of any application or notice of intent is first filed with the TCEQ to obtain approval for the construction or operation of the facility.

The new definition of “dockside vessel” in section 116.10(4) defines the term as any water-based transportation, platforms, or similar structures which are connected or moored to the land. The new definition of “dockside vessel emissions” in section 116.10(5) defines the term as those emissions originating from a dockside vessel that are the result of functions performed by onshore facilities or using onshore equipment. These emissions include, but are not limited to: Loading and unloading of liquid bulk materials; loading and unloading of liquefied gaseous materials; loading and unloading of solid bulk materials; cleaning and degassing of liquid vessel compartments; and abrasive blasting and painting.

These definitions meet the requirements of 40 CFR 51.160(e) which provide that any SIP for review of new and modified sources must identify the types and sizes of facilities, building, structures, or installations that will be subject to review and discuss the basis determining which facilities will be subject to review. In this action, Texas has identified dockside vessels as a type of facility that should be reviewed in permits for new and modified facilities. When adopting these revisions to its regulations, the TCEQ determined that dockside vessels are facilities in the Texas Clean Air Act (TCAA), § 382.003(6), and thus subject to the requirements of Chapter 116. These emissions will be subject to BACT review, maximum allowable emission limitations, monitoring, testing, recordkeeping, and ambient air impacts analysis. The TSD contains additional information on our evaluation of the revisions to section 116.10 and the basis for how the revisions meet our requirements for approval.

Texas revised section 116.111(a)(2) to add a requirement to review dockside vessel emissions; made non-substantive changes to clarify section 116.111(a)(2)(A)(i); and revised section 116.111(a)(2)(J) to preclude consideration of dispersion modeling predicting concentrations of non-criteria air contaminants over coastal waters of the state (limited to shipbuilding or ship repair operation).

The revision to section 116.111(a)(2) to add a requirement to review dockside vessel emissions, meets the requirements of 40 CFR 51.160(e) which provide that any SIP for review of new and modified sources must identify the types and sizes of facilities, building, structures, or installations which will be subject to review and discuss the basis determining which facilities will be subject to review. In this action, Texas has identified dockside vessels as a type of facility that should be reviewed in permits for new and modified facilities. When adopting these revisions to its regulations, the TCEQ determined that dockside vessels are facilities in the Texas Clean Air Act (TCAA), section 382.003(6), and thus subject to the requirements of Chapter 116. These emissions will be subject to BACT review, maximum allowable emission limitations, monitoring, testing, recordkeeping, and ambient air impacts analysis.

The revision to section 116.111(a)(2)(A)(i) previously provided that the “emissions from the proposed facility will comply with all rules and regulations of the commission and with the intent of the TCAA, including protection of the health and physical property of the people.” Texas changed the last clause to read “including protection of the health and property of the public.” This change is approvable as a non-substantive change.

Section 116.111(a)(2)(J) was revised to preclude consideration of dispersion modeling which predicts concentrations of non-criteria air contaminants over coastal waters of the state (limited to shipbuilding or ship repair operation). 40 CFR 51.160(a) requires a State or local agency to ensure that the proposed construction or modification of a facility, building, structure, or installation, or combination of these will not interfere with the attainment or maintenance of a national standard. The “national standard” refers to national ambient air quality standards (NAAQS) established under 40 CFR part 50 for the criteria pollutants. Thus, 40 CFR 51.160 requires a State or local agency to address interference with attainment or maintenance of the NAAQS for the criteria pollutants, and does not address attainment or maintenance of ambient standards for non-criteria pollutants. Texas' approved SIP for reviewing new and modified sources meets the requirements of 40 CFR 51.160 for the criteria pollutants. There is no requirement under section 51.160 to address ambient impacts for non-criteria pollutants. Thus Texas' revised provision not to “require and * * * consider air dispersion modeling results predicting ambient concentrations of non-criteria air contaminants over coastal waters of the state” is consistent with the provisions of section 51.160(a). The TSD contains additional information on our evaluation of the revisions to section 116.111 and the basis for how the revisions meet our requirements for approval.

Section 116.615 is part of Texas' program for Standard Permits. Texas revised section 116.615(1) to add a requirement to review dockside vessel emissions; and revised section 116.615(9) to change cross-references from sections 101.6 and 101.7 to sections 101.201 and 101.211.

The revision to section 116.615(1) to add a requirement to review dockside vessel emissions, meets the requirements of 40 CFR 51.160(e) which provide that any SIP for review of new and modified sources must identify the types and sizes of facilities, building, structures, or installations that will be subject to review and discuss the basis determining which facilities will be subject to review. In this action, Texas has identified dockside vessels as a type of facility that should be reviewed in permits for new and modified facilities. When adopting these revisions to its regulations, the TCEQ determined that dockside vessels are facilities in the TCAA, section 382.003(6), and thus subject to the requirements of Chapter 116. These emissions will be subject to BACT review, maximum allowable emission limitations, monitoring, testing, recordkeeping, and ambient air impacts analysis.

The revision to section 116.615(9) changes the cross-references from sections 101.6 and 101.7 to sections 101.201 and 101.211. This change is approvable as an administrative change to remove obsolete provisions of TCEQ's regulation and replace them with the current provisions. 1 The TSD contains additional information on our evaluation of the revisions to section 116.615 and the basis for how the revisions meet our requirements for approval.

In this action, EPA is not approving other provisions that Texas submitted on September 4, 2002. This includes sections 116.311, 116.315, 116.711, 116.715, 116.788, 116.803, and 116.919. These sections affect earlier provisions which were previously submitted and which are presently being reviewed by EPA. EPA will take appropriate action on sections 116.311, 116.315, 116.711, 116.715, 116.788, 116.803, and 116.919 after it completes its review of and takes appropriate action on the earlier submittals of these sections. Furthermore, the provisions of sections 116.10, 116.111, and 116.615, which we are approving in this action, do not cross-reference or depend on the sections that we are not approving. Accordingly, our taking no action on sections 116.311, 116.315, 116.711, 116.715, 116.778, 116.803, and 116.919 at this time does not affect the ability to approve sections 116.10, 116.111, and 116.615. The TSD contains detailed information concerning the basis for not acting on sections 116.311, 116.315, 116.711, 116.715, 116.778, 116.803, and 116.919 at this time.

1. Changes to provisions to incorporate provisions for compliance with distance limitations, setbacks, and buffers are to be determined at facilities that are authorized to construct or modify under an air quality Standard Permit.

Texas revised section 116.615 to add a new paragraph (11) which sets forth provisions relating to distance limitations, setbacks, and buffers that are authorized under an air quality Standard Permit. This provision provides that if a Standard Permit for a facility requires a distance limitation, setback, or buffer from other property or structures as a condition of the permit, such distance limitation, setback, or buffer is satisfied based on conditions existing on the earlier of: The date that new construction, expansion, or modification of a facility begins; or the date any application or notice of intent is first filed with the TCEQ to obtain approval or operation of the facility new construction or operation of the facility.

Any distance limitation, setback, or buffer that is included as a condition in a Standard Permit issued under Subchapter F—Standard Permits—of Chapter 116 is a discretionary measure not mandated by the Act. This revision improves the SIP by providing protection of persons located near the facility that operates under a Standard Permit which contains such distance limitation, setback, or buffer. By restricting the location of these types of facilities, the SIP provides additional assurances that persons located near these facilities will not be adversely affected by exposure to the air contaminants emitted from these facilities. Compliance with this condition will be determined consistent with section 116.111(2)(A)(i) of the SIP, which was revised in the September 4, 2002, SIP submittal (which is also being approved in this action) and which provides that emissions from a new or modified facility will comply with all rules and regulations of the Commission and with the intent of the Texas Clean Air Act, including the protection of the health and property of the public. This revision meets the requirements of 40 CFR 51.160(a) which requires the plan to provide that the construction or modification of facility, building, structure, installation, or combination thereof will not violate applicable portions of the control strategy or interfere with attainment or maintenance of a national standard. The TSD contains additional information on our evaluation of the revisions to section 116.615 and the basis for how the revisions meet our requirements for approval.

The March 12, 2007, SIP submittal also includes several changes that are approvable as non-substantive changes. These include the following changes:

• Revision of section 116.615(1) to replace “TCAA” with “Texas Clean Air Act (TCAA)”;

• Revision of section 116.615(3) to remove the words “relating to applicability”.

• Revision of section 116.615(5)(A), (6), (8), and (10) to replace “air pollution control program” with “air pollution control agency”.

• Revision of section 116.615(6) to replace “Office of Air Quality” with “commission's appropriate regional office”.

• Revision of section 116.615(8) to replace “EPA” with “United States Environmental Protection Agency”.

The TSD contains additional information on our evaluation of the revisions to section 116.615 and the basis for how the revisions meet our requirements for approval.

Section 110(l) of the Clean Air Act states that EPA cannot approve a SIP revision if the revision would interfere with any applicable requirements concerning attainment and reasonable further progress towards attainment of the NAAQS or any other applicable requirements of the Act. Our review of the Texas SIP submittals indicate that the revision will not interfere with any applicable requirements concerning attainment and reasonable further progress towards attainment of the NAAQS or any other applicable requirements of the Act.

In this action, we are approving the revisions to sections 116.10, 116.111, and 116.615. These revisions meet the requirements of the Act and our regulations as described above and in the TSD. The change to require evaluation of emissions from dockside vessels and for setting distance limitations, setbacks, and buffers in Standard permits will improve the SIP and improve upon TCEQ's ability to ensure that emissions from new and modified facilities, buildings, structures, or installations will not violate applicable portions of the control strategy or interfere with attainment or maintenance of a national standard in the state in which the proposed source (or modification) is located or in a neighboring state.

EPA is publishing this rule 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 SIP revision if relevant adverse comments are received. This rule will be effective on O ctober 29, 2007 without further notice unless we receive adverse comment by September 27, 2007. If we receive relevant adverse comments, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that, before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 29, 2007. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

On August 1, 2007 (72 FR 41894), EPA published direct final rulemaking action approving a section of the California State Implementation Plan (SIP). This action contained amendments to 40 CFR Part 52, Subpart F. The amendment which incorporated material by reference into § 52.220, Identification of plan, paragraph (c)(347) is incorrect. That amendment is being corrected in this action.

EPA has determined that today's action falls under the “good cause” exemption in section 3(b)(3)(B) of the Administrative Procedures Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation where public notice and comment procedures are impracticable, unnecessary or contrary to the public interest. Public notice and comment for this action are unnecessary because today's action to correct 40 CFR part 52 has no substantive impact on EPA's August 1, 2007, direct final rule approval. In addition, EPA can identify no particular reason why the public would be interested in being notified of the correction of this error or in having the opportunity to comment on the correction prior to this action being finalized, since this correction action does not change the approval status.

EPA also finds that there is good cause under APA section 553(d)(3) for this correction to become effective on the date of publication of this action. Section 553(d)(3) of the APA allows an effective date less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.” 5 U.S.C. 553(d)(3). The purpose of the 30-day waiting period prescribed in APA section 553(d)(3) is to give affected parties a reasonable time to adjust their behaviour and prepare before the final rule takes effect. Today's rule, however, does not create any new regulatory requirements such that affected parties would need time to prepare before the rule takes effect. Rather, today's rule merely corrects an error. For these reasons, EPA finds good cause under APA section 553(d)(3) for this correction to become effective on the date of publication of this action.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), or require prior consultation with State officials as specified by Executive Order 12875 (58 FR 58093, October 28, 1993), or involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994).

Because this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute, it is not subject to the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely corrects an error, does not impose any new requirements on sources or allow a state to avoid adopting or implementing other requirements, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act (CAA). 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 is not economically significant and because the Agency does not have reason to believe that the rule concerns an environmental health risk or safety risk that may disproportionately affect children.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. 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 CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business Regulatory Enforcement Fairness Act of 1996, EPA submitted a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives and the Comptroller General of the General Accounting Office prior to publication of this rule in today's Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 29, 2007. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2) of the CAA.)

This interim rule implements Section 1017 of the National Defense Authorization Act for Fiscal Year 2007 (Pub. L. 109-364). Section 1017 requires DoD to issue an acquisition policy that establishes, as a criterion required to be considered in obtaining carriage of cargo by vessel for DoD, the extent to which an offeror of such carriage has had overhaul, repair, and maintenance work for covered vessels performed in shipyards located in the United States or Guam. Section 1017 defines “covered vessel” as one that is (1) Owned, operated, or controlled by the offeror, and (2) qualified to engage in the carriage of cargo in the coastwise or noncontiguous trade under Section 27 of the Merchant Marine Act (46 U.S.C. 883); 46 U.S.C. 12106; and Section 2 of the Shipping Act (46 U.S.C. App. 802). Section 1017 also requires DoD to submit an annual report to the congressional defense committees regarding overhaul, repair, and maintenance performed on covered vessels of each offeror of carriage to which the acquisition policy applies. The interim rule contains a solicitation provision and corresponding prescriptive language to address the statutory requirements. The solicitation provision includes a definition of “overhaul, repair, and maintenance work” consistent with the definition in Commander Military Sealift Command Instruction 4700.14B; and a definition of “shipyards” consistent with the definition applicable to NAICS Code 336611, Ship Building and Repairing.

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

DoD has prepared an initial regulatory flexibility analysis consistent with 5 U.S.C. 603. A copy of the analysis may be obtained from the point of contact specified herein. The analysis is summarized as follows:

The objective of the rule is to maintain a strong national ship repair industrial base. Therefore, the rule contains an evaluation preference for use in DoD solicitations for carriage of cargo by vessel, to apply to those entities that use domestic shipyards for vessel overhaul, repair, and maintenance. The requirements of the rule will apply to entities interested in receiving DoD contracts for carriage of cargo by vessel. An evaluation preference will be given to offerors of carriage who use domestic shipyards for vessel overhaul, repair, and maintenance work. This is expected to have a positive effect on entities owning domestic shipyards, by encouraging the use of those shipyards.

DoD invites comments from small businesses and other interested parties. DoD also will consider comments from small entities concerning the affected DFARS subparts in accordance with 5 U.S.C. 610. Such comments should be submitted separately and should cite DFARS Case 2007-D001.

This interim rule contains a new information collection requirement. The Office of Management and Budget (OMB) has approved the information collection requirement for use through February 29, 2008, under OMB Control Number 0704-0445, in accordance with the emergency processing procedures of 5 CFR 1320.13. DoD invites comments on the following aspects of the interim rule: (a) Whether the collection of information is necessary for the proper performance of the functions of DoD, including whether the information will have practical utility; (b) the accuracy of the estimate of the burden of the information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including the use of automated collection techniques or other forms of information technology. The following is a summary of the information collection requirement.

Title: Defense Federal Acquisition Regulation Supplement (DFARS); Subpart 247.5, Carriage Vessel Overhaul, Repair, and Maintenance.

Type of Request: New collection.

Number of Respondents: 15.

Responses Per Respondent: 1.

Annual Responses: 15.

Average Burden Per Response: 1.5 hours.

Annual Burden Hours: 22.5.

Needs and Uses: DoD needs this information to implement Section 1017 of the National Defense Authorization Act for Fiscal Year 2007 (Public Law 109-364). Section 1017 requires DoD to (1) Issue an acquisition policy establishing an evaluation criterion, for use in obtaining carriage of cargo by vessel, that considers the extent to which an offeror has had overhaul, repair, and maintenance work for covered vessels performed in shipyards located in the United States or Guam; and (2) submit an annual report to the congressional defense committees regarding overhaul, repair, and maintenance performed on covered vessels of each offeror to which the acquisition policy applies.

Affected Public: Businesses or other for-profit institutions.

Respondent's Obligation: Required to obtain or retain benefits.

Frequency: On occasion.

Written comments and recommendations on the proposed information collection should be sent to Ms. Hillary Fielden at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503, with a copy to the Defense Acquisition Regulations System, Attn: Mr. Mark Gomersall, OUSD(AT&L)DPAP(DARS), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-3062. Comments can be received from 30 to 60 days after the date of this notice, but comments to OMB will be most useful if received by OMB within 30 days after the date of this notice.

To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Defense Acquisition Regulations System, Attn: Mr. Mark Gomersall, OUSD(AT&L)DPAP(DARS), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-3062.

A determination has been made under the authority of the Secretary of Defense that urgent and compelling reasons exist to publish an interim rule prior to affording the public an opportunity to comment. This interim rule implements Section 1017 of the National Defense Authorization Act for Fiscal Year 2007 (Pub. L. 109-364). Section 1017 requires DoD to issue an acquisition policy that establishes an evaluation criterion, for use in obtaining carriage of cargo by vessel, that considers the extent to which an offeror of such carriage has had overhaul, repair, and maintenance work for covered vessels performed in shipyards located in the United States or Guam. In addition, Section 1017 requires DoD to submit an annual report to the congressional defense committees regarding overhaul, repair, and maintenance performed on covered vessels of each offeror to which the acquisition policy applies. Comments received in response to this interim rule will be considered in the formation of the final rule.

This final rule makes several technical corrections and amendments to the regulatory text of Federal Motor Vehicle Safety Standard (FMVSS) Nos. 109, 110, 119, and 139, all of which are tire-related standards. This final rule also denies a petition by Advocates for Highway and Auto Safety (Advocates) for reconsideration of the January 2006 final rule; response to petitions for reconsideration, regarding the agency's requirements with respect to the endurance test for snow tires.

The Transportation Recall Enhancement, Accountability, and Documentation (TREAD) Act, Section 10, “Endurance and resistance standards for tires,” required NHTSA to revise and update FMVSS No. 109, New pneumatic tires, and FMVSS No. 119, New pneumatic tires for vehicles other than passenger cars . 1 In response to this mandate, NHTSA published a final rule on June 26, 2003, establishing FMVSS No. 139, New pneumatic radial tires for light vehicles, which will apply to new tires used on light vehicles; i.e. , vehicles with a gross vehicle weight rating (GVWR) of 10,000 pounds or less, except motorcycles and low speed vehicles. 2

The new standard is scheduled to become effective on September 1, 2007. It features substantially more stringent high speed and endurance tests, and a new low-pressure performance test. The purpose of the new and more stringent requirements is to improve the ability of tires to withstand the effects of tire heat build-up and severe under-inflation during highway travel in fully loaded conditions. Unlike the existing tire safety standards, which previously differentiated between light trucks and passenger cars, 3 FMVSS No. 139 applies to tires used on both.

In a January 2006 final rule; response to petitions for reconsideration, 4 the agency reduced the test speed for the tire endurance and low-inflation pressure performance tests in FMVSS No. 139, paragraphs S6.3.1.2.3 and S6.4.1.2.1, from 120 km/h (75 mph) to 110 km/h (68 mph) for all passenger car snow tires and light truck snow tires with load ranges of C, D, and E. The other test parameters—inflation pressure, duration, load, and ambient temperature—remained unchanged.

For snow tires, the endurance test is a 34-hour test conducted at a speed of 110 km/h (68 mph) with a tire inflation pressure that is 25 percent below the maximum inflation pressure of the tire, and with tire loads of 85 percent, 90 percent, and 100 percent of maximum load. After the snow tire has completed the endurance test, it is then subjected to a new low pressure test for 90 minutes at an inflation pressure about 42 percent below the tire's maximum inflation pressure at a test speed of 110 km/h (68 mph) with 100 percent of maximum load. The snow tire must complete both the endurance test and the low-inflation pressure test without any failures.

The agency made these changes because of practicability concerns. Snow tires are designed with more flexible (i.e., softer rubber) tread compounds, which are good for finding traction in snow but can pose difficulties for passing certain tire performance tests, because the tread designs and compounds are less able than other tires to withstand the heat caused by the severity of testing on the road wheel. NHTSA determined that the technical design challenges and the costs to redesign existing snow tires to pass the new 120 km/h (75 mph) test would far outweigh the negligible safety benefits associated with that redesign.

The final rule also changed the effective date from June 1 to September 1, 2007, to correspond with the start of the industry model year, and to September 1, 2008 for snow tires.

NHTSA received one petition for reconsideration from Advocates for Highway and Auto Safety (Advocates) on the January 2006 final rule; response to petitions for reconsideration. 5

Advocates petitioned the agency to reconsider the revised requirements related to the endurance test for snow tires in FMVSS No. 139. According to Advocates, millions of motorists travel with dedicated snow tires at high speeds on what are often clear roads, free of snow and ice. The petition stated that recent speed studies show that increasing percentages of drivers regularly exceed even Interstate speed limits posted at 75 miles per hour. Advocates argued that instead of requiring manufacturers to improve their snow tire design and performance to better withstand the high speeds and temperatures commonly encountered in high-speed travel on U.S. highways, NHTSA has “grandfathered” existing snow tire safety design and performance by reducing compliance requirements. Advocates disagreed that this decision by the agency meets the intent of the TREAD Act.

Currently, the endurance test for passenger car snow tires, included in FMVSS No. 109, New pneumatic tires , is conducted at a test speed of 80 km/h (50 mph). For light truck (LT) snow tires, the current endurance test is included in FMVSS No. 119, New pneumatic tires for vehicles other than passenger cars , and is conducted at a test speed of 80 km/h (50 mph) for load range “C” and “D” tires, and at 64 km/h (40 mph) for load range “E” tires. The change in endurance test speed to 110 km/h (68 mph) in the new FMVSS No. 139 is a speed increase of 38 percent for passenger car snow tires and LT snow tires load ranges C and D, and 72 percent for LT snow tires load range E. These changes represent a substantial increase in the stringency of the endurance test from the current standards.

FMVSS No. 109 also includes a high speed test for all passenger car tires, including snow tires, with test speeds of 121 km/h (75 mph), 129 km/h (80 mph), and 137 km/h (85 mph), for 30 minutes at each speed step. LT tires, including snow tires, are not currently subject to the requirements of a high speed test under FMVSS No. 119. FMVSS No. 139 includes a high speed test for all light vehicle tires, including snow tires, at test speeds of 140 km/h (87 mph), 150 km/h (93 mph), and 160 km/h (99 mph), for 30 minutes at each speed step. 6 These changes also represent a substantial increase in the stringency of the high speed test from the current standards.

In the final rule; response to petitions for reconsideration, NHTSA explained its determination that because of the nature of snow tire construction, the test speed specified in the June 2003 final rule for the endurance and low-inflation pressure tests  7 created practicability problems for these tires. Snow tires usually feature higher hysteretic tread compounds, 8 molded in greater tread depths and smaller tread blocks than non-snow tires. This construction is used to provide special performance in snow conditions. 9

These tread designs and compounds are disproportionately affected at high speeds when tested on a laboratory road wheel. Research conducted by the ASTM International has shown that tires tested on a curved road wheel experience an increase in severity (in terms of stress and temperature) of about 12 percent compared to on a flat roadway. A snow tire that experiences chunking  10 from a 120 km/h (75 mph) road wheel test does so in part because of the relative severity of the road wheel as compared to the conditions on a flat roadway at the same speed.

The purpose of the endurance test is to evaluate the tire's performance for an extended time period. The test is conducted at loads of 85 percent of the tire's maximum load rating for 4 hours, at 90 percent for 6 hours, and at 100 percent for another 24 hours, for a total test time of 34 hours. In addition, the test inflation pressure is set at 25 percent below the tire's maximum inflation pressure. These are severe conditions for loading and under-inflation, especially given that a 100-percent load on the test road-wheel equals about a 112-percent load on a flat surface. From a real world perspective, this means that for the last 24 hours of the test, the tire is 12 percent overloaded and 25 percent under-inflated at a test speed of 110 km/h (68 mph). Moreover, the ambient temperature for the endurance test is ­38 °C (100 °F).

Following the endurance test, the snow tire is subjected to a low pressure test, which is a new test for light vehicle tires. The purpose of the low pressure test is to ensure that the tire can be operated for 90 minutes at a speed of 110 km/h (68 mph), at an inflation pressure about 42 percent below the tire's maximum inflation pressure, with a load of 100 percent of the tire's maximum load rating.

FMVSS No. 139 also includes a 90-minute high speed test at speeds of 140 km/h (87 mph), 150 km/h (93 mph), and 160 km/h (99 mph) for all tires to which the standard applies, including snow tires. The purpose of the high speed test is to evaluate the tire's performance during high speed operation, which makes this test more directly related to the high speed driving to which Advocates referred in its petition. The high speed test parameters also include a load of 85 percent, and an inflation pressure of about 10 percent below the tire's maximum inflation pressure. This test is the same for all light vehicle tires, including snow tires.

Snow tires are generally operated on vehicles during the winter season when ambient temperatures are below 10 °C (50 °F). This real world ambient temperature is considerably lower than the ambient test temperature of 38 °C (100 °F); i.e. , the test condition is much more stringent than the likely real world condition. NHTSA believes that the upgraded high speed and endurance tests, and the new low pressure test in FMVSS No. 139, represent a significant increase in performance for light vehicle snow tires as compared to the requirements in FMVSSs No. 109 and 119.

Agency decision: NHTSA has decided to deny the petition from Advocates to increase the test speed for the endurance and low-inflation pressure performance tests for snow tires from 110 km/h (68 mph) to 120 km/h (75 mph).

As originally drafted, the test speed for these two tests was set at 120 km/h (75 mph). Based on analysis of agency research and testing, as well as testing conducted by industry groups and Transport Canada, NHTSA reduced the test speed from 120 km/h (75 mph) to 110 km/h (68 mph) for all passenger car snow tires and LT snow tires with load ranges of C, D, and E. As the response to petitions for reconsideration described, “The technical design challenges and the costs to redesign existing snow tires to pass the 120 km/h (75 mph) test would far outweigh the negligible safety benefits associated with that redesign. By reducing the * * * test speeds from 120 km/h (75 mph) to 110 km/h (68 mph) * * * we can ensure virtually all the safety benefits from upgrading the test speed for snow tires and eliminate practicability and cost concerns.”  11

The agency believes that this decision is sound. Advocates provided no data to support its argument that changing the test speed from 120 km/h (75 mph) to 110 km/h (68 mph) for snow tires would result in reduced safety for the public when motorists operate their vehicles with snow tires at high speeds for long periods of time. Advocates focused on the endurance test, but did not mention that FMVSS No. 139 includes an upgraded high speed test with speeds up to 160 km/h (99 mph). The endurance test, moreover, assesses the long-term durability of the tire when tested on the road-wheel for 34 hours straight in a significantly under-inflated condition.

The snow tires that NHTSA tested to the endurance and low pressure performance tests in FMVSS No. 139 experienced primarily chunking failures on the curved test road-wheel. Chunking, defined as the breaking away of pieces of the tread or sidewall rubber, occurs during testing on the curved road-wheel because the road-wheel heats the tire by deflecting its outer edges more than would typically occur when tested on a flat surface. In addition, the tread compound, the greater tread depth, and the smaller tread blocks used on snow tires make them more susceptible to chunking failures.

NHTSA believes that the combination of tests in FMVSS No. 139, which tests at increased stress and higher temperatures due to road-wheel curvature—the upgraded high speed test, the upgraded endurance test, and the new low pressure test—represents increases in test severity for snow tires that will result in overall enhanced performance as compared to the current levels of testing. Therefore, NHTSA believes that the rule clearly meets the intent of the TREAD Act, which directed NHTSA to revise and update FMVSS Nos. 109 and 119.

1. The agency believes that the tire safety standards should be clear and as consistent as possible with one another. FMVSS No. 110 uses the terms “light truck (LT) tire” and “passenger car tire” without specifically defining them. Therefore, FMVSS No. 110 is being amended to add the same definitions for “light truck (LT) tire” and “passenger car tire” as are used in FMVSS No. 139.

2. In the June 2003 final rule, the agency included a new paragraph S4.2.2.3(b) in FMVSS No. 110, stating that “For vehicles equipped with LT tires, the vehicle normal load on the tire shall be no greater than 94 percent of the load rating at the vehicle manufacturer's recommended cold inflation pressure for that tire.” The National Association of Trailer Manufacturers (NATM) and the National Marine Manufacturers Association (NMMA) submitted a “petition for clarification” to the agency requesting confirmation that S4.2.2.3(b) was not intended to apply to trailers. The agency agrees that it was not intended to apply to trailers, which typically have no designated seating positions. We note that the definition of “vehicle normal load on the tire” in S3 of FMVSS No. 110 states that “* * * load on an individual tire * * * is determined by distributing to each axle its share of the curb weight, accessory weight, and normal occupant weight (distributed in accordance with Table I) and divid[ed] by 2.” We believe that the inclusion of “normal occupant weight” in the definition of vehicle normal load on a tire is an indication that S4.2.2.3(a) and (b) do not apply to trailers. To make the standard clearer, the agency is amending S4.2.2.3(a) and (b) of FMVSS No. 110 to exclude trailers that have no designated seating positions from the category of vehicles to which the paragraph applies.

3. In the January 2006 final rule, the agency sought to make clear that temporary spare tires would not be subject to the requirements of the new FMVSS No. 139 (but would instead continue to be subject to the requirements of FMVSS No. 109), by removing references to T-type temporary spare tires from the regulatory text of FMVSS No. 139. To better clarify this, the agency is amending S2, Application, of FMVSS No. 109 to include T-type temporary spare tires; the first sentence of S4.1(a) of FMVSS No. 110 to state that T-type temporary spare tires are subject to FMVSS No. 109; and S2.1, Application, of FMVSS No. 139 to exclude T-type temporary spare tires.

4. Since the January 2006 final rule was published, the agency has identified several typographical errors in Tables II and III of FMVSS No. 119, and is therefore revising and republishing the tables to correct those mistakes.

5. In the January 2006 final rule, FMVSS No. 139 was amended to remove references to CT tires because those tires are no longer being offered for sale in the United States. Because the January 2006 final rule failed to also make conforming changes to S3, Definitions , and S5.2, Performance requirements , of FMVSS No. 139, the agency is now amending those paragraphs to remove other references to CT tires.

6. In the January 2006 final rule, subparagraph (i) was added to S5.5, Tire markings of FMVSS No. 139, to specify requirements for snow tires marked with the “alpine symbol.” Because the January 2006 final rule failed to also make a conforming change to the introductory paragraph of S5.5, the agency is now amending that paragraph to account for this additional subparagraph.

7. A number of typographical errors were found throughout S6, Test procedures, conditions, and performance requirements, of FMVSS No. 139, and are being corrected in this final rule.

The effective date of these amendments is September 1, 2007.

This rule makes a number of technical corrections to the regulatory text of several Federal tire safety regulations, and has no impact on the regulatory burden of manufacturers. The agency discussed the relevant requirements of Executive Order 12866, the Department of Transportation's regulatory policies and procedures, the Regulatory Flexibility Act, the National Environmental Policy Act, Executive Order 13132 (Federalism), the Unfunded Mandates Act, Civil Justice Reform, the National Technology Transfer and Advancement Act, and the Paperwork Reduction Act in the June 2003 and January 2006 final rules cited above. Those discussions are not affected by these technical amendments.

Please note that anyone is able to search the electronic form of all documents received into any of our dockets by the name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78), or you may visit http://dms.dot.gov .

It is our intent to discuss only those topics directly relevant to the designation of critical habitat in this rule. For more information on Catesbaea melanocarpa, please refer to the final listing rule published in the Federal Register on March 17, 1999 (64 FR 13116), and the proposed rule to designate critical habitat published in the Federal Register on August 22, 2006 (71 FR 48883).

On September 17, 2004, the Center for Biological Diversity filed a lawsuit against the Department of the Interior and the Service [ Center for Biological Diversity v. Norton (CV-00293-JDB) (D.D.C.)], challenging the failure to designate critical habitat for Catesbaea melanocarpa . In a settlement agreement dated June 3, 2005, the Service agreed to reevaluate the prudency of critical habitat for this species and, if prudent, submit a proposed designation of critical habitat to the Federal Register by August 15, 2006, and a final designation by August 15, 2007. For more information on previous Federal actions concerning C. melanocarpa, refer to the proposed critical habitat designation published in the Federal Register on August 22, 2006 (71 FR 48883), and in our notice of availability of the draft economic analysis published on March 14, 2007 (72 FR 11819). This final rule complies with the settlement agreement.

We requested written comments from the public on the proposed designation of critical habitat for Catesbaea melanocarpa in the proposed rule published on August 22, 2006 (71 FR 48883), and again in a subsequent notice of the availability of a draft economic analysis published in the Federal Register on March 14, 2007 (72 FR 11819). We also contacted appropriate Federal, Commonwealth, and Territorial agencies; scientific organizations; local researchers; and other interested parties and invited them to comment on the proposed rule.

The first comment period on the proposed designation opened August 22, 2006 and closed on October 23, 2006. During that time, we received comments from three individuals: One from a peer reviewer working for the USVI government, and two from private individuals. We received one letter during the second comment period, opened from March 14 to April 13, 2007, which covered both the proposed designation and the draft economic analysis. This comment letter was submitted by one of the private individuals who provided comments during the first comment period. In total, we received four comment letters from three individuals. One commenter supported the designation of critical habitat and one opposed the designation. The third commenter did not indicate support or opposition for the designation. We reviewed the comments for substantive issues and new information regarding critical habitat. We grouped the comments by issue and we addressed them in the following summary. We incorporated information into the final rule as appropriate. We did not receive requests for public hearings.

In accordance with our policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from seven knowledgeable individuals with scientific expertise that included familiarity with the species, the geographic region in which the species occurs, and conservation biology principles. We received a response from one peer reviewer representing the USVI Department of Planning and Natural Resources, Division of Fish and Wildlife (DPNR-FW). The peer reviewer did not mention if the DPNR-FW generally concurred or not with our methods and conclusions, but provided additional information and suggestions to improve the final critical habitat rule.

Comment 1: The peer reviewer expressed concern that the description of the habitat in the proposed rule had lumped the habitat on USVI and Puerto Rico (PR) together, making it seem that there is much more habitat available for the plants. The peer reviewer suggested that the habitat description be differentiated between the islands.

Our Response: The proposed rule published in the Federal Register on August 22, 2006 (71 FR 48883) described the habitat of Catesbaea melanocarpa in PR and the USVI separately. The description of the habitat in the Halfpenny Bay area was described based on the site-specific soil type and the vegetation as observed by the Service in 2006. The habitat characteristics of the site coincide with the previous habitat description referenced in the scientific literature. However, the introductory paragraph of the Habitat Description section provided a general discussion of the main characteristics of the subtropical dry forest life zone as described by Ewel and Whitmore (1973, pp. 10-20). The subtropical dry forest life zone covers the Halfpenny Bay area, as well as other areas where the species has been reported in the past and is currently present in Puerto Rico (Gua nica Commonwealth Forest and Pen ones de Melones). The general description of the life zone does not substitute for the site-specific habitat description we provided in the proposed rule. Furthermore, the primary constituent elements (PCEs) for C. melanocarpa are based on the habitat components that are essential for the conservation of the species and not based on the life zones.

Comment 2: The peer reviewer mentioned information received from Mr. Rudy O'Reilly, District Conservationist for the U.S. Department of Agriculture National Resources Conservation Service, about two individual plants of Catesbaea melanocarpa previously observed on a property located to the west of the proposed designation. The commenter specified that he did not investigate the sighting report to establish if the species is still present in the area. However, the commenter suggested including this new locality in the designation of critical habitat for C. melanocarpa.

Our Response: We contacted Mr. O'Reilly, District Conservationist for the U.S. Department of Agriculture Natural Resources Conservation Service (NRCS) and requested additional information about the sighting mentioned by the peer reviewer. Mr. O'Reilly is the botanist who rediscovered the species in St. Croix in 1988. Mr. O'Reilly provided written information on January 23, 2007, and confirmed the information provided by the peer reviewer. Mr. O'Reilly explained that one plant of C. melanocarpa was observed during a casual drive-through on the west side of the South Shore Road (eastern boundary of the proposed critical habitat unit) in April, 2006. The area where the individual was observed is located outside of the proposed designation. Mr. O'Reilly mentioned that this location was the site where he first discovered the two individuals of C. melanocarpa reported in 1988, but that had been destroyed by a hurricane before the species was listed.

At the time of listing, we described the population near Christiansted, St. Croix consisting of about 24 individual plants. This information was obtained from Breckon and Kolterman (1993, p. 2). These authors made reference to the individuals they found in July, 1992; and revisited in December, 1992, and June, 1993. They described the locality east of the existing road (the other side of the road in reference to the site where O'Reilly discovered the original individuals in 1988). The authors estimated the population as about 24 individuals, described the size of the plants and documented the presence of flowers and fruits. When the Service was gathering information to draft the recovery plan for the species in 2002, we surveyed the population reported by Breckon and Kolterman (1993, pp.1-2), collected GPS points and estimated the population to be 100 individuals (Lombard 2002). The site where this population is found is located east of the existing road and corresponds to the site identified in the proposed rule (Halfpenny Bay area). Although Breckon and Kolterman (1993, pp. 1-2) made referenced to the individuals Mr. O'Reilly discovered in 1988, they mentioned that individuals were affected by Hurricane Hugo in 1989. These authors did not mentioned that they visited the individuals reported in the west side of the road and did not provide information supporting that the individuals were alive at the time they conducted their studies.

Based on the above information and the information currently available to us, the individual referenced by the peer reviewer was not present at the time of listing. At the time of listing, the individuals first reported by Mr. O'Reilly in 1988 were considered extirpated by previous hurricanes. Mr. O'Reilly in his letter of January 23, 2007 confirmed the information that the two individuals he discovered in 1988 were destroyed by Hurricane Marilyn, and as a consequence the site was not considered occupied at the time of listing.

Since the area was not occupied at the time of listing we would have to find it essential to the conservation of the species in order to designate it as critical habitat. Because the only evidence of the existence of the species at this location is a casual drive-by, and no surveys have recently been conducted in this area, we do not have enough information at this time to determine that the area is essential to the conservation of the species.

Comment 3: The peer reviewer suggested mentioning in the rule that Catesbaea melanocarpa is protected by the Territorial law.

Our Response: In the proposed rule for the designation of critical habitat for Catesbaea melanocarpa published in the Federal Register on August 22, 2006, we discussed topics directly relevant to the designation of critical habitat. However, we incorporated by reference the information of the listing final rule we published in the Federal Register on March 17, 1999 (64 FR 13116). In the listing rule, under the “Summary of Factors Affecting the Species” section, we stated that the territory of the USVI had amended its regulations to protect endangered and threatened wildlife and plants and considered Catesbaea melanocarpa to be endangered. In the listing rule, we referred to prohibitions by this local regulation under the “Available Conservation Measures” section.

Comment 1: The commenter believes that the area to be designated as critical habitat was based on the ownership of private property rather than the location of the species. The commenter provided a color aerial photo of the site.

Our Response: The Halfpenny Bay is currently occupied by approximately 100 individuals of C. melanocarpa. With the assistance of the aerial photo provided by the commenter, we re-examined the boundaries of the proposed area and removed from the designation highly degraded areas dominated by pastures located south of Road 62. We also redefined the boundaries utilizing GPS-located sightings of individuals collected by Service personnel within the property (Lombard 2002). The areas within the redefined boundaries meet the criteria we used to designate critical habitat. We also confirmed that the area occupied by the species contains the PCEs essential for the conservation of the species. Therefore, we reduced the size of the designated critical habitat to 10.5 ac (4.3 ha).

Comment 2: The commenter mentioned information received from Mr. Rudy O'Reilly about one Catesbaea melanocarpa plant previously observed in a property located to the west of the proposed designation. The commenter recommended we conduct additional research and prepare the planned 5-year review of the status of the species before finalizing the proposed designation of critical habitat.

Our Response: The presence of one individual in a site located west of the proposed designation was also documented by the peer reviewer. We responded to comments under Peer Reviewer Comment 2. We initiated the 5-year review process for Catesbaea melanocarpa on September 27, 2006 (71 FR 56545), and requested information and comments from the public. The purpose of the 5-year review is to ensure that the classification of species as threatened or endangered of the Lists of Endangered and Threatened Wildlife and Plants (50 CFR 17.11 and 17.12) is accurate. A 5-year review is an assessment of the best scientific and commercial data available at the time of the review. It does not include additional research on the species.

Comment 3: The commenter believes that the designation will destroy the property's economic value and result in a “taking” of private property.

Our Response: The designation of critical habitat does not mean that private lands would be taken by the Federal Government or continued private uses would not be allowed. The designation of critical habitat does not affect private lands if there is no Federal nexus in other words, if the landowner does not need a Federal permit or other Federal approval, or Federal funding, for his activities, then the designation will impose no Federal restriction on his property. 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. All regulatory effect of the designation of critical habitat comes from this requirement. Therefore, if a Federal permit or approval is not required, or if Federal funding is not involved, there will be no regulatory burden for actions on private lands.

If there is a Federal action that may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with us. When we issue a biological opinion we can include measures to reduce take of the species, or measures to offset any actions that would jeopardize the existence of the species or adversely modify critical habitat. Such measures must be consistent with the scope of the Federal agency's legal authority and jurisdiction, and must also be economically and technologically feasible.

The parcel that includes the critical habitat designation is currently zoned as District 2: Low Intensity, which permits low-density residential construction and small-scale agriculture. This zoning category allows a maximum of four residential units per acre for single and multi-family construction and a maximum of six units per acre for larger-scale condominium or hotel development. This zoning category does not prohibit development of the site.

We anticipate that any potential development could go forward on this site even if there was a Federal nexus. If we consulted on the site were would likely propose recommended conservation measures for the plants. We have identified likely recommended measures, which would include establishing a buffer zone of 20 meters (m) (66 feet (ft)) around the existing population as a setback from the development. The buffer zone is included in the designation, and the total area to be designated is approximately 10.5 ac (4.3 ha). Given the size of the parcel and location of the plants, it is unlikely that the setback would significantly affect development plans.

Comment 1: The commenter requested an extension of the public comment period opened on March 14, 2007, for a minimum of 60 days to provide additional time for the owner of the land to effectively respond to the proposed rule.

Our Response: We provided two comment periods, totaling 90 days, for the designation of critical habitat for Catesbaea melanocarpa between August 2006 and April 2007. Additionally, we contacted the commenter in February 2006 to request permission to visit the site, and we provided information about the proposed designation. Service biologists met with the commenter on March 1, 2006, and provided information about critical habitat.

Comment 2: The commenter requested the postponement or termination of the rulemaking process until legal review is made. He also suggests we should investigate opportunities to conserve the species on government-owned lands.

Our Response: We have a statutory obligation to designate critical habitat, and we are operating under a settlement agreement that requires us to finalize this designation by August 15, 2007. We are finalizing this rule in compliance with applicable legal standards.

Regarding opportunities to conserve the species on government-owned lands, the species is not currently present on government-owned lands in the USVI. The recovery plan identifies the establishment of a propagation program as the top priority for the recovery of the species. Once the appropriate propagation techniques are established and necessary funding allocated, we would direct our efforts toward the establishment of self-sustainable populations on protected lands. The recovery plan also identifies the need to establish conservation agreements with private landowners to provide protection to the existing individuals and their habitat in the USVI.

Comment 3: The commenter believes that the economic impact of designation would not range from $132,300 to $441,000 over 20 years, as discussed in the draft economic analysis, but rather would range from $630,000 to $2,100,000 over 20 years.

Our Response: The commenter confused the economic impact of the critical habitat designation with the assessment of the market value for the site. The draft economic analysis summarized the procedure taken to assess the market value of the property. Exhibit 2 of the draft economic analysis included the market value per acre of the proposed designated area, which ranges from $630,000 to $2,100,000. The economic impact of the designation was based on conservation recommendations we would provide as technical assistance to a developer to conserve the species within the property, if a development project is proposed. The conservation measures would include establishing a buffer zone of 20 meters (m) (66 feet (ft)) around the existing population as a setback from the development. The buffer zone is included in the designation, and the total area to be designated is approximately 10.5 ac (4.3 ha). The calculation of the economic impact of the designation to the landowner was based on the implementation of this conservation measure and ranged from $132,000 to $441,000 over 20 years.

Comment 4: The commenter stated that the draft economic analysis recommends a modification to the designation, specifically limiting the proposed designation to 21 percent of the property.

Our Response: With the assistance of the aerial photo provided by the commenter during the comment period, we reexamined the boundaries of the proposed area and removed highly degraded areas dominated by pastures located south of Road 62. We also redefined the boundaries utilizing GPS recorded sightings of individuals collected by Service personnel within the property (Lombard 2002). We verified that these redefined areas meet both criteria we are utilizing to designate critical habitat, they are occupied by the species and they support the PCEs essential for the conservation of the species. We reduced the size of the designated critical habitat to 10.5 ac (4.3 ha).

Comment 5: The commenter stated that the draft economic analysis incorrectly states that the site is not being used for agriculture and that the site is currently subject to an agricultural lease. The commenter mentioned that the site is subject to periodic grazing, which reduces the fire hazard and is beneficial for the protection of the species. The commenter interpreted the proposed designation as prohibiting agricultural activities in the area and stated that this would adversely affect the prospects of this population's survival.

Our Response: The draft economic analysis stated that the property proposed for critical habitat was no longer used for grazing activities. The revised analysis states: “The property is subject to an agricultural lease that has not been terminated, and is periodically grazed by livestock. The owner notes that this grazing activity reduces the threat of brush fires and may benefit the species.”

Section 4(i) of the Act states that “the Secretary shall submit to the State agency a written justification for his failure to adopt regulations consistent with the agency's comments or petition.” Comments received from Territorial agencies (USVI Department of Planning and Natural Resources, Division of Fish and Wildlife) regarding the proposal to designate critical habitat for Catesbaea melanocarpa are addressed in the Peer Reviewer Comments section.

On the basis of comments received on the proposed rule and the draft economic analysis, we have developed our final designation of critical habitat for Catesbaea melanocarpa. Specifically, we adjusted the boundaries of the proposed critical habitat designation to remove the areas that were dominated by pastures, and as such did not contain the first primary constituent element and the area not currently occupied by the species. This adjustment resulted in the removal of 39.5 ac (16 ha) from the original boundaries and a final designation of 10.5 ac (4.3 ha). The boundaries of the designation were refined by utilizing an aerial photograph provided during the public comment period for the proposed rule and a layer created in GIS with the GPS readings of the sightings of the approximately 100 plants in the area. We used a 100-meter grid to establish Universal Transverse Mercator (UTM) North American Datum 27 (NAD 27) coordinates that, when connected, provided the boundaries of the critical habitat for Catesbaea melanocarpa.

In the proposed rule published on August 22, 2006 (71 FR 48883), we stated that the Guánica and the Susúa Commonwealth Forests in PR were not included in the proposed designation because they are adequately protected under the management of the DNER and the master plan for the forests, and therefore do not require special management or protection. Under section 3(5)(A) of the Act, an area that was occupied at the time of listing on which are found those physical or biological features essential to the conservation of the species and which may require special management considerations or protection meets the definition of critical habitat. We have determined that these areas do meet the definition of critical habitat as there are additional management actions beyond those already in effect, that can be taken to conserve the plants in these areas. However, we believe the forests have management plans that appropriately address the conservation needs of the species and therefore minimize any benefits of designation (see “Exclusions Under Section 4(b)(2)” below). Thus, we are invoking the Secretary's discretion to exclude the two forests under section 4(b)2 of the Act, after taking into consideration the efforts by the Commonwealth of Puerto Rico to protect habitat under its jurisdiction.

Critical habitat is defined in section 3 of the Act as: (i) The specific areas within the geographical area occupied by a 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 a 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 which are necessary to bring any endangered species or threatened species to the point at which the measures provided under 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 destruction or adverse modification of critical habitat with regard to actions carried out, funded, or authorized by a Federal agency. Section 7 requires consultation on Federal actions that are likely to result in the destruction or adverse modification of 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 government or public access to private lands. Section 7 is a purely protective measure and does not require implementation of restoration, recovery, or enhancement measures.

To be included in a critical habitat designation, the habitat within the area occupied by the species at the time of listing must first have features that are essential to the conservation of the species. Critical habitat designations identify, to the extent known using the best scientific data available, habitat areas that provide essential life cycle needs of the species (areas where PCEs are found, as defined at 50 CFR 424.12(b)).

Habitat occupied at the time of listing may be included in critical habitat only if the essential features thereon may require special management or protection. Thus, we do not include areas where existing management is sufficient to conserve the species. As discussed below, such areas may also be excluded from critical habitat under section 4(b)(2) of the Act. Areas outside of the geographical area occupied by the species at the time of listing may only be included in critical habitat if they are essential to the conservation of the species. Accordingly, when the best available scientific data do not demonstrate that the conservation needs of the species require additional areas, we will not designate critical habitat in areas outside the geographical area occupied by the species at the time of listing. However, an area that is currently occupied by the species, but which was not known at the time of listing to be occupied, will likely, but not always, be essential to the conservation of the species and, therefore, considered for inclusion in the critical habitat designation.

The Service's Policy on Information Standards Under the Endangered Species Act, published in the Federal Register on July 1, 1994 (59 FR 34271), and Section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) and the associated Information Quality Guidelines issued by the Service, provide criteria, establish procedures, and provide guidance to ensure that decisions made by the Service represent the best scientific data available. They require Service 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 determining which areas are critical habitat, a primary source of information is generally the listing package for the species. Additional information sources 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. All information is used in accordance with the provisions of Section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) and the associated Information Quality Guidelines issued by the Service.

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Habitat is often dynamic, and species may move from one area to another over time. Furthermore, we recognize that designation of critical habitat may not include all of the habitat areas that may eventually be determined to be necessary for the recovery of the species. For these reasons, critical habitat designations do not signal that habitat outside the designation is unimportant or may not be required for recovery.

Areas that support populations of Catesbaea melanocarpa, but are outside the critical habitat designation, will continue to be subject to conservation actions implemented under section 7(a)(1) of the Act and to the regulatory protections afforded by the section 7(a)(2) jeopardy standard, as determined on the basis of the best available information at the time of the action. Section 7(a)(1) directs all other Federal agencies to utilize their authorities in furtherance of the purposes of the Act by carrying out programs for the conservation of listed species. 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, or other species conservation planning efforts if new information available to these planning efforts calls for a different outcome.

In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, in determining which areas to designate as critical habitat within areas occupied by the species at the time of listing, we consider those physical and biological features that are essential to the conservation of the species (PCEs), and which may require special management considerations and protection. These include, but are not limited to: space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, rearing (or development) of offspring, germination, or seed dispersal; and habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species.

The specific PCEs required for Catesbaea melanocarpa are derived from the biological needs of this plant species and include those habitat components needed for growth and development, flower production, pollination, seed set and fruit production, and genetic exchange. Although at the present time the information on the species' biological and ecological needs is limited (USFWS 2005, p. 7), habitat characteristics supporting all three currently known localities are known. Additionally, individuals in all three localities have been documented in fruit or flower. The presence of sexual reproduction indicates that the species has the potential to produce viable populations, with the assistance of appropriate conservation strategies.

Catesbaea melanocarpa is currently known from both the subtropical dry forest and subtropical moist forest life zones of PR and the USVI. Except for one locality, the historical and current range of the species is within dry forest life zone. The Susúa Commonwealth Forest is the only locality that is not dry forest; however, based on our observations because of its serpentine soils, the vegetation structure and species composition are similar to dry forest habitat (Breckon and García 2001; Silander et al. 1986, p. 243). In all three localities, the species is under the canopy of trees and shrubs, and all localities in PR are forested hills associated with either limestone or serpentine soils. The locality in St. Croix, based on Service observations, is on a coastal plain with patches or thickets of trees and shrubs characteristic of dry forest habitat.

Within the subtropical dry and moist forest life zones, Catesbaea melanocarpa has been reported from four discrete sites within the U.S. Caribbean: Halfpenny Bay, Peñones de Melones, the Guánica Commonwealth Forest, and the Susúa Commonwealth Forest. However, the species presently occupies only Halfpenny Bay in St. Croix, USVI, the Guánica Commonwealth Forest, PR, and the Susúa Commonwealth Forest, PR.

Vegetation at the Halfpenny Bay site is comprised of dry thicket scrub vegetation, dominated by grasses with patches of trees and shrubs (USFWS 2005, pp. 6-7). Based on Service observations during a site visit conducted on March 1 and 2, 2006, Catesbaea melanocarpa is an understory species, currently growing below trees and shrubs characteristic of dry forest habitat. Associated flora include introduced grass species, Caesalpinia coriaria (dividive), Tamarindus indica (tamarind), Castela erecta (goat-bush), Acacia turtuosa (acacia), Cassia poplyphylla (retama prieta), Leucaena leucocephala (tan-tan), Randia aculeata (box-briar or tintillo), and Cordia alba (white manjack). Soils in the Halfpenny Bay site have been described as belonging to the Glynn-Hogensborg unit, which consists of very deep, well drained, nearly level to moderately steep soils (NRCS 1998, pp. 63-64).

We observed the vegetation within the Guánica Commonwealth Forest locality in 2006 as dry forest with semi-closed canopy on limestone soils. The species is found under the canopy. In this forest type, trees often reach 33 ft (10 m). Some associated dry forest vegetation in this locality include Coccoloba microstachya (uvillo), C. diversifolia (uvilla), Thouinia portoricensis (quebracho), Guettarda elliptica (cucubano liso), Croton lucidus (alhelí), Savia sessiliflora (amansa guapo), Pithecellobium unguis-cati (uña de gato), Guaiacum sanctum (guayaca n), Leucaena leucocephala (zarcilla), among other common species (Trejo-Torres 2001, pp. 59-63).

Susúa Commonwealth Forest is located in southwestern Puerto Rico in the municipalities of Yauco and Sabana Grande. The Susúa Forest lies between the humid Central Cordillera and the dry coastal plains typical of the south coast. The forest represents not only the influence of a climatic transition zone (dry to moist), but also a combination of volcanic and serpentine soils (Department of Natural Resources 1976, p. 24). The majority of the forest (90 percent) is underlain by serpentine outcrop. The rest of the forest (10 percent) has nine other soil types that belong to the Caguabo-Múcaro association (Silander et al. 1986, pp. 224-226; Soil Conservation Survey 1975, p. 9). These soils are described as slightly leached, loamy and clay, sticky and plastic soils underlain by hard or weathered rock at a depth of less than 30 inches (Soil Conservation Survey 1975, p. 9). Serpentine-derived soils create stressful conditions for the establishment and growth of plants, and their associated floras are characterized by high diversity and endemism (Cedeño-Maldonado and Breckon 1996, p. 348). Two vegetation associations (dry slope forest and gallery forest) have been delineated in the subtropical moist life zone (Department of Natural Resources 1976, p. 224). The trees are slender, open-crowned, and usually less than 39.4 ft (12 m) tall. The forest floor is open because the excessively drained soil supports little herbaceous growth (Ewel and Whitmore 1973, p. 25). Catesbaea melanocarpa is found in the dry slope forest type. The climatic conditions and serpentine-derived soils contribute to more xeric conditions and a forest structure and species composition similar to the Guánica Commonwealth Forest based on observations by the Service and others (Silander et al. 1986, pp. 239-245; Breckon and García 2001).

The area designated as critical habitat for Catesbaea melanocarpa is occupied, is within the species' current and historic geographic range, and contains sufficient primary constituent elements (PCEs) to support at least one of the plant's life-history functions. Based on our current knowledge of the species and the requirements of the habitat to sustain the essential life-history functions of the species, as discussed above, we have determined that the PCEs for C. melanocarpa are:

(1) Single-layered canopy forest with little ground cover and open forest floor that supports patches of dry vegetation with grasses, and

(2) Well to excessively drained, limestone and serpentine-derived soils (including soils of the San Germán, Nipe, and Rosario series and Glynn and Hogensborg series).

Open forest floor, canopy, and little ground cover are important requirements for an understory species like Catesbaea melanocarpa. The canopy provides shade, and the open forest floor reduces competition by herbaceous species. Limestone and serpentine-derived soils that are well to excessively drained provide essential nutrients to this plant and sustain the dry conditions needed by the species. This designation is designed for the conservation of areas supporting PCEs necessary to support the life-history functions that were the basis for the proposal. The area designated as critical habitat in this rule has been determined to contain sufficient PCEs to support one or more of the life-history functions of C. melanocarpa.

As required by section 4 of the Act, we used the best scientific data available in determining areas that contain the features that are essential to the conservation of Catesbaea melanocarpa. We began our analysis by considering the historic distribution of the species and sites occupied by the species at the time of listing. The 1999 listing rule (64 FR 13116) identified two localities occupied by the species within the U.S. jurisdiction: a 50-ac (20-ha) privately owned parcel in Halfpenny Bay in St. Croix, USVI; and a 330-ac (132-ha) property in Peñones de Melones in Cabo Rojo, PR. Both localities are found within the subtropical dry forest life zone and support habitat for the species. The final listing rule identified two historic collections: one in Guánica, PR, in 1886, and one in Susúa Commonwealth Forest, PR, in 1974. The Guánica Commonwealth Forest is within the subtropical dry forest life zone, and Susúa Commonwealth Forest is considered within the moist forest life zone. However, the Susúa Commonwealth Forest supports slopes with dry forest vegetation due to the climatic conditions and soil type. Both forests are similar in forest structure and species composition. Although both forests support habitat for C. melanocarpa, the presence of the species within these two forests was not corroborated at the time of listing. The rule noted that the Susúa specimen could not be confirmed as C. melanocarpa because of its poor condition (64 FR 13116, March 17, 1999; Breckon and Kolterman 1993, p. 1).

We reviewed the approved recovery plan to identify new records of occupancy of the species, biological information, and habitat characteristics (USFWS 2005, pp. 3-8). The plan identifies both downlisting and delisting criteria and emphasizes the importance of protecting existing populations within the range of this plant to prevent its extinction, decrease the threat to the species associated with catastrophic events, and to obtain sexual (seeds) and asexual (cuttings) propagation material to establish a propagation program for the species. The plan includes information provided by a peer reviewer during the comment period showing a recent collection of Catesbaea melanocarpa located at the Guánica Commonwealth Forest. This forest is located within the previously known distribution of the species and supports a historic collection of C. melanocarpa . A voucher of this collection is located in the herbarium of the University of Puerto Rico (UPR 2006).

We also reviewed other information (such as sighting records from herbariums, Department of Natural and Environmental Resources (DNER) maps, and office files) and scientific literature and reports to identify additional information available on species range and biological needs. The Service contacted all researchers that have reported the species in recent years and visited all reported sites; they confirmed sightings at all sites except the west side of the South Shore Road, which is outside of the designation. Herbarium records for Guánica and Peñones de Melones describe the species growing in low forest or the understory of dry forest vegetation in limestone soils. The herbarium voucher for the species in Susúa describes the species growing in low forest on serpentine soils (Trejo-Torres 2003). Vegetation characteristics, climatic conditions, and soil type coincide with the previously described habitat for the species. We confirmed sightings in St. Croix and Guánica Commonwealth Forest. Although additional forested areas within the dry forest life zone and the moist forest life zone are present in PR and USVI, no additional sightings for the species have been reported in these other areas.

The only areas considered for designation were those that either (1) were occupied at the time of listing (as a population or an occurrence) and possess sufficient PCEs to support the life history functions, or (2) were not occupied at the time of listing but are essential to the conservation of the species. Information gathered by the Service and data collected during field visits resulted in the consideration of only three discrete areas in the U.S. Caribbean.

The Halfpenny Bay area was occupied at the time of listing and continues to be occupied. This area contains features that are essential to the conservation of Catesbaea melanocarpa that may require special management or protection. Another area that was occupied at the time of listing, located in Peñones de Melones in Cabo Rojo, PR, is not currently occupied by the species and has lost PCEs due to periodic land-clearing activities with heavy machinery; it is not being designated as critical habitat due to the lack of PCEs and the lack of conservation value for the species.

The Guánica and Susúa Commonwealth forests have current and historical records of the species presence. The presence has been documented based on recent reports (Trejo-Torres 2001, p. 62; Trejo-Torres 2003; 2006) and site visits conducted by the Service in 2006.

These three areas (Halfpenny Bay and both Commonwealth forests) represent all known populations of this species in the wild within U.S. jurisdiction (currently known to be fewer than 115 individuals). Protecting individuals in the three localities is vital to maintain genetic representation of all known localities in the U.S. Caribbean. We have determined that it is essential to prevent extinction of this plant by protecting and securing existing populations, establishing a propagation program, augmenting existing populations with propagated individuals, and establishing new self-sustainable populations in protected areas (USFWS 2005). We believe all three currently occupied areas presently contain essential habitat features for the species.

We reviewed existing management and conservation plans and management actions for Catesbaea melanocarpa to determine if any of the areas identified above that contained features essential to the conservation of the species could be excluded under section 4(b)(2) of the Act. On the basis of this review, we believe that essential features within both Commonwealth Forests are adequately managed and protected under the management of Puerto Rico DNER. Accordingly, while these areas collectively total 14,575 ac (5,898 ha) and contain the habitat features that are essential to the conservation of the species, they are excluded from this designation because they are being adequately managed as wildlife sanctuaries by DNER, where they are protecting wildlife and plants in perpetuity and allowing only nonconsumptive use by the public in designated areas and trails (see Application of section 4(b)(2) of the Act below).

When determining critical habitat boundaries, we made every effort to avoid including developed areas such as buildings, paved areas, and other structures that lack PCEs for Catesbaea melanocarpa . The scale of the maps prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed areas. Any such structures and the land under them inadvertently left inside critical habitat boundaries shown on the maps of this final rule have been excluded by text in the final rule and are not designated as critical habitat. Therefore, Federal actions limited to these areas would not trigger section 7 consultation, unless they affect the species or primary constituent elements in adjacent critical habitat.

The area of approximately 10.5 ac (4.3 ha) identified within the Halfpenny Bay area meets all criteria used to identify critical habitat: The site was occupied at the time of listing and contains sufficient PCEs to support the life-history functions essential for the conservation of the species that are in need of special management and protection. A brief discussion of the Halfpenny Bay area is provided in the unit description below. Additional detailed documentation concerning the essential nature of this area is contained in our documentation record for this rulemaking.

When designating critical habitat, we assess whether the areas determined to be occupied at the time of listing contain the PCEs that may require special management considerations or protection. As discussed in this section and in the unit description below, we find that all of the PCEs in Halfpenny Bay may require special management considerations or protection due to threats to the species or its habitat from periodic but intense grazing, human-induced fires, and potential development for a tourist project (USFWS 2005, p. 8). Such management considerations and protections include fencing off forest patches to exclude cattle, developing fire-breaks adjacent to existing roads and farm boundaries during dry season, and establishing conservation agreements with landowners to protect habitat within the property.

We are designating one unit in the Halfpenny Bay area in Christiansted, St. Croix, USVI as critical habitat for Catesbaea melanocarpa . This critical habitat area described below (see Table 1) constitutes our best assessment at this time of areas determined to be occupied at the time of listing, that contain the PCEs that are essential for the conservation of the species, and that may require special management considerations or protection. Appropriate management and protection will support reproduction, recruitment, adaptation to catastrophic events, and genetic diversity (Primack 2000, pp. 124-133; Falk et al. 1996, pp. 113-119) as identified using the best available data.

Presented below is a brief description and rationale for the designated critical habitat for Catesbaea melanocarpa .

The Halfpenny Bay critical habitat area consists of an area of approximately 10.5 ac (4.3 ha) on a privately owned agricultural tract located in a dry coastal plain about 2.48 miles (4 km) south of Christiansted, St. Croix, USVI. This unit encompasses the habitat features essential to the conservation of Catesbaea melanocarpa and does not contain manmade structures, such as existing private homes or barns. The species is located within dry thickets of scrub vegetation in this unit, which is dominated by grasses with patches of trees and shrubs. The unit contains both PCEs and is important to conserving the genetic diversity of this plant. Since this is the locality with the highest number of individuals (100 plants), we believe that it should be considered the core population to maintain genetic representation of this plant in the U.S. Caribbean.

At the time of the 1999 listing, the population was estimated at 24 individuals, but in 2002 the population was estimated at 100 individuals (Lombard 2002). The presence of the species at this site was confirmed by the Service in March 2006. This USVI population has the highest number of plants and has been documented in its reproductive condition (with fruit and flowers). The site and the PCEs contained thereon are currently threatened by periodic but intense grazing, human-induced fires, potential development for a tourist project (USFWS 2005, p. 8), and may require special management considerations and protection as discussed in the “Special Management Considerations or Protections” section above.

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. In our regulations at 50 CFR 402.02, we define destruction or adverse modification as “a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species. Such alterations include, but are not limited to, alterations adversely modifying any of those physical or biological features that were the basis for determining the habitat to be critical.” However, recent court decisions have invalidated this definition (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)). Pursuant to current national policy and the statutory provisions of the Act, destruction or adverse modification is determined on the basis of whether, with implementation of the proposed Federal action, the affected critical habitat would remain functional (or retain the current ability for the primary constituent elements to be functionally established) to serve the intended conservation role for the species.

Section 7(a) of the Act requires Federal agencies, including the Service, to evaluate their actions with respect to any species that is proposed or listed as endangered or threatened and with respect to its critical habitat, if any is proposed or designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402.

Section 7(a)(4) of the Act requires Federal agencies to confer with us on any action that is likely to jeopardize the continued existence of a proposed species or result in destruction or adverse modification of proposed critical habitat. This is a procedural requirement only. However, once a proposed species becomes listed, or proposed critical habitat is designated as final, the full prohibitions of section 7(a)(2) apply to any Federal action.

Under conference procedures, the Service may provide advisory conservation recommendations to assist the agency in eliminating conflicts that may be caused by the proposed action. The Service may conduct either informal or formal conferences. Informal conferences are typically used if the proposed action is not likely to have any adverse effects to the proposed species or proposed critical habitat. Formal conferences are typically used when the Federal agency or the Service believes the proposed action is likely to cause adverse effects to proposed species or critical habitat, inclusive of those that may cause jeopardy or adverse modification.

The results of an informal conference are typically transmitted in a conference report, while the results of a formal conference are typically transmitted in a conference opinion. Conference opinions on proposed critical habitat are typically prepared according to 50 CFR 402.14, as if the proposed critical habitat were designated. We may adopt the conference opinion as the biological opinion when the critical habitat is designated, if no substantial new information or changes in the action alter the content of the opinion (see 50 CFR 402.10(d)). As noted above, any conservation recommendations in a conference report or opinion are strictly advisory.

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 such a 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, compliance with the requirements of section 7(a)(2) will be documented through the Service's 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, but are likely to adversely affect, listed species or critical habitat.

When we issue a biological opinion concluding that a project is likely to result in jeopardy to a listed species or the destruction or adverse modification of critical habitat, we also provide reasonable and prudent alternatives to the project, if any are identifiable. “Reasonable and prudent alternatives” are defined 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, that are consistent with the scope of the Federal agency's legal authority and jurisdiction, that are economically and technologically feasible, and that the Director believes would avoid jeopardy to the listed species or destruction or adverse modification of 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 a new species is listed or critical habitat is subsequently designated that may be affected and the Federal agency has retained discretionary involvement or control over the action or such discretionary involvement or control is authorized by law. Consequently, some Federal agencies may request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions may affect subsequently listed species or designated critical habitat.

Federal activities that may affect Catesbaea melanocarpa or its designated critical habitat will 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 Corps under section 404 of the Clean Water Act or a permit under section 10 of the Act from the Service) or involving some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency) will also be 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.

When performing jeopardy analysis for Catesbaea melanocarpa, the Service applies an analytical framework that relies heavily on the importance of core area populations to the survival and recovery of this plant. The section 7(a)(2) analysis is focused not only on these populations but also on the habitat conditions necessary to support them.

The jeopardy analysis usually expresses the survival and recovery needs of Catesbaea melanocarpa in a qualitative fashion without making distinctions between what is necessary for survival and what is necessary for recovery. Generally, if a proposed Federal action is incompatible with the viability of the affected core area population(s), inclusive of associated habitat conditions, a jeopardy finding is considered to be warranted, because of the relationship of each core area population to the survival and recovery of the species as a whole.

The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would remain functional (or retain the current ability for the primary constituent elements to be functionally established) to serve its intended conservation role of the critical habitat unit for this plant is to support viable core area populations.

Section 4(b)(8) of the Act requires us to briefly evaluate and describe in any proposed or final regulation that designates critical habitat those activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation. Activities that may destroy or adversely modify critical habitat may also jeopardize the continued existence of the species.

Activities that may destroy or adversely modify critical habitat are those that alter the PCEs to an extent that the conservation value of critical habitat for Catesbaea melanocarpa is appreciably reduced. Activities that, when carried out, funded, or authorized by a Federal agency, may affect critical habitat and therefore result in consultation for C. melanocarpa include, but are not limited to:

(1) Actions that would reduce or degrade dry thicket scrub areas dominated by patches of trees and shrubs in the Halfpenny Bay area. Such activities could include vegetation clearing, intensive and extensive cattle grazing activities, and fire. Dry forest species in the Caribbean are not fire-resistant species.

(2) Earth movement activities using heavy machinery within critical habitat that may result in changes in quantity and quality of soils within designated critical habitat.

We consider the area designated as critical habitat, as well as those that were excluded, to contain features essential to the conservation of Catesbaea melanocarpa . The designated area is within the geographic range of the species, was occupied by the species at the time of listing (64 FR 13116, March 17, 1999; Proctor 1991, pp. 43-44; Breckon and Kolterman 1993, p. 1), and is currently occupied by the species. Federal agencies already consult with us on activities in areas currently occupied by C. melanocarpa , or if the species may be affected by the action, to ensure that their actions do not jeopardize the continued existence of C. melanocarpa .

Section 3(5)(A) of the Act defines critical habitat as the specific areas within the geographic area occupied by the species at the time of listing on which are found those physical and biological features (i) essential to the conservation of the species and (ii) which may require special management considerations or protection. Therefore, areas within the geographical area occupied by the species at the time of listing that do not contain the features essential for the conservation of the species are not, by definition, critical habitat. Similarly, areas within the geographic area occupied by the species at the time of listing that do not require special management or protection also are not, by definition, critical habitat. Following a review of all areas, we have determined that each area meets the definition of critical habitat.

There are multiple ways to provide management for species habitat. Statutory and regulatory frameworks that exist at a local level can provide such protection and management, as can lack of pressure for change, such as areas too remote for anthropogenic disturbance. Finally, State, local, or private management plans as well as management under Federal agencies' jurisdictions can provide protection and management to avoid the need for designation of critical habitat. When we consider a plan to determine its adequacy in protecting habitat, we consider whether the plan, as a whole, will provide the same level of protection that designation of critical habitat would provide. The plan need not lead to exactly the same result as a designation in every individual application, as long as the protection it provides is equivalent, overall. In making this determination, we examine whether the plan provides management, protection, or enhancement of the PCEs that is at least equivalent to that provided by a critical habitat designation, and whether there is a reasonable expectation that the management, protection, or enhancement actions will continue into the foreseeable future. Each review is particular to the species and the plan, and some plans may be adequate for some species and inadequate for others.

Section 4(b)(2) of the Act states that critical habitat shall be designated, and revised, 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 Secretary is afforded broad discretion, and the Congressional record is clear that, in making a determination under the section, the Secretary has discretion as to which factors and how much weight will be given to any factor.

Under section 4(b)(2), 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 an exclusion is contemplated, then we must determine whether excluding the area would result in the extinction of the species. In the following sections, we address a number of general issues that are relevant to the exclusions we considered.

The following is our analysis of the benefits of including lands within versus excluding such lands from this critical habitat designation.

The principal regulatory benefit of critical habitat is that federally authorized, funded, or carried out activities require consultation pursuant to section 7 of the Act to ensure that they will not destroy or adversely modify critical habitat. In the Gifford Pinchot decision, the U.S. Court of Appeals for the Ninth Circuit ruled that adverse modification evaluations require consideration of impacts on the recovery of species (379 F.3d 1059, 1070-1072). Conducting section 7 consultations would provide benefits by protecting plants on lands with a Federal nexus. For example, if a federally funded road project was proposed to cross these lands that were designated as critical habitat, a consultation would need to be conducted to ensure the designated critical habitat was not destroyed or adversely modified. Section 7 consultations only commit Federal agencies to prevent adverse modification to critical habitat caused by the particular project, and they are not committed to provide conservation or long-term benefits to areas not affected by the proposed project. Thus, any management plan that considers enhancement or recovery as the management standard will always provide as much or more benefit than a consultation for critical habitat designation conducted under the standards required by the Ninth Circuit in the Gifford Pinchot decision. Without a critical habitat designation, Federal agencies remain obligated under section 7 to consult with us on actions that may affect a federally listed species to ensure such actions do not jeopardize the species' continued existence. The DNER does not utilize Federal funding to manage forest reserves in PR; however, the DNER routinely consults with us on research activities and projects on the forests that may affect federally listed species to ensure that the continued existence of such species is not adversely affected. Thus, under the Gifford Pinchot decision, critical habitat designations may provide greater benefits to the recovery of a species. However, we believe the conservation achieved through implementing habitat management plans is typically greater than would be achieved through multiple site-by-site, project-by-project, section 7 consultations involving consideration of critical habitat. Management plans commit resources to implement long-term management and protection to particular habitat for at least one and possibly other listed or sensitive species.

Designation of critical habitat also serves to educate landowners, State and local governments, and the public, regarding the potential conservation value of the area. This helps focus, prioritize, and revitalize conservation efforts, such as restoration projects, or more extensive monitoring of populations. This benefit is closely related to a second, more indirect benefit: that designation of critical habitat would inform State agencies and local governments about areas that could be conserved under State laws or local ordinances.

However, the benefits of inclusion are low, since the forests are already managed in an appropriate manner and education of the public is already occurring. For instance, extensive management plans already cover these forests. The DNER developed a master plan for the Commonwealth forests of Puerto Rico in 1976. The master plan identified soil and land types, climate, wildlife, vegetation, land use, recreation opportunities, and future research needs for all Commonwealth forests, including Guánica and Susúa forests. The master plan also identified management recommendations to address identified issues for each forest unit.

In Guánica, the master plan identified special management considerations in accordance with the uniqueness of the forest, proposed to manage the forest and associated vegetation types for nonconsumptive use by the public, and reserved and managed the entire unit as a wildlife sanctuary (DNR 1976, pp. 56-58). Because of the forest condition, it was designated as a United Biosphere Reserve in 1981 by the United Nations Educational, Scientific and Cultural Organization (UNESCO).

For Susúa, the master plan identified special management considerations, including locating representative areas of all plant communities and rare and endangered species and limiting public use on these areas; not issuing new permits for transmission lines; and delineating all unique areas and preserving them in their natural condition (DNR 1976, pp. 230-232).

Additionally, both forests are currently managed as wildlife sanctuaries, protecting wildlife and plants in perpetuity and allowing only nonconsumptive use by the public in designated areas and trails. Active management includes developing and maintaining fire breaks, conducting prescribed burning adjacent to roads to reduce fuel load, removing exotic plant species along roads, and promoting scientific data collection, and conducting outreach and education activities within adjacent communities. Forest management also provides opportunities for scientific research and the use of existing trails for passive recreation and education. The Guánica Forest also provides for beach use. These current management activities have not been identified as threats for Catesbaea melanocarpa . Also, the DNER has an island-wide education program that produces educational materials, talks, seminars and presentations on threatened and endangered species in Puerto Rico and their conservation needs, therefore there is no appreciable educational benefit to the designation of critical habitat in these areas.

The Guánica and Susúa Commonwealth Forests and adjacent lands are designated as Critical Wildlife Areas (CWA) by the Commonwealth of Puerto Rico (DNER 2005, pp. 211 and 221). The CWA designation constitutes a special recognition by the Commonwealth with the purpose of providing information to Commonwealth and Federal agencies about the conservation needs of these areas and assisting permitting agencies in precluding negative impacts as a result of permit approvals or endorsements (DNER 2005, pp. 2-3).

We believe there may be some benefits of inclusion, but they would be low because of the ongoing efforts of the Commonwealth. Critical habitat designation alone does not require specific steps toward recovery. The benefits of including these DNER-managed lands in designated critical habitat are minimal because the land managers and landowners are currently implementing conservation actions for C. melanocarpa and its habitat that encompass more than a critical habitat designation would. The DNER manages the forests as wildlife sanctuaries, does not allow for economic use of the forests and conducts management activities consistent with the conservation of the species and its habitat, including educating the public. Additionally, the purpose normally served by the designation, that of informing State agencies and local governments about areas that would benefit from protection and enhancement of habitat for Catesbaea melanocarpa , is already well established among State and local governments and Federal agencies in those areas that we are excluding from critical habitat in this rule on the basis of other existing habitat management protections.

(2) Benefits of Exclusion of Guánica and Susúa Commonwealth Forests

Exclusion would further enhance the cooperative working relationship with the Forests by focusing on activities that are designed to protect and recover the species, and allowing resources to go toward on-the-ground efforts rather than regulatory procedures. Since 1984, the Service and DNER have a signed cooperative agreement pursuant to section 6 (c) of the Act, establishing a partnership agreement for the purpose of implementing an endangered and threatened fish, wildlife and plant species conservation program in the Commonwealth of Puerto Rico. Both parties agree that programs of the Commonwealth of Puerto Rico are designed to assist resident endangered and threatened species; it is their mutual desire to work in harmony for the common purpose of planning, developing and conducting programs to protect, manage and enhance the populations of all resident endangered and threatened fish, wildlife and plants within the Commonwealth of Puerto Rico. As stated previously, there are instances where section 7 consultation could occur. If these lands are designated, there would be an additional burden for each individual action to ensure that designated critical habitat was not destroyed or adversely modified. Given the goal of the Commonwealth to protect, manage and enhance populations, this additional burden would likely add additional time and paperwork to consultations, which is unnecessary.

Threats identified for Catesbaea melanocarpa on the Guánica and Susúa Commonwealth Forests are human-induced fires during dry season and cutting of vegetation for trail and powerline maintenance. The DNER has regulatory mechanisms to protect individuals of C. melanocarpa from these threats within the forest boundaries, and forest managers are aware of the occupied localities within the forests. We believe that management guidelines for both forests, current local laws and regulations and the close coordination and excellent working partnership with DNER will adequately address identified threats to C. melanocarpa , features essential to its conservation, and its habitat on DNER lands.

The DNER approved laws and regulations to protect threatened and endangered species within lands under their jurisdiction. In 1999, the Commonwealth of Puerto Rico approved Law Number 241, Wildlife Law of the Commonwealth of Puerto Rico (Ley de Vida Silvestre del Estado Libre Asociado de Puerto Rico—Ley Núm. 241 del 15 Ago. 1999). The purpose of this law is to protect, conserve, and enhance native and migratory wildlife species; declare all wildlife species within its jurisdiction as the property of Puerto Rico; regulate permits; regulate hunting activities; and regulate exotic species. In 2004, the DNER approved Commonwealth of Puerto Rico's Regulation Number 6766, which regulates the management of threatened and endangered species in Puerto Rico (Reglamento para Regir el Manejo de las Especies Vulnerables y en Peligro de Extinción en el Estado Libre Asociado de Puerto Rico—Núm. 6766 del 11 de Feb 2004). Catesbaea melanocarpa has been included in the list of protected species. Article 2.06 of this regulation prohibits collecting, cutting, and removing (among other activities) listed plant individuals within the jurisdiction of PR.

Recent surveys conducted in Guánica Commonwealth Forest have expanded the known range of other federally listed species such as Trichilia triacantha (bariaco) and Ottoschulzia rhodoxylon (palo de rosa), and other State-protected species all previously known for only a few individuals within the forest. We believe additional occurrences of Catesbaea melanocarpa will be found in both forests. Protection of such areas, as the Commonwealth forests, conveys stability of forest development since most forests in Puerto Rico were destroyed for agriculture. Forest reserves like Guánica, protected since 1919, provide the necessary structure to support the conservation of the species, and thus the benefit of additional regulatory requirements for the conservation of the species is extremely low.

Therefore, the benefits of exclusion are relaxation of regulatory requirements that would be imposed by the designation. Exclusion would also enhance the partnership efforts with the DNER focused on conservation of the species in the State, and secure conservation benefits for the species beyond those that could be attained through the regulatory requirements under section 7 of the Act if the area were designated as critical habitat. When landowners are already taking sufficient steps to conserve the species, the imposition of additional regulatory requirements is not necessary. Further, it may require the expenditure of funds on consultations for projects that are largely beneficial to the species. Exclusion of these lands from critical habitat designation would eliminate the need to expend these funds.

Thus, on the basis that Susúa and the Guánica Commonwealth Forests are being adequately managed as wildlife sanctuaries by DNER, where they are protecting wildlife and plants in perpetuity and allowing only nonconsumptive use by the public in designated areas and trails, we believe that, for these sites, the benefits of inclusion are nominal. We believe these benefits to include increased recognition concerning the status and conservation needs of the species and protection afforded through consultations with Federal action agencies under section 7 of the Act. In contrast, we believe greater benefits will be realized for the species by excluding these specific lands from designated critical habitat. These benefits include relief from the expenditure of resources to conduct consultations under section 7 of the Act with Federal action agencies, maintaining partnerships with DNER, and recognition of the on-going conservation measures that they are taking for the species. It is our determination that these combined measures will provide greater conservation benefits for Catesbaea melanocarpa than the benefits realized through the regulatory designation of critical habitat and will put available resources toward on-the-ground efforts rather than implementing a regulatory procedure. We have also evaluated economic impacts for this exclusion, but we do not believe there are disproportionate impacts that warrant an exclusion under section 4(b)(2) of the Act on that basis.

Approximately 88 percent of the known Catesbaea melanocarpa individuals within U.S. jurisdiction are located within the designated critical habitat. The remaining 12 percent (13 known individuals) are within the excluded areas. We anticipate that little, if any, conservation benefit to C. melanocarpa will be foregone as a result of excluding these areas, as both forests are currently managed as wildlife sanctuaries, protecting wildlife and plants in perpetuity, allowing only nonconsumptive use by the public in designated areas and trails, and since the forests are already managed in an appropriate manner. Additionally, the conservation status of these forests and current local laws and regulations in PR adequately protect essential C. melanocarpa habitat and provide appropriate management to maintain and enhance the primary constituent elements for the species within the forests. As a result of the protection of C. melanocarpa and its habitat provided in both forests, and the fact that the majority of occurrences are within designated critical habitat, we find that the exclusion of these areas will not result in the extinction of C. melanocarpa . Accordingly, we exercise discretion under section 4(b)(2) of the Act to exclude these areas from the designation of critical habitat.

Section 4(b)(2) of the Act requires us to designate critical habitat on the basis of the best scientific information available and to consider the economic and other relevant impacts of designating a particular area as critical habitat. We may exclude areas from critical habitat upon a determination that the benefits of such exclusions outweigh the benefits of specifying such areas as critical habitat. We cannot exclude such areas from critical habitat when such exclusion will result in the extinction of the species concerned.

Following the publication of the proposed critical habitat designation, we conducted an economic analysis to estimate the potential economic effect of the designation. The draft analysis was made available for public review on March 14, 2007 (72 FR 11819). We accepted comments on the draft analysis until April 13, 2007.

The purpose of the economic analysis is to estimate the potential economic impacts associated with the designation of critical habitat for Catesbaea melanocarpa . This information is intended to assist the Secretary in making decisions about whether the benefits of excluding particular areas from the designation outweigh the benefits of including those areas in the designation. This economic analysis considers the economic efficiency effects that may result from the designation, including habitat protections that may be co-extensive with the listing of the species. It also addresses distribution of impacts, including an assessment of the potential effects on small entities and the energy industry. This information can be used by the Secretary to assess whether the effects of the designation might unduly burden a particular group or economic sector.

This analysis focuses on the direct and indirect costs of the rule. However, economic impacts to land use activities can exist in the absence of critical habitat. These impacts may result from, for example, local zoning laws, State and natural resource laws, and enforceable management plans and best management practices applied by other State and Federal agencies. Economic impacts that result from these types of protections are not included in the analysis as they are considered to be part of the regulatory and policy baseline.

The draft economic analysis estimated a potential economic cost of $132,300 to $441,000 over a 20-year period as a result of the critical habitat designation. The analysis, which was prepared in a manner consistent with the ruling in N.M. Cattle Growers Ass'n v. USFWS, 248 F3rd 1277 (10th Cir. 2001), measured lost economic efficiency associated with residential and commercial development, and public projects and activities. Potential economic impacts stem entirely from possible limitations on development of the designated property. The total potential value loss is 21 percent of the property's market value. The actual loss would depend on the future sale price, and could range from $132,300 to $441,000. This potential value loss is based on the implementation of the conservation recommendations, which consist of protecting existing individuals (approximately 100 plants) and maintaining a buffer of 20 meters around them as a setback from a development project. The analysis also conservatively included all potential costs attributed to consultation requirements resulting both from the listing of the species and designation of critical habitat. Overall, the analysis did not anticipate a decrease in the amount of construction activity on St. Croix as a result of the designation. As a result, small developers and construction firms are not anticipated to be affected. For Guánica and Susúa Commonwealth Forests, we evaluated the activities that we expect to occur in the forests, based on their management plans. These include nonconsumptive public recreational use, developing and maintaining fire breaks, conducting prescribed burning adjacent to roads, scientific data collecting, and removing exotic plant species. Although we have not quantified any impacts to these activities as a result of the designation, these actions are likely to have a minimal or beneficial affect to the species and therefore we expect the economic impacts to these areas would be small if they were designated as critical habitat. Based on the analysis, we have concluded that the economic impacts that may result from the designation alone are minimal.

A copy of the final economic analysis with supporting documents are included in our administrative record and may be obtained by contacting U.S. Fish and Wildlife Service, Caribbean Fish and Wildlife Office (see ADDRESSES ).

Pursuant to section 4(b)(2) of the Act, we must consider relevant impacts in addition to economic ones. We determined that the lands within the designation of critical habitat for Catesbaea melanocarpa are not owned or managed by the Department of Defense, there are currently no habitat conservation plans for C. melanocarpa, and the designation does not include any Tribal lands or trust resources. We anticipate no impact to national security or Tribal lands. Our economic analysis indicates an overall low potential cost resulting from the designation. Therefore, we have not excluded any areas from this designation of critical habitat for C. melanocarpa based on economic impacts. As such, we have considered, but not excluded, any lands from this designation based on the potential impacts to these factors. We have excluded areas for other reasons; please see the section 4(b)(2) exclusions discussion under “Application of Section (4)(b)(2) of the Act” above.

In accordance with Executive Order 12866, this document is a significant rule in that it may raise novel legal and policy issues, but will not have an annual effect on the economy of $100 million or more or affect the economy in a material way. Due to the tight timeline for publication in the Federal Register , the Office of Management and Budget (OMB) has not formally reviewed this rule. As explained above, we prepared an economic analysis of this action. The draft economic analysis estimated a potential economic cost of $132,300 to $441,000 over a 20-year period as a result of the critical habitat designation. We used the information in and results of this analysis to meet the requirement of section 4(b)(2) of the Act to determine the economic consequences of designating the specific areas as critical habitat. We also used it to help determine whether to exclude any area from critical habitat, as provided for under section 4(b)(2). Based on this economic analysis, we believe that there are no disproportionate economic impacts that warrant exclusion pursuant to section 4(b)(2) of the Act at this time.

Under the Regulatory Flexibility Act (RFA) (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 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. The SBREFA also amended the RFA to require a certification statement.

Small entities include small organizations, such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; as well as small businesses. Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we consider the types of activities that might trigger regulatory impacts under this rule, as well as the types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.

To determine if the rule could significantly affect a substantial number of small entities, we consider the number of small entities affected within particular types of economic activities (that is, housing development, grazing, oil and gas production, timber harvesting). We apply the “substantial number” test individually to each industry to determine if certification is appropriate. However, the SBREFA does not explicitly define “substantial number” or “significant economic impact.” Consequently, to assess whether a “substantial number” of small entities is affected by this designation, this analysis considers the relative number of small entities likely to be impacted in an area. In some circumstances, especially with critical habitat designations of limited extent, we may aggregate across all industries and consider whether the total number of small entities affected is substantial. In estimating the number of small entities potentially affected, we also consider whether their activities have any Federal involvement.

Designation of critical habitat only affects activities conducted, funded, or permitted by Federal agencies. Some kinds of activities are unlikely to have any Federal involvement and so will not be affected by critical habitat designation. In areas where the species is present, Federal agencies already are required to consult with us under section 7 of the Act on activities they fund, permit, or implement that may affect Catesbaea melanocarpa . Federal agencies also must consult with us if their activities may affect critical habitat. Designation of critical habitat, therefore, could result in an additional economic impact on small entities due to the requirement to reinitiate consultation for ongoing Federal activities.

In our economic analysis of the critical habitat designation, we evaluated the potential economic effects on small business entities resulting from conservation actions related to the listing of Catesbaea melanocarpa and proposed designation of its critical habitat. This analysis estimated prospective economic impacts due to the implementation of conservation efforts for the species, such as incorporating a buffer zone around the individuals into the development project plans. We determined from our analysis that the implementation of conservation measures for C. melanocarpa within the proposed designation may impact the private landowners, but impacts are not anticipated to small business.

Costs associated with the value of the land for residential and commercial development comprise 100 percent of the total quantified potential future impacts. Total potential costs are expected to be $132,300 to $441,000 over a 20-year period. These costs are related to the implementation of a buffer zone of 20 m (66 ft) around the current population as a conservation measure for private development within the critical habitat designation. This buffer zone has the potential to affect approximately 10.5 ac (4.3 ha) of the property. Overall, the analysis does not anticipate a decrease in the amount of construction activity on St. Croix as a result of the designation. As a result, small developers and construction firms are not anticipated to be affected. Please refer to our final economic analysis for this designation for a more detailed discussion of potential economic impacts.

In general, two different mechanisms in section 7 consultations could lead to additional regulatory requirements for the private landowners of the Halfpenny Bay area if they are required to consult with us regarding the effects of projects' impacts on Catesbaea melanocarpa or its habitat. First, if we conclude, in a biological opinion, that a proposed action is likely to jeopardize the continued existence of a species or adversely modify its critical habitat, we can offer “reasonable and prudent alternatives.” Reasonable and prudent alternatives are alternative actions that can be implemented in a manner consistent with the scope of the Federal agency's legal authority and jurisdiction, that are economically and technologically feasible, and that would help the applicant to avoid jeopardizing the continued existence of listed species or result in adverse modification of critical habitat. A Federal agency and an applicant may elect to implement a reasonable and prudent alternative associated with a biological opinion that has found jeopardy or adverse modification of critical habitat. An agency or applicant could alternatively choose to seek an exemption from the requirements of the Act or proceed without implementing the reasonable and prudent alternative. However, unless an exemption were obtained, the Federal agency or applicant would be at risk of violating section 7(a)(2) of the Act if it chose to proceed without implementing the reasonable and prudent alternatives.

Second, if we find that a proposed action is not likely to jeopardize the continued existence of a listed animal or plant species, we may identify reasonable and prudent measures designed to minimize the amount or extent of take and require the Federal agency or applicant to implement such measures through nondiscretionary terms and conditions. We may also identify discretionary conservation recommendations designed to minimize or avoid the adverse effects of a proposed action on listed species or critical habitat, help implement recovery plans, or to develop information that could contribute to the recovery of the species.

Based on our experience with consultations pursuant to section 7 of the Act for all listed species, virtually all projects—including those that, in their initial proposed form, would result in jeopardy or adverse modification determinations in section 7 consultations—can be implemented successfully with, at most, the adoption of reasonable and prudent alternatives. These measures, by definition, must be economically feasible and within the scope of authority of the Federal agency involved in the consultation. We can only describe the general kinds of actions that may be identified in future reasonable and prudent alternatives. These are based on our understanding of the needs of the species and the threats it faces, as described in the final listing rule and its critical habitat designation. Within the final designation area, the types of Federal actions or authorized activities that we have identified as potential concerns are:

(1) Regulation of activities affecting waters of the United States by the U.S. Army Corps of Engineers under section 404 of the Clean Water Act;

(2) Regulation of water flows, damming, diversion, and channelization implemented or licensed by Federal agencies;

(3) Road construction and maintenance, right-of-way designation, and regulation of agricultural activities;

(4) Hazard mitigation and post-disaster repairs funded by the Federal Emergency Management Act;

(5) Activities authorized or funded by the Environmental Protection Agency, U.S. Department of Energy, or any other Federal agency.

It is likely that a developer or other project proponent could modify a project or take measures to protect Catesbaea melanocarpa. The kind of actions that may be included if future reasonable and prudent alternatives become necessary include conservation set-asides, management of competing nonnative species, restoration of degraded habitat, and regular monitoring. These are based on our understanding of the needs of the species and threats it faces, as described in the final listing rule and proposed critical habitat designation. These measures are not likely to result in a significant economic impact to project proponents.

In summary, we have considered whether this would result in a significant economic effect on a substantial number of small entities. We have determined, for the above reasons and based on currently available information, that it is not likely to affect a substantial number of small entities. Federal involvement, and thus section 7 consultations, would be limited to the area designated. The most likely Federal involvement could include Federal Highway Administration funding for road improvement, Natural Resources Conservation Service funding for agricultural practices, Housing and Urban Development funding for residential development and Federal Communications Commission permits for the construction and operation of telecommunication towers. Therefore, for the above reasons and based on currently available information, we certify that the rule will not have a significant economic impact on a substantial number of small entities, and a regulatory flexibility analysis is not required.

On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. Based on the information from the economic analysis, this final rule to designate critical habitat for Catesbaea melanocarpa is not expected 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.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501), the Service makes 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 tribal 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 Tribal governments “lack authority” to adjust accordingly. (At the time of enactment, these entitlement programs were: Medicaid; AFDC 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 onto State governments.

(b) We do not believe that this rule will significantly or uniquely affect small governments because it will not produce a Federal mandate of $100 million or greater in any year, that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. The designation of critical habitat imposes no obligations on State or local governments. As such, Small Government Agency Plan is not required.

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 10.5 ac (4.3 ha) of lands in Halfpenny Bay area in St. Croix, USVI as critical habitat for Catesbaea melanocarpa in a takings implication assessment. The takings implications assessment concludes that this final designation of critical habitat does not pose significant takings implications for lands within or affected by the designation.

In accordance with Executive Order 13132 (Federalism), the rule does not have significant Federalism effects. A Federalism assessment is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of, this proposed critical habitat designation with appropriate State resource agencies in Puerto Rico and the U.S. Virgin Islands. The designation of critical habitat in areas currently occupied by Catesbaea melanocarpa imposes no additional restrictions to those currently in place and, therefore, has little incremental impact on State and local governments and their activities. The designation may have some benefit to these governments in that the areas that contain the features essential to the conservation of the species are more clearly defined, and the primary constituent elements of the habitat necessary to the conservation of the species are specifically identified. While making this definition and identification does not alter where and what federally sponsored activities may occur, it may assist these local governments in long-range planning (rather than waiting for case-by-case section 7 consultations to occur).

In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. We are designating critical habitat in accordance with the provisions of the Act. This final rule uses standard property descriptions and identifies the primary constituent elements within the designated area to assist the public in understanding the habitat needs of Catesbaea melanocarpa .

This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act. 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.

It is our position that, outside the Tenth Circuit, we do not need to prepare environmental analyses as defined by the NEPA 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 assertion was upheld in the courts of the Ninth Circuit ( Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

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. We have determined that there are no Tribal lands occupied at the time of listing containing the features essential for the conservation of Catesbaea melanocarpa and no Tribal lands that are unoccupied areas that are essential for the conservation of C. melanocarpa . Therefore, critical habitat for C. melanocarpa has not been designated on Tribal lands.

A complete list of all references cited in this rulemaking is available upon request from the Field Supervisor, Caribbean Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT ).

The primary authors of this package are the staff of Caribbean Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT ).

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The fourth seasonal apportionment of the 2007 Pacific halibut bycatch allowance specified for the shallow-water species fishery in the GOA is 150 metric tons (mt) as established by the 2007 and 2008 harvest specifications for groundfish of the GOA (72 FR 9676, March 5, 2007), for the period 1200 hrs, A.l.t., September 1, 2007, through 1200 hrs, A.l.t., October 1, 2007.

Regulations at § 679.23(b) specify that the time of all openings and closures of fishing seasons other than the beginning and end of the calendar fishing year is 1200 hrs, A.l.t. Current information shows the expected trawl Pacific halibut bycatch rates observed in groundfish fisheries during the fourth season in the GOA to be 300 mt per day. The Administrator, Alaska Region, NMFS, has determined that the 2007 Pacific halibut bycatch allowance specified for the trawl fisheries could be exceeded if a 24-hour fishery were allowed to occur. NMFS intends that the halibut bycatch allowance not be exceeded and, therefore, will not allow a 24-hour directed fishery. NMFS, in accordance with § 679.25(a)(1)(i) and 679.25(a)(2)(i)(A), is adjusting the trawl shallow-water species fishery in the GOA by prohibiting the fishery at 2400 hrs, A.l.t., September 1, 2007, at which time directed fishing for shallow-water species by vessels using trawl gear in the GOA will be prohibited. This action has the effect of opening the fishery for 12 hours.

NMFS is taking this action to allow a controlled fishery to occur, thereby preventing the overharvest of the Pacific halibut bycatch allowance specified for the trawl shallow-water species fishery designated in accordance with the 2007 and 2008 harvest specifications for groundfish in the GOA (72 FR 9676, March 5, 2007) and § 679.21(d). In accordance with § 679.25(a)(2)(iii), NMFS has determined that prohibiting directed fishing at 2400 hrs, A.l.t., September 1, 2007, after a 12-hour opening is the least restrictive management adjustment to allow the fishing industry opportunity to harvest species that comprise the shallow-water species fishery without exceeding the fourth seasonal apportionment of the 2007 Pacific halibut bycatch allowance for the shallow-water species fishery in the GOA. Pursuant to § 679.25(b)(5), NMFS has considered data regarding inseason prohibited species bycatch rates observed in groundfish fisheries in the GOA in making this adjustment.

The species and species groups that comprise the shallow-water species fishery are pollock, Pacific cod, shallow-water flatfish, flathead sole, Atka mackerel, skates and “other species.” This inseason adjustment does not apply to fishing for pollock by vessels using pelagic trawl gear in those portions of the GOA open to directed fishing for pollock. This inseason adjustment does not apply to vessels fishing under a cooperative quota permit in the cooperative fishery in the Rockfish Pilot Program for the Central GOA.

After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the inseason adjustment closing of the shallow-water species fishery by vessels using trawl gear in the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of August 20, 2007.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

Without this inseason adjustment, NMFS could not allow the fishery for the shallow-water species fishery in the GOA to be harvested in an expedient manner and in accordance with the regulatory schedule. Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until September 12, 2007.