Section 5941 of title 5, United States Code, authorizes Federal agencies to pay cost-of-living allowances (COLAs) to white-collar Federal and U.S. Postal Service employees stationed in Alaska, Hawaii, Guam and the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands (USVI). Executive Order 10000, as amended, delegates to the Office of Personnel Management (OPM) the authority to administer nonforeign area COLAs and prescribes certain operational features of the program. OPM conducts living-cost surveys in each allowance area and in the Washington, DC, area to determine whether, and to what degree, COLA area living costs are higher than those in the DC area.

As required by section 591.223 of title 5, Code of Federal Regulations, OPM conducts COLA surveys in the Alaska, Pacific, and Caribbean areas on a 3-year rotating basis, and in the Washington, DC, area on an annual basis. OPM sets the COLA rate for each area based on the results of these surveys. For areas not surveyed during a particular year, OPM computes interim adjustments to COLA rates based on the relative change in the Consumer Price Index (CPI) for the COLA area compared with the Washington, DC, area. (See 5 CFR 591.224-591.226.)

OPM adopted the COLA survey methodology pursuant to the stipulation for settlement in Caraballo et al. v. United States , No. 1997-0027 (D.V.I.), August 17, 2000. Caraballo was a class-action lawsuit in which the plaintiffs contested the prior methodology OPM used to determine COLA rates. In the Caraballo settlement, the parties agreed that if the Government adopted and maintained certain changes in the COLA program, the plaintiffs would be barred from bringing suit over these issues. The stipulation for settlement is available on OPM's Web site at http://www.opm.gov/oca/cola/settlement.asp .

Before the settlement, the parties entered into a memorandum of understanding under which they engaged in a cooperative process to study living-cost and compensation issues. The research was exhaustive and covered essentially all aspects of the COLA program. A summary of that research is available at http://www.opm.gov/oca/cola/research.asp .

Exhibit A of the Caraballo settlement agreement lists 26 “Safe Harbor Principles” that outline the changes to which the parties agreed. These principles formed the basis for a new COLA methodology, which OPM incorporated into its regulations. In developing these regulations, OPM consulted with the Survey Implementation Committee, which was established under the Caraballo settlement and is composed of representatives of the parties in Caraballo . The Survey Implementation Committee in turn consulted with the Technical Advisory Committee, which was also established under the Caraballo settlement and is composed of three economists with expertise in living-cost comparisons. OPM published proposed regulations incorporating the new methodology in the Federal Register for notice and comment on November 9, 2001, at 66 FR 56741, and a final rule on May 3, 2002, at 67 FR 22339. The Survey Implementation Committee and the Technical Advisory Committee worked closely with OPM in preparing for and implementing the 2002, 2003, and 2004 COLA surveys.

On September 12, 2007, at 72 FR 52169, OPM published a Federal Register notice conveying the results of the 2006 interim adjustments for the Pacific and Caribbean COLA areas. We did not compute interim adjustments for the Alaska COLA areas because we surveyed Alaska in 2006. The interim adjustments indicated that, except for Hawaii County and Puerto Rico, the COLA rates for the Pacific and Caribbean COLA areas were set at the appropriate levels. For Hawaii County, the adjustments indicated an increase in the COLA rate from 17 percent to 18 percent. For Puerto Rico, the adjustments indicated an increase in the COLA rate from 10.5 percent to 11 percent.

On September 6, 2007, at 72 FR 51200, OPM proposed to further increase the Puerto Rico COLA rate to 13 percent to account for the impact on prices of the new Puerto Rico sales tax. This increase supersedes the 1 percent reduction previously proposed by OPM on October 27, 2006, at 71 FR 63176, which was based on the 2005 Caribbean survey results.

We address comments received in response to the 2007 proposed rule on the rate increases in Puerto Rico and Hawaii County, HI, in this section. We also received comments in response to the 2006 proposed rule to reduce the COLA rate in Puerto Rico. Although the rate reduction will not be implemented, we also respond to these comments in this section.

We received 253 comments in response to the 2007 proposed rate increases in Puerto Rico and Hawaii County, HI. Most of the commenters in Puerto Rico said they support the proposed increase in the Puerto Rico COLA rate; however, many commenters believed the increase should be higher than proposed. A number of commenters cited a rise in the Consumer Price Index produced by the Puerto Rico Department of Labor and Human Resources and other indicators as a basis for a higher COLA rate.

As required by section 5941 of title 5, U.S. Code, we compare living costs in the COLA areas with living costs in the Washington, DC, area to determine COLA rates. We survey the prices of over 240 items to use in the cost comparisons. The comparisons result in indexes that reflect how COLA area prices measure against DC area prices over a given period of time. The comparisons result in indexes that do not necessarily correspond to rising (or falling) prices in the COLA areas. For instance, if living costs in a COLA area rise, but living costs in the DC area rise more sharply, the COLA rate for the area would decrease. Conversely, if COLA area living costs decrease, but DC area living costs decrease more sharply, the COLA rate for the area would increase.

This regulation increases the COLA rate in Puerto Rico from 10.5 percent to 13 percent based partially on the relative change in the 2006 CPI for Puerto Rico compared with the Washington, DC, area and partially to account for the new sales tax implemented after the 2005 survey. While this change provides a 2.5 percent increase in the COLA rate for Federal employees in Puerto Rico, the actual change from the 2005 survey index of 103.32 (3 percent) to the adjusted index of 112.94 (13 percent) correlates to an effective increase of 10 percent. (The 3-percent COLA rate indicated by the 2005 surveys was to be implemented in annual 1-percentage-point reductions.)

We used the CPI produced by the Puerto Rico Department of Labor and Human Resources for the 2006 interim adjustment for Puerto Rico. The Puerto Rico Department of Labor and Human Resources has since revised its methodology for producing the CPI. This change in producing the CPI does not affect the COLA index used for the Puerto Rico rate increase implemented in this regulation, but likely will affect future Puerto Rico interim adjustment comparisons.

A number of commenters noted that certain costs have increased since OPM conducted the survey. They cited the cost of gasoline, housing, utilities, airline tickets, grocery items, medical needs, automobile expenses, various fees and taxes, and other items. Several commenters believed we should survey more frequently. We recognize that prices for various items will increase in the COLA areas and/or the DC area between surveys. We collect prices in each survey area every 3 years on a rotating basis according to a schedule agreed upon by the parties in the Caraballo settlement. As noted previously, we adjust area price indexes in non-survey years based on the relative change in the CPI for the COLA area compared with the CPI for the Washington, DC, area.

One commenter said OPM should survey the cost of water, gas, electricity, and telephone utilities. We survey each of these items. We published a list of the items we surveyed in the Caribbean and DC areas in appendix 3 of the 2005 Caribbean Survey Report at 71 FR 63197.

Several commenters believed OPM did not fully account for coverage of the new Commonwealth and municipio sales tax, particularly with grocery items. We proposed a one-time adjustment to the Puerto Rico COLA index based on the sales tax, which had not yet been captured by the COLA surveys or reflected in the CPI adjustments. We obtained information on the applicability of the sales tax from the Puerto Rico Department of the Treasury (Hacienda). Using this information, we applied the sales tax to covered survey items to determine an aggregate indicator of the impact of the tax on the Puerto Rico COLA index. The index increased by 1.9 points, translating to a COLA rate increase of 2 percent. We did not attempt to account for variations in tax coverage by municipio as these variations would likely have an inconsequential effect on the index. Similarly, we did not account for price reductions for survey items no longer subject to the general excise tax because the effect would also likely be inconsequential. In the future, the sales tax will be added to the prices we survey and will be reflected in the Puerto Rico CPI used for the interim adjustments.

One association advocated making the Puerto Rico increase retroactive to November 5, 2007, the effective date of the new sales tax. Paragraph (d) of section 553 of title 5, U.S. Code, requires that regulations be issued with an effective date at least 30 days after publication. The Caraballo settlement agreement requires that we publish rate changes pursuant to section 553.

One commenter said the current economy in Puerto Rico is likely causing recruitment and retention problems. OPM is concerned about the Government's ability to recruit and retain a well-qualified workforce and notes that the Government has several pay authorities that are available to address recruitment and retention problems. Among these are special salary rates and recruitment, retention, and relocation incentives. OPM's Web site at http://www.opm.gov/oca/pay/index.asp provides information on pay authorities to assist in agency recruitment and retention efforts.

Several commenters noted their opposition to an Administration legislative proposal that would transition employees in the COLA areas to locality pay over a 7-year period. The commenters said a change to locality pay would lead to a decrease in net salaries in Puerto Rico because locality pay is subject to income tax. The proposed legislation would reduce COLAs by 85 percent of the added locality pay amount to help offset (by 15 percent) the tax liability of locality pay, but would not relieve employees of their total tax responsibility. Unlike with COLAs, all Federal employees, whether in the COLA areas or the 48 contiguous States and Washington, DC, must pay income tax on locality pay. Under the proposed legislation, a change to locality pay would also eliminate future COLA rate reductions and increases, confer retirement credit where the COLA did not, and provide higher pay potential not restricted by the 25-percent cap that applies to COLA rates.

A number of commenters noted that the Puerto Rico income tax is higher than the Federal income tax paid by employees in other areas. By law, we must compare living costs in the COLA areas with living costs in the Washington, DC, area to determine the COLA rates for the areas. In the DC area, employees pay Federal income tax, State income tax (Virginia and Maryland), city income tax (DC), local income tax (Maryland counties), and personal property tax (Virginia counties). Employees in all areas have varying tax obligations depending on income, dependents, deductions, and other factors. Because of the complexity involved, we do not attempt to determine the aggregate income tax liability for employees in the COLA areas and the DC area for comparison purposes. The extent to which the total tax burden may be higher in a COLA area than in the DC area is covered by the adjustment factor we add to the price index for each COLA area pursuant to the Caraballo settlement agreement.

A number of commenters said Hawaii and the U.S. Virgin Islands have a similar economic situation to Puerto Rico, but have higher COLA rates. One commenter thought that costs in Puerto Rico justified the same 25 percent COLA received by employees in Alaska and Hawaii. Two commenters said that prices are higher in Puerto Rico because items must be imported. There are innumerable economic influences that affect prices in an area, including poverty rate, housing vacancy rate, availability of goods and services, competition, and importation costs. We survey using the same methodology and essentially the same marketbasket in all areas. We survey the final cost to the consumer of items and services in each area. The final cost includes any overhead, transportation and shipping costs, taxes, competition, and other price influences. Additionally, we survey catalog prices for a number of items and include in the price the costs for shipping, sales tax, and excise tax, which are often higher in the COLA areas relative to the Washington, DC, area.

We use this data to compare living costs in the COLA areas with living costs in the DC area. The surveys and subsequent interim adjustments have indicated a 25-percent COLA rate for the U.S. Virgin Islands and 3 of the 4 allowance areas in Hawaii, but a 10-percent rate for Anchorage, AK, a 19-percent rate for Fairbanks, AK, and a 20-percent rate for Juneau, AK. The Anchorage COLA index is below the index for Puerto Rico. Actual COLA rates are currently higher in Alaska because the Caraballo settlement established rates based on historical levels in the areas. The COLA rates in Alaska remain higher than indicated by OPM's surveys because we may reduce rates by no more than 1 percent in a 12-month period. We have published at 73 FR 772 a proposed second rate reduction, from 24 to 23 percent, for Anchorage, Fairbanks, and Juneau.

One commenter described how his living costs increased on moving to Puerto Rico from Texas. As noted earlier, section 5941 of title 5, U.S. Code, requires that we compare living costs in Puerto Rico with living costs in the Washington, DC, area to set the Puerto Rico COLA rate. We do not conduct cost-of-living surveys in other areas of the continental United States.

Two commenters noted the high cost of housing in safe neighborhoods and high mortgage rates in Puerto Rico. As stipulated by the Caraballo settlement, we use rental equivalence to determine shelter costs in the COLA areas. We discuss the rental survey, including neighborhood selection, later in this section.

Two commenters said there should be separate COLA rates for the east (Hilo) and west (Kona) sides of the island of Hawaii because prices in these areas are not equal. There are communities in each of the nonforeign COLA areas (and in the DC area) that are more expensive than other communities within the same COLA area. It is not feasible or practical to segment each of these communities, many of which share numerous economic characteristics, into independent survey areas with separate COLA rates. For this reason, we do not plan to split Hawaii County into two separate COLA areas. However, we remain open to a mutual recommendation on this issue from the COLA Advisory Committees in Hilo and Kona.

We received 204 comments in response to the 2006 proposed reduction in the Puerto Rico COLA rate published at 71 FR 63176. Although the increase implemented by these regulations supersedes the 2006 proposed reduction, we respond to the comments we received in the discussion that follows.

Many of the commenters said OPM should not reduce COLA rates because Puerto Rico living costs were increasing. As noted previously, section 5941 of title 5, U.S. Code, requires that we measure costs in the COLA areas against costs in the Washington, DC, area to determine COLA rates. We increase the COLA rate if the difference in living costs between the COLA area and the DC area increases and reduce the rate if the difference in living costs between the COLA area and the DC area decreases. As provided by 5 CFR 591.228(c), we reduce COLA rates by no more than 1 percentage point in a 12-month period.

A number of commenters referred to publications or other surveys showing high or rising costs in Puerto Rico, indicating the COLA rate should be set higher. We measure costs using the methodology stipulated in the Caraballo settlement and cannot comment on the methodology used by other publications and surveys. We conduct on-site surveys in each survey area and collect more than 4,600 prices on over 240 items representing typical consumer purchases. We collect prices at over 900 outlets, including grocery, hardware, electronics, and department stores, as well as automobile dealers, doctors, dentists, insurance companies, and many other providers of goods and services. We collect these prices in both the COLA and DC areas to use in the price comparisons that determine each area's COLA rate.

Numerous commenters noted that certain costs increased after OPM conducted the 2005 survey and that the survey data were outdated. They cited the cost of gasoline, housing, utilities, grocery items, medical needs, various fees and taxes, and other items. Many commenters requested that OPM survey again. As noted previously, we recognize that prices for items may increase in the COLA areas and/or the DC area between surveys. We collect prices in each survey area every 3 years on a rotating basis according to a schedule agreed upon by the parties in the Caraballo settlement. As stipulated in the settlement, we adjust COLA rates annually between surveys based on the relative change in the CPI for the COLA area as compared with the Washington, DC, area. We discuss this adjustment in the notice on the 2006 interim adjustments published at 72 FR 52169. These adjustments are designed to account for price fluctuations between surveys. The 2006 interim adjustment calculation raised the Puerto Rico index, making the proposed COLA rate reduction no longer necessary.

We received a number of comments on the new sales tax in Puerto Rico. As we discussed previously, we are implementing an adjustment to account for the impact of the sales tax as part of the rate increase to 13 percent.

One agency commented on the delay in implementing COLA rate adjustments. As set out in the Caraballo settlement, we survey each COLA area on a triennial basis and make interim adjustments based on CPI changes in the years between surveys. We also may make adjustments based on special circumstances, such as with the Puerto Rico sales tax adjustment. While we make efforts to implement COLA rate adjustments in a timely fashion, we must follow the rulemaking procedures mandated by the Administrative Procedure Act (section 553 of title 5, U.S. Code) and various other statutory and regulatory requirements before implementing any rate change. These requirements largely determine the interval for making a rate change effective.

The same agency also commented on the use of Washington, DC, as the basis for COLA living-cost comparisons. While the agency conceded that this requirement is in statute (section 5941 of title 5, U.S. Code), it observed that the DC area has become more expensive over time, resulting in less variance between the DC and COLA areas. Because the requirement to use Washington, DC, as the basis for comparison is mandated in the statute that authorizes COLAs, we do not have authority to address this issue by regulation.

The agency also raised the issue of replacing the nonforeign area COLA with locality pay. The Federal Employees Pay Comparability Act of 1990 authorizes locality pay only for Federal employees in the contiguous 48 States and Washington, DC. We do not have authority to address this issue by regulation. However, as noted earlier in this section, the Administration has submitted proposed legislation for consideration by Congress that would convert employees from COLAs to locality pay over time.

The agency noted that reductions in COLA rates may require greater use of discretionary authorities, such as recruitment, relocation, and retention incentives. As noted previously, OPM's Web site at www.opm.gov/oca/pay/index.asp provides information on pay authorities to assist in agency recruitment and retention efforts.

One commenter believed OPM did not conduct the survey in Puerto Rico with local Federal employees. The commenter indicated that OPM should have surveyed a sample of Puerto Rico Federal employees. We conduct on-site price surveys of a marketbasket of goods and services representing typical consumer purchases as prescribed by the Caraballo settlement. Observers from the Puerto Rico COLA Advisory Committee, which is composed of current Federal employees who live in Puerto Rico, accompanied the OPM data collectors during the non-rental price survey. Before the 2005 Caribbean survey, we established a COLA Advisory Committee in each of the survey areas. As described in 5 CFR 591.243, each Committee is composed of approximately 12 agency and employee representatives from the survey area and two representatives from OPM. We held 3-day meetings with the COLA Advisory Committees in each area to be surveyed to plan the COLA surveys. During the 2005 survey, the Committee members assisted OPM staff in collecting non-rental data, and after the survey the Committee members had the opportunity to review all of the survey results, including the results of the rental survey. Although COLA Advisory Committee members helped plan the rental survey and had the opportunity to review the rental survey results in detail, Committee members did not participate in the rental data collection as observers.

One local union in Puerto Rico offered extensive comments on the Puerto Rico rental survey. The union disputed the overall veracity, reliability, and adequacy of the rental data collected in Puerto Rico. The union claimed OPM knowingly and willfully harmed Puerto Rico employees through the fashion in which it collected, evaluated, analyzed, and utilized the rental data in Puerto Rico. The union and many other commenters asserted that OPM's actions did not conform to the Caraballo settlement or Safe Harbor Principles 5 (regarding quality and quantity comparisons), 18 (regarding the hedonic housing model and rental equivalence), and 22A (regarding survey plans and methodology).

As noted previously, the Caraballo settlement prescribed the methodology we use to conduct COLA surveys and set COLA rates. The settlement stipulates that OPM use a rental equivalence approach to estimate shelter costs and a hedonic regression approach to compare housing of similar quality. The Technical Advisory Committee economists worked with OPM and the Survey Implementation Committee to develop methodologies for the rental equivalence and hedonic regression processes. The settlement agreement did not require OPM to use a particular method to collect rental data; however, OPM provided its draft rental data collection specifications and procedures to the Survey Implementation Committee and Technical Advisory Committee for review and comment.

We contracted for the services of a company with an outstanding depth of experience in rental data collection to survey rental properties in the COLA areas for the 2004 through 2007 surveys. The contractor collected the data in essentially the same manner in all areas. Using parameters defined by OPM, the contractor collected rental data on-site in Puerto Rico from March 13 through May 5, 2005. Following its survey of the Caribbean areas, the contractor surveyed the Washington, DC, area. The contractor delivered the rental survey data to OPM in June 2005. We manually reviewed the rental data and performed various computer-based quality assurance checks on the rental database. We believe the 2005 rental survey was in full conformance with the settlement agreement and was stringently conducted under the rental equivalence and hedonic regression methodology mutually developed by the Survey Implementation Committee, Technical Advisory Committee, and OPM.

The union further maintained the rental data did not accurately reflect the areas or types of housing units where Federal employees live. The union said that only a small percentage of the rental observations in Puerto Rico were in areas where the median income level equals or exceeds the local average Federal salary. The union also said OPM and the Technical Advisory Committee invented new categories of housing units, “apartments in home” and “other,” almost exclusively for Puerto Rico. The union said these two categories of housing units were substandard and not representative of where Federal employees live.

We used data from the 2000 census that show the number of Federal employees and the number of housing units by municipio to determine which locations to survey and how many samples the rental survey contractor should attempt to collect in each location. We allocated more samples to locations that have a large number of Federal employees and a large number of housing units and fewer samples to locations that have a small number of Federal employees and housing units. If the location had no Federal employees, we excluded the location from the survey.

We held a 3-day meeting with the Puerto Rico COLA Advisory Committee on January 18-20, 2005, to plan the 2005 Puerto Rico rental and non-rental surveys. At the meeting, we shared with the Committee a map that showed the rental survey locations and the requested number of samples from each location. At the Committee's request, we agreed to further refine the survey locations using zip codes where practical. We did this for the San Juan, Carolina, and Bayamon municipios.

We also collect information that reflects the quality of neighborhoods and use additional information from the Bureau of the Census to introduce supplementary variables to the hedonic regressions that indicate neighborhood quality. To do this, we identify the census tract in which each rental observation is found and then add variables, such as median income, percent of school-age persons, and percent of people in the area with B.A. degrees or higher, to the hedonic regressions. Those variables that prove to be statistically significant and increase the precision of the rent index are used in the final hedonic regression equation.

In the 2005 hedonic regression analysis, we tested whether median income or median income paired with median income squared should be included in the equation. We found that median income was not a statistically significant variable at the 99.9 confidence level and dropped it from the hedonic regression.

The variable “Type of Unit” has eight subcategories: (1) Detached house, (2) duplex, (3) triplex, (4) townhouse/row house, (5) in-home apartment, (6) walk-up apartment, (7) high rise apartment, and (8) other. An “in-home apartment” is usually in a structure one to three stories tall with generally four or five units within the structure. Sometimes the original structure is a large, older home that has been converted to apartments. In other cases, the original structure may have been a triplex or quadplex. These units were found only in Puerto Rico and the U.S. Virgin Islands—none were found in the DC area. We tested the effect of dropping all in-home apartments in Puerto Rico in the final hedonic regression equation. The net result was a slight increase in the Puerto Rico rent index from 63.49 to 63.95, which had an inconsequential effect on the final survey living-cost index.

Units classified as “Other” are apartments in larger buildings that are not duplexes, triplexes, high rise apartments, typical walk-up apartment complexes, or in-home apartments. These were found mainly in Puerto Rico. In consultation with the Technical Advisory Committee, we collapsed “Type of Unit” into three subcategories: (1) Apartments of any kind, (2) townhouse/row house/duplex/triplex, and (3) detached house. “Collapsing” means combining two or more variables or subcategories within a variable. We generally do this when the variable or subcategory parameter estimates are similar and doing so improves the accuracy of the survey area parameter estimates. We assigned units classified as “in-home apartment” and “other” to the “apartments of any kind” subcategory. We then used hedonic regressions to compare the COLA area rents with DC area rents, while holding quality and quantity constant.

The union claimed OPM did not exercise any supervision over the contractor's data collection and accepted all data submitted by the contractor. We engaged a number of controls on the rental data furnished by the contractor. We established the specifications and locations for the rental survey in the contract and provided that payment would be made only for properties meeting the specifications. We required progress reports, shortfall reports, and other documentation during the course of the rental survey. As noted previously, we performed quality assurance checks on the data delivered by the contractor, including manually comparing property data against the property photograph(s) and sketch. We mapped the properties using longitude and latitude coordinates to verify geographic locations. Additionally, we provided the rental data to Puerto Rico agency and union representatives on the Puerto Rico COLA Advisory Committee for evaluation and comment.

The union stated that OPM treated Puerto Rico COLA employees in a disparate fashion because of national origin and without regard to unique linguistic and cultural differences. The union cited misspellings in the rental data as evidence that the data collectors encountered a serious language barrier.

OPM and the rental contractor respect linguistic and cultural differences in Puerto Rico. Both OPM and the contractor assigned Spanish-speaking data collectors, some of whom were former residents of Puerto Rico, to the price and rental surveys. In addition, OPM arranged for observers from the Puerto Rico COLA Advisory Committee, which is composed of current Federal employees who live in Puerto Rico, to accompany the data collectors surveying non-rental prices. The rental data contained some misspellings in business names and street addresses, but the overall rental data were high-quality and fulfilled the COLA survey specifications for rental prices in Puerto Rico. Misspellings in names and addresses did not affect the rental prices used to determine the rent index.

We conduct COLA surveys the same in all areas using the methodology prescribed by the Caraballo settlement. The rental survey contractor similarly does not vary its approach for collecting rental data in the COLA areas. To the extent cultural differences in Puerto Rico affect prices, the survey accounts for such differences. Additionally, we add 7 points to the Puerto Rico COLA index to account for other costs that may be influenced in part by local or cultural differences. For the rental surveys, we note that cultural differences likely explain variations in advertising methods (e.g., more rent-by-owner signs in Puerto Rico) and the quantities of certain housing types (such as in-home apartments) between Puerto Rico and the DC area. We discuss these variations elsewhere in this section.

The union said that OPM made significant changes to the Alaska and Pacific rental surveys based on the union's comments, but did not employ the changes in the 2005 Caribbean rental survey. We made refinements in the hedonic regression analysis, including adding listing source and self identification refusal as variables based on the union's comments, but applied all changes uniformly to the 2005, 2006, and 2007 surveys. We also initiated trial observation of the rental survey in the 2006 Alaska survey based on the union's comments; however, as we note in the discussion that follows, we plan to extend the trial period through the 2008 Caribbean survey.

The union believed OPM should have allowed observers from the Puerto Rico COLA Advisory Committee to accompany the contractor on the 2005 rental surveys in Puerto Rico. We permitted observers from the COLA Advisory Committees to accompany OPM data collectors conducting the non-rental price surveys beginning with the 2002 Caribbean surveys, but did not similarly arrange for observers to accompany the contractor conducting the rental surveys. The union originally requested that we permit observers for the 2005 rental surveys during a pre-survey meeting of the Puerto Rico COLA Advisory Committee on January 18, 2005. At that time, the contract for the rental surveys did not provide for observers. We determined there was not sufficient time to consider and resolve various issues (e.g., higher contract costs, logistical problems, and possible conflict of interest), establish ground rules for observers, and issue a contract modification before the scheduled 2005 rental data collection. Although we could not provide for rental survey observers in 2005, we did arrange for the contractor to meet with the Puerto Rico COLA Advisory Committee and answer questions regarding the data collection process.

Following the 2005 rental surveys, we negotiated with the contractor to permit rental survey observers on a trial basis. We have extended the trial observation period through the 2008 Caribbean surveys so that all COLA area committees will have an opportunity to observe, but not otherwise participate in, the rental data collection process.

Rental survey observations enable COLA Advisory Committee members to see how the contractor collects rental data in the field. To maintain survey integrity, we instruct the observers not to attempt to advise, direct, or influence the data collectors. Committee members have an opportunity to participate in setting the rental survey parameters in the pre-survey meeting. Regardless of whether committee members observe the collection, we provide the collected rental data to the committee for review and comment.

The union said that OPM did not provide the Puerto Rico COLA Advisory Committee truthful and/or accurate information regarding the rental contractor's work hours. OPM had noted the contractor's late work hours as one of the impediments to permitting Committee members to observe the rental survey. The union said that because the photographs of the rental units were taken during daylight hours, the contractor could not have worked evenings and/or nights. We would not have found photographs taken in the dark acceptable, so are not surprised that the contractor arranged to photograph the units in the daylight. We note that dawn to dusk in Puerto Rico is approximately 6 a.m. to 7 p.m. in April. We have since negotiated to permit Committee members to observe the rental survey during normal work hours.

The union said OPM's difficulties in providing the Puerto Rico COLA Advisory Committee with a printed copy of the rental data meant OPM could not have conducted a manual review, because this would have required a printed copy. We received a printed copy of the rental data from the rental survey contractor and used this for our manual review. We did not provide the contractor copy to the Puerto Rico COLA Advisory Committee, but instead elected to print a new copy from our electronic database. We did this because the contractor's copy did not reflect the changes we made following our manual and automated reviews; the pictures and sketches on the copy we produced were larger, which we believed made it easier to see details; copying the contractor's two-sided forms on a copier was less reliable than printing from the rental database; and we added census tract information to the rental database, which was not on the contractor's copy. We encountered initial difficulties in printing the copy from our database, but we resolved the problem and were able to provide a copy to the COLA Advisory Committee.

The union stated that OPM did not follow the established protocol for developing a reliable hedonic regression model. The union said OPM should have reviewed the rental data, verified the accuracy of the data, eliminated unverifiable data, and determined that the remaining data were not sufficient to support a reliable hedonic model. The union further said OPM and the Technical Advisory Committee knowingly ran statistical programs over the deficient data and that OPM and the Technical Advisory Committee should have known that the rental data were not of comparable quality and therefore not fit to support a reliable hedonic regression model. The union said a process must be developed whereby an adequate sample of accurate, verifiable, and comparable rental data is utilized before any hedonic regression to adjust for quality differences is made.

The current process provides ample accurate, verifiable, and comparable rental data to determine rental equivalence. In the 2005 Caribbean survey, the sample consisted of over 400 rental observations in Puerto Rico and over 900 observations in the Washington, DC, area. To assure the data were accurate, we conducted various automated and manual reviews as described earlier in this section. To enable data to be verified, we obtained housing unit addresses, geographic coordinates, and photographs, which we reviewed and provided to the Puerto Rico COLA Advisory Committee. To assure comparability, we employed hedonic regression analysis as described in the 2005 Caribbean survey report at 71 FR 63184. The Technical Advisory Committee economists developed the hedonic regression model in consultation with OPM and the Survey Implementation Committee in accordance with the Caraballo settlement and Safe Harbor Principle 18.

The union said OPM knew most of the data were not verifiable because names and addresses of information sources were not provided. Approximately 17 percent of the 2005 rental observations in Puerto Rico were from sources who refused to provide self-identifying information, and no observations in the DC area were from such sources. COLA rental surveys are voluntary; therefore, OPM cannot require the source to provide self-identifying information. In reviewing the rental data, we found no indication that the information was misrepresented or collected in an unacceptable manner. The contractor provided the address, geographic coordinates (longitude and latitude), and a photograph for each unit, among other information. We believe this information is sufficient for verification.

We also analyzed whether source refusals to provide self-identifying information had a statistically significant influence on rental rates in Puerto Rico. We added self-identification refusal as a variable in the hedonic regression analysis. The hypothesis was that properties belonging to or managed by individuals who refused to provide self-identifying information would rent for less than equivalent properties where the source provided self-identifying information. We found that self-identification refusal was not a statistically significant variable. This means that whether or not the source provided self-identifying information did not appear to have an influence on rental rates. Therefore, we see no reason to exclude observations where self-identifying information is withheld.

The union said the data also were not verifiable because a high percentage of the Puerto Rico rental samples were obtained by “drive-by” observations and supplemented later from the contractor's non-local headquarters office. A “drive-by” property is one that is advertised by a sign posted on the property. The contractor collects information from five types of sources: local newspaper/publication, Internet, agent/broker, drive-by/sign posted, and other. The contractor collected data from all types except “other” in both Puerto Rico and the DC area, but the distribution of observations by listing source type varied by area.

The contractor often finds properties with “For Rent” signs while driving through rental survey neighborhoods. If the property appears to meet contract specifications, the contractor takes photographs of the unit, records measurable and visual observations, and notes the telephone number and other contact information provided on the “For Rent” sign. The contact can be a private individual, but in the DC area, the “For Rent” signs often provide the name of a property management company. The contractor then calls the point of contact, either locally or from its non-local headquarters, and obtains the rest of the required information about the rental unit. We do not require the contractor to document these calls separately because the provided survey data fully documents the information collected.

To determine whether listing source influenced rental rates, we added listing source as a variable in the hedonic regression analysis. We found that the variable was statistically significant, but that it raised the standard error of the survey area parameter estimates. Therefore, we did not use listing source as a variable in the final hedonic regression equation.

The union stated it consistently notified OPM of its concerns with the rental survey and data collection, but OPM did not make a serious attempt to acknowledge, recognize, and address the many valid issues the union raised. We received several letters from the union regarding rental survey issues in response to two proposed COLA rate reductions in Puerto Rico. We replied to each of the union's concerns in detailed letters and also addressed its concerns in final regulations published in the Federal Register on August 2, 2006 (71 FR 43897). We again address the union's concerns in this discussion.

The union criticized OPM for consistently supporting the contractor's work with respect to the 2005 rental survey. We support the 2005 COLA rental and non-rental surveys because the surveys were conducted in accordance with the methodology prescribed by the Caraballo settlement and developed in full collaboration with the Survey Implementation Committee and the Technical Advisory Committee economists. The contractor supplied rental data that fulfilled the contract specifications set by OPM for acquiring sufficient data to determine rental equivalency under the settlement methodology.

The union claimed OPM accepted endless substitutions of housing units in Puerto Rico from the contractor, allowing the introduction of bias to the housing sample. This is not correct. The contract prescribed the order in which the contractor would attempt to collect the data and specified the steps the contractor would take if it were unable to collect the requested number of observations within a class in a listed location. The contract allowed the contractor to do this without our direct supervision or involvement so that the rental survey could be conducted within a relatively short timeframe and because we did not have superior knowledge about what was available for rent in the local rental market. Although we were not involved in the substitution process, we received required reports that showed how the contractor allocated the shortfalls. The following is a brief description of how the contract addressed substitutions.

We determined the Puerto Rico sample size mainly based on the number of observations a contractor could reasonably be expected to collect within the survey time period. Next, we used information from the 2000 Census to distribute the samples in Puerto Rico by zip code among the locations where Federal employees live. We used the same approach in the DC area and in the U.S. Virgin Islands.

Within each location, we asked the contractor to collect information on the following six classes of housing: Class A—four bedroom, single family unit not to exceed 3200 square feet; Class B—three bedroom, single family unit not to exceed 2600 square feet; Class C—two bedroom, single family unit not to exceed 2200 square feet; Class D—three bedroom apartment unit not to exceed 2000 square feet; Class E—two bedroom apartment unit not to exceed 1800 square feet; Class F—one bedroom apartment unit not to exceed 1400 square feet. In most cases, we distributed the location target sample among the class on an equal basis, although sometimes we varied the class distribution based on the projected distribution within the location.

In designing the rental specifications, we recognized it was unlikely that a contractor would be able to find observations that exactly corresponded to the target distribution in the contract. Therefore, we established a process in the contract that enables the contractor to adjust the distribution throughout the survey by successively redistributing the shortfall according to a series of rules. The shortfall was the difference between the target amount and what was actually found.

At the lowest level, the contract distribution specified the target amount for a housing class within a location in a survey area. If the contractor could not find that amount, the contractor allocated the shortfall to the next most similar housing class within the location. For example, if we asked the contractor to collect six Class A observations in a location but the contractor could only find four, the contractor assigned the shortfall to the next most similar housing class within that location, and repeated the process. By the time the contractor had completed surveying the location, if it still had a shortfall, the contract required the contractor to allocate that shortfall among the observations in the next location. For example, if the target amount for a particular location was 36 but the contractor could only collect 30, the contract required the contractor to distribute the shortfall among the housing classes in the next location.

In the last step, if the contractor was unable to collect the number of samples requested for the survey area, the contractor was required to distribute the shortfall to the next survey area listed in the contract. In the case of the 2005 survey, the contractor obtained 445 of the requested maximum 480 samples in Puerto Rico, so it redistributed 35 samples to the Washington, DC, area.

The union also claimed the hedonic regressions performed by OPM and the Technical Advisory Committee to arrive at the 2005 housing index for Puerto Rico were inaccurate and invalid. The methodology we used to produce the rent indexes was an objective, multi-step process by which we eliminated variables that were not statistically significant. As required by Safe Harbor Principle 18 of the Caraballo settlement, we use hedonic regressions to analyze the rental data. We do not use a “matched-model” approach; i.e., we do not compare the price of a 1,000 square foot, 3-bedroom apartment in a COLA area with the same size 3-bedroom apartment in the DC area. Hedonic regressions are a type of multiple regression, which is a commonly used mathematical process that describes how one or more things—the independent variables—affect something else—the dependent variable. The regression results show the influence, on average, of each independent variable on the dependent variable while holding all of the other independent variables constant.

We use the logarithm of rent as the dependent variable. This is a commonly used approach and was recommended by the Technical Advisory Committee economists. The independent variables we use are various rental unit characteristics. Variables may be continuous—like square footage, number of bedrooms, or number of bathrooms—or class variables, like external condition (good, fair, etc.), availability of air conditioning (yes, no), or the particular COLA survey area in which the rental unit is located. The resulting hedonic regression allows OPM to hold rental unit characteristics constant between the COLA area and the Washington, DC, area while comparing rents. In other words, we use hedonic regressions to compare rents for non-identical but comparable rental units by holding quality and quantity constant, to the extent practical. It is not practical to survey every characteristic of a rental unit. For example, we do not collect information on floor coverings, size and types of windows, color of bathroom fixtures, and size of closets. Instead, working with the Survey Implementation Committee, Technical Advisory Committee, and COLA Advisory Committees, we identified over 80 characteristics that seem likely to have an influence on rental prices. Similarly, it is not desirable from a statistical standpoint to use all 80-plus characteristics in the hedonic regressions. Therefore, OPM and the Technical Advisory Committee, in consultation with the Survey Implementation Committee, developed objective procedures to determine which rental unit characteristics to include in the regression equation.

One commenter believed OPM should survey home purchase costs instead of rental value. Under the Caraballo settlement, the parties agreed to adopt a rental equivalence approach similar to the one the Bureau of Labor Statistics uses for the Consumer Price Index. Rental equivalence compares the shelter value (rental value) of owned homes, rather than total owner costs, because the latter are influenced by the investment value of the home (i.e., what homeowners hope to realize as a profit when they sell their homes). As a rule, living-cost surveys do not compare how consumers invest their money.

This rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866.

I certify that this regulation will not have a significant economic impact on a substantial number of small entities because the regulation will affect only Federal agencies and employees.

A proposed rule detailing the revisions was published in the Federal Register on April 17, 2008 (73 FR 20842). A 15-day comment period was provided for interested persons to respond to the proposed rule. One comment was received from the National Cotton Council in support of the fee increase.

This rule has been determined to be not significant for purposes of Executive Order 12866; and, therefore has not been reviewed by the Office of Management and Budget (OMB).

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. It 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. There are no administrative procedures that must be exhausted prior to any judicial challenge to the provisions of this rule.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) AMS has considered the economic impact of this action on small entities and has determined that its implementation will not have a significant economic impact on a substantial number of small businesses.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be disproportionately burdened. There are an estimated 25,000 cotton growers in the U.S. who voluntarily use the AMS cotton classing services annually, and the majority of these cotton growers are small businesses under the criteria established by the Small Business Administration (13 CFR 121.201). The increase above the 2007 crop level as stated will not significantly affect small businesses as defined in the RFA because:

(1) The fee represents a very small portion of the cost-per-unit currently borne by those entities utilizing the services. (The 2007 user fee for classification services was $1.85 per bale; the fee for the 2008 crop would be increased to $2.00 per bale; the 2008 crop is estimated at 14,000,000 bales.)

(2) The fee for services will not affect competition in the marketplace; and

(3) The use of classification services is voluntary. For the 2007 crop, 19,033,000 bales were produced; and, almost all of these bales were voluntarily submitted by growers for the classification service.

(4) Based on the average price paid to growers for cotton from the 2006 crop of 47.3 cents per pound, 500 pound bales of cotton are worth an average of $236.50 each. The proposed user fee increase for classification services, $2.00 per bale, is less than one percent of the value of an average bale of cotton.

In compliance with OMB regulations (5 CFR part 1320), which implement the Paperwork Reduction Act (PRA) (44 U.S.C. 3501-3520), the information collection requirements contained in the provisions to be amended by this final rule have been previously approved by OMB and were assigned OMB control number 0581-AC80.

The user fee charged to cotton producers for High Volume Instrument (HVI) classification services under the Cotton Statistics and Estimates Act (7 U.S.C. 473a) was $1.85 per bale during the 2007 harvest season as determined by using the formula provided in the Uniform Cotton Classing Fees Act of 1987, as amended by Public Law 102-237. The fees cover salaries, costs of equipment and supplies, and other overhead costs, including costs for administration and supervision. The fee structure for the 2007 crop year was incorporated under the authority of the Cotton Standards Act of 1923, by an interim final rule effective October 1, 2007 (72 FR 56242).

This final rule establishes the user fee charged to producers for HVI classification at $2.00 per bale during the 2008 harvest season.

The classification fees are based on the prevailing method of classification requested by producers during the previous year. HVI classing was the prevailing method of cotton classification requested by producers in 2007. Therefore, the 2008 producers' user fee for classification service is based on the 2007 base fee for HVI classification.

The fee was calculated by applying the formula specified in the Uniform Cotton Classing Fees Act of 1987, as amended by Public Law 102-237 which AMS also considers reasonable under the authority of the Cotton Standards Act of 1923. The 2007 base fee for HVI classification exclusive of adjustments, as provided by that Act, was $2.52 per bale. An increase of 3.06 percent, or 7 cents per bale, due to the implicit price deflator of the gross domestic product added to the $2.52 would result in a 2008 base fee of $2.59 per bale. The formula in the Act provides for the use of the percentage change in the implicit price deflator of the gross national product (as indexed for the most recent 12-month period for which statistics are available). However, gross national product has been replaced by gross domestic product by the Department of Commerce as a more appropriate measure for the short-term monitoring and analysis of the U.S. economy.

The number of bales to be classed by the United States Department of Agriculture from the 2008 crop is estimated at 14,000,000 bales. The 2008 base fee was decreased 15 percent based on the estimated number of bales to be classed (1 percent for every 100,000 bales or portion thereof above the base of 12,500,000, limited to a maximum decreased adjustment of 15 percent). This percentage factor amounts to a 39 cents per bale reduction and was subtracted from the 2008 base fee of $2.59 per bale, resulting in a fee of $2.20 per bale.

However, with a fee of $2.20 per bale, the projected operating reserve would be 31.6 percent. The 1987 Act specifies that the Secretary shall not establish a fee which, when combined with other sources of revenue, will result in a projected operating reserve of more than 25 percent. Accordingly, the fee of $2.20 is reduced by 20 cents per bale, to $2.00 per bale, to provide an ending accumulated operating reserve for the fiscal year of not more than 25 percent of the projected cost of operating the program. This will establish the 2008 season fee at $2.00 per bale.

Accordingly, § 28.909, paragraph (b) will reflect the increase of the HVI classification fee to $2.00 per bale.

A 5 cent per bale discount will continue to be applied to voluntary centralized billing and collecting agents as specified in § 28.909 (c).

Growers or their designated agents receiving classification data will continue to incur no additional fees if classification data is requested only once. The fee for each additional retrieval of classification data in § 28.910 would remain at 5 cents per bale. The fee in § 28.910 (b) for an owner receiving classification data from the National database would remain at 5 cents per bale, and the minimum charge of $5.00 for services provided per monthly billing period would remain the same. The provisions of § 28.910 (c) concerning the fee for new classification memoranda issued from the National database for the business convenience of an owner without reclassification of the cotton will remain the same at 15 cents per bale or a minimum of $5.00 per sheet.

The fee for review classification in § 28.911 will increase to $2.00 per bale.

The fee for returning samples after classification in § 28.911 would remain at 40 cents per sample. This fee was incorrectly referred to in the proposed rule as 50 cents per sample.

On May 8, 2007, OTS published an interim final rule adding 12 CFR part 585. This new part implemented section 19(e) of the FDIA, which prohibits any person who has been convicted of any criminal offense involving dishonesty, breach of trust, or money laundering (or who has agreed to enter into a pretrial diversion or similar program in connection with a prosecution for such an offense) from holding certain positions with a SLHC. Section 19(e) also authorizes the Director of OTS to provide exemptions from the prohibitions, by regulation or order, if the exemption is consistent with the purposes of the statute.

The interim final rule described the actions that are prohibited under the statute and prescribed procedures for applying for an OTS order granting a case-by-case exemption from the prohibition. The rule also provided regulatory exemptions to the prohibitions, including a temporary exemption for persons who held positions with respect to a SLHC on October 13, 2006, the date of enactment of section 19(e). This temporary exemption is set to expire on June 1, 2008, unless a case-by-case exemption is filed prior to that expiration date. 1

OTS is extending the expiration date of the temporary exemption to November 3, 2008. This extension will avoid needless disruptions of SLHC operations while OTS continues to review the public comments and develop a final rule addressing these comments. OTS has concluded that this extension of the exemption is consistent with the purposes of section 19(e) of the FDIA.

For the reasons set out in the interim final rule, 2 OTS has concluded that: Notice and comment on this extension are unnecessary and contrary to the public interest under section 552(b)(B) of the Administrative Procedure Act; there is good cause for making the extension effective immediately under section 553(d) of the APA; and the delayed effective date requirements of section 302 of the Riegle Community Development and Regulatory Improvement Act of 1994 (CDRIA) do not apply.

For the reasons stated in the interim final rule, 3 OTS has concluded that this extension does not require an initial regulatory flexibility analysis under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), and that this extension should not have a significant impact on a substantial number of small entities, as defined in the RFA.

OTS has determined that this extension does not involve a change to collections of information previously approved under the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ).

For the reasons stated in the interim final rule, 4 OTS has determined that this extension will not result in expenditures by state, local, and tribal governments, in the aggregate, or by the private sector, of more than $100 million in any one year.

OTS has determined that this extension is not a significant regulatory action under Executive Order 12866.

Section 722 of the Gramm-Leach-Bliley Act (12 U.S.C. 4809) requires the Agencies to use “plain language” in all final rules published after January 1, 2000. OTS believes that the final rule containing the extension is presented in a clear and straightforward manner.

The FAA issued a supplemental notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to certain Boeing Model 777-200, -200LR, -300, and -300ER series airplanes. That supplemental NPRM was published in the Federal Register on February 28, 2008 (73 FR 10698). That supplemental NPRM proposed to require revising the Airworthiness Limitations (AWLs) section of the Instructions for Continued Airworthiness (ICA) by incorporating new limitations for fuel tank systems to satisfy Special Federal Aviation Regulation No. 88 (SFAR 88) requirements. That supplemental NPRM also proposed to require the initial performance of certain repetitive inspections specified in the AWLs to phase in those inspections, and repair if necessary.

Since we issued the NPRM, Boeing has issued Temporary Revision (TR) 09-014, dated December 2007. Boeing TR 09-014 is published as Section 9 of the Boeing 777 Maintenance Planning Document (MPD) Document, D622W001-9, Revision February 2008 (hereafter referred to as “Revision February 2008 of the MPD”). The supplemental NPRM referred to Revision October 2007 of the MPD as the appropriate source of service information for accomplishing the proposed actions. Revision February 2008 of the MPD revises AWL No. 28-AWL-03 to reflect the new maximum loop resistance values associated with the lightning protection of the unpressurized fuel quantity indicating system (FQIS) wire bundle installations.

Accordingly, we have revised paragraphs (f), (g), and (h) of this AD to refer to Revision February 2008 of the MPD. We also have added a new paragraph (j) to this AD specifying that actions done before the effective date of this AD in accordance with Revision October 2007 or Revision December 2007 of the MPD are acceptable for compliance with the corresponding requirements of paragraphs (g) and (h) of this AD.

Operators should note that we have revised paragraph (g)(2) of this AD to require incorporating only AWLs No. 28-AWL-01 through No. 28-AWL-20 inclusive. AWLs No. 28-AWL-21 through No. 28-AWL-26 were added in Revision December 2007 of the MPD for Model 777-200LR series airplanes equipped with an auxiliary fuel tank. We might issue additional rulemaking to require the incorporation of those AWLs. However, as an optional action, operators may incorporate those optional AWLs as specified in paragraph (g)(2) of this AD. Operators should also note that we might issue a separate NPRM that proposes to incorporate AWL No. 28-AWL-19 and No. 28-AWL-20 into the AWLs section of the ICA and the associated design change.

We provided the public the opportunity to participate in the development of this AD. We have considered the comments received.

Boeing, American Airlines, and United Airlines (UAL) concur with the contents of the supplemental NPRM. The Air Transport Association (ATA) agrees with the intent of the supplemental NPRM.

The ATA, on behalf of UAL, submitted a comment stating that there might be a logic error in the proposed requirement of paragraph (g) of the supplemental NPRM. UAL states that it understands that the proposed action is to revise the AWLs section of the ICA to “Incorporate the MPD into the MPD.”

We infer that the commenters request that we clarify the requirements of paragraph (g) of this AD. We agree that clarification is necessary. The intent of paragraph (g) of this AD is to require the operator to incorporate Subsections D and E of Revision February 2008 of the MPD into the operator's existing MPD. We have deleted the words “into the MPD” from paragraph (g) of this AD to eliminate any confusion.

The ATA, on behalf of Continental Airlines (CAL), submitted a request to revise the loop resistance values for AWL No. 28-AWL-03 of Revision October 2007 of the MPD to reflect the appropriate limits for in-service airplanes. CAL states that the limits in AWL No. 28-AWL-03 reflect factory limits, and that mandating those limits would result in non-compliance and ground the Model 777 fleet. CAL states that the limits in AWL No. 28-AWL-03 should be harmonized with the limits in Tables 601 and 602 of Task 05-55-54-200-801 of the Boeing 777 Airplane Maintenance Manual (AMM), which contain bonding resistance values for in-service airplanes. CAL further requests that the new limits be published before May 2008, so that operators have adequate time to develop the necessary task cards before the required compliance time of paragraph (g) of this AD.

We agree that the loop resistance values for AWL No. 28-AWL-03 of Revision October 2007 of the MPD needed to be revised. Boeing published Revision February 2008 of the MPD to specify the appropriate values, which agree with the AMM. As stated previously, we have revised this AD accordingly.

The ATA, on behalf of UAL, requests that we clarify paragraph (i) of the supplemental NPRM. UAL interprets paragraph (i) to mean that, prior to the accomplishment of paragraphs (g) and (h) of the supplemental NPRM, an operator is allowed to use alternative inspections, inspection intervals, or critical design configuration control limitations (CDCCLs), which are not part of subsequent revisions of Revision October 2007 of the MPD. UAL states that, if this interpretation is true, then paragraph (i) might be in conflict with section 121.1113 (“Fuel tank system maintenance program”) of the Federal Aviation Regulations (14 CFR 121.1113). UAL asks us to clarify whether paragraph (i) suspends the intent of 14 CFR 121.1113 and allows deviations until paragraphs (g) and (h) are complied with.

We disagree with UAL's interpretation that this AD conflicts with 14 CFR 121.1113. The two requirements are entirely compatible. That section requires that, no later than December 16, 2008, operators must incorporate applicable inspections, procedures, and limitations for fuel tank systems that have been approved under SFAR 88. The AWLs required by this AD are a portion of the SFAR 88 documents approved for these airplanes. Since the compliance date for this AD was chosen to coincide with the compliance date for 14 CFR 121.1113, compliance with this AD by that date will also be partial compliance with 14 CFR 121.1113, and neither that section nor this AD impose requirements before that date. Paragraph (i) of this AD is also consistent with 14 CFR 121.1113 in that both prohibit changing the requirements unless the changes are approved by the Seattle Aircraft Certification Office (ACO), which is the oversight office for this airplane model. No change to this AD is necessary in this regard.

JAL requests that we provide guidelines for using equivalent tools and chemical materials according to the component maintenance manuals (CMMs). JAL states that normally operators can use equivalents without FAA approval when the CMM specifies that equivalents may be used. JAL also states that it has received further clarification from Boeing specifying that unless a CDCCL refers to a certain tool by part number or certain chemicals by name, an operator can continue to use equivalent tools or materials according to the CMMs.

We acknowledge the commenter's request and are working with Boeing to provide appropriate flexibility while still ensuring that items critical for maintaining safety continue to be specifically identified in the CMMs. However, to delay issuance of this AD would be inappropriate.

We agree that when the CMMs allow use of equivalent tools or chemical materials, operators and repair stations may use equivalents. We have already approved the use of the CMMs at the revision levels specified in Revision February 2008 of the MPD, including the use of equivalent tools or chemicals where the CMMs state equivalents are allowed. If the CMM does not allow use of an equivalent, none may be used. No change to this AD is necessary in this regard.

All Nippon Airways (ANA) requests that we delete the words “and task card,” unless the task card references are listed in Subsection D of the MPD or Appendix 1 of the AD. Those words are located in the following sentence in the “Ensuring Compliance with Fuel Tank System AWLs” section of the original NPRM: “Operators that do not use Boeing's revision service should revise their maintenance manuals and task cards to highlight actions tied to CDCCLs to ensure that maintenance personnel are complying with the CDCCLs.” ANA believes that if a task card refers to the AMM, which includes the CDCCL note, then highlighting the CDCCL items is not necessary because they are already highlighted in the AMM and maintenance personnel always refer to the AMM. ANA further states that the applicable task card references are not listed in Subsection D of the MPD, or in Appendix 1 of the original NPRM; they refer only to the AMM. ANA, therefore, states that it is difficult to find out or distinguish the affected task card.

JAL believes that the proposed requirement regarding the CDCCLs is to incorporate the manufacturer's maintenance manuals into an operator's maintenance manual. If the description of a CDCCL is missing from the manufacturer's AMM, then JAL believes that operators are not responsible for the requirements of the AD.

We agree that the task cards might not need to be revised because an operator might find that the AMM notes are sufficient. However, we disagree with deleting the reference to the task cards since some operators might need to add notes to their task cards. This AD does not require any changes to the maintenance manuals or task cards. The AD requires incorporating new AWLs into the operator's maintenance program. It is up to the operator to determine how best to ensure compliance with the new AWLs. In the “Ensuring Compliance with Fuel Tank System AWLs” section of the original NPRM, we were only suggesting, not requiring, ways that an operator could implement CDCCLs into its maintenance program. We have not changed this AD in this regard.

JAL requests that we clarify whether “task cards,” as found in the “Recording Compliance with Fuel Tank System AWLs” section of the original NPRM, means Boeing task cards only or if they also include an operator's unique task cards.

We intended that “task cards” mean both Boeing and an operator's unique task cards, as applicable. The intent is to address whatever type of task cards are used by mechanics for maintenance. This AD would not require any changes to the AMMs or task cards relative to the CDCCLs. We are only suggesting ways an operator might implement CDCCLs into its maintenance program. No change to this AD is necessary in this regard.

KLM Royal Dutch Airlines (KLM), on behalf of several operators, requests that we review a 45-page proposal to align certain airworthiness limitation item (ALI) intervals with the applicable maintenance significant item (MSI) and enhanced zonal analysis procedure (EZAP) intervals for Model 737, 747, 757, 767, and 777 airplanes. The recommendations in that proposal ensure that the ALI intervals align with the maintenance schedules of the operators. Among other changes, the proposal recommends revising certain AWL inspection intervals from 16,000 flight cycles/3,000 days to only 6,000 days for Model 777 airplanes.

We infer that KLM requests we revise paragraph (h) of this AD to extend the compliance time to 6,000 days for AWLs No. 28-AWL-01 and No. 28-AWL-03. We disagree because we have determined that it would be inappropriate to extend the inspection intervals. Given the safety implications for these inspections, 6,000 days (approximately over 16 years) is too long, especially since these areas are accessed more frequently than every 16 years for maintenance. Also, KLM did not include any reliability information showing that the systems can continue to safely operate between the proposed inspection periods. However, according to the provisions of paragraph (k) of this AD, we might approve requests to adjust the compliance time if the request includes data that prove that the new compliance time would provide an acceptable level of safety. No change to this AD is necessary in this regard.

JAL requests that we revise the original NPRM to require incorporation of the latest revision of the manufacturer's AMM. JAL asserts that we have allowed Boeing to include statements in the Boeing AMM allowing operators to use certain CMM revision levels or later revisions. JAL states that, with the exception of the CMM, operators cannot find what revision level of the AMM needs to be incorporated into the operator's AMM in order to comply with the proposed requirements of the original NPRM. JAL also states that it could take several weeks to incorporate the manufacturer's AMM.

JAL further requests that we clarify whether it is acceptable to change the procedures in the AMM with Boeing's acceptance. JAL states that the MPD notes that any use of parts, methods, techniques, or practices not contained in the applicable CDCCL and AWL inspection must be approved by the FAA office that is responsible for the airplane model type certificate, or applicable regulatory agency. JAL also states that the Boeing AMM or CMM notes to obey the manufacturer's procedures when doing maintenance that affects a CDCCL or AWL inspection. However, JAL believes that according to the original NPRM it is acceptable to change the AMM procedures with Boeing's acceptance.

We disagree with the changes proposed by the commenter. This AD does not require revising the AMM. This AD does require revising your maintenance program to incorporate the AWLs identified in Revision February 2008 of the MPD. However, complying with the AWL inspections or CDCCLs will require other actions by operators including AMM revisions. In the U.S., operators are not required to use original equipment manufacturer (OEM) maintenance manuals. Operators may develop their own manuals, which are reviewed and accepted by the FAA Flight Standards Service. In order to maintain that flexibility for operators, all of the AWLs contain all of the critical information, such as maximum bonding resistances and minimum separation requirements. The FAA Flight Standards Service will only accept operator manuals that contain all of the information specified in the AWLs, so there is no need to require operators to use the OEM maintenance manuals.

Regarding JAL's request for clarification of approval of AWL changes, we infer JAL is referring to the following sentence located in the “Changes to AMMs Referenced in Fuel Tank System AWLs” section of the original NPRM: “A maintenance manual change to these tasks may be made without approval by the Manager, Seattle ACO, through an appropriate FAA principal maintenance inspector (PMI) or principal avionics inspector (PAI), by the governing regulatory authority, or by using the operator's standard process for revising maintenance manuals.” If changes need to be made to tasks associated with an AWL, they may be made using an operator's normal process without approval of the Seattle ACO, as long as the change maintains the information specified in the AWL. For some CDCCLs, it was beneficial to not put all the critical information into the MPD. This avoids duplication of a large amount of information. In these cases, the CDCCL refers to a specific revision of the CMM. U.S. operators are required to use those CMMs. Any changes to the CMMs must be approved by the Seattle ACO.

The ATA, on behalf of CAL, submitted a comment regarding AWL No. 28-AWL-01, which specifies doing repetitive detailed inspections of the wire bundles routed over the center fuel tank and under the main deck floor boards to detect damaged clamps, wire chafing, and any wire bundle that is in contact with the surface of the center fuel tank. The AWL specifies doing the inspection in accordance with Task 28-11-00 of the Boeing 777 AMM. CAL states that, according to the definition for a detailed inspection in the Enhanced Airworthiness Program for Airplane Systems (EAPAS) Participant Guide, dated August 2007, a detailed inspection may include a tactile assessment in which a component or assembly is checked for tightness and security (to ensure continued integrity of installations such as bonding jumpers and terminal connectors). CAL states that the inspection for tightness and security might require the disassembly of the wire installation, but that there are no re-installation procedures in the current routine manuals. CAL also states that maintenance personnel have to disassemble the entire wire bundle installation to accomplish the detailed inspection in Task 28-11-00-210-801 of the Boeing 777 AMM. According to CAL, this action, in the past, has created more discrepancies with wire bundle installations.

We infer the commenters request that Boeing revise Task 28-11-00 of the Boeing 777 AMM to include procedures for re-installation of the wire bundles. We do not agree that the Boeing 777 AMM needs to be revised. This inspection does not require any disassembly of wire bundle installations because, as CAL points out, disassembly might create an unsafe condition. The guidance for a detailed inspection provided by the Maintenance Steering Group 3 (MSG-3) and EAPAS includes a tactile assessment of bundle security, which uses the mechanic's hands to pull on the bundle. A visual inspection is not sufficient. The tactile assessment is intended to be a non-intrusive inspection. No change to this AD is necessary in this regard.

The ATA, on behalf of CAL, submitted a comment regarding Task 28-11-00-210-801 of the Boeing 777 AMM for accomplishing a detailed inspection of the wire bundles between the main deck and the top surface of the center fuel tank. (Task 28-11-00 is referenced in AWL No. 28-AWL-01 of Revision February 2008 of the MPD.) CAL states that the task procedures do not provide specific details or information for the wire bundle installation to ensure that maintenance personnel can comply with the design requirements. CAL also states that the wire bundle installation has been modified according to Boeing Alert Service Bulletin 777-57A0050, dated January 26, 2006; and Boeing Alert Service Bulletin 777-57A0051, dated May 15, 2006. CAL states that it provided comments to the NPRM that propose to mandate the accomplishment of those service bulletins. (That NPRM (Docket No. FAA-2007-27042) was published in the Federal Register on January 29, 2007 (72 FR 3956).)

We infer the commenters request that Boeing revise Task 28-11-00-210-801 of the Boeing 777 AMM to provide specific details for the wire bundle installation. We do not agree that the Boeing 777 AMM needs to be revised because specific design information is not needed for accomplishing this inspection. The type and location of the wiring over the center fuel tank can vary among airplanes, and these details are not necessary to complete the inspection. AWL No. 28-AWL-01 is concerned with wire installation failures that will eventually lead to arcing through the top surface of the tank. That AWL and the referenced AMM provide for the type of failures that might progress to arcing, and any wire bundle in that area needs to be inspected. No change to this AD is necessary in this regard.

The ATA, on behalf of CAL, submitted a comment regarding Tasks 28-11-00-210-801 and 05-55-54-200-801 of the Boeing 777 AMM. CAL states that these tasks do not contain CDCCL warning statements to alert maintenance personnel of their importance to regulatory compliance requirements.

We infer the commenters request that Boeing revise the Boeing 777 AMM to include warning statements as stated by CAL. We do not agree that the Boeing 777 AMM needs to be revised because Step A.(1) of the relevant AMM sections contains notes about the CDCCLs. The FAA and Boeing chose to use notes, not warning statements, because we did not want to undermine other sections of the AMM, which are not tied to AWLs but are still necessary for maintaining the airplane. If CAL determines that a different approach would work better for its maintenance program, it can develop a different system with the help of its PMI or PAI. No change to this AD is necessary in this regard.

The ATA, on behalf of CAL, submitted a comment stating that CAL is concerned that not enough attention has been given to ensure that specific detailed inspections are preserved for the long-term operation of its Model 777 fleet. CAL states that, other than some generic information found in Revision October 2007 of the MPD, there are no published maintenance documents for continuous airworthiness available to show each specific requirement as detailed in the airplane production drawings, such as Task 05-55-54-200-801 of the Boeing 777 AMM. CAL further states that information detailed by the airplane production drawing must be available in manuals that are routinely used by the maintenance personnel. CAL asserts that making this information available will prevent the inadvertent reversal of the designated configuration, which could lead to violation of the supplemental NPRM, in addition to compromising the higher level of safety intended for the Model 777 fleet.

CAL believes the current program, as provided by AWLs No. 28-AWL-01 and No. 28-AWL-03 of Revision October 2007 of the MPD, is not ready to be implemented. CAL states that, if those AWLs are mandated as proposed, CAL would not be able to incorporate those AWLs in its Model 777 fleet, and a high risk of future de-modification of the wire bundles would exist for airplanes on which those AWLs could be implemented. CAL recommends that we coordinate with Boeing regarding the changes it requests in the previous comments.

We infer the commenters request that we delay issuance of the final rule until Boeing publishes manual(s) containing detailed information for maintenance personnel to accomplish the required AWL inspections. We disagree. To delay this action would be inappropriate, since we have determined that an unsafe condition exists and that the actions required by this AD must be mandated to ensure continued safety.

The amount of detail within the Boeing 777 AMM needs to be balanced, and it might not be the same for every operator. The FAA and Boeing have worked together to define what design requirements need to be included in the AMMs for fuel tank ignition prevention features. If the AMMs are overly specific, they might be too voluminous to be used effectively and would be prone to errors, since wiring installations vary among airplanes. The amount of information needed to be included in the AMMs will also vary among operators, depending on the processes and training for a given operator. If CAL determines more detailed design information needs to be included in its AMMs, CAL can work with its PMI or PAI and Boeing to add that information. No change to this AD is necessary in this regard.

ANA requests that we delete the words “Any use of parts (including the use of parts manufacturer approval (PMA) approved parts),” unless a continuous supply of CMM-specified parts is warranted or the FAA is open 24 hours to approve alternative parts for in-house repair by the operator. Those words are located in the following sentence in the “Changes to CMMs Cited in Fuel Tank System AWLs” section of the original NPRM: “Any use of parts (including the use of parts manufacturer approval (PMA) approved parts), methods, techniques, and practices not contained in the CMMs needs to be approved by the Manager, Seattle ACO, or governing regulatory authority.”

ANA states that in some cases the parts specified in the CMMs cannot be obtained from the parts market or directly from the component vendor, so an operator is forced into using alternative parts to keep its schedule. ANA requests that we direct the component vendor to ensure a continuous supply of CMM parts and to direct the component vendor to remedy a lack of parts if parts are not promptly supplied. ANA further requests that we direct the component vendor to promptly review the standard parts and allow use of alternative fasteners and washers listed in Boeing D590. ANA asserts that, in some cases, a component vendor specifies the uncommon part to preserve its monopoly.

We disagree with revising the “Changes to CMMs Cited in Fuel Tank System AWLs” section of the original NPRM. We make every effort to identify potential problems with the parts supply, and we are not aware of any problems at this time. The impetus to declare overhaul and repair of certain fuel tank system components as CDCCLs arose from in-service pump failures that resulted from repairs not done according to OEM procedures. We have approved the use of the CMMs—including parts, methods, techniques, and practices—at the revision levels specified in Revision February 2008 of the MPD. Third-party spare parts, such as parts approved by PMA, have not been reviewed. We expect that such parts might be found to be acceptable alternatives.

An operator may submit a request to the Seattle ACO, or governing regulatory authority, for approval of an AMOC if sufficient data are submitted to substantiate that use of an alternative part would provide an acceptable level of safety. The CDCCLs do not restrict where repairs can be performed, so an operator may do the work in-house as long as the approved CMMs are followed. If operators would like to change those procedures, they can request approval of the changes. The FAA makes every effort to respond to operators' requests in a timely manner. If there is a potential for disrupting the flight schedule, the operator should include that information in its request. Operators should request approval for the use of PMA parts and alternative procedures from the FAA or the governing regulatory authority in advance in order to limit schedule disruptions. We have not changed this AD in this regard.

JAL states that certain test equipment is designated in the MPD and that additional equipment should also be designated. For example, AWL No. 28-AWL-03 would require using loop resistance tester, part number (P/N) 906-10246-2 or -3. Therefore, JAL requests that we also identify alternative test equipment, so that operators do not need to seek an AMOC to use other equipment.

We disagree with identifying other test equipment. We cannot identify every possible piece of test equipment. We ensure that some are listed as recommended by the manufacturer. With substantiating data, operators can request approval of an alternative tester from the Seattle ACO, or the governing regulatory agency. We have not changed this AD in this regard.

JAL requests that we clarify the intent of AWL No. 28-AWL-02. JAL states that Chapters 53-01 and 53-21 of the Boeing 777 AMM specify doing an inspection of the external wires over the center fuel tank according to AMM 28-11-00 before installing the floor panel over the center wing tank based on AWL No. 28-AWL-02. JAL also states that, according to Revision March 2006 of the MPD, AWL No. 28-AWL-02 contains two limitations: Maintaining the existing wire bundle routing and clamping, and installing any new wire bundle per the Boeing standard wiring practices manual (SWPM). Therefore, JAL believes it is not necessary to inspect the external wires over the center fuel tank according to AMM 28-11-00 before installing the floor panel over the center wing tank, unless that wire bundle routing and clamping are changed.

We point out that AWL No. 28-AWL-02 also contains a third limitation: Verifying that all wire bundles over the center fuel tank are inspected according to AWL No. 28-AWL-01, which refers to AMM 28-11-00 for accomplishing the inspection. We do not agree that the inspection should be required only if the wire bundle routing and clamping are changed while maintenance is accomplished in the area. If any of the other bundles have a clamp or routing failure, it must be detected and corrected. After accomplishing the inspection required by AWL No. 28-AWL-01, an operator would not need to repeat the inspection for another 16,000 flight cycles or 3,000 days, whichever is first. No change to this AD is necessary in this regard.

JAL requests that we clarify the following sentence: “An entry into an operator's existing maintenance record system for corrective action is sufficient for recording compliance with CDCCLs, as long as the applicable maintenance manual and task cards identify actions that are CDCCLs.” That sentence is located in the “Recording Compliance with Fuel Tank System AWLs” section of the original NPRM. Specifically, JAL asks whether an operator must indicate the CDCCL in their recording documents or whether it is sufficient for the recording document to call out the applicable AMMs that are tied to the CDCCLs.

We have coordinated with the FAA Flight Standards Service and it agrees that, for U.S.-registered airplanes, if the applicable AMMs and task cards identify the CDCCL, then the entry into the recording documents does not need to identify the CDCCL. However, if the applicable AMMs and tasks cards do not identify the CDCCL, then they must be identified. Other methods may be accepted by the appropriate FAA PMI or PAI, or governing regulatory authority. No change to this AD is necessary in this regard.

JAL requests that we clarify whether FAA approval is required for changes to the CMM. JAL states that, when it finds incorrect instructions, typographical errors, or vague instructions in the CMM, it usually contacts the component manufacturer about those issues and revises the instructions in its own manuals. JAL states that those changes are not reflected in the CMM until the component manufacturer revises the CMM. JAL requests that we provide guidelines for CMM errors that do not require FAA approval.

Changes to the CMMs must be approved by the FAA, or governing regulatory authority, before the revised CMMs can be used. No change to this AD is necessary in this regard.

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

We estimate that this AD affects 127 airplanes of U.S. registry. The following table provides the estimated costs, at an average labor rate of $80 per work hour, for U.S. operators to comply with this 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.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an airworthiness directive (AD) that would apply to certain McDonnell Douglas Model 717-200 airplanes. That NPRM was published in the Federal Register on November 21, 2007 (72 FR 65478). (A correction of the proposed rule was published in the Federal Register on December 21, 2007 (72 FR 72823).) That NPRM proposed to require installing an additional support bracket for the gray water drain hose; replacing the screw of the support bracket with a new screw for the potable water supply hose; installing a spacer; doing a detailed inspection to detect interference or wear damage on hoses, lines and/or cables; and doing corrective actions if necessary.

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

AirTran Airways (AirTran) states that it supports the proposed actions, but requests that we remove a certain airplane (fuselage number 5005) from the proposed applicability statement. AirTran notes that the proposed requirements were accomplished on this specific airplane during the Boeing service bulletin validation program, so it should not be required to re-accomplish the proposed requirements or to obtain an approval of an alternative method of compliance in order to comply with the AD.

We agree that the specific airplane should not be subject to this AD because it has already had the required actions completed on it. Therefore, we have excluded that airplane from the applicability statement of this AD.

Boeing requests that we revise certain language in the Discussion section of the NPRM to clarify the cause of the unsafe condition and the circumstances under which it was identified.

We agree that the language suggested by Boeing is more accurate and does clarify the circumstances under which the specified unsafe condition was identified. However, because the Discussion section is not repeated in this final rule, we have not changed the AD in this regard.

Boeing requests that we revise paragraph (g) of the NPRM to require accomplishment of the actions specified in that paragraph in accordance with Boeing Alert Service Bulletin 717-38A0004, Revision 1, dated August 15, 2007. Paragraph (g) of the NPRM specifies contacting the FAA for certain repair instructions. Boeing asserts that the current proposed language is unduly restrictive on operators and that operators should be allowed to use standard practices specified in certain maintenance manuals.

We do not agree to revise paragraph (g) of this AD to refer to the service bulletin for certain repair instructions, as suggested by Boeing. In two places, where the service bulletin addresses the corrective action for “APU Fuel Line Interference and/or Wear”, Boeing states to repair the APU fuel line and references the MD-80 airplane maintenance manual. As such, the AD does allow operators to use standard practices specified in the airplane maintenance manual. However, Boeing also states “or contact Boeing for a specific repair.” It is our understanding that Boeing's intent is that in the unlikely event that damage is found that is not addressed by the standard practices contained in the airplane maintenance manual, the operator should contact Boeing for a “specific” repair. We do not consider a specific repair to be “standard” practices. For this reason, paragraph (g) of this AD specifies that operators contact us only when the service bulletin specifies contacting the manufacturer. To allow operators to contact the manufacturer for a specific repair would be delegating our rulemaking authority to the manufacturer. Without paragraph (g), the AD would be requiring only an unspecified Boeing developed repair. This is in fact delegating our rulemaking authority to Boeing. We have not changed the AD in this regard.

Boeing requests that we revise paragraph (h) of the NPRM to allow credit for actions done using Revision 1 of the service bulletin. Boeing asserts that the text of the NPRM would not credit operators that used Revision 1 of the service bulletin as having met the intent of the AD. Boeing also requests that we allow operators to use later versions of the service bulletin.

We do not agree. This AD requires the actions to be done in accordance with Revision 1 of the service bulletin. In the event that an operator accomplishes the required actions in accordance with Revision 1 of the service bulletin before the effective date of the AD, paragraph (e) specifies that the actions are required “unless already accomplished.” Therefore, credit for using Revision 1 before the effective date of the AD is already provided. We have not changed the AD in this regard.

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

There are about 123 airplanes of the affected design in the worldwide fleet. This AD affects about 95 airplanes of U.S. registry. The required actions take about 70 work hours per airplane, at an average labor rate of $80 per work hour. The manufacturer states that it will supply required parts to the operators at no cost. Based on these figures, the estimated cost of the AD for U.S. operators is $532,000, or $5,600 per airplane.

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.

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.

You can find our regulatory evaluation and the estimated costs of compliance in the AD Docket.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an airworthiness directive (AD) that would apply to McDonnell Douglas Model 717-200 airplanes; Model DC-9-10 series airplanes; Model DC-9-20 series airplanes; Model DC-9-30 series airplanes; Model DC-9-40 series airplanes; Model DC-9-50 series airplanes; Model DC-9-81 (MD-81), DC-9-82 (MD-82), DC-9-83 (MD-83), and DC-9-87 (MD-87) airplanes; Model MD-88 airplanes; and Model MD-90-30 airplanes. That NPRM was published in the Federal Register on January 18, 2008 (73 FR 3422). That NPRM proposed to require revising the FAA-approved maintenance program, or the Airworthiness Limitations (AWLs) section of the Instructions for Continued Airworthiness (ICA), as applicable, to incorporate new AWLs for fuel tank systems to satisfy Special Federal Aviation Regulation No. 88 requirements.

For standardization purposes, we have revised this AD in the following ways:

• We have added a new paragraph (i) to this AD to specify that no alternative inspections, inspection intervals, or critical design configuration control limitations (CDCCLs) may be used unless they are part of a later approved revision of the Boeing Twinjet Special Compliance Items Report, MDC-92K9145, Revision G, dated June 7, 2007 (hereafter referred to as “Report MDC-92K9145”), or unless they are approved as an alternative method of compliance (AMOC). Inclusion of this paragraph in the AD is intended to ensure that the AD-mandated airworthiness limitations changes are treated the same as the airworthiness limitations issued with the original type certificate.

• We have revised Note 1 of this AD to clarify that an operator must request approval for an AMOC if the operator cannot accomplish the required inspections because an airplane has been previously modified, altered, or repaired in the areas addressed by the required inspections.

We gave the public the opportunity to participate in developing this AD. We considered the comments received from the five commenters.

Boeing requests that we revise Note 1 of the NPRM to clarify the intent of the note. Boeing states that Note 1 of the NPRM might be misinterpreted to mean that the AWLs of Report MDC-92K9145 must be revised to reflect modifications, alterations, or repairs that are initiated by an operator and outside of Boeing's design cognizance and responsibility. Boeing requests that we revise Note 1 as follows:

• Replace the words “revision to” with “a deviation from” in the last sentence.

• Delete the words “(g), (h), or” and “as applicable” from the last sentence.

As stated previously, we have clarified the language in Note 1 of this AD for standardization with other similar ADs. The language the commenter requests that we change does not appear in the revised note. Therefore, no additional change to this AD is necessary in this regard.

Boeing requests that we revise the heading and certain wording for the “Changes to Component Maintenance Manuals (CMMs) Cited in Fuel Tank System AWLs” section of the NPRM. Boeing believes that section was intended to address situations where an operator chooses to deviate from the procedures in the CMM referenced in Report MDC-92K9145. Boeing states that its proposed changes are intended to clarify that only deviations proposed by an operator require approval of the Manager, Los Angeles Aircraft Certification Office (ACO), FAA. Boeing further states that wording in the NPRM could be interpreted to mean that approval of a CMM in its entirety, including any future CMM revisions by Boeing, would require direct approval of the Manager, Los Angeles ACO, or governing regulatory authority. Specifically, Boeing requests that we revise that section as follows:

• Revise the heading to “Deviations from Component Maintenance Manuals (CMMs) Cited in Fuel Tank System AWLs.”

• Revise the third sentence to state that the Manager, Los Angeles ACO, must approve “any deviations from” the CMMs “as defined in Report MDC-92K9145.”

• Replace the words “revision of” with “deviation from” in the fourth sentence.

• Revise the fourth sentence to state that those CMMs “as defined in Report MDC-92K9145” will be handled like a change to the AWL itself.

• Delete the entire last sentence.

We agree that clarification is necessary. Our intent is that any deviation from the CMMs as defined in Report MDC-92K9145 must be approved by the Manager, Los Angeles ACO, or the governing regulatory authority, before those deviations can be used. However, we have not changed the AD as suggested by the commenter, since the “Changes to Component Maintenance Manuals (CMMs) Cited in Fuel Tank System AWLs” section of the NPRM is not retained in this AD.

The Air Transport Association (ATA), on behalf of its member Delta Airlines (DAL), requests that we revise the NPRM to identify the affected airplane maintenance manual (AMM), structural repair manual (SRM), and standard wiring practices manual (SWPM) sections for each CDCCL and AWL inspection. DAL states that Appendixes B, C, and D of Report MDC-92K9145 do not fully identify all manuals that require revision to incorporate the requirements of the given appendix, but that the information is available in a cross-reference document that Boeing has made available on the Internet at https://www.myboeingfleet.com/ .

DAL notes that the “Ensuring Compliance With Fuel Tank System AWLs” section of the NPRM indicates that Boeing has revised the applicable manuals to address AWLs and to include notes about CDCCLs. However, DAL has reviewed the applicable manuals and notes that certain information specified in Report MDC-92K9145 is not present. For example, although MD-90 CDCCL 28-3 specifies to use only connector part number 14158-2 when rebuilding or repairing a pump conduit assembly in accordance with chapter 28-20-7 of the Boeing overhaul manual, this requirement is not included in the SWPM or CMM 28-20-07, or identified as a CDCCL in the CMM.

We disagree with revising this AD as requested by the commenter. Boeing formatted Report MDC-92K9145 to provide specific information, where appropriate, concerning the limitations and necessary actions to maintain CDCCLs and AWL inspections. This revised service information is readily available to affected operators; therefore, there is no need to be more specific in this AD. No change to this final rule is necessary in this regard.

The ATA, on behalf of its member American Airlines, submitted a comment objecting to the language in Report MDC-92K9145 that controls maintenance to the standards specified in the referenced CMMs without deviation according to a FAA-approved service bulletin. American Airlines states that this proposed requirement will mandate the removal of long-standing, proven parts substitutions and repair techniques developed by the operator in accordance with processes and procedures approved by the FAA. American Airlines also states that proposed requirement might also make obsolete certain test instruments and procedures developed by operators. American Airlines asserts that, without federally-regulated parts supply chains with price controls, the proposed process makes it impossible for operators to ensure that they have multiple sources for parts that can be obtained at reasonable prices. American Airlines states that, in order to ensure that CMM-approved parts cannot be interchanged with other approved substitute parts, operators will be forced into expensive redesigns of their inventory systems, or special procedures to permanently segregate parts for those specified CMMs. American Airlines states that the cost of incorporating the proposed requirements of the NPRM will far exceed the estimated cost specified in the NPRM.

We infer the commenters request that we allow operators to continue to use alternative parts inventory and test equipment for repair and overhaul of their fuel system components and interchange these parts, which might be different than the parts identified in the approved CMM. We disagree with this request. While the commenters are correct about the restrictions included in the referenced service information, operators may always take advantage of alternatives by requesting that those alternatives be evaluated and approved in accordance with the provisions of paragraph (k) of this AD. No change to this AD is necessary in this regard.

The ATA, on behalf of its member Northwest Airlines (NWA), requests we revise the NPRM to specify that fuel pump repairs that are minor do not require FAA approval, and that existing FAA-approved repairs and parts manufacturer approval (PMA) parts do not require re-approval by the FAA. NWA states that CDCCL 28-2 severely limits or eliminates NWA's ability to use Part 121 authority to customize the particular CMM with NWA-developed repairs that use alternate PMA materials and vendors.

We disagree with revising this AD as suggested by the commenters. The intent of this AD and Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83) is to define CDCCLs, and the repair and overhaul of fuel system components in accordance with the limitations specified in Report MDC-92K9145. The impetus to declare overhaul and repair of certain fuel tank system components as CDCCLs arose from in-service pump failures that resulted from repairs not done according to the original equipment manufacturer (OEM) procedures. Therefore, all changes, whether minor or major, must be approved by the Manager, Los Angeles ACO. NWA did not identify any PMAs that would require re-approval. Any existing or future PMAs, or deviations from the approved CMMs, can be requested by the AMOC process.

The ATA, on behalf of its members DAL and NWA, disagrees with the “Costs of Compliance” section of the NPRM. DAL estimates that it will take at least 40 hours to document and implement the changes to the ICA, rather than 1 hour as proposed in the NPRM. DAL also notes that the “Costs of Compliance” section of the NPRM does not include the labor time required for accomplishing the required repetitive inspections. NWA states it overhauled and repaired 75 fuel pumps in 2007, and that it estimates that compliance with CDCCL 28-2 will add about $1,000 to the cost of each overhauled/repaired fuel pump.

We infer that the commenters request that we revise the “Costs of Compliance” section of this AD. We agree that, for certain operators, there might be a one-time cost associated with changing over from existing repair/ overhaul procedures to the CMM procedures approved under SFAR 88. However, we disagree with including the costs in this AD for complying with the CDCCLs. The economic analysis of an AD is limited only to the cost of actions actually required by the rule. It does not consider the costs of “on-condition” actions (that is, actions needed to correct an unsafe condition) because, regardless of AD direction, those actions would be required to correct an unsafe condition identified in an airplane and ensure operation of that airplane in an airworthy condition, as required by the Federal Aviation Regulations. No change is necessary in this regard.

We also disagree with increasing the estimated work-hours for incorporating new AWLs for fuel tank systems into the FAA-approved maintenance program, or AWLs section of the ICA, as applicable. While some individual operators may take longer to accomplish the requirements, others may not. Our cost estimate is based on an average of expected costs for all operators. We also disagree with including the cost of accomplishing the repetitive AWL inspections, since they are not directly required by this AD. This AD only requires the change to the maintenance program, or AWLs of the ICA, as applicable. The operating rules require the repetitive inspections once the maintenance program/ICA is changed. No change to this AD is necessary in this regard.

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We also determined that these changes will not increase the economic burden on any operator or increase the scope of the AD.

We estimate that this AD affects 780 airplanes of U.S. registry. We also estimate that it takes about 1 work-hour per product to comply with this AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $62,400, or $80 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.

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.

You can find our regulatory evaluation and the estimated costs of compliance in the AD Docket.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on March 3, 2008 (73 FR 11366). 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 corrected the date of Fokker Drawing W46143, Sheet 03, Issue K, to March 7, 2002, in Table 1 of this AD.

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 about 12 products of U.S. registry. We also estimate that it will take about 27 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 $3,000 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these 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 $61,920, or $5,160 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://www.regulations.gov ; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

On May 8, 2008, we issued emergency AD 2008-10-51, which applies to all Dornier Model 328-100 and -300 airplanes.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, notified the FAA that an unsafe condition may exist on all Dornier Model 328-100 and -300 airplanes. The EASA advises that, during a routine inspection, cracks were found in the lower wing panel of the rear trailing edge (inboard and outboard of flap lever arm 1 (rib 5)) on a Model 328-100 airplane. Subsequent inspection of the other Model 328-100 airplanes in the same fleet revealed several more airplanes with cracks at the same location. The cause of the cracking is unknown. This condition, if not corrected, could result in structural failure of the affected wing panel, possible separation of the wing from the airplane, and consequent loss of control of the airplane.

328 Support Services GmbH has issued Dornier Alert Service Bulletins ASB-328J-57-015 (for Model 328-300 airplanes), and ASB-328-57-037 (for Model 328-100 airplanes), both Revision 1, both dated May 8, 2008. The service bulletins describe procedures for detailed visual and eddy current inspections of both the left-hand (LH) and right-hand (RH) lower wing panel of the rear trailing edge (inboard and outboard of flap lever arm 1 (rib 3 and rib 5)) for cracks. The EASA mandated the service bulletins and issued EASA emergency airworthiness directive 2008-0087-E, dated May 8, 2008, to ensure the continued airworthiness of these airplanes in Europe.

These airplane models are manufactured in Europe and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the EASA has kept the FAA informed of the situation described above. We have examined the EASA's findings, evaluated all pertinent information, and determined that we need to issue an AD for products of this type design that are certificated for operation in the United States.

Since the unsafe condition described is likely to exist or develop on other airplanes of the same type design, we issued emergency AD 2008-10-51 to prevent structural failure of the affected wing panel, possible separation of the wing from the airplane, and consequent loss of control of the airplane. The AD requires accomplishing the actions specified in the service information previously described, except as described in “Differences Between This AD and Service Information.” This AD also requires you to report the inspection results to 328 Support Services GmbH.

We found that immediate corrective action was required; therefore, notice and opportunity for prior public comment thereon were impracticable and contrary to the public interest, and good cause existed to make the AD effective immediately by individual notices issued on May 8, 2008, to all known U.S. owners and operators of all Dornier Model 328-100 and -300 airplanes. These conditions still exist, and the AD is hereby published in the Federal Register as an amendment to section 39.13 of the Federal Aviation Regulations (14 CFR 39.13) to make it effective to all persons.

The service bulletins specify to contact the manufacturer for instructions on how to repair cracks, but this AD requires repairing the cracks using a method approved by the FAA or the EASA (or its delegated agent). In light of the type of repair that is required to address the unsafe condition, and consistent with existing bilateral airworthiness agreements, we have determined that, for this AD, a repair approved by the FAA or the EASA (or its delegated agent) is acceptable for compliance with this AD.

Unlike the procedures described in the service bulletins that specify a one-time eddy current inspection, this AD requires the eddy current inspection to be repeated at intervals not to exceed 400 flight hours. Doing the eddy current inspections terminates the detailed visual inspections required by this AD. We have determined that, because of the safety implications and consequences associated with the cracking, the eddy current inspection of the affected area must be repeated. This difference has been coordinated with the EASA.

This AD requires that operators report the results of the inspections to 328 Support Services GmbH. Because the cause of the cracking is not known, these required inspection reports will help determine the extent of the cracking in the affected fleet. Based on the results of these reports, we may determine that further corrective action is warranted.

This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments before it becomes effective. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2008-0544; Directorate Identifier 2008-NM-099-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this AD.

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.

The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and that it is not a “significant regulatory action” under Executive Order 12866. It has been determined further that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If this emergency regulation is later deemed significant under DOT Regulatory Policies and Procedures, we will prepare a final regulatory evaluation and place it in the AD Docket. See the ADDRESSES section for a location to examine the regulatory evaluation, if filed.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an airworthiness directive (AD) that would apply to all Boeing Model 757-200, -200CB, -200PF, and -300 series airplanes. That NPRM was published in the Federal Register on July 9, 2007 (72 FR 37132). That NPRM proposed to require installation of an automatic shutoff system for the center tank fuel boost pumps, and installation of a placard in the airplane flight deck if necessary. That NPRM also proposed to require revisions to the Limitations and Normal Procedures sections of the airplane flight manual to advise the flightcrew of certain operating restrictions for airplanes equipped with an automated center tank fuel pump shutoff control. That NPRM also proposed to require a revision to the Airworthiness Limitations (AWLs) section of the Instructions for Continued Airworthiness (ICA) to incorporate AWLs No. 28-AWL-20 and No. 28-AWL-26. That NPRM also proposed to require replacement of the fuel control panel assembly with a modified part, installation of two secondary pump control relays for the center tank fuel pumps, other specified actions, and concurrent modification of the fuel control panel assembly.

On April 29, 2008, we issued AD 2008-10-11, amendment 39-15517, that applies to all Model 757 airplanes. AD 2008-10-11, among other actions, requires revising the AWLs section of the ICA by incorporating AWLs No. 28-AWL-01 through No. 28-AWL-24 of Section 9 of the Boeing 757 Maintenance Planning Document (MPD) Document D622N001-9, Revision March 2008. AD 2008-10-11 also provides the optional action of incorporating AWL No. 28-AWL-26. This AD, however, requires the incorporation of AWLs No. 28-AWL-20 and No. 28-AWL-26 in accordance with paragraphs (j) and (m) of this AD, respectively. Therefore, we have added a new paragraph (q) to this AD specifying that incorporating AWLs No. 28-AWL-20 and No. 28-AWL-26 into the AWLs section of the ICA in accordance with paragraph (g)(3) of AD 2008-10-11 terminates the corresponding actions required by this AD.

We gave the public the opportunity to participate in developing this AD. We considered the comments received from the four commenters.

Boeing requests that we clarify the unsafe condition in the summary and in paragraph (d) of the NPRM. Boeing states that the unsafe condition exists when continuous low pressure is indicated during pump operation with no fuel available to cover the pump inlet, and that it does not exist when there is fuel available to cover the pump inlet during pump operation. Boeing suggests using the following statement:

We agree that the unsafe condition is present only when there is no fuel available to cover the pump inlet. When fuel is not covering the pump inlet, the “continuous low pressure” indication will be present. Therefore, we have not added the phrase “with no fuel passing through the pump” to this AD in this regard, since the continuous low pressure indication is integral to describing the unsafe condition. We have, however, revised the summary and paragraph (d) of this AD by replacing “or” with “that” to specify “* * * overheating in the fuel pump inlet that could create a potential ignition source * * * ”

TDG Aerospace requests that we explain our criteria in determining which FAA-approved solutions are specified as a primary means of compliance as opposed to being identified as an AMOC and listed in the AMOC paragraph of an AD. TDG Aerospace states that it would be logical to include all solutions that exist and address an unsafe condition in an AD as a primary means of compliance. TDG Aerospace asserts that, by not doing so, we are failing to provide operators with a comprehensive discussion of the cost and scheduling impact associated with compliance, and that this practice could misrepresent ongoing maintenance and airworthiness limitation requirements. TDG Aerospace also asserts that it appears that preferential bias is shown towards one particular solution, even though two or more other equivalent solutions might exist. TDG Aerospace points to AD 2002-21-06, amendment 39-12912 (68 FR 12802, March 18, 2003), as an example of an AD that lists several equivalent solutions for addressing an unsafe condition.

We find that clarification of the AMOC process is necessary. An AMOC is issued only after an AD has been issued. AMOCs provide an alternative method of compliance to those methods that are cited in the associated AD.

When an unsafe condition is identified, the burden of developing a means for correcting the unsafe condition is placed on the original equipment manufacturer (OEM). Usually, no means for correcting an unsafe condition other than those provided by the OEM exist when we issue an AD. We agree that if multiple solutions exist that have fleet-wide application, such solutions may be cited in an AD. However, such solutions would be included in the AD only as methods of compliance with the requirements of the AD—not as AMOCs.

In cases where a non-OEM solution does not have fleet-wide application, it would not be appropriate to include the solution in the AD. Such solutions are best addressed by requesting approval as AMOCs after the AD has been issued. We disagree that this approach undermines the efficacy of those alternative methods, or shows bias towards the OEM's method. A key aspect of the notice of proposed rulemaking process is to do specifically what the commenter is recommending, which is to provide an opportunity for us to become aware of other potential solutions to an unsafe condition. Any person who might be aware of another means to correct the unsafe condition is free to propose that means during the comment period to the proposed AD. We would then carefully consider the comment before issuing the AD.

Further, we have reviewed AD 2002-21-06, and that AD is in line with this practice. That AD refers to approved AMOCs; however, when a new AD supersedes a previously issued AD, we make an assessment of any AMOCs that may have been approved for the previously issued AD. If appropriate, we include a reference to those AMOCs in the new AD to preclude an affected operator from having to re-apply for AMOC approval.

In this case, we have determined that installing and maintaining TDG Aerospace Universal Fault Interrupter (UFI), in accordance with Supplemental Type Certificate (STC) ST01950LA, would also address the unsafe condition on Model 757-200 and -300 series airplanes. Therefore, we have deleted paragraph (p)(3) of the NPRM and added a new paragraph (p) to this AD specifying that incorporating STC ST01950LA terminates the requirements of paragraphs (g) through (m) of this AD. We have also added a concurrent requirement to paragraph (p) of this AD to install a placard on all airplanes in the operator's fleet not equipped with a UFI or automatic shutoff system.

Boeing requests that we add a statement to the NPRM specifying that this AD will not be extended to the main wing tanks, as discussed in meetings between Boeing and the Seattle Aircraft Certification Office, FAA. Boeing states that AD 2002-24-51, amendment 39-12992 (68 FR 10, January 2, 2003), was based upon discrepancies in the manufacturing process, and that AD 2002-24-51 was later expanded because inspection of in-service units showed that the units could possibly overheat in service or during manufacture. Boeing further states that there is no service history of incidents or accidents on the main wing tanks on Model 757 airplanes to support this AD.

Although we agree that the scope of this AD is not being expanded to address the main wing tanks, revising the summary of this AD is not necessary because it only discusses the center fuel tanks. We have not changed this AD in this regard.

Boeing requests that we revise the NPRM to specify that operators may continue using the procedures in the following documents as an AMOC, until an operator has inspected all center tank fuel pumps and modified all airplanes in its fleet: AD 2002-19-52, amendment 39-12900 (67 FR 61253, September 30, 2002), and AD 2002-24-51; or FAA Approval Letter 140S-03-234, dated August 15, 2003. As justification, Boeing states that the AMOC has already been accepted as a valid means of fulfilling the intent of the AD pending hardware installation.

We agree that the procedures in AD 2002-19-52 and AD 2002-24-51, or the procedures approved by FAA Approval Letter 140S-03-234 as an AMOC to AD 2002-19-52 and AD 2002-24-51, continue to be acceptable until all airplanes in an operator's fleet are in compliance with all the requirements of this AD. As stated in the NPRM, installing a placard in accordance with paragraph (e) of AD 2002-19-52 is acceptable for compliance with paragraph (h) of this AD. Also, paragraph (n) of this AD states that accomplishing the actions specified in paragraphs (g), (h), (i), and (j) of this AD terminates the AFM revision specified in paragraph (e) of AD 2002-24-51 for Model 757-200, -200CB, -200PF, and -300 series airplanes that have the automatic shutoff system installed. No change to this AD is necessary in this regard.

UPS requests that we revise the NPRM to allow AD 2002-24-51 as an AMOC and terminating action to the proposed requirements of the NPRM. As justification, UPS states that there is no opportunity for potential ignition sources to develop from the center tank fuel pump, since AD 2002-24-51 prohibits operating the fuel pumps when the center tank fuel quantity reaches 1,000 pounds; under this limitation, the fuel pump is submerged and always covered with fuel. UPS believes that the limitations required by AD 2002-24-51 provide a higher level of safety than the automatic shutoff system because the limitations of AD 2002-24-51 always require the fuel pumps to be submerged in fuel, precluding the opportunity for dry running the pumps. UPS further states that, since Boeing Service Bulletin 757-28A0105, Revision 1, dated April 2, 2007, was issued to counteract the potential continued dry running of the fuel pump, it should not be required for operators who have accomplished AD 2002-24-51.

We do not agree to allow AD 2002-24-51 as an AMOC or terminating action for the requirements of this AD. The changes to the pump control system required by this AD address problems with the system, such as indication failures and power relay failures, that the limitations required by AD 2002-24-51 do not address. Further, the FAA Flight Standards Service has informed us that there are flights where the fuel pumps are not turned off as required by AD 2002-24-51 because of the lack of crew indication prompting early shutoff of the fuel pumps. AD 2002-24-51 was intended only to be an interim action until the pump power control system changes were developed and incorporated. We have determined that installing the automatic shutoff system provides a higher level of safety because it prevents extended dry running of the fuel pumps. Therefore, we have not changed this AD in this regard.

KLM Royal Dutch Airlines, on behalf of several operators, requests that we review a 45-page proposal to align certain Airworthiness Limitation Item (ALI) intervals with the applicable maintenance significant item (MSI) and enhanced zonal analysis procedure (EZAP) intervals, for Model 737, 747, 757, 767, and 777 airplanes. The recommendations in that proposal ensure that the ALI intervals align with the maintenance schedule of the operators.

We have reviewed the proposal and note that it recommends extending the inspection interval for AWL No. 28-AWL-20 from 1 year to 24 months. We infer that the operators request that we revise paragraph (m) of this AD to extend the inspection interval for AWL No. 28-AWL-20 of Boeing Temporary Revision (TR) 09-006, dated January 2007, to the Boeing 757 Maintenance Planning Document, D622N001-9. That 1-year interval was determined using a quantitative fault tree analysis. Given the confidence level of certain inputs into that analysis, it would not be appropriate to extend the inspection interval until sufficient reliability data is available to substantiate those assumptions. Therefore, we have determined that a 1-year interval is appropriate for ensuring an acceptable level of safety. No change to this AD is necessary in this regard.

TDG Aerospace requests that we specify whether the service bulletins referred to in the NPRM are in compliance with the requirements of section 25.981(a) and (b) of the Federal Aviation Regulations (14 CFR 25.981(a) and (b)) and with section 25.1309(c) of the Federal Aviation Regulations (14 CFR 25.1309(c)) with respect to latent failure conditions. If so, TDG Aerospace further requests that we discuss any inaccuracies between the service bulletins and FAA Advisory Circular (AC) 25.981-1B, “Fuel Tank Ignition Source Prevention Guidelines,” dated April 18, 2001; AC 25.1309-1A, “System Design and Analysis,” dated June 21, 1988; and MIL-HDBK-217F, “Reliability Prediction of Electronic Equipment.”

The Boeing service bulletins referred to in this AD are FAA-approved and were found to comply with the requirements of 14 CFR 25.981(a) and (b), amendment 25-102. In developing the service bulletins, Boeing followed the guidance cited by TDG Aerospace. Boeing's substantiation included other features with the fuel pump that contribute an additional condition probability to the latent failure cases referred to by TDG Aerospace. No change to this AD is necessary in this regard.

TDG Aerospace suggests that we use the regulatory docket as a tool to encourage industry participation in the pursuit of solutions to known deficiencies that we intend to address with an AD. TDG Aerospace suggests that such an approach would not only result in the most efficient and cost-effective solutions, but also reduce the delay in bringing viable corrective actions to the market.

We welcome any feedback that will improve the AD process for industry, while also ensuring that an unsafe condition is adequately addressed in an appropriate amount of time. As stated previously, the burden of developing a means for correcting the unsafe condition is placed on the OEM. We have found that the comment period is most useful if we notify operators about the work required by a proposed AD, which is typically detailed in a service bulletin. Also, in determining the appropriate compliance time for an AD, we must consider both the risk and scope of work that would be required. Without service information, it would be difficult to set appropriate compliance times, or provide operators with an opportunity to comment on the merits of a corrective action. No change to this AD in necessary in this regard.

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We also determined that these changes will not increase the economic burden on any operator or increase the scope of the AD.

There are about 1,094 airplanes of the affected design in the worldwide fleet. The following table provides the estimated costs, at an average labor rate of $80 per hour, for U.S. operators to comply with this AD. The estimated cost of parts in the following table depends on the airplane configuration.

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.

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.

You can find our regulatory evaluation and the estimated costs of compliance in the AD Docket.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an airworthiness directive (AD) that would apply to all Boeing Model 737-600, -700, -700C, -800, and -900 series airplanes. That NPRM was published in the Federal Register on December 3, 2007 (72 FR 67864). That NPRM proposed to require repetitive inspections for any cracking of or damage to the left side and right side flight deck No. 2, No. 4, and No. 5 windows, as necessary, and corrective actions if necessary.

We have revised the applicability of this AD to clearly identify that Boeing Model 737-900ER series airplanes are also subject to the requirements of this AD. These airplanes were not previously identified in the applicability of the NPRM because they were type certificated after issuance of Boeing Alert Service Bulletin 737-56A1022, dated July 18, 2007, which we referenced for the applicability of the NPRM. Although these airplanes are not explicitly identified in the effectivity of the service bulletin, they are included as Group 2 airplanes in the service bulletin.

We have deleted paragraph (h)(4) of the NPRM and added a new paragraph (h) to this AD specifying that installation of metallic window blanks at cockpit eyebrow windows No. 4 and No. 5 in accordance with Supplemental Type Certificate (STC) ST01630SE terminates the initial and repetitive inspections for the flight deck No. 4 and No. 5 windows required by paragraph (f) of this AD. Incorporation of STC ST01630SE is considered a terminating action, not an alternative method of compliance (AMOC), since an AMOC can be issued only after an AD has been issued. We also have reidentified the AMOC paragraph of the NPRM as paragraph (j) in this AD.

We gave the public the opportunity to participate in developing this AD. We considered the comments received from the three commenters.

Boeing and AirTran Airways agree with the NPRM.

AirTran Airways and Continental Airlines (CAL) request that we revise the NPRM to specify that installing structural plugs at cockpit eyebrow windows No. 4 and No. 5 in accordance with Boeing Service Bulletin 737-56-1017, dated May 17, 2006; or Revision 1, dated February 15, 2007; terminates the initial and repetitive inspections for the flight deck No. 4 and No. 5 windows. CAL notes that a similar statement is found in Tables 2 and 3 of Boeing Alert Service Bulletin 737-56A1022, dated July 18, 2007. (We referred to Boeing Alert Service Bulletin 737-56A1022 as the appropriate source of service information for accomplishing the proposed requirements of the NPRM.)

We agree with the commenters and have added a new paragraph (i) to this AD accordingly.

CAL requests that we limit the applicability of the NPRM to airplanes delivered before line number 2589. As justification, CAL states that new production airplanes do not include the flight deck No. 4 and No. 5 windows, and that Boeing is in the final stages of approving a new, improved flight deck No. 2 window, part numbers 5-89355-87 and -88. According to CAL, the new, improved No. 2 window, which is manufactured by PPG Aerospace, is designed specifically to address the unsafe condition of the NPRM. CAL also states that Boeing plans to install the new, improved No. 2 windows on new production airplanes this year.

We do not agree to exclude any airplanes from the applicability of this AD. The affected flight deck No. 2 windows are interchangeable with the new, improved windows manufactured by PPG Aerospace; therefore, the unsafe condition could be introduced on a new production airplane if an affected No. 2 window is installed after airplane delivery. We have not changed this AD in this regard.

AirTran Airways requests that we add an option to this AD to allow operators to track the inspections by airplane flight cycles instead of window flight hours, provided that any used window is inspected before it is installed. AirTran Airways states that tracking compliance by a component rather than by airplane is more difficult due to the extra work and documentation generated for the removal and installation of a component. According to AirTran Airways, tracking compliance by component also increases the opportunity for human factor errors. AirTran Airways also states that tracking inspections by airplane flight cycles will accomplish the inspections within the same timeframe as proposed in the NPRM and be less of a burden.

We disagree with allowing operators to track compliance by airplane flight cycles because the unsafe condition is primarily related to window flight hours. The utilization of airplanes within the fleet varies from short to long flight hours per flight cycle. Therefore, we have not changed this AD in this regard.

CAL requests that we revise the compliance time for the initial inspection of the flight deck No. 2 window to within 36 months or 7,500 flight hours, whichever occurs first, after the window installation; or to within 24 months, for windows installed more than 36 months ago or for windows where the number of flight hours is unknown. CAL states that the NPRM, which proposes to require the initial inspection within 24 months after the effective date of this AD regardless of the age or flight time of the window, unnecessarily penalizes operators who proactively inspect and replace the No. 2 window before the AD is issued. CAL also states that, according to the wording in the NPRM, a window replaced one day before the effective date of the AD would need to be re-inspected within 24 months, but a window inspected and replaced one day after the effective date of the AD would not need to be re-inspected until 36 months or 7,500 window flight hours.

We do not agree to revise the compliance time for the initial inspection of the flight deck No. 2 window. According to paragraph (e) of this AD, an operator is responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. If the initial inspection of the No. 2 window was done before the effective date of this AD in accordance with Boeing Alert Service Bulletin 737-56A1022, dated July 18, 2007, then the initial inspection does not need to be accomplished again; only the repetitive inspections would need to be accomplished in accordance with the service bulletin at the applicable interval specified in the service bulletin. If the initial and repetitive inspections of the No. 2 window are done before the effective date of this AD, but are not done in accordance with the service bulletin, then those inspections are not acceptable for compliance with this AD unless an AMOC is issued for those prior inspections. Under the provisions of paragraph (j) of this AD, we will consider requests for approval of an AMOC if sufficient data are submitted to substantiate that prior inspections incorporate similar criteria to what is provided for in the service bulletin. Therefore, no change to this AD is necessary in this regard.

CAL states that the FAA has approved a new, improved flight deck No. 2 window designed by GKN Aerospace Transparency Systems, under PMA Holder No. PQ1250NM, Supplement 10, dated September 17, 2007. CAL also states that the new, improved No. 2 window was designed to prevent the premature failure of the window, and that the new, improved window addresses the unsafe condition of the NPRM. CAL, therefore, requests that we add a new AMOC paragraph to this AD, which would exempt the new, improved No. 2 window from the required inspections.

We do not agree to allow the PMA equivalent No. 2 window as an AMOC to the required inspections. Although the window has been approved as a PMA equivalent part, the commenter has not provided data showing that the PMA equivalent window is not susceptible to the same vinyl interlayer cracking. However, under the provisions of paragraph (j) of this AD, we will consider requests for approval of an AMOC if sufficient data are submitted to substantiate that the design change would provide an acceptable level of safety. No change to this AD is necessary in this regard.

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We also determined that these changes will not increase the economic burden on any operator or increase the scope of the AD.

There are about 2,127 airplanes of the affected design in the worldwide fleet. This AD affects about 737 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 $117,920, 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.

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.

You can find our regulatory evaluation and the estimated costs of compliance in the AD Docket.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an airworthiness directive (AD) that would apply to all Boeing Model 727 series airplanes. That NPRM was published in the Federal Register on December 3, 2007 (72 FR 67873). That NPRM proposed to require repetitive inspections for any cracking of or damage to the left side and right side flight deck No. 2, No. 4, and No. 5 windows, as necessary, and corrective actions if necessary.

We have deleted paragraph (h)(4) of the NPRM and added a new paragraph (h) to this AD specifying that installation of metallic window blanks at cockpit eyebrow windows No. 4 and No. 5 in accordance with Supplemental Type Certificate (STC) ST01704SE terminates the initial and repetitive inspections for the flight deck No. 4 and No. 5 windows required by paragraph (f) of this AD. Incorporation of STC ST01704SE is considered a terminating action, not an alternative method of compliance (AMOC), since an AMOC can only be issued after an AD has been issued. We have also reidentified the AMOC paragraph of the NPRM as paragraph (i) in this AD.

We gave the public the opportunity to participate in developing this AD. We considered the comments received from the two commenters.

Boeing supports the NPRM.

FedEx requests that we extend the compliance time to 36 months or 3,600 flight hours, whichever occurs later, for the initial inspections of the flight deck No. 2, No. 4, and No. 5 windows and the repetitive intervals for the No. 4 and No. 5 windows. FedEx states this extension will allow it to do the initial inspections at a scheduled maintenance check. FedEx also states that extending the repetitive interval will allow the repetitive inspections of the No. 2, No. 4, and No. 5 to be done concurrently.

We do not agree with the request to extend certain compliance times. In developing an appropriate compliance time for this action, we considered the urgency associated with the subject unsafe condition and the practical aspect of accomplishing the required inspections within a period of time that corresponds to the normal scheduled maintenance for most affected operators. However, according to the provisions of paragraph (i) of this AD, we may approve requests to adjust the compliance time if the request includes data that show that the new compliance time would provide an acceptable level of safety.

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We also determined that these changes will not increase the economic burden on any operator or increase the scope of the AD.

There are about 790 airplanes of the affected design in the worldwide fleet. This AD affects about 431 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 $68,960, 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.

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.

You can find our regulatory evaluation and the estimated costs of compliance in the AD Docket.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an airworthiness directive (AD) that would apply to certain McDonnell Douglas Model DC-10-10, DC-10-10F, DC-10-30F (KC-10A and KDC-10), DC-10-40F, MD-10-10F, and MD-10-30F airplanes; and Model MD-11 and MD-11F airplanes. That NPRM was published in the Federal Register on July 23, 2007 (72 FR 40094). That NPRM proposed to require installation of control cable freeze protection by making certain changes.

We gave the public the opportunity to participate in developing this AD. We considered the comments received from the two commenters.

FedEx and Boeing request that we delay issuance of the final rule until Boeing releases a revision to Boeing Alert Service Bulletin DC10-27A237, dated January 9, 2007 (referred to as an appropriate source of service information for accomplishing the actions specified in the NPRM), and to Drawing SR11530052, and necessary parts are available. FedEx notes that Boeing released Information Notice DC10-27A237 IN 01, dated August 8, 2007, which indicates that the procedures specified in Boeing Alert Service Bulletin DC10-27A237 for Model DC-10-10F and MD-10-10F airplanes cannot be done. Boeing states that the engineering provided in Drawing SR11530052, which is referred to in Boeing Alert Service Bulletin DC10-27A237, does not reflect the existing structural configuration used on Model DC-10-10F and MD-10-10F airplanes.

Since issuance of the NPRM, we have reviewed Boeing Alert Service Bulletin DC10-27A237, Revision 1, dated December 20, 2007. Revision 1 revises Drawing SR11530052 to account for different panel configurations on Model DC-10-10F and MD-10-10F airplanes and adds airplane groups for those affected airplanes. Revision 1 also removes Model DC-10-10 airplanes, which are not subject to the identified unsafe condition of this AD. No more work is necessary on Model DC-10-30F (KC-10A and KDC-10), DC-10-40F, MD-10-10F, and MD-10-30F airplanes changed in accordance with Boeing Alert Service Bulletin DC10-27A237, dated January 9, 2007.

Therefore, we have revised this AD to refer to Boeing Alert Service Bulletin DC10-27A237, Revision 1, as an appropriate source of service information for accomplishing the required actions and identifying the affected airplanes. We also have added a new paragraph (g) of this AD to give credit for actions done before the effective date of this AD according to Boeing Alert Service Bulletin DC10-27A237, dated January 9, 2007, and redesignated subsequent paragraphs of the AD accordingly. In addition, we have removed Model DC-10-10 airplanes from the applicability of this AD.

In addition, according to Boeing, an ample number of required parts will be available to modify the U.S. fleet within the compliance time. However, according to the provisions of paragraph (h) of the final rule, we may approve requests to adjust the compliance time if the request includes data that prove that the new compliance time would provide an acceptable level of safety.

FedEx requests that a repair for any damaged seal, part number ADA3211-125, be included in the NPRM or the next revision of Boeing Alert Service Bulletin DC10-27A237, dated January 9, 2007. FedEx notes that Boeing issued Information Notices DC10-27A237 IN 01 and MD11-27A084 IN 02, both dated August 8, 2007, which indicate that a fix for damaged seals is forthcoming.

We do not agree. Since issuance of Information Notices DC10-27A237 IN 01 and MD11-27A084 IN 02, Boeing issued MD11-27A084 IN 03, dated December 14, 2007, and Boeing Alert Service Bulletin DC10-27A237, Revision 1, as described previously. Both of these documents state that repairs for damaged seals will be included in the DC10/MD10 Structural Repair Manuals (SRM). In addition, Boeing has received reports that, in certain cases, the seal, which is installed in accordance with Boeing Alert Service Bulletin DC10-27A237, is being damaged after installation as a result of being stepped on during maintenance. Therefore, there is no effect on accomplishing the requirements of this AD. We have not revised the AD in this regard.

FedEx requests that we provide blanket approval for operators who modified the installation as shown in View L of Boeing Drawing SR11530052 (for Model DC-10-30F (KC-10A and KDC-10) and Model MD-10-30F airplanes) to fit Model DC-10-10F and MD-10-10F airplanes. FedEx states that blanket approval to modify the size, shape, and location of the angles and to shim would be helpful to any operators who have already done so.

We do not agree. FedEx did not provide us with any data supporting their request for such an approval. In addition, we have determined that accomplishing the actions specified in Boeing Alert Service Bulletin DC10-27A237, Revision 1, will adequately address the identified unsafe condition of this AD. However, under the provisions of paragraph (h) of this AD, we might consider requests for approval of an alternative method of compliance (AMOC) if sufficient data are submitted to substantiate that such a design change would provide an acceptable level of safety. We have made no change to the AD in this regard.

FedEx requests that the NPRM be revised to refer to Drawing SR10270026, or that we verify that the incorrect drawing number (i.e., Drawing SR11270026) in Step 3 of the Work Instructions is corrected in the next revision to Boeing Alert Service Bulletin DC10-27A237, dated January 9, 2007.

We do not agree to refer to the subject drawing in the AD. As discussed previously, we have reviewed Boeing Alert Service Bulletin DC10-27A237, Revision 1, and have revised this AD to include that service bulletin revision as an appropriate source of service information for accomplishing the required actions. The incorrect drawing number has been corrected in the service bulletin.

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We also determined that these changes will not increase the economic burden on any operator or increase the scope of the AD.

There are about 387 airplanes of the affected design in the worldwide fleet. This AD affects about 283 airplanes of U.S. registry. The actions take about 40 work hours per airplane, at an average labor rate of $80 per work hour. Required parts cost about $5,896 or $6,073 per airplane depending on the airplane configuration. Based on these figures, the estimated cost of the AD for U.S. operators is between $2,574,168 and $2,624,259, or $9,096 or $9,273 per airplane depending on the airplane configuration.

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.

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.

You can find our regulatory evaluation and the estimated costs of compliance in the AD Docket.

Restricted Area R-5314 is part of the Dare County Range in North Carolina. R-5314 is divided into nine subareas, designated A, B, C, D, E, F, G, H and J. These subareas support the Air Force Dare bombing range and the Navy Dare bombing range and are used to train aircrews in various tactics such as air-to-ground ordnance delivery and night vision goggle operations. The current layout of R-5314 requires aircrews using the two ranges to share R-5314A and R-5314F. This involves extensive coordination between aircrew and the Range Control Officers at both ranges to deconflict the two operations. The U.S. Air Force requested that the FAA take action to reconfigure the internal alignment and boundaries of R-5314 to better delineate the airspace between the Navy and Air Force ranges. Under the reconfiguration, Air Force Dare users will operate in R-5314A, B, and C, while Navy Dare users will operate in R-5314D, E, and F. The airspace currently designated as R-5314G is subdivided into two areas and redesignated as R-5314C and R-5314F. The designation R-5314G will be revoked. To the east of the newly realigned C and F subareas, the current areas R-5314A, B, C, D, E and F are reconfigured into R-5314A, B, D, and E. This rearranges the location of several subareas within the current restricted area boundaries, but does not alter the existing geographic footprint or altitude floors of the R-5314 complex. The changes will simplify the restricted area layout, enhance range boundary awareness for aircrews, eliminate much of the coordination and deconfliction actions currently required, and thereby enhance the safety and operational efficiency of the Dare County Range. The boundaries for restricted areas R-5314H and J are not being modified by this rule.

The FAA is also modifying the time of designation for all R-5314 subareas by removing the term “intermittent” from the descriptions. The term “intermittent” is used in the time of designation to denote sporadic or irregular use of an area. A review of over five years of utilization data for the Dare County Range shows regular and frequent use of the restricted areas; therefore, the term “intermittent” is inappropriate and is being deleted to more accurately represent actual usage of the areas. Other than removing the term “intermittent,” this change does not alter the current published restricted area time of designation of “0600-2400 local time, Monday-Friday; 0700-1800 local time Saturday-Sunday; other times by NOTAM 6 hours in advance.” The change has no effect on the current or projected use of the Dare County Range restricted areas.

In addition, the name of the using agency for all of the restricted areas is changed to add the military service and correct the using agency name.

This action realigns the internal boundaries and layout of restricted areas R-5314A, B, C, D, E and F, and revokes R-5314G. The airspace formerly within R-5314G is further subdivided and redesignated as restricted areas R-5314C and F. The boundaries for R-5314H and J are not modified by this rule and will remain as currently published. This action also removes the term “intermittent” from the time of designation for R-5314A, B, C, D, E, F, H and J. In addition, the name of the using agency for all of the above restricted areas is changed from “Commander, 4th Tactical Fighter Wing” to “U.S. Air Force, Commander, 4th Fighter Wing.” This change adds the name of the military service and corrects the title of the 4th Fighter Wing.

This rule is an administrative change to realign the internal boundaries of existing restricted airspace, update the name of the using agency and correct the time of designation. These changes do not expand restricted airspace beyond the current lateral or vertical boundaries, or increase the available times of use, or alter the activities conducted within the restricted areas. Therefore, notice and public procedures under 5 U.S.C. 553(b) are unnecessary.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (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. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies restricted airspace in North Carolina.

The FAA has reviewed the above referenced action according to Department of Transportation Order 5610.1C, “Procedures for Considering Environmental Impacts” and FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures.” In accordance with FAA Order 1050.1E paragraphs 311d and 401p (5), it is determined that the action qualifies for categorical exclusion from further environmental review. Additionally, the implementation of this action will not result in any extraordinary circumstances in accordance with Order 1050.1E paragraph 304. Therefore, on February 15, 2008, the FAA issued a categorical exclusion declaration for the change in the internal boundaries for R-5314.

This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or revoking SIAPS, Takeoff Minimums and/or ODPS. The complete regulators description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.

The large number of SIAPs, Takeoff Minimums and ODPs, in addition to their complex nature and the need for a special format make publication in the Federal Register expensive and impractical. Furthermore, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA forms is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAPs and the effective dates of the Associated Takeoff Minimums and ODPs. This amendment also identifies the airport and its location, the procedure, and the amendment number.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as contained in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPS and Takeoff Minimums and ODPS, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPS contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPS and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedures before adopting these SIAPS, Takeoff Minimums and ODPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Regulatory Information

On March 21, 2008, we published a notice of proposed rulemaking (NPRM) entitled Special Local Regulations for Marine Events; Severn River, College Creek, Weems Creek and Carr Creek, Annapolis, MD in the Federal Register (73 FR 15108). We received no letters commenting on the proposed rule. No public meeting was requested, and none was held.

On July 13 through July 19, 2008, the U.S. Naval Academy, Annapolis, MD will host the “William I. Koch International Sea Scout Cup”, sail boat regatta on the waters of the Severn River. This youth sailing regatta is comprised of young men and women between the ages of 14 and 21 who are actively registered in the Sea Scout program. The five day event will be held at the Naval Academy's Sailing Center. Teams from the United States and 20 countries will test their seamanship skills as they sail 14′ sloop rigged boats. The event will consist of approximately 80 fourteen foot sail boats racing about several marked courses on the Severn River. A fleet of spectator vessels is anticipated to gather nearby to view the competition. Due to the need for vessel control during the event, vessel traffic will be temporarily restricted to provide for the safety of participants, support vessels, spectators and transiting vessels.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.

Although this regulation restricts vessel traffic from transiting a portion of the Severn River during the event, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via marine information broadcasts and local area newspapers, radio and TV stations so mariners can adjust their plans accordingly.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit the Severn River, College Creek, Weems Creek and Carr Creek, Annapolis, MD during the event.

This temporary rule will not have a significant economic impact on a substantial number of small entities for the following reasons. Although this regulation prevents traffic from transiting a small segment of the Severn River during the event, this rule will be in effect for only a short period, from 8:30 a.m. to 7:30 p.m. on July 14, 15, 16, 17, and 18, 2008. Vessel traffic may be able to transit around the regulated area or when event activity is halted, when the Coast Guard Patrol Commander deems it is safe to do so. Before the enforcement period, we will issue maritime advisories so mariners can adjust their plans accordingly.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.

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

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 does not create 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 does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

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.lD which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(h), of the Instruction, from further environmental documentation.

Under figure 2-1, paragraph (34)(h), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule.

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” 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. Publishing an NPRM would be impracticable and contrary to public interest because immediate action is needed to minimize potential danger to the public during the event. The necessary information to determine whether the marine event poses a threat to persons and vessels was not provided to the Coast Guard in sufficient time to publish an NPRM. The potential dangers posed by the pyrotechnic fireworks display, make a safety zone necessary to provide for the safety of the public in the vicinity of the event area. The Coast Guard will issue a broadcast notice to mariners and on have Coast Guard vessels on scene to advise mariners of the safety zone.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date would be contrary to the public interest, because immediate action is needed to ensure the safety of the event participants, spectator craft and other vessels transiting the event area. Advance notifications will be made to the public, via marine information broadcasts, local notice to mariners, commercial radio stations and area newspapers.

On May 30, 2008, Hatteras Yacht's will sponsor the “Hatteras Boat Parade and Firework Display”, on the waters of the Trent River. The event will consist of approximately nine motor Yachts ranging from 41 to 80 feet in length parading single file past the Sheraton Hotel and Marina. A small barge with close proximity pyrotechnics will be anchored at the west end of the Trent River Swing Bridge fender system. Due to the need for safety during the event, vessel and personnel access will be temporarily restricted in the specified area to provide for the safety of participants, spectators and transiting vessels.

The Coast Guard is establishing a safety zone on specified waters of the Trent River, New Bern, North Carolina. The regulated area includes all waters within a 150 foot radius of position 350°06′09″ N 0770 02′15″ W or approximately one 100 yards west of the center span of Trent River Swing Bridge, New Bern, North Carolina. The safety zone will be in effect from 7:30 p.m. to 9 p.m. on May 30, 2008. The effect will be to restrict access to the regulated area during the fireworks display. Except for persons or vessels authorized by the Captain of the Port (COTP) or the COTP representative, no person or vessel may enter or remain in the regulated area during the enforcement period. The Coast Guard will notify the public of specific enforcement times by Marine Radio Safety Broadcast. These regulations are needed to control public access during the event to enhance the safety of participants, spectators and transiting vessels.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary. Although this proposed regulation would prohibit access to a portion of the Trent River adjacent to New Bern, North Carolina during the event, the effects of this regulation would not be significant due to the limited size of the safety zone and duration of the enforcement period. Extensive advance notifications will be made to the maritime community via Local Notice to Mariners, marine information broadcast, and area newspapers, so mariners can adjust their plans accordingly.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

The owners or operators of vessels intending to transit this section of the Trent River will be impacted during the event.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: This rule will be enforced for only a short period, from 7:30 p.m. to 9 p.m. on May 30, 2008; the regulated area is a small segment of the Trent River adjacent to the New Bern waterfront; marine traffic may be allowed to pass through the regulated area with the permission of the Coast Guard representative on scene; and before the enforcement period, we would issue maritime advisories so mariners can adjust their plans accordingly.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.

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

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 does not create 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 does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

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.lD which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES .

The EPA is publishing this rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment. This action adds a method to the list of recommended methods in 40 CFR Part 51, Appendix M. The method may be used as an alternative method to existing recommended methods, but it is not required to be used by any existing rule. In the “Proposed Rules” section of today's Federal Register , we are publishing a separate document that will serve as the proposed rule to add Method 207 to Appendix M in 40 CFR Part 51 if adverse comments are received on this direct final rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For Further information about commenting on this rule, see the ADDRESSES section of this document. If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will not take effect. We would address all public comments in any subsequent final rules based on the proposed rule.

Method 207 affects/applies to the corn wet-milling industry and is used specifically to measure VOC mass emissions from processes within the corn wet-milling industry. Therefore, the categories and entities potentially regulated by this action include the following:

Under section 307(b)(1) of the Clean Air Act (CAA), judicial review of this direct final rule is available by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit by July 28, 2008. Only those objections to this final rule that were raised with reasonable specificity during the period for public comment may be raised during judicial review. Under section 307 (b)(2) of the CAA, the requirements that are the subject of this direct final rule may not be challenged later in civil or criminal proceedings brought by EPA to enforce these requirements.

The Method 207 Pre-Survey Procedure for Corn Wet-Milling Facility Emission Sources was developed in collaboration with the corn wet-milling industry (i.e., Corn Refiners Association (CRA)) specifically to measure volatile organic compound (VOC) mass emissions from processes within their facilities on an individual species basis. The pre-survey procedure provides a systematic approach to develop a specific list of target organic compounds and the appropriate sampling approach to collect those target compounds during subsequent VOC emissions testing. After using the new pre-survey procedure, the tester will have sufficient information to design a comprehensive testing program using Method 18 and other appropriate methods to measure the mass of VOC emissions during the actual emissions testing. The CRA submitted their proposed procedures and supporting information to the EPA for review, and we concluded that it was an acceptable procedure for measuring VOC emissions from corn wet-milling facilities.

For the purposes of measuring VOC emissions from corn wet-milling facilities, all of the sampling procedures in Method 18 may be used, as well as an additional sampling procedure using water filled impingers to collect water soluble VOC. This sampling procedure is described in detail in Method 308 (40 CFR Part 63) and NCASI Method CI/SG/PULP-94.03. The resulting water samples should also be analyzed using the procedures in Method 308 or NCASI Method CI/SG/PULP-94.03. If formaldehyde is a target compound, it may be collected with the water-filled impinger collection system, but the sample must be analyzed by procedures other than those in EPA Method 18. Examples of acceptable analytical procedures are those in Method 316 (40 CFR Part 63) or NCASI Method CI/SG/PULP-94.02.

In this action, we are amending Title V, Part 51, Appendix M of the Code of Federal Regulations (CFR) by adding a new measurement technique for VOC emissions from corn wet-milling facilities, referred to as “EPA Method 207—Pre-Survey Procedure for Corn Wet-Milling Facility Emission Sources.” This method provides procedures for establishing analytes for subsequent EPA Method 18 testing to determine the total mass emissions of VOC from sources at corn wet-milling facilities. Objectives of the method include:

(1) Identification of physical characteristics of the VOC contained in the effluent;

(2) Determination of the appropriate Method 18 sampling approach to ensure efficient collection of all VOC present in the effluent;

(3) Development of a specific list of target compounds to be quantified during the subsequent total VOC test program; and

(4) Qualification of the list of target compounds as being a true representation of the total VOC.

The procedures call for using flame ionization detection in conjunction with various configurations of impingers, and other absorbents, or adsorbents to determine the best EPA Method 18 sampling train configuration for the assessment and capture of VOC. Volatile organic compound analytes present in the exhaust air from production processes located at corn wet-milling facilities typically fall into five general categories: Alcohols, aldehydes, acetate esters, ketones, and carboxylic acids, and typically contain fewer than six carbon atoms.

This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is, therefore, not subject to review under the EO.

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b). It adds a test method to the recommended methods in Appendix M of 40 CFR Part 51. This method is an alternative to existing test methods and does not add any new reporting requirements to the reporting requirements that already exist.

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; or (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of this final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on a substantial number of small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the rule on small entities.” U.S.C. 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule. This action establishes voluntary alternative test procedures for satisfying the requirements of EPA Method 18, Section 16 (pre-survey), which are used to determine the mass VOC emissions from processes within the corn wet-milling industry, by specifying the analytes for subsequent EPA Method 18 testing. This rule does not impose any new requirements or create impacts on small entities. Therefore, this action is not expected to have a significant economic impact on a substantial number of small entities.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4 establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, the EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires the EPA to identify and consider a reasonable number of regulatory alternatives and adopts the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, more cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling official of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

This rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, or tribal governments or the private sector. This rule imposes no enforceable duty on any State, local or tribal governments or the private sector. EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. This action adds a new test method for measuring VOC air emissions to the recommended methods in 40 CFR part 51. Because this method is an alternative method, its use is voluntary. It will not impose requirements on State, local governments, or tribal governments. Thus, this action is not subject to the requirements of sections 202 and 205 of the UMRA.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires the EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

This final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Because this method is an alternative method, its use is voluntary. It will not impose substantial direct compliance costs on State or local governments, nor will it preempt State law. Thus, Executive Order 13132 does not apply to this rule.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This final rule does not have tribal implications, as specified in Executive Order 13175. The final action would add a test method that could be used as an alternative to existing methods. It does not add any new requirements and does not affect VOC emissions or air quality. Thus, Executive Order 13175 does not apply to this action.

EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.

This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

The rulemaking involves technical standards. Therefore, the Agency conducted a search to identify potentially applicable voluntary consensus standards. However, we identified no such standards, and none were brought to our attention in comments. Therefore, EPA has decided to use Method 207 to measure mass VOC emissions from processes within the corn-wet milling industry. This method provides a systematic approach to develop a specific list of target organic compounds and the appropriate methods to measure those target compounds during subsequent VOC emissions testing.

Executive Order 12898 (59 FR 7629 (Feb. 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.

EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This action adds a new test method for measuring VOC air emissions to the recommended methods in 40 CFR Part 51. It does not change any existing rules that limit VOC air emission limits.

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A Major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective on August 27, 2008.

Section 27 of the Merchant Marine Act of 1920, commonly known as the Jones Act (46 U.S.C. 55102), requires, with a few exceptions, that all cargo transported in the coastwise trade be carried on ships that are U.S.-owned and U.S.-built. The Jones Act has been amended over the years, and in 1988 a special technical proviso, known as the thirteenth proviso, was added to allow for the use of foreign-built platform jacket launch barges in the coastwise trade if no U.S.-built vessels were found to be available.

On August 9, 2004, the thirteenth proviso of the Jones Act was amended by section 417 of the Coast Guard and Maritime Transportation Act of 2004, Public Law 108-293 (the Act), now codified at 46 U.S.C. 55108. Under the Act, the Secretary of Transportation is directed to establish procedures to issue determinations as to whether suitable U.S.-built barges are available for use in transportation and, if needed, launch or installation of offshore oil drilling or production structures and to maximize the use of U.S.-built coastwise-qualified vessels for such activities. The Act provides that if the Secretary determines that a suitable coastwise qualified vessel is not available for use in a specified platform jacket transportation and, if needed, launch or installation project, a foreign-built launch barge may be used.

The Maritime Administration published a Notice of Proposed Rulemaking requesting public comments on our administration of these subject determinations on August 15, 2005 (70 FR 47771) with comments due on October 15, 2005. However, because of Hurricane Katrina and at the request of respondents, we extended the public notice period to December 13, 2005. At the further request of a commenting party, we subsequently opened a reply comment period on August 15, 2006, which closed on October 16, 2006. Based on our consideration of the nine responses received, we have adjusted our original proposal. The comments were received and our responses follow:

Public comment: Seven interests representing the owners or builders of U.S. barges said that significant notice of upcoming offshore petroleum development projects (which may require foreign-built launch barges) should be made a requirement of the Maritime Administration regulation. The owners of foreign vessels opposed any pre-notification requirement not provided for by law. U.S.-flag interests highlighted that the Act requires that “the Secretary of Transportation shall adopt procedures implementing this proviso that are reasonably designed to provide timely information so as to maximize the use of coastwise qualified-vessels.” In order to build a launch barge to meet demand, which all agree is planned for years in advance, the U.S.-flag interested commenters recommended at least an 18 month notice period prior to the formal waiver application process. Operators of foreign-built vessels state that the Act did not specifically set forth assistance requirements to the U.S. Merchant Marine, nor did the Act require advance notice of launch barge needs beyond the 30-day public notice period for waiver applications provided in the statute.

After considering these comments, the Maritime Administration has decided there is a need to provide for “timely information to maximize the use of coastwise qualified vessels.” Therefore, our regulation will require the platform owner or operator to notify the Maritime Administration at the same time they register their Development Operations Coordination Document (DOCD) or Development and Production Plan (DPP) with the Minerals Management Service but not later than 21 months before the proposed date of using a launch barge. This will provide an 18 month notice to current and potential coastwise-qualified vessel owners before the three month waiver process, should a waiver be sought. This is consistent with the advance planning that is common practice in the offshore industry and it provides sufficient time and information to establish discussions between project owners and vessel owners. It also complies with the statutory requirement to maximize the use of coastwise-qualified vessels by allowing sufficient time for the construction or modification of a launch barge.

Public comment: Five commenters with interests in U.S.-built vessels said that a request for a determination to use a foreign-built launch barge should come from the offshore petroleum production company as the company is typically the decision maker in contracting for transportation, launch or installation arrangements.

We agree that the language and intent of the legislation means the owner or operator of the petroleum production company.

Public Comment: Five operators of U.S.-built vessels asked that the Maritime Administration establish clearly that if application requirements are not met, the application will be denied.

We will not process applications that are not complete but we will advise the applicant and seek to rectify errors and omissions to application information before we will begin the review process. If, after an opportunity to redress, the applicant has not met application requirements, we may take action to deny the request for determination based on an incomplete application.

Public Comment: Five operators or builders of U.S.-built vessels requested that the Maritime Administration require petroleum production companies to formally register (as much as 18 months to two years in advance) with the Maritime Administration if they wish to use a foreign-built launch barge.

As stated under Issue #1, we will require the platform owner/operator to notify us of a potential need for a launch barge at the same time they file their DOCD or DPP with the Minerals Management Service but not later than 21 months before they project a need for a launch barge. We will annually ask all coastwise-qualified launch barge potential owners/operators to register their contact information with us. This is consistent with Public Law 100-329, as amended by Public Law 108-293, which requires us to keep a listing of coastwise-qualified launch barges that are less than 12,000 tons. This exchange of contact information will allow the platform owner/operator to survey the market and hold discussions with operators of coastwise-qualified vessels. If the platform owner/operator is not successful in concluding business with a coastwise-qualified launch barge owner then they can begin the formal request for a determination of non-availability.

Public Comment: One foreign vessel owner and one owner of U.S.-built vessels requested clarification on the use of the term “eligible vessel” and requested that the same definition for “launch barge” be used throughout the regulation.

The statute does not use the term “eligible vessel” and so it will not be used in the regulation. We have defined a “Launch Barge” as a vessel that is technically capable of loading, transporting, and launching or installing an offshore drilling or production platform jacket in a timely manner. We have defined the term “Foreign Launch Barge”, for the purpose of this rule, to mean a non-coastwise-qualified vessel that was built before December 31, 2000 and is technically capable of loading, transporting, and launching or installing an offshore drilling or production platform jacket in a timely manner and has a launch capacity of 12,000 long tons or more.

Public Comment: Two owners of foreign-built vessels considered the application fee inapplicable or excessive.

We have reviewed the application fee issue. We have determined that it is the owner or operator of the production platform who is the responsible party and who must make application for any determination of non-availability and thus becomes the beneficiary of any such finding. We have also determined that a foreign launch barge must be classified as a launch barge by one of our named classification societies in order to be eligible for a positive determination. If the applicant requests that we find that an offered coastwise-qualified launch barge is not suitable or available, then we will review the technical details and charge the applicant for the number of hours of work required at the prevailing hourly rate plus overhead of the persons involved in the review and any administrative costs. We expect such review would entail the use of naval architects, marine engineers, electrical engineers, and various support staff. There will be a minimum non-refundable $500 deposit to cover initial Federal Register costs and the applicant must sign a letter of commitment to pay any additional costs we incur. We estimate such costs could range from $500 to $20,000 or more.

Public Comment: One owner of a foreign-built vessel requested that the Maritime Administration clearly determine coastwise qualified vessel non-availability as this will then clearly allow the use of a foreign-built launch barge.

We have revised our regulation to state clearly that if we determine that no coastwise-qualified vessels are found to be suitable or available then our determination will allow for the use of a foreign-built launch barge.

Public Comment: Two owners of foreign vessels and an interest group representing U.S.-built vessel operators said that further approval from U.S. Customs and Border Protection (CBP) should not be a regulatory requirement, if the Maritime Administration determines that U.S.-built vessels are not available.

The statute states that non-coastwise-qualified barges may be used after the Secretary of Transportation (as administered by the Maritime Administration) determines that no coastwise qualified launch barges are available. Therefore, no formal CBP approval is being made a requirement of this regulation.

Public Comment: Two foreign vessel owners would like either no expiration date on the determination that no U.S. vessels are available, or have the Maritime Administration issue determinations for the “duration of the project.”

To comply with the Congressional intent to maximize the use of coastwise-qualified vessels, we have decided to retain the 120-day expiration date for determinations of non-availability of coastwise-qualified vessels. We have the authority to extend the determination beyond 120 days on a case by case basis, and will do so as necessary.

Public Comment: Two owners of foreign-built vessels asked for flexibility in the submission of platform jacket load dates, as well for flexibility in the exact technical specifications of the platform jacket to be launched. Commenters representing U.S.-built vessel interests opposed any flexibility on technical specifications or load dates noting that platform jacket specifications are often prepared years in advance of launch.

We believe that platform jacket specifications and launch schedules are developed far enough in advance of a project start date to be effective for review. If the launch schedule changes significantly, the Maritime Administration can change the expiration date of our determination for good cause.

Public Comment: The owner of a foreign vessel recommended that our regulation should extend the definition regarding the permissible activity of these barges from just “launching” to also “transporting” in conformance with the law.

We agree and have made an effort to indicate that transporting, placement, and/or launching are all purposes provided for in the enabling legislation.

Public Comment: In our proposed rule, we had proposed that the American Bureau of Shipping (ABS) or U.S. Coast Guard (USCG) approve the technical elements of a proposed foreign-built launch barge. Foreign-built barge owners would like us to recognize other classification societies as well.

We will accept vessel launch barge classification and technical documentation from vessel classification societies recognized by the USCG. The specific societies are: American Bureau of Shipping (ABS), Bureau Veritas (BV), Lloyd's Register (LR), Germanischer Lloyd (GL), Det Norske Veritas (DNV), or Nippon Kaiji Kyokai (NK).

Public Comment: One owner of a foreign-built vessel requested that the definition of a launch barge be changed to require that the vessel be capable of transporting and launching a platform jacket within two days instead of the seven days listed in the notice of proposed rulemaking. A U.S.-built vessel owner commented that a seven day delivery window for a coastwise-qualified vessel may be too narrow.

We believe that vessel delivery capability or availability should not be within some number of days specified by a regulation since the needs of each case will vary. Thus, we will require the delivery window be in “a timely manner” to be negotiated between the parties. This is similar to the way that “lay days” or “delivery dates” are negotiated in commercial transportation projects. If the platform owner and launch barge operator cannot reach agreement on the window timing, then we will make a determination based on the facts of the specific case.

Public Comment: A foreign-built vessel operator asked that foreign-built vessels be allowed if for some reason a previously identified coastwise qualified vessel cannot conduct a platform jacket launch operation.

If the selected coastwise-qualified vessel is not able to perform, and if we find there are no other coastwise-qualified vessels available, we can make a non-availability determination that would allow a foreign launch barge to provide the service.

Public Comment: One owner of a foreign-built vessel requested that the Maritime Administration determination be provided within 60 days of the Federal Register announcement seeking coastwise qualified vessels instead of within the 90-day period described in the Notice of Proposed Rulemaking.

We will issue our determination within 90 days of the Federal Register announcement as this is specifically required in the enabling legislation.

Public Comment: A foreign-built barge operator asked that a coastwise qualified launch barge NOT be considered suitable or available if it needs modifications in excess of $75,000.

One of our roles is to determine availability and suitability of launch barges. Therefore, we will review applications and comments on a case by case basis. The intent of the legislation is to maximize the use of coastwise-qualified barges. The enabling legislation provided the Maritime Administration with the authority to make a determination that coastwise-qualified launch barges are or are not suitable. We will use this authority as required.

In this rulemaking, the Maritime Administration is establishing interim procedures to be followed to determine if coastwise-qualified U.S.-flag launch barges are available for a specific project and if they are not available, we will make a determination that will allow a foreign-built vessel to transport and, if needed, launch or install a platform jacket under certain conditions.

We will request coastwise-qualified launch barge owners and other potentially interested parties to register with us on an annual basis with their full contact information. The registration process for platform owners/operators begins with a notification to us of a proposed offshore platform jacket project at the same time they file with the Minerals Management Service for DOCD or DPP approval but not later than 21 months before projected use of the launch barge. The notification information provided to us must include: the projected summary details of the platform jacket to be transported and, if needed, launched or installed; the approximate date of the operation; and contact information for the platform owner/operator individuals having decision-making responsibility with respect to the transportation and installation of the platform jacket. This information will be made public in order to “provide timely information to ensure maximum use of coastwise qualified vessels” as is required in the Act. At the same time, we will provide the current list of potentially interested registered parties to the platform owner/operator so they can begin canvassing the market and entering into discussions.

Once we determine that the prior notice requirement has been met, and if the platform owner/operator is unable to find a potential coastwise-qualified launch barge that will be available for the project, the application process seeking a determination of non-availability can begin. Each application must include: the complete engineering details for the platform jacket; the operational details for the loading, transport, launching or installation; the timing requirements; and the foreign launch barge they propose to use.

Upon the receipt of a complete application including deposit fee, we will publish a notice in the Federal Register requesting that comments and information on the availability of coastwise-qualified vessels be submitted within 30 days. We may also canvas the market. If, after the comment period, we determine that suitable coastwise-qualified vessels are not available for the project, upon receipt of final payment for all relevant costs, we will issue a determination of non-availability, allowing the transportation, launch or installation to proceed with the foreign-built launch barge vessel.

We will not take action on applications that are not complete. For example, if we are not in receipt of early prior notification, or if fees are not paid, or if the application is incomplete, we will not take action on the application. However, we will seek to rectify errors and omissions to the application. It is important to note that we may take action to deny a request for a determination if the application remains incomplete. As previously stated, we will publish complete applications in the Federal Register for a period of 30 days and will provide a determination within 90 days thereafter.

Because launch barges have long lead times for construction, applicants are encouraged to provide the Maritime Administration and the public with as much notice as possible in advance of these projects. Early notification will help ensure the maximum utilization of coastwise-qualified vessels, and will assist the Maritime Administration in its review process.

Title V of the Independent Offices Appropriations Act of 1952 (“IOAA”; 31 U.S.C. 9701) authorizes Federal agencies to establish and collect user fees. The statute provides that each service or thing of value provided by an agency should be self-sustaining to the extent possible, and that each charge shall be fair and based on the costs to the Government, the value of the service or thing to the recipient, the policy or interest served, and other relevant factors. 31 U.S.C. 9701.

The primary guidance for implementation of the IOAA is Office of Management and Budget (OMB) Circular No. A-25 (“User Charges,” July 8, 1993). Circular A-25, section 6, directs agencies to assess user charges against identifiable recipients for special benefits derived from Federal activities beyond those received by the general public. Circular A-25 further directs agencies, with limited exceptions, to recover the full cost of providing a Government service from the direct recipients of special benefits. Section 6(d) of Circular A-25 defines “full cost” as including “all direct and indirect costs to any part of the Federal Government of providing a good, resource, or service.”

Because determinations of availability under part 389 represent special benefits to identifiable recipients (i.e., platform owners/operators) that are beyond the benefits and services normally received by the general public, the IOAA and Circular A-25 direct us to assess user fees for providing this service.

Following the principles embodied in Circular A-25, we will estimate the costs associated with processing and issuing determinations under part 389 as follows. The main cost components of the program include direct and indirect personnel costs and Federal Register publication costs. We will charge the actual number of hours at the relevant personnel costs plus associated overhead and administrative costs. The other cost component of the program will be the cost of publishing notices of applications in the Federal Register . The current Federal Register publication cost is $155 per column and the average length of a public notice published for this program is estimated to be three columns. Thus, the total average publication cost currently is estimated to be about $465.00. The total of personnel costs and Federal Register publication costs is estimated to range from $500 to $20,000 or more, dependent upon the extent of the required review. Each application will require a $500 deposit and the payment of any additional costs prior to the final determination.

This rulemaking is not significant under section 3(f) of Executive Order 12866, and as a consequence, OMB did not review the rule. This rulemaking is also not significant under the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034; February 26, 1979). It is also not considered a major rule for purposes of Congressional review under Public Law 104-121. We believe that the economic impact of this rulemaking is so minimal as to not warrant the preparation of a full regulatory evaluation. This rulemaking merely establishes procedures to determine if a coastwise-qualified barge is available for use in a project and, if not, to allow the use of a non-coastwise qualified barge.

We analyzed this rulemaking in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”) and have determined that it does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. The regulations herein have no substantial effects on the States, the current Federal-State relationship, or the current distribution of power and responsibilities among local officials. Therefore, we did not consult with State and local officials because it was not necessary.

The Regulatory Flexibility Act requires us to assess the impact that regulations will have on small entities. After analysis of this proposed rule, the Maritime Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities. We anticipate that few, if any, small entities will participate in this process due to the nature of the shipping industry and the capital costs associated with vessels that fall under this program.

We have analyzed this proposed rule for purposes of compliance with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et. seq .) and we have concluded that, under the categorical exclusions provision in section 4.05 of Maritime Administrative Order (MAO) 600-1, “Procedures for Considering Environmental Impacts,” 50 FR 11606 (March 22, 1985), neither the preparation of an Environmental Assessment, an Environmental Impact Statement, nor a Finding of No Significant Impact for this rulemaking is required. This rulemaking will not result, either individually or cumulatively, in a significant impact on the environment. This rulemaking only relates to the determination of whether a coastwise-qualified barge is available for a project, and, if not, allows the use of a non-coastwise qualified barge.

This rulemaking contains an information collection that will require review and clearance by the Office of Management and Budget (OMB).

This rulemaking does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $100 million or more to either State, local, or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves this objective of U.S. policy.

We believe that these regulations will have no significant or unique effect on the communities of Indian tribal governments when analyzed under the principles and criteria contained in Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments). Therefore, the funding and consultation requirements of this Executive Order do not apply.

A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.

Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review 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 .

(c) The applicant must submit a non-refundable check in the amount of $500 (Five Hundred Dollars) made payable to the Maritime Administration, which is a minimum fee and represents a deposit against any costs to the Government for processing the application. The applicant must also submit a signed statement (see paragraph (b) of this section) that they agree to pay all such additional costs that will be invoiced by the Government. Government costs will be billed for actual staff hours at applicable hourly rates plus overhead, administrative and other relevant costs.

(d) Required Transport and Launch Project Information .

(1) Applications must include a general description of the transport, placement and/or launch project, including:

(i) A description of the platform jacket structure with launching weight, center of gravity, major dimensions, and a general arrangement plan,

(ii) The projected loading date and site,

(iii) The projected launching date and site,

(iv) The names of the potential coastwise-qualified launch barges' owners/operators contacted and their response regarding suitability and availability, and

(v) The technical merits and availability studies for the coastwise-qualified launch barges considered.

(2) Characteristics of the applicant's desired foreign launch barge, including, at a minimum, the following information:

(i) Name of the vessel,

(ii) Registered owner of the vessel,

(iii) Physical dimensions, deadweight capacity in long tons, ballasting capacities and arrangements, and launch capacity in long tons, and arrangements,

(iv) Documentation showing classification as a launch barge by one of the following classification societies: American Bureau of Shipping (ABS), Bureau Veritas (BV), Lloyd's Register (LR), Germanischer Lloyd (GL), Det Norske Veritas (DNV), or Nippon Kaiji Kyokai (NK).

(v) Date and place of construction of the foreign launch barge and (if applicable) rebuilding. If applicant is unable to document the origin of the vessel, foreign construction will be assumed.

(vi) Name, address, and telephone number of the foreign launch barge owner.

(3) The signed statement that the applicant represents that the foregoing information is true to the best of the applicant's knowledge, as required by paragraph (b) of this section and the $500 deposit fee.

(e) We may require additional information from the applicant as part of the review process. The application will not be considered complete until we have received all relevant information.

This document announces that, on March 4, 2008, OMB approved, for a period of three years, the information collection requirement contained in section 73.682(d) of the rules. The Commission publishes this notice as a second announcement of the effective date of the rules. If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Cathy Williams, Federal Communications Commission, Room 1-C823, 445 12th Street, SW., Washington, DC 20554. Please include the OMB Control Number, 3060-1104, in your correspondence. The Commission will also accept your comments via the Internet if you send them to PRA@fcc.gov.

To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the Commission is notifying the public that it received OMB approval on March 4, 2008, for the information collection requirement contained in the Commission's rules at 47 CFR 73.682(d). The OMB Control Number is 3060-1104. The total annual reporting burden for respondents for these collections of information, including the time for gathering and maintaining the collection of information, is estimated to be: 1,812 respondents, a total annual hourly burden of 47,112 hours, and there is no total annual cost burden associated with this information collection.

Under 5 CFR 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.

No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a valid OMB Control Number.

The Council adopted Framework 19 on October 25, 2007, and submitted it to NMFS on November 8, 2007, for review and approval. Framework 19 was developed and adopted by the Council in order to meet the FMP's requirement to adjust biennially the management measures for the scallop fishery. The FMP requires biennial adjustments to ensure that the measures continue to meet the fishing mortality rate (F) and other goals of the FMP and achieve optimum yield (OY) from the scallop resource on a continuing basis. The Council reviewed the Framework 19 proposed rule regulations as drafted by NMFS, which included regulations proposed by NMFS under the authority of section 305(d) of the Magnuson-Stevens Act, and on February 27, 2008, deemed them to be necessary and consistent with section 303(c) of the Magnuson-Stevens Act. Framework 19 published in the Federal Register on March 19, 2008, with a 20-day public comment period that ended April 8, 2008. Three comments were received on the proposed measures.

The September through October seasonal closure of the ETAA was implemented under Framework 18 to the FMP (Framework 18), consistent with National Standard 9, which called for management measures to minimize and reduce the mortality of bycatch to the extent practicable, to reduce potential interactions between threatened and endangered sea turtles and the scallop fishery in the Mid-Atlantic. Framework 18 concluded that a closure to scallop fishing may have positive benefits to turtles in the ETAA if fishing effort is not displaced to areas with higher densities of turtles than inside the ETAA. Additionally, Framework 18 concluded that the elevated water and air temperatures that occur during September and October in the ETAA may result in higher than average small scallop and finfish discard mortality. Therefore, Framework 18 concluded that the 2-month closure could also reduce scallop and finfish discard mortality. The information relied on in Framework 19 to eliminate the seasonal closure, as recommended by the Council, does not represent the best scientific information. The scientific information relied on for Framework 18 is still considered the best scientific information available and, therefore, the Council's recommendation to eliminate the closure is therefore inconsistent with National Standard 2. Maintaining the closed season remains consistent with the MSA, including National Std. 9, which requires that management measures minimize bycatch and bycatch mortality to the extent practicable.

In the proposed rule, NMFS requested comments on all proposed management measures. The approved management measures are discussed below. Details concerning the Council's development of these measures were presented in the preamble of the proposed rule and are not repeated here.

To achieve optimum yield at the target F of 0.20 for the scallop resource, limited access open area DAS allocations are required to be adjusted every 2 years. Because the calculation of overall F also includes the mortality in controlled access areas, the calculation of the open area DAS allocations depends on the access area measures, including the rotation schedule, management measures, and access area trip allocations. Framework 19 implements the following vessel-specific DAS allocations: Full-time limited access vessels will be allocated 35 DAS in 2008 and 42 DAS in 2009; part-time vessels will be allocated 14 DAS in 2008 and 17 DAS in 2009; and occasional limited access vessels will be allocated 3 DAS in 2008 and 3 DAS in 2009. If implementation of the general category IFQ program is delayed beyond March 1, 2009, the 2009 DAS allocations would be reduced to the following: Full-time—37 DAS; part-time—15 DAS, occasional—3 DAS. Amendment 11 to the FMP specifies that the general category fleet will be allocated 10 percent of the scallop quota during the transition period to the IFQ program. The Council did not specify in Framework 19 what the general category quota would be in the event the IFQ program is not implemented in 2009. Therefore, NMFS has determined that the potential DAS reduction is consistent with Amendment 11 and will extend the 10 percent allocation into 2009 in the event the IFQ program is not implemented by March 1, 2009.

Because Framework 19 was not implemented by the start of the fishing year on March 1, 2008, and interim regulations in effect at the start of the 2008 fishing year are inconsistent with Framework 19 specifications, it is possible that a scallop vessel may have exceeded its DAS allocation during the interim period between March 1, 2008, and June 1, 2008. Therefore, any limited access open area DAS used in 2008 by a vessel that is above the final 2008 allocation for that vessel will be deducted from the vessel's 2009 DAS allocation.

In the 2008 fishing year, full-time limited access scallop vessels will be allocated one trip in the Nantucket Lightship Access Area (NLCA), and four trips in the ETAA. A part-time limited access scallop vessel will be allocated two trips, which could be taken as follows: One trip in the ETAA and one trip in the NLCA; or two trips in the ETAA. An occasional limited access vessel will be allocated one trip, which could be taken in either the NLCA or the ETAA. The 2008 limited access scallop possession limit for access area trips will be 18,000 lb (8,165 kg) for full-time and part-time vessels, and 7,500 lb (3,402 kg) for occasional vessels.

In the 2009 fishing year, full-time limited access scallop vessels will be allocated one trip in the Closed Area II Access Area (CAII), up to three trips in the ETAA, and up to one trip in Delmarva (unless ETAA and/or Delmarva trips are reduced due to updated exploitable scallop biomass estimates). A part-time limited access scallop vessel will be allocated two trips, and could distribute these trips between the following access areas as follows: Up to two trips in the ETAA; up to one trip in CAII; and up to one trip in Delmarva (unless ETAA and/or Delmarva trips are reduced due to updated exploitable scallop biomass estimates). An occasional limited access vessel will be allocated one trip, which could be taken in CAII, the ETAA, or Delmarva (unless ETAA and/or Delmarva trips are reduced due to updated exploitable scallop biomass estimates). The 2009 limited access scallop possession limit for access area trips will be 18,000 lb (8,165 kg) for full-time and part-time vessels, and 7,500 lb (3,402 kg) for occasional vessels. However, if ETAA or Delmarva trips are reduced, part-time possession limits may be reduced as described below.

Although the Framework 19 document submitted to NMFS did not specify 2009 Delmarva trip options for part-time and occasional vessels, NMFS has interpreted this as an oversight, and has included Delmarva trip options for part-time and occasional limited access vessels in 2009. ETAA and Delmarva trip allocations and possession limits in 2009 are subject to change per the ETAA and Delmarva trip reduction procedures described below.

ETAA and Delmarva specifications are based on 2007 scallop resource survey information, which was the best scientific information available when the Council established the ETAA and Delmarva allocations for Framework 19. If 2008 ETAA and/or Delmarva survey data indicate that there is less estimated exploitable biomass of scallops in the ETAA and/or Delmarva for the 2009 fishing year, the Regional Administrator may reduce ETAA and/or Delmarva allocations to prevent overfishing.

If a reduction in the ETAA is necessary, as dictated by pre-determined thresholds detailed in Table 1, the Regional Administrator will publish a final rule consistent with the Administrative Procedure Act (APA) on or about December 1, 2008. If the ETAA exploitable biomass estimate is between 20,000 and 29,999 mt, part-time limited access vessels will be authorized to take one trip in the ETAA at a reduced possession limit of 3,600 lb (1,633 kg), and one trip in the NLCA at the normal possession limit of 18,000 lb (8,165 kg). The reduced possession limit for part-time vessels under this scenario results from the FMP structure, which allocates to part-time vessels 40 percent of what is allocated to a full-time vessel. If updated exploitable biomass information is not available so that a final rule pursuant to the APA cannot be published on or about December 1, 2008, no reductions will be made.

In addition, if an updated estimate of overall F exceeds 0.29 in 2008, then ETAA allocations will be reduced consistent with the reductions specified in Table 1 under exploitable biomass estimates of 20,000-29,000 mt. If both the biomass and F thresholds are exceeded, the allocation level will be established using the biomass adjustment schedule.

Under the same procedures and dates, if the Delmarva biomass for the 2009 fishing year is estimated to be below 10,000 mt, then the area will remain closed to scallop fishing for the 2009 fishing year, and no trips or set-aside will be authorized there.

Due to the high concentration of small scallops in the HCAA, Framework 19, consistent with the FMP's area rotation program strategy to protect young scallop concentrations, will establish the HCAA as a rotational management area, and close the HCAA to all scallop fishing, including general category vessels, for at least the 2008 and 2009 fishing years. The expected increase in exploitable biomass in the absence of fishing mortality is expected to exceed 30 percent per year. The area could be considered again as an access area and re-open to fishing when the annual increase in exploitable biomass in the absence of fishing mortality is less than 15 percent per year.

Under the Northeast Multispecies Fishery Management Plan, 10 percent of the Southern New England (SNE) and Georges Bank (GB) yellowtail TACs are allocated to scallop vessels fishing in the NLCA, CAI, and CAII. If the SNE and/or GB yellowtail TAC is caught, the respective access area(s) are closed to further scallop fishing for the remainder of the fishing year. If a limited access vessel has unutilized trip(s) in an access area closed by a scallop fishery yellowtail TAC, Framework 19 will allocate additional open area DAS in a manner that maintains the F objectives of the FMP. This trip/DAS conversion will apply only to full-time vessels, and to occasional or part-time vessels that have no other available access areas in which to take their access area trip(s). Unused access area trip(s) will be converted to open area DAS so that scallop fishing mortality that will have resulted from the access area trip(s) will be equivalent to the scallop fishing mortality resulting from the open area DAS allocation. Consequently, if the NLCA or CAII is closed in 2008 or 2009, respectively, each vessel with unutilized trip(s) will be allocated a specific amount of additional open area DAS according to permit category. Full-time vessels will be allocated 7.7 DAS per unutilized trip in the NLCA and 7.9 DAS per unutilized trip in CAII. Part-time vessels will receive the same DAS conversion as full-time vessels, as long as there was no other access area available for the vessel to take a trip(s). If an occasional vessel has no available access area in which to take its trip, it will be allocated converted DAS according to the most recent closure: 3.2 DAS if it was the NLCA; or 3.3 DAS if it was CAII. Although the Council did not specify this measure regarding occasional vessels in Framework 19, based on other Framework 19 measures adopted by the Council and the overall objectives of the FMP, NMFS proposed this measure under the authority of section 305(d) of the Magnuson-Stevens Act.

If a vessel has unused broken trip compensation trip(s) when an access area closes due to reaching a yellowtail TAC, it will be issued additional DAS in proportion to the un-harvested possession limit. For example, if a full-time vessel had an unused 9,000 lb (4,082 kg) NLCA compensation trip (half of the full possession limit) at the time of a NLCA yellowtail TAC closure, the vessel will be allocated 3.85 DAS (half of the 7.7 DAS that would be allocated for a full NLCA trip).

Two percent of each scallop access area quota and 2 percent of the DAS quota are set aside as part of the Scallop RSA Program to fund scallop research and compensate participating vessels through the sale of scallops harvested under the research set-aside quota. The 2008 research set-aside access area allocations will be: NLCA—110,000 lb (50 mt); and ETAA—440,000 lb (200 mt). The 2009 research set-aside access area allocations will be: CAII—116,000 lb (53 mt); ETAA—324,000 lb (147 mt); and Delmarva—120,000 lb (54 mt). If 2008 ETAA and/or Delmarva survey data indicate that there is less estimated exploitable biomass of scallops in the ETAA and/or Delmarva, the 2009 RSA allocations in these areas will be reduced as specified in Table 1.

The 2008 and 2009 research set-aside DAS allocations will be 235 and 282, respectively. If the general category IFQ program is delayed beyond March 1, 2009, the 2009 RSA DAS allocation would be 241 DAS.

One percent of each scallop access area quota and 1 percent of the DAS allocation are set aside as part of the industry funded observer program to help defray the cost of carrying an observer. Scallop vessels on an observed DAS trip are charged a reduced DAS rate, currently 0.85 per DAS; scallop vessels on an observed access area trip are authorized to have an increased possession limit, currently 400 lb of shucked scallops per DAS. The Regional Administrator for the Northeast Region (Regional Administrator) has the authority to establish, and adjust, the reduced DAS rate and increased possession limit.

The Council recommended in Framework 19 that the observer set-aside compensation rates be adjusted to more accurately reflect current fishery conditions. The Council noted that the current DAS set-aside rate of 0.85 is insufficient to offset the cost of carrying an observer, and suggested that the DAS compensation rate be increased while decreasing the access area possession limit, effectively transferring access area scallops to the DAS set-aside. However, the observer set-aside program is not currently structured to authorize access area scallops to be converted for use under the DAS set-aside. The set-aside program explicitly sets aside 1 percent of scallop DAS and 1 percent from each access area TAC. Therefore, the Council's recommendation cannot be adopted.

NMFS did evaluate the current set-aside rates and determined that, although the current DAS set-aside rate may not fully offset the cost of carrying an observer, the current rate provides the greatest benefit to the fleet and should not change for the 2008 fishing year. NMFS determined that, if the DAS compensation rate was increased, the DAS set aside would not likely last the entire fishing year, resulting in some vessel owners needing to pay the full cost of observer DAS trips. Therefore, the reduced DAS charge on observed DAS trips will remain at 0.85 for the 2008 fishing year. The Regional Administrator may re-evaluate the DAS compensation rate before the start of the 2009 fishing year.

The 2008 access area observer set-aside allocations will be: NLCA—55,000 lb (25 mt); ETAA—222,000 lb (111 mt). The 2009 access area observer set-aside allocations will be: CAII—58,000 lb (26 mt); ETAA—162,000 lb (73 mt); and Delmarva—60,000 lb (27 mt). If 2008 ETAA and/or Delmarva survey data indicate that there is less estimated exploitable biomass of scallops in the ETAA and/or Delmarva, the 2009 RSA allocations in these areas will be reduced as specified in Table 1.

The 2008 and 2009 DAS observer set-aside allocations will be 118 and 141, respectively. If the general category IFQ program is delayed beyond March 1, 2009, the 2009 observer set-aside DAS allocation would be 124 DAS.

The Council recommended a new overfishing definition based on results from the recent scallop stock assessment (SAW 45), which used a new model to characterize the scallop resource, including a new biomass target and threshold, and a new F threshold. Because the Council recommended the new reference points and a modified overfishing definition to reflect the new parameters, the Council also considered whether the current target F of 0.20 should be adjusted upward consistent with the F threshold adjustment. The overfishing threshold F of 0.29 is based on an assumption that F is spatially uniform. However, uniform F does not occur in the scallop fishery due to unfished biomass in closed areas and highly variable F's in open and access areas. In the case of highly non-uniform fishing effort, the F that maximizes yield per recruit will be less than the spatially uniform target (F=0.29). The Council was concerned that setting the F target at the typical 80 percent of the threshold (F=0.23) would result in localized overfishing in open areas. Therefore, the Council recommended keeping the target F at 0.20 in recognition that F is not uniformly distributed throughout the range of the scallop fishery, and the resource is prone to localized overfishing, particularly in open areas. An F target of 0.20 will help maintain a stable fishery over the long term rather than maximize individual catch on an annual basis, compared to higher F targets.

In addition, based on the results of SAW 45, the Council recommended establishing scallop biomass reference points using absolute scallop meat biomass estimates instead of scallop resource survey indices, as in the past.

Based on these recommendations, the scallop overfishing definition will be as follows: If stock biomass is equal to or greater than the maximum scallop resource biomass target (Bmax), as measured by an absolute value of scallop meat (mt) (currently estimated at 108,600 mt for scallops in the GB and Mid-Atlantic resource areas), overfishing occurs when F exceeds Fmax, currently estimated as 0.29. If the total stock biomass is below Bmax, overfishing occurs when F exceeds the level that has a 50-percent probability to rebuild stock biomass to Bmax in 10 years. The scallop stock is in an overfished condition when stock biomass is below 1/2 Bmax and, in that case, overfishing occurs when F is above a level expected to rebuild the stock in 5 years, or when F is greater than zero when the stock is below Bmax.

The following table details the biomass and F reference points that will be implemented by Framework 19.

To minimize scallop discard mortality, no scallop vessel that is declared into the Area Access Program as specified in § 648.60 may possess more than 50 bu (17.6 hL) of in-shell scallops, as specified in § 648.52(d), outside the boundaries of a Sea Scallop Access Area.

There are several measures designed to improve the industry-funded observer program. Framework 19 includes measures described below that have new reporting requirements subject to review and approval by the OMB pursuant to the Paperwork Reduction Act (PRA). As noted, OMB is currently reviewing the new PRA requirements and as such, the measures are not effective along with other measures included in this final rule. A subsequent rule published in the Federal Register will announce the effective date of such measures.

Providers must respond to a fisherman's request for an observer within 18 hr of the fisherman's call to let them know if an observer is available.

Providers must provide the NMFS Northeast Fishery Observer Program (NMFS/NEFOP) with an updated list of contact information for all observers that includes the observer identification number, observer's name, mailing address, e-mail address, phone numbers, homeports or fisheries/trip types assigned, and must include whether or not the observer is “in service,” indicating when the observer has requested for leave and/or is not currently working for the industry-funded program.

Providers must submit to NMFS/NEFOP, if requested, a copy of each type of signed and valid contract (including all attachments, appendices, addendums, and exhibits incorporated into the contract) between the observer provider and those entities requiring observer services.

Providers must submit to NMFS/NEFOP, if requested, a copy of each type of signed and valid contract (including all attachments, appendices, addendums, and exhibits incorporated into the contract) between the observer provider and specific observers.

Providers must submit to NMFS/NEFOP, if requested, copies of any information developed and used by the observer providers and distributed to vessels, such as informational pamphlets, payment notification, description of observer duties, etc.

The proposed rule stated that observer service providers would charge for services consistent with how vessel owners receive compensation, and specified that this would be based on VMS transmission data and time spent seaward of the demarcation line. However, based on comments received on this new requirement, NMFS has revisited the rationale of this requirement. The rationale of this measure was to reduce confusion for vessel owners resulting from different charging methods used by observer service providers, and to ensure the charging methodology was consistent. NMFS does not intend to direct observer providers on how much they may charge, but merely what the charge is based upon. Therefore, for access area trips, a service provider shall charge a vessel owner from when an observer boards a vessel until they disembark (dock to dock), where “day” is defined as a 24-hr period, or any portion of a 24-hr period, regardless of the calendar day. For example, if a vessel with an observer departs on July 1st at 10 pm and lands on July 3rd at 1 am, the time at sea equals 27 hr, which would equate to 2 “days.” For open area DAS trips, a service provider shall charge dock to dock where “day” is defined as a 24-hr period, and portions of the other days would be pro-rated at an hourly charge (taking the daily rate divided by 24). For example, for the trip demonstrated above, the provider would charge 1 day and 3 hours.

Providers will no longer be required to maintain at least eight certified observers.

Providers must provide NMFS/NEFOP with observer contract data within 24 hr of landing, and raw data within 72 hr of landing.

Scallop fishermen must allow NMFS/NEFOP up to 24 hr to respond to a pre-sailing notice and, if selected, must provide the observer provider at least 48 hr to respond to an observer deployment request. Currently, NMFS/NEFOP may take up to 24 hr to respond to a pre-sailing notice, and the observer service provider may take up to 72 hr to respond to an observer deployment request. This will reduce the pre-sailing notice period. The proposed rule erroneously noted that NMFS would have up to 72 hours to respond to a pre-sailing notification.

Limited access trip notification calls cannot be made more than 10 days in advance of a trip, and not more than 10 trips may be called in at a time.

General category vessels making an access area trip(s) must call in with the same notice described above, but make calls weekly rather than daily. For example, a general category vessel could call in by Thursday for all the trips it plans to take from the following Sunday through Saturday. The vessel will either get a waiver for that week, or be selected for observer coverage. If selected, a vessel could be required to carry an observer on up to two trips made that week.

Vessel owners, operators, or managers are required to notify NMFS/NEFOP of any trip plan changes at least 48 hr prior to vessel departure.

Confirmation numbers for trip notification calls are valid for 48 hr from the intended sail date.

A vessel is prohibited from fishing in an access area without a NMFS/NEFOP call-in confirmation number specific to that trip and that was issued for the trip plan and area.

NMFS/NEFOP observer training sessions will no longer have a minimum class size of eight.

An observer's first three deployments and the resulting data will be immediately edited and approved after each trip by NMFS/NEFOP, prior to any further deployments by that observer. If data quality is considered acceptable, the observer will be certified. If the data is not acceptable, the observer will not be certified.

An observer provider will not deploy any observer on the same vessel for more than two consecutive multi-day trips and not more than twice in any given month for multi-day deployments. Multi-day is defined as more than 2 days.

At least 7 days prior to the beginning of an observer training class, providers would be required to provide a final list of observer candidates, observer candidate resumes, and a statement signed by the candidate, under penalty of perjury, that discloses the candidate's criminal convictions, if any.

Prior to the end of an observer training course, the observer will be required to complete a cardiopulmonary resuscitation/first aid course.

Scallop vessels may power down their VMS unit for a minimum of 30 days provided the vessel does not engage in any fishing activity until the unit is turned back on. Such vessels will be required to obtain a letter of exemption from the Regional Administrator. This provision will provide more flexibility and will reduce operating costs for some scallop vessel owners that do not engage in fisheries for extended periods of time.

The general category fishery will be allocated 10 percent of the overall scallop TAC in 2008, and 5 percent in 2009 (unless the IFQ program is not implemented by March 1, 2009, in which case the general category fishery will be allocated 10 percent of the scallop quota). Provided the IFQ program is implemented in 2009, 0.5 percent of the scallop TAC will be allocated to full-time, part-time, or occasional vessels that qualify for an IFQ permit.

The NGOM TAC for both 2008 and 2009 will be 70,000 lb (31,751 kg).

The incidental catch target TAC for the 2008 and 2009 fishing years will be 50,000 lb (22,680 kg) to account for mortality from this component of the fishery and to ensure that F targets are not exceeded.

The annual TAC, excluding the NGOM TAC and incidental catch TAC, will be distributed into quarterly TACs. The fleetwide quarterly TAC will remain in effect until the IFQ program is implemented under Amendment 11 to the FMP. Framework 19 allocates 35 percent (1,523,375 lb (690.99 mt)) of the 2008 directed general category annual TAC to Quarter 1, 40 percent (1,741,000 lb, (789.70 mt)) to Quarter 2, 15 percent (652,875 lb, (296.14 mt)) to Quarter 3, and 10 percent (435,250 lb (197.43 mt)) to Quarter 4. If any portion of the Quarter 1 TAC is not caught, the remainder will be rolled over into Quarter 3; if any portion of the Quarter 2 TAC is not caught, it will be rolled over into Quarter 4. Open area and access area scallop landings by directed general category trips will count against the quarterly TACs. If a quarterly TAC is caught, all directed general category scallop fishing will cease for the remainder of the quarter in access area, and open areas, but excluding the NGOM. If the Quarter 1 TAC (March 1-May 31) is underharvested or exceeded, those pounds will be added or removed from Quarter 3. If the Quarter 2 TAC (June 1-August 31) and/or Quarter 3 TAC (September 1-November 30) are underharvested or exceeded, those pounds will be added or removed from Quarter 4. In addition, since the quarterly TACs are intended to be in place for the entire 2008 fishing year, as specified in Amendment 11, Framework 19 requires that any scallops harvested by general category scallop vessels during the first and/or second quarter prior to implementation of Amendment 11 and Framework 19 are counted against the applicable quarterly TAC.

Starting with the first year of the IFQ program in 2009 or 2010, if necessary, the pool of IFQ vessels that do not qualify for a full-time, part-time, or occasional limited access scallop permit will be allocated 5 percent of the overall scallop TAC; and the pool of full-time, part-time, or occasional limited access vessels that qualify for an IFQ permit will be allocated 0.5 percent of the overall scallop TAC. General category vessels that qualify for an IFQ permit in 2009 will be allocated 5 percent of the overall scallop TAC as follows: 1,182,500 lb (536 mt) from open areas, 785,700 lb (357 mt) from ETAA, and 291,000 lb (132 mt) from Delmarva. Full-time, part-time, and occasional scallop vessels that qualify for an IFQ permit in 2009 will be allocated 225,950 lb (113 mt) from open areas on general category trips.

In the event that implementation of the IFQ program is delayed beyond the start of the 2009 fishing year (March 1, 2009), the IFQ scallop fishery will be allocated 10 percent of the overall scallop TAC and be divided among quarters as described in the preceding section.

In 2008, the general category fishery will be allocated 667 trips in the NLCA, and 2,668 trips in the ETAA, respectively. Because 997 of the 2,668 ETAA trips have already occurred, 1,161 ETAA trips will be allocated to general category vessels when Framework 19 is effective under this final rule. The NLCA will open on June 15, 2008.

In 2009, the general category scallop fishery will be allocated up to 1,964 ETAA trips and up to 728 Delmarva trips. If 2008 ETAA scallop resource surveys indicate a reduced exploitable scallop biomass, or overall 2008 scallop F exceeds 0.29, general category ETAA trip allocations will be subject to trip reduction procedures as specified under Table 1-2009 ETAA Trip Reduction Table. If updated 2008 Delmarva scallop resource surveys indicate the exploitable biomass in Delmarva is less than 10,000 mt, Delmarva will be closed for the 2009 fishing year, and no general category trips will be allocated. General category vessels will not be allocated any trips in CAII because of concerns that negligible fishing effort by general category vessels will occur there. Because general category vessels will receive overall TAC, the zero allocation in CAII will be offset by a higher percentage of overall catch in open areas.

NMFS is required by the Magnuson-Stevens Act to recover the costs directly related to the management, data collection and analysis, and enforcement of IFQ programs such as the one implemented through Amendment 11. Under section 304(d)(2)(A) of the Magnuson-Stevens Act, the Secretary of Commerce is authorized to collect a fee, not to exceed 3 percent of the ex-vessel value of fish harvested, to recover these costs. Therefore, a scallop IFQ vessel will incur a cost recovery fee liability for every landing of scallops. The IFQ permit holder that landed the IFQ scallops will be responsible for submitting this payment to NMFS once per year. The ex-vessel value of scallops used to calculate the cost-recovery fees due for a fishing year will be based on an average of the ex-vessel value of all general category scallops landed between March 1 and September 30 of the initial year of the IFQ program, and October 1 through September 30 of each year thereafter. IFQ permit owners that transferred IFQ scallops (transferee) from another IFQ vessel (transferor) as part of the IFQ scallop transfer program must submit a cost recovery fee for scallops landed by the transferee.

Payment of the cost recovery fee will be a permit condition that must be met before permits may be renewed. On or about October 30 of each year, NMFS will mail a cost recovery bill for the IFQ fee incurred by each IFQ vessel to each IFQ permit holder. Owners of IFQ vessels will be required to submit payment by January 1 of each year. An IFQ scallop vessel's permit will not be renewed (i.e., not issued) by NMFS until payment for the prior year's fees is received in full. Bills will also be made available electronically via the internet. Fee liabilities due January 1 will be for the previous cost recovery period (October 1-September 30 of the year preceding the January 1 due date). For example, for scallops landed October 1, 2009-September 30, 2010, NMFS will issue a cost recovery bill on or about October 30, 2010, and the IFQ permit holder will be required to submit the cost recovery fee by January 1, 2011. If an IFQ permit holder does not pay, or pays less than the full amount due, the vessel's IFQ permit will not be renewed.

Disputes regarding fee liabilities will be resolved through an administrative appeal procedure. If an IFQ permit holder makes a timely payment to NMFS of an amount less than the fee liability NMFS has determined, the IFQ permit holder will have the burden of demonstrating that the fee amount submitted is correct and that the fee calculated by NMFS is incorrect. If, upon preliminary review of the accuracy and completeness of a fee payment, NMFS determines the IFQ permit holder has not paid the amount due in full, NMFS will notify the IFQ permit holder by letter. NMFS will explain the discrepancy and the IFQ permit holder will have 30 days to either pay the amount that NMFS has determined should be paid, or provide evidence that the amount paid was correct. The IFQ permit for the vessel will not be renewed until the payment discrepancy is resolved. If the IFQ permit holder submits evidence in support of his/her payment, NMFS will evaluate it and, if there is any remaining disagreement as to the appropriate IFQ fee, prepare a Final Administrative Determination (FAD). The FAD will set out the facts, discuss those facts within the context of the relevant agency policies and regulations, and make a determination as to the appropriate disposition of the matter. A FAD will be the final agency action. If the FAD determines that the IFQ permit holder is out of compliance, the IFQ scallop permit in question will not be renewed until the conditions established by the FAD are met. If the FAD determines that the IFQ permit holder owes additional fees, and if the IFQ permit holder has not paid such fees, all IFQ permit(s) held by the IFQ permit holder will not be renewed until the required payment is received by NMFS. If NMFS does not receive such payment within 30 days of the issuance of the final agency action, NMFS will refer the matter to the appropriate authorities within the U.S. Department of the Treasury for purposes of collection, and the vessel's IFQ permit(s) will remain invalid. If NMFS does not receive such payment prior to the end of the fishing year, the IFQ permit will be considered voluntarily abandoned.

Cost recovery payments shall be made electronically via the Federal web portal, http://www.pay.gov, or other Internet sites as designated by the Regional Administrator. Instructions for electronic payment will be made available on both the payment Web site and the paper bill. Payment options may include payment via a credit card (the Regional Administrator will specify in the cost recovery bill acceptable credit cards) or direct ACH (automated clearing house) withdrawal from a designated checking account. Payment by check could be authorized by the Regional Administrator if the Regional Administrator has determined that electronic payment is not possible (for example, if the geographical area or an individual(s) is affected by catastrophic conditions).

NMFS will create an annual IFQ report and provide it to the owner of the IFQ permit. The report will include quarterly and annual information regarding the amount and value of IFQ scallops landed during the fishing year, the associated cost recovery fees, and the status of those fees. This report will also detail the costs incurred by NMFS, including the calculation of the recoverable costs for the management, enforcement, and data collection, incurred by NMFS during the fishing year.

A total of 3 relevant comment letters that raised 6 relevant issues were received in response to the proposed rule for Framework 19.

Comment 1: A comment letter was submitted by an observer service provider suggesting that vessels should be compensated for the full cost of observer coverage; including costs associated with observer deployment, at-sea data collection, and post-trip data processing. At the least, vessels should be compensated based on when the vessel leaves the dock at the start of the trip to when the vessel returns to the dock at the end of the trip.

Response: Based on the above comment and in consultation with the NMFS/NEFOP, NMFS has adjusted the proposed rule measures. NMFS has determined that “dock-to-dock,” which is the period of time between vessel departure and landing, is the appropriate method by which an observer provider shall charge scallop vessel owners for observer coverage. Details of this adjustment are detailed in the preamble and regulatory text.

Comment 2: A comment letter was submitted by an environmental advocacy organization supporting the continuation of the September 1 through October 31 ETAA seasonal closure. This letter also requests that NMFS include additional measures to further protect sea turtles, including: A scallop closed season for Delmarva similar to the ETAA closed season; expansion of the Hudson Canyon Access Area boundaries; implementation of the requirements of the recently signed biological opinion for the scallop fishery; and a provision to allow up to 5 percent of the access area TACs and open area DAS to be set-aside for the industry-funded observer program to ensure maximum observer coverage.

Response: NMFS agrees that the continuation of this closure is consistent with the Magnuson-Stevens Act. However, NMFS does not have the authority to expand Framework 19 to include additional management measures as requested by the commenter, or to modify measures developed by the Council. NMFS can only approve or disapprove the specific measures recommended by the Council. NMFS did request that the Council adopt through Framework 21 to the Scallop FMP reasonable and prudent measures to reduce sea turtle take as recommended by the most recent biological opinion. Framework 21 is scheduled to be implemented in 2010.

Comment 3: A comment letter was submitted by an organization representing limited access scallop vessel owners. The commenter suggested that maintaining the F target at 0.20 may be overly cautious and may not achieve optimum yield as required by National Standard 1 of the Magnuson-Stevens Act. The commenter expressed the opinion that the DAS reductions proposed by Framework 19 are not warranted given the status of the scallop resource and the new overfishing definition. Framework 19 would allocate 35 DAS in 2008 and 42 DAS in 2009. The commenter also referenced Amendment 10 to the FMP, which had established the target F at 80 percent of the threshold F, and recommended that the target F should therefore be increased to 0.23 to be consistent with Amendment 10. Consequently, the commenter requested that NMFS disapprove the DAS allocations proposed by Framework 19, and maintain the status quo, which would allocate 51 DAS to full-time scallop vessels in 2008 and 2009.

Response : NMFS has determined that setting the F target at 0.20 is appropriate given that fishing mortality is not uniformly distributed throughout the range of the scallop fishery, but recognizes that maintaining the F target is a conservative approach and may need to be revisited in the future. But because there is concern for localized overfishing in open areas, an F target of 0.20 would help maintain a stable fishery over the long term. NMFS has determined that the DAS allocations proposed through Framework 19 are consistent with National Standard 1 of the Magnuson-Stevens Act.

Comment 4: An organization representing limited access scallop vessel owners expressed concern that NMFS exceeded its legal authority when it proposed to reduce full-time and part-time DAS allocations in the event the IFQ program is not implemented by the start of the 2009 fishing year and the general category fishery is allocated 10 percent of the scallop quota. The commenter also felt that the general category fishery should not be allocated more than 5 percent of the quota beyond 2009, regardless of whether the IFQ program is implemented.

Response: This provision is entirely consistent with Amendment 11 and its implementing regulations and, therefore, NMFS acted within its legal authority. During the transition period to the general category IFQ program Amendment 11 specifies that the limited access fleet would be allocated DAS in open areas based on an allocation of 90 percent of the total allowable scallop catch, without reference to the length of the transition period. Once the IFQ program is implemented, the limited access fleet would be allocated DAS based on an allocation of 94.5 percent of total scallop catch. In specifying DAS for the 2009 fishing year through Framework 19, the Council presumed that the IFQ program would be in effect and consequently did not specify DAS in the event the IFQ program was not implemented by the start of the 2009 fishing year. Framework 19 does not supersede measures approved as part of Amendment 11. Therefore, consistent with Amendment 11, if the general category fishery is still transitioning to the IFQ program by the start of the 2009 fishing year, the limited access fleet would be allocated DAS in open areas based on an allocation of 90 percent of the total allowable scallop catch. In response to the comment that general category vessels should not be allocated more than 5 percent of the TAC beyond 2009, the Council is scheduled to recommend future scallop specifications beyond the 2009 fishing year through a future framework to the FMP. However, if the Council does not specify otherwise, the 10-percent scallop quota allocation to the general category fishery will remain in effect during the transition period to the IFQ program.

Comment 5: An organization representing limited access scallop vessel owners supported the Council's recommendation to adjust the observer set-aside compensation rates.

Response: NMFS did consider the Council's request and evaluated the current set aside rates and determined that, although there is a possibility that the current DAS set-aside rate may not fully offset the cost of carrying an observer, on balance, the current rate provides the greatest benefit to the fleet and should not change for the 2008 fishing year. NMFS determined that if the DAS compensation rate was increased, the DAS set aside would likely not last through the fishing year, resulting in some vessel owners needing to pay the full cost of observer DAS trips. Therefore, the reduced DAS charge on observed DAS trips will remain at 0.85 for the 2008 fishing year to ensure an equitable distribution of DAS compensation for vessels required to carry an observer on a DAS trip. The Regional Administrator may re-evaluate the DAS compensation rate prior to the start of the 2009 fishing year.

Comment 6: An organization representing limited access scallop vessel owners supports the VMS power down provision.

Response: NMFS agrees that the power down provision will provide benefits to the scallop fishery without compromising the objectives of the FMP.

In § 648.4(a)(2)(ii)(D)( 2 ), the conversion from in-shell scallop weight to meat weight is revised to specify that 8.33 lb (3.78 kg) of in-shell scallops will be converted to one pound (0.45 kg) of scallop meats.

In § 648.4(a)(2)(ii)(E), the IFQ contribution factor reference is corrected to read § 648.53(h)(2)(ii)(A).

In § 648.4(a)(2)(ii)(I)( 3 ), the date April 14, 2008, is changed to July 1, 2008, to reflect the effective date of Amendment 11 permit requirements as indicated in the final rule for Amendment 11.

Section 648.11(g)(2)(ii) is revised to clarify the general category access area observer reporting requirements.

In § 648.11, paragraph (g)(3) is revised to state that NMFS shall respond to a trip notification within 24 hours, not 72 hours as erroneously noted in the proposed rule.

In § 648.11, paragraph (g)(5)(i)(A) revises how observer providers should charge vessel owners for access area trips.

In § 648.11, paragraph (g)(5)(i)(B) revises how observer providers should charge vessel owners for open area DAS trips.

In § 648.11, paragraph (h)(5)(i) is revised to clarify that if pre-certification observer data is accepted, the observer would be certified.

In § 648.11, paragraph (h)(5)(vi) is revised to clarify that observer providers must submit candidate information to NMFS within 7 days to the beginning of a class.

In § 648.11, paragraph (h)(5)(vii)(A) is revised to require observer reports to be submitted to NMFS within 24 hr of landing, not 12 hr as noted in the proposed rule. The change in the final rule makes the regulation consistent with the Framework 19 document.

In § 648.53, paragraph (a)(1) is revised to clarify the 2008 scallop fishery allocations.

In § 648.53, paragraph (a)(2) is revised to clarify the 2009 scallop fishery allocations.

In § 648.53, paragraphs (a)(4)(i), (a)(4)(ii), (a)(5)(i), (a)(5)(ii), (a)(5)(iii) are revised to more clearly describe how the scallop quota is divided.

In § 648.53, paragraph (a)(5)(ii) is revised to correctly reference § 648.53(a)(7).

In § 648.53, paragraph (h)(2)(ii) is revised to correctly reference the index factor in § 648.53(h)(2)(ii)(A).

Revisions in § 648.59 have been made to reflect changes that were made in the final rule for Amendment 11 to the FMP. Also, two revisions of paragraphs within § 648.59 are included to reflect measures effective June 1, 2008, and July 1, 2008, under the same paragraphs.

In § 648.60, the table in paragraph (a)(2) listing 2009 research set-aside and observer set-aside adjustment weights is corrected.

Other editorial and minor changes were made throughout the rule to clarify various provisions in this action.

NMFS has determined that Framework 19 as implemented by this rule is necessary for the conservation and management of the Atlantic sea scallop fishery and is consistent with the Magnuson-Stevens Act and other applicable law.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

The Assistant Administrator for Fisheries has determined that the need to implement these measures in a timely manner to avoid continuation of measures that are inconsistent with the measures in Framework 19 that are designed to meet the resource conservation goals of the FMP constitutes good cause under authority contained in 5 U.S.C. 553(d)(3) to waive the 30-day delay in effective date and establish an effective date of June 1, 2008. Framework 19 measures need to be effective on the same day that the allocation measures for Amendment 11 to the FMP (Amendment 11) measures are effective. Amendment 11 specifies the level of TACs that will be allocated to the general category and limited access scallop fleets to be effective on June 1, 2008. Amendment 11 does not include the actual fishery specifications that would make the full suite of Amendment 11 measures effective in controlling the general category fishery. Rather, the specific TACs based on Amendment 11 are part of Framework 19. As such, implementation of Framework 19 is directly responsible for achieving the effectiveness of Amendment 11 allocation and harvest limit measures. Delaying the measures would compromise the ability to achieve the overall benefits to the resource, fishery, and economy that are anticipated in Amendment 11, to the detriment of the public.

In addition, without the measures included in Framework 19, the limited access scallop fleet will continue to fish under fishing year 2007 DAS and Sea Scallop Access Area trip allocations that continue to be in effect from March 1, 2008, and until Framework 19 is implemented. Current DAS allocations are inconsistent with the measures in Framework 19 designed to meet the resource conservation goals of the FMP. Specifically, open area DAS are higher under current measures than will be implemented under Framework 19 and vessel owners and operators have the potential of exceeding the Framework 19 DAS allocations. Because these vessels have been fishing under the current allocations since March 1, 2008, it is likely that some vessels have already exceeded their Framework 19 DAS allocations. Vessel owners continue to be faced with uncertainty for future allocations, and will have DAS reduced in 2009 if DAS used exceed the Framework 19 allocated DAS.

NMFS accepted the Council's submission of Framework 19 in December 2007 and anticipated that the final rule could not be published by March 1, 2008, because of its complexity and because Framework 19 could not be made effective until Amendment 11 was effective. NMFS anticipated that Framework 19 would need to be effective on the same day, or very shortly after the effective date of Amendment 11, regardless of when the Framework 19 final rule is published. The complexity and relation of the two related actions delayed publication despite efforts to complete the proposed rule earlier. In addition, due to the dependence of Framework 19 on Amendment 11, the development of the final rule for Framework 19 was held until the final rule for Amendment 11 was published on April 14, 2008. The effective date of June 1, 2008, created a brief window for the final rule for Framework 19 to be developed and published.

This final rule contains collection-of-information requirements subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). This requirement has been submitted to OMB for approval. NMFS will publish a subsequent notice when these information collection requirements have been approved by OMB. Public reporting burden for these collections of information are estimated to average as follows:

1. Service provider observer contact information reports, OMB #0648-0546—5 min per response;

2. Service provider observer availability reports, OMB #0648-0546—1 min per response;

3. Copies of service provider outreach materials, OMB #0648-0546—30 min per response;

4. Copies of service provider contracts, OMB #0648-0546—30 min per response.

These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection information. Send comments on these or any other aspects of the collection of information to the Regional Administrator as specified in ADDRESSES above, and by e-mail to David_Rostker@omb.eop.gov or fax to (202) 395-7285.

Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection-of-information requirement subject to the requirements of the PRA, unless that collection-of-information requirement displays a currently valid OMB control number.

NMFS, pursuant to section 604 of the Regulatory Flexibility Act (RFA), has included a final regulatory flexibility analysis (FRFA) in support of Framework 19 in this final rule. The FRFA describes the economic impact that this final rule, along with non-adopted alternatives, will have on small entities. The FRFA incorporates the economic impacts and analysis summarized in the IRFA for the proposed rule to implement Framework 19, the comments and responses in this final rule, and the corresponding economic analyses prepared for Framework 19 (e.g., the EA and the RIR). A copy of the IRFA, the RIR, and the EA are available upon request (see ADDRESSES ).

A detailed description of the reasons for this action, the objectives of the action, and the legal basis for this final rule are found in Framework 19 and the preamble to the proposed and final rules.

A comment letter was submitted by an organization representing limited access scallop vessel owners noting that the economic impacts presented in the proposed rule wrongly characterized that the DAS allocations would have a positive impact on the industry. This was the only comment received with any bearing on the economic analyses summarized in the IRFA.

Response: The IRFA provides a summary of the economic impacts of the management measures combined and of each proposed and alternative management measure. The IRFA demonstrates that the DAS allocations would have positive impacts overall and in the long term. The IRFA is a summary and refers readers to the full economic analysis in the Framework 19 document, which provides extensive detailed analysis of the economic impacts that are estimated through projections that have long been utilized in assessing the economic impacts of scallop fishery management measures.

No changes were made to the final rule as result of the above comment.

The vessels in the Atlantic sea scallop fishery are all considered small business entities and, therefore, there is no disproportionate impact on large and small entities. All of the vessels grossed less than $4 million according to dealer data for the 2004 to 2006 scallop fishing years. Annual total revenue averaged over $1 million in the 2005 fishing year, and about $881,990 in the 2006 fishing year, per limited access vessel. Total revenues per vessel, including revenues from species other than scallops, exceeded these amounts, but were less than $3.5 million per vessel. Average scallop revenue per general category vessel was $88,702 in 2005 and $66,785 in the 2006 fishing years. Average total revenue per general category vessel, including revenue from species other than scallops, exceeded $250,000 in the 2005 and 2006 fishing years. Average revenues per vessel were lower in the 2006 fishing year for all permit categories because of lower scallop prices.

Framework 19 regulations will affect all federally permitted scallop vessels. The Amendment 11 and Framework 19 documents provide extensive information on the number, port, state, and size of vessels and small businesses that will be affected by the regulations. In 2007, there were 346 full-time, 33 part-time, and 1 occasional limited access scallop permits issued, and 2,332 general category permits issued to vessels in the open access general category fishery: 915 category 1B permits and 1,417 category 1A incidental catch permits.

This action contains four new collection-of-information, reporting, and recordkeeping requirements currently under review by OMB. The following describes these requirements.

Observer service providers will be required to provide and maintain an updated list of contact information for all observers. This will facilitate the ability of NMFS/NEFOP to contact observers. Maintaining an up-to-date observer contact list is estimated to entail 5 min per response, 12 responses per year, for a total of 1 burden hour annually. These updates do not have any associated miscellaneous costs.

Service providers will be required to provide and maintain a listing of whether or not the observer is “in service,” indicating when the observer has requested leave and/or is not currently working for the industry-funded program. This will facilitate the ability of NMFS/NEFOP to confirm observer availability. Maintaining an up-to-date observer availability list is estimated to entail 1 min per response, 300 responses per year, for a total of 5 burden hr annually. These updates do not have any associated miscellaneous costs.

Service providers will be required to submit to NMFS/NEFOP, if requested, copies of any materials developed and distributed to vessels, such as informational pamphlets, payment notification, description of observer duties, etc. This will allow NMFS/NEFOP to ensure that information distributed to industry is accurate and in keeping with the objectives of the observer program. It is estimated that NMFS/NEFOP will request copies of service provider outreach materials once a year. It is estimated it will take 30 min to submit this information, for a total burden of 0.5 hour. It is estimated the service providers will incur a total of $5 in mailing fees to submit these materials.

Service providers will be required to submit to NMFS/NEFOP, if requested, a copy of each type of signed and valid contract (including all attachments, appendices, addendums, and exhibits incorporated into the contract) between the observer provider and those entities requiring observer services. This will allow NMFS/NEFOP to ensure contractual information is accurate and in keeping with the objectives of the observer program and help resolve disagreements between industry and the service provider. It is estimated that NMFS/NEFOP will request copies of service provider contracts once a year. It is estimated it will take 30 min to submit this information, for a total burden of 1 hour. It is estimated the service providers will incur a total of $5 in mailing fees to submit these materials.

The long-term overall economic effects of Framework 19 measures are estimated to be slightly positive on revenues; an average of about a 0.5-percent increase per year during 2008-2021.

Average overall annual scallop revenue for a limited access vessel is estimated to increase by 1.3 percent in the 2008 fishing year and by 6.2 percent in the 2009 fishing year compared to no action. Because fishing costs are estimated to decline due to fewer DAS used in the access areas and the open areas, the impacts on the net revenue and vessel profits will be positive, with a 2.1-percent increase expected in fishing year 2008 and a 6-percent increase expected in fishing year 2009.

The economic impacts of the adopted measure for the general category fleet will be positive because the general category TAC will be higher under the adopted alternative compared to the no action alternative. As a result, average scallop revenues and profits for general category vessels are expected to be higher for the adopted alternative compared to no action.

However, the level of general category TAC will be lower than general category scallop landings in recent years, resulting in negative short-term economic impacts. These short-term impacts are due to measures in Amendment 11 that will establish a limited entry program for the general category fishery, thereby reducing general category fishing effort and landings. Since Framework 19 will not change measures adopted through Amendment 11, the impacts to the general category limited entry program are not analyzed here. Section 7.9 of the Environmental Impact Statement for Amendment 11 provides a comprehensive analysis of the economic impacts of the general category limited entry program on small business entities. These analyses indicate that, despite the negative impacts in the short-term, the medium to long-term economic impacts of the limited entry program are expected to be positive for the scallop fishery as a whole.

The overall economic impacts of Framework 19 general category measures are not expected to be significantly different from the impacts analyzed in Amendment 11. Amendment 11 analyzed the economic impacts by assuming that the general category TAC will be 5 million lb (2,2668 mt) in 2008 and 2.5 million lb (1,134 mt) in 2009. Framework 19 will result in a lower TAC: About 4.3 million lb (1,950 mt) TAC in 2008 and 2.2 million lb (998 mt) TAC in 2009. Although these amounts exceed potential TAC levels under the no action alternative, they are slightly less than the landings by the general category vessels in recent years. Landings by vessels that had a general category permit before the control date and that are expected to fish in 2008 were 4.6 million lb (2,087 mt) in 2006. The vessels that are expected to qualify for the limited access general category program, and thus fish in 2009, landed about 2.4 million lb (1,089 mt). Therefore, short-term economic impacts of the general category TAC will be negative on the general category fleet to the extent that the overall TAC prevents these vessels from landing the amount of scallops they will catch without such a constraint. Those distributional impacts were analyzed in Amendment 11. However, a limited access general category fishery will have positive economic impacts over the medium to long term on the vessels that qualify for general category limited access permits and for limited access vessels by preventing overfishing of the scallop resource and the dissipation of profits by uncontrolled entry and effort into the general category fishery.

Other Framework 19 measures, such as the general category quarterly hard TAC, 5-percent access area allocation for general category vessels, observer program improvements, a 30-day VMS power down provision, NGOM hard TAC, and yellowtail TAC adjustments, are expected to provide additional positive impacts by providing vessels the opportunity to reduce fishing costs and increase revenues from scallop fishing.

In some cases the Council only considered one alternative versus a no action alternative if additional alternatives would be outside the scope of Framework 19. The following describes all of the alternatives considered by the Council.

Framework 19 will adjust the GB access area schedule so that the NLCA will be open in 2008 and CAII will be open in 2009. The adopted action to revise the GB access area schedule is expected to have positive economic impacts by providing access to areas with more scallop biomass. This will help increase yield, landings, and revenues from the fishery both in the short and the long term, benefiting both limited access and general category vessels. The only alternative was the no action option, which would have provided access in 2008 to CAI instead of the NLCA. Due to low biomass, CAI will not likely support a fleet-wide trip allocation. Consequently, since both the NLCA and CAII have higher scallop concentrations than CAI, the adopted alternative will result in higher economic benefits than the no action alternative.

The adopted action to allocate additional open area DAS if an access area closes due to the attainment of a scallop yellowtail TAC will continue under the no action alternative, but the values will be changed to reflect current fishery and resource conditions. The adopted DAS conversion rates will be higher than those under no action because scallop biomass in the NLCA and CAII is lower than when the no action DAS conversion rates were established. This DAS conversion measure helps minimize lost revenue that will result from a yellowtail TAC closure. Although this measure will have positive economic impacts on scallop vessels that lost access area trip(s), they will likely receive less revenue from the DAS due to the access area trip to DAS conversion rate, which is based on scallop fishing mortality, not trip revenue. The conversion rate was established so that scallop mortality from the additional DAS will be equivalent to the scallop mortality from an access area. Scallops in open areas are generally smaller than scallops in access areas. No alternatives, other than maintaining conversion rates that are currently in the regulations, were considered. The adopted higher DAS conversion rates will result in higher economic benefits than no action.

Through FY 2007, ending on February 29, 2008, the FMP has allowed scallop vessels to continue fishing in the HCAA under trips that were originally allocated for FY 2005. This extension of the authorized trips was intended to allow vessels to take advantage of additional time to harvest scallops under the allocated trips since scallop catch rates had declined in FY 2005. Under Framework 19, the Council considered whether or not the trips should continue to be extended into FY 2008. The adopted no action alternative to allow all un-used 2005 HCAA trips to expire on February 29, 2008, instead of the rejected alternative of extending them to May 31, 2008, could have negative economic impacts on those vessels that could not take an economically viable trip to HCAA due to the poor resource conditions in this area. But these negative impacts are on 2007 fishing year revenues, not projected revenues under Framework 19. If landings per unit effort (LPUE) improved in early 2007, some vessels may have had incentive to take their trips rather than let them expire, minimizing these negative impacts. The alternative to extend the trip expiration deadline to May 31, 2008, could have reduced the negative impacts compared to no action. However, extending the duration of Hudson Canyon trips until May 31, 2008, could have had negative impacts on future scallop yields resulting in negative long-term economic impacts.

The adopted action to provide access to the ETAA in 2008 and 2009 and Delmarva in 2009 will have positive economic impacts on both limited access and general category vessels because this area has more scallop biomass compared to areas such as open areas and CAI. The procedure to reduce trips will help prevent overfishing, and thus have positive impacts on the scallop resource, and on the long term landings and revenues of scallop vessels. There are no alternatives under the current FMP that would generate higher benefits for scallop vessels. The only alternative is the no action, which would allocate fewer ETAA trips and zero Delmarva trips.

The adopted action will continue to allow a vessel to carry any number of crew on an access area trip. No crew limit will give vessels the most flexibility, potentially reducing total fishing costs, and will therefore have positive economic impacts on scallop vessels. The alternative option would have restricted the crew size to eight or nine persons. This would potentially reduce scallop mortality and control effort, with positive impacts on the scallop resource, landings, and revenues over the long term. On the other hand, limiting crew size would reduce a vessel's flexibility and increase trip costs. Therefore, the economic benefits of this alternative are expected to be small compared to the adopted alternative.

The adopted action will prohibit any scallop vessel on an access area trip from possessing more than 50 U.S. bu (17.6 hL) of in-shell scallops. This prohibition will help reduce scallop discard mortality, and therefore result in higher yields, revenues, and economic benefits. There are no alternatives that would generate higher benefits for the scallop vessels. The only alternative is the no action which would continue to allow deckloading and result in lower economic benefits compared to the adopted alternative.

The adopted alternative will continue to set-aside 2 percent of the scallop TAC for the research set-aside program and 1 percent of the scallop TAC for the industry-funded observer set-aside program. These set-asides are expected to have indirect economic benefits for the scallop fishery by improving scallop information and data made possible by research and the observer program. There are no alternatives that will generate higher benefits for scallop vessels.

The adopted open area DAS allocations are expected to prevent overfishing in open areas and to have positive economic impacts on scallop vessels when combined with controlled access area allocations. Framework 19 will implement the following vessel-specific DAS allocations: Full-time vessels will be allocated 35 DAS in 2008 and 42 DAS in 2009; part-time vessels will be allocated 14 DAS in 2008 and 17 DAS in 2009; and occasional vessels will receive 3 DAS for each year. Except for the no action alternatives, other alternatives would result in slightly higher revenues and profits compared to the adopted action during 2008-2009, but would be offset by lower DAS allocations and resulting reductions in revenues in future years as the result of lower exploitable scallop biomass. The adopted action will allocate fewer open area DAS compared to the no action in both the 2008 and 2009 fishing years, but it will allocate more trips to access areas. As a result, the adopted action will generate higher benefits than the no action alternative.

Amendment 11 will establish a limited entry IFQ program for the general category scallop fishery scheduled to start in 2009. The 2008 fishing year will be a transition year as IFQ shares are established. The adopted action will distribute the 2008 general category quota allocation into quarters to minimize derby-style fishing. This measure will have positive economic impacts over the long-term for vessels that qualify for the general category limited entry program. Although management of the general category fishery by a quarterly hard TAC during the transition period to an IFQ program may result in some degree of derby-style fishing, the quarterly TAC allocation is intended to reduce the extent of derby fishing and lessen the negative economic impacts associated with derby fishing. The adopted alternative (Option A) will allocate 35 percent (1,056,563 lb, (475.25 mt) of the 2008 directed general category annual TAC to Quarter 1, 40 percent (1,207,750 lb, (547.83 mt)) to Quarter 2, 15 percent (452,813 lb, (205.39 mt)) to Quarter 3, and 10 percent (301,875 lb, (136.93 mt)) to Quarter 4. Quarters 1 and 2 will be allocated 75 percent of the TAC because general category access area trips primarily occur in those quarters. Unused TAC from Quarter 1 will roll over to Quarter 3, and unused TAC from Quarter 2 will roll over to the fourth quarter, thereby ensuring the full benefit of the scallop TAC is realized. There was no alternative to the adopted alternative to allocate 10 percent of the overall 2008 scallop TAC to the general category fishery. However, Option B would have distributed a greater percentage of the quarterly 10-percent hard TAC to the first and second quarters (85 percent) and less (15 percent) to the last two quarters, reducing the derby fishing in the first two quarters but increasing it in the last two quarters. This option is not expected to have larger positive economic impacts on the general category fishery compared to the adopted alternative.

The adopted action to allocate 5 percent of the scallop access area TACs in the 2008 and 2009 fishing years is expected to have positive economic impacts on the general category vessels compared to the no action allocation of 2 percent. In 2008, the general category fishery will be allocated 5 percent of the overall NLCA and ETAA TACs, resulting in up to 665 trips in the NLCA, and up to 2,662 trips in the ETAA. In 2009, the general category scallop fishery will be allocated 5 percent of the overall ETAA and Delmarva TACs, resulting in up to 1,967 trips and 726, respectively. General category vessels will not be allocated any trips in CAII.

Because access areas are more productive and have higher LPUE than open areas, it will take less fishing time to catch the 400-lb (181-kg) possession limit. As a result, fishing costs will be lower and profits will be higher for trips taken in the access areas when compared to open areas. Since most general category vessels do not fish in CAII, zero percent allocation for this area will increase open area landings and overall revenues of the general category fishery. The alternative option would have allocated 2 percent of the 2008 and 5 percent of the 2009 access area TACs, which would likely have less economic benefits for general category vessels.

Framework 19 will implement a cost recovery program that will collect 3 percent of the ex-vessel value of scallop product landed to recover the costs directly related to management, data collection and analysis, and enforcement of the general category IFQ program as mandated by the Magnuson-Stevens Act. The adopted alternative estimates total scallop landings will be 45.9 million lb (20,820 mt) in 2009. With ex-vessel prices estimated from $7.55-$8.30, a 3-percent cost recovery will likely range from $519,818 to $571,455 in 2009. Although this measure imposes costs on qualifying IFQ vessels, alternatives to reduce those costs, either by not implementing a cost recovery program, or collecting less than 3 percent, would be contrary to the Magnuson-Stevens Act, which requires a full cost recovery program to be implemented for each IFQ program.

Amendment 11 will establish a NGOM Management Area that will be managed under a hard quota system. Framework 19 will establish the NGOM annual specifications. The adopted NGOM TAC is expected to have positive economic impacts for vessels that do not qualify for limited access IFQ permit but do qualify for a NGOM permit because it will allow them to land scallops in this area during favorable resource conditions. The adopted hard TAC of 70,000 lb (32 mt) is expected to generate more than $500,000 in scallop revenue for NGOM vessels in 2008-2009. The Council discussed higher TACs for the NGOM, but none were considered consistent with Amendment 11 and therefore were rejected and not analyzed.

Amendment 11 includes a provision that the FMP should consider the level of mortality from incidental catch and remove that from the projected total catch before allocations are made to general category and limited access fisheries. The adopted action to remove incidental scallop catch before making allocations to limited access and directed general category vessels will ensure F targets are not exceeded, and thus will have positive impacts on the resource, scallop yield, and on the revenues and profits of scallop vessels. Framework 19 will establish the incidental catch target TAC for the 2008 and 2009 fishing years. The target TAC will be established at 50,000 lb (22.68 mt) per year in 2008 and 2009. This measure is based on the best available estimate of incidental catch and, therefore, no alternatives were considered.

The Council recommended a new overfishing definition based on results from the recent scallop stock assessment (SAW 45) which used a new model to characterize the scallop resource, including a new biomass target and threshold, as well as a new F threshold. The adopted action to adjust the overfishing definition will have positive impacts on the scallop resource, scallop landings, revenues, and profits of scallop vessels over the long term by more accurately defining the biomass reference points and appropriate F threshold based on the biomass reference points. Maintaining the F target at the precautionary level of 0.20 will also reduce the risk of localized overfishing in open areas. The Council also considered maintaining the current overfishing definition but, for the reasons stated, the new overfishing definition will provide greater benefits to the fishery. The alternative that would increase the F target is less precautionary. Although it would increase landings and economic benefits over the short term, it could result in overfishing and lower long-term economic benefits.

Framework 19 includes several measures that will improve oversight and administration of the scallop observer program. Measures include: Greater oversight by NNMFS/NEFOP of observer availability; observer provider materials and contracts; closer correlation between service provider fees and observer set-aside compensation rates; adjusted general category access area trip notification requirements; and observer notification and observer waiver requirements, among others. The adopted action will have positive economic impacts by improving the administration and reducing the cost burden of the observer program on scallop vessels by improving observer program efficiency and by making provider fees more commensurate with observer set-aside compensation rates. The no action alternatives will not include observer program improvements, and therefore, will not facilitate the effectiveness and efficiency of the industry-funded observer program.

The adopted action will establish the HCAA as a rotational management area and close it for at least the 2008 and 2009 fishing years to protect young scallops. This is expected to have positive economic impacts over the long term by reducing mortality and increasing yield from this area. As a rotational closed area, the HCAA is expected to provide for increased economic benefits to the scallop industry, consistent with the area rotation program. The foundation of the area rotation program is to increase yield from the scallop resource and thereby increase overall benefits. Two different boundary alternatives for HCAA were considered but not selected by the Council. These alternative closures would have slightly increased the revenues and economic benefits for the scallop vessels compared to the adopted HCAA closure boundaries, but would allocate fewer open area DAS in the 2008 fishing year.

The adopted action to implement a 30-day VMS power down provision will reduce the burden on vessel owners to maintain a transmitting VMS on their vessel for long periods when it is not fishing. This provision will have some positive economic impacts by reducing vessel operation costs. There are no other alternatives other than no action which does not allow vessels to power down the VMS unit.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a small entity compliance guide was prepared. The guide will be sent to all holders of permits issued for the Atlantic scallop fishery. In addition, copies of this final rule and guide (i.e., permit holder letter) are available from the Regional Administrator and are also available from NMFS, Northeast Region (see ADDRESSES ).

The CPS FMP, which is implemented by regulations at 50 CFR part 660 subpart I, divides management unit species into two categories: actively managed and monitored. Harvest guidelines for actively managed species (Pacific sardine and Pacific mackerel) are based on formulas applied to current biomass estimates. Biomass estimates are not calculated for species that are only monitored (jack mackerel, northern anchovy, and market squid).

During public meetings each year, the biomass for each actively managed species within the CPS FMP is presented to the Pacific Fishery Management Council's (Council) Coastal Pelagic Species Management Team (Team) and the Council's Coastal Pelagic Species Advisory Subpanel (Subpanel). At that time, the biomass, the acceptable biological catch (ABC) and the status of the fisheries are reviewed and discussed. This information is then presented to the Council along with HG recommendations and comments from the Team and Subpanel. Following review by the Council and after hearing public comment, the Council makes its HG recommendation to NMFS.

A full assessment for Pacific sardine was conducted this management cycle and reviewed by a Stock Assessment Review (STAR) Panel in La Jolla, California, September 18-21, 2007. This assessment produced an estimated biomass of 832,706 metric tons (mt). Applying this biomass number to the harvest control rule in the FMP produces an ABC for the 2008 fishery of 89,093 (mt).

In November, the Council adopted, and NMFS then approved, an ABC or HG of 89,093 mt for the 2008 fishing year. This ABC is 42 percent less than the ABC/HG adopted by the Council for the 2007 fishing season. The Council also adopted, and NMFS approved, a set-aside of 8,909 mt (10 percent of the ABC), establishing a directed harvest fishery of 80,184 mt and an incidental fishery of 8,909 mt. The purpose of the incidental fishery is to allow for incidental landings of Pacific sardine in other fisheries and prevent the closure of such fisheries, particularly other CPS fisheries, if a seasonal directed fishery total is reached and directed fishing is closed. In turn the set-aside also helps to ensure the fishery does not exceed the ABC.

The Pacific sardine HG is apportioned based on the following allocation scheme established by Amendment 11 (71 FR 36999, June 29,2006) to the CPS FMP: 35 percent is allocated coastwide on January 1; 40 percent, plus any portion not harvested from the initial allocation is reallocated coastwide on July 1; and on September 15 the remaining 25 percent, plus any portion not harvested from earlier allocations is released. If the total HG or these apportionment levels for Pacific sardine are reached at any time, the Pacific sardine fishery will be closed via appropriate rulemaking until it re-opens either per the allocation scheme or the beginning of the next fishing season. The Regional Administrator shall publish a notice in the Federal Register the date of the closure of the directed fishery for Pacific sardine.

The set-aside is based on recent annual incidental sardine landing rates in other fisheries during each of the seasonal allocation periods. The set-aside is initially allocated across these periods in the following way: January 1-June 30, 26,550 mt is allocated for directed harvest with an incidental set-aside of 4,633 mt; July 1-September 14, 34,568 mt is allocated for directed harvest with an incidental set-aside of 1,069 mt; September 15-December 31, 19,066 mt is allocated for directed harvest with an incidental set-aside of 3,207 mt.

If during any of the seasonal allocation periods the applicable adjusted directed harvest allocation is projected to be taken, only incidental harvest will be allowed and, for the remainder of the period, any incidental Pacific sardine landings will be counted against that period's incidental set aside. The incidental fishery will also be constrained to a 20-percent by weight incidental catch rate when Pacific sardine are landed with other CPS to minimize targeting of Pacific sardine and to maximize landings of harvestable stocks. In the event that an incidental set-aside is projected to be attained, all fisheries will be closed to the retention of Pacific sardine for the remainder of the period via appropriate rulemaking. If the set-aside is not fully attained or is exceeded in a given seasonal period, the directed harvest allocation in the following seasonal period will be automatically adjusted to account for the discrepancy. The above in-season harvest restrictions are not intended to affect the prosecution the live bait portion of the Pacific sardine fishery.

For further background information on this action please refer to the preamble of the proposed rule (73 FR 20015).

NMFS received one comment regarding the Pacific sardine annual specifications.

Comment 1: The commenter stated that they believed that the catch specifications for CPS do not adequately take into account broader ecosystem needs and information such as foraging requirements of other species that may feed on Pacific sardine.

Response: NMFS agrees that Pacific sardine is an important prey component of the California Current ecosystem and as such the current harvest control rule formula used to determine the harvest guideline for Pacific sardine takes into account ecosystem as well as physical environmental factors. This is achieved by means of a formula that, after overall biomass is determined, takes into account the viability of the sardine stock and its value as forage when determining the guideline number. This is accomplished by a harvest rate or harvest “fraction” that is adjusted between 5 percent and 15 percent based on current ocean temperatures. Because past shifts in sardine productivity are linked with warm or cold ocean regimes a higher fraction is allotted for harvest when ocean temperatures are warmer and sardine production is greater, while the lower fraction is used when ocean temperatures are cooler and sardine production is decreased. In addition, a 150,000 mt stock biomass threshold, or “cutoff”, is established below which no harvest is allowed in order to ensure a minimum spawning biomass is protected. Each year this “cutoff” number of 150,000 mt is subtracted from the overall biomass number before the harvestable biomass is calculated to take into account the importance of Pacific sardine as forage.

The Administrator, Southwest Region, NMFS, determined that this final rule is necessary for the conservation and management of the CPS fishery and that it is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.

NMFS 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) for the closure of the January 1- June 30 directed harvest of Pacific sardine. For the reasons set forth below, notice and comment procedures are impracticable and contrary to the public interest. For the same reasons, NMFS also finds good cause under 5 U.S.C. § 553(d)(3) to waive the 30-day delay in effectiveness for both the establishment of the harvest guideline and closure of the January 1 June 30 directed harvest. These measures respond to the best available information and are necessary for the conservation and management of the Pacific sardine resource. The most recent data from the fishery, received by NMFS on May 11, 2008, shows that projected landings, along with some previously reported landings, are significantly greater than anticipated. Based on this data, NMFS believes that the directed harvest allocation for the period January 1 through June 30 will be attained much sooner than predicted and prior to publication of this rulemaking. A delay in effectiveness would cause the fishery to further exceed the in-season directed harvest level. These seasonal harvest levels are important mechanisms in preventing overfishing and managing the fishery at optimum yield. The established directed and incidental harvest allocations are designed to allow fair and equitable opportunity to the resource by all sectors of the Pacific sardine fishery and to allow access to other profitable CPS fisheries, such as squid and Pacific mackerel. Many of the same fishermen who harvest Pacific sardine rely on these other fisheries for a significant portion of their income. To help keep the regulated community advised of the progression of sardine landings, the California Department of Fish and Game provided a detailed accounting of landings-to-date to the CPS Advisory Subpanel in late April. The Subpanel is comprised of representatives from all sectors and regions of the sardine industry, including processors, fishermen, user groups and fishermen association representatives. As landing totals have become available, they are also posted on NMFS' Southwest Regional Office website, http://swr.nmfs.noaa.gov/ . NMFS will also announce this closure through other means available, including fax, email, and mail to fishermen, processors, and state agencies. Therefore, NMFS finds that there is good cause to waive the 30-day delay in effectiveness in this circumstance.

This final rule is exempt from Office of Management and Budget review under Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule (73 FR 20015) and is not repeated here. No comments were received regarding this certification or the economic impact of the proposed rule. As a result, a regulatory flexibility analysis was not required and none was prepared.