On December 7, 2006, the Department published an interim rule with request for comments amending 8 CFR 1003.1. Board of Immigration Appeals: Composition of Board and Temporary Board Members, 71 FR 70855. As explained in the interim rule, following a comprehensive review of the Immigration Courts and the Board, the Attorney General announced a series of measures be taken to improve adjudications by the immigration judges and the Board. Increasing the number of Board members was one of the measures the Attorney General directed the Director of EOIR to implement. Accordingly, the interim rule increased the Board from 11 to 15 members.

The interim rule also amended the Director's temporary appointment authority by creating an additional category of people eligible to serve as temporary Board members. The amendment allows the Director, with the approval of the Deputy Attorney General, to designate senior EOIR attorneys with at least ten years of experience in the field of immigration law.

The Department provided an opportunity for post-promulgation comment even though this is a rule of internal agency organization. Written comments were required on or before February 5, 2007. One comment was received. However, the comment does not relate to the issues set forth in the interim rule. Instead, it expresses an opinion about an increase in fees “to be charged immigrants who wish to change their status, or begin the process of applying for citizenship in our country.” Because this comment does not address the changes set forth in the interim rule, it has not been considered. Accordingly, the interim rule amending 8 CFR part 1003 that was published at 71 FR 70855 on December 7, 2006, is adopted as a final rule without change.

Compliance with requirements in 5 U.S.C. 553 with regard to notice of proposed rulemaking and delayed effective date is unnecessary as this rule addresses only internal agency organization and management. Accordingly, it is not a “rule” as that term is used by the Congressional Review Act (Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)), and the reporting requirement of 5 U.S.C. 801 does not apply.

The Regulatory Flexibility Act (RFA) mandates that an agency conduct an RFA analysis when an agency is “required by section 553 * * *, or any other law, to publish general notice of proposed rulemaking for any proposed rule.” 5 U.S.C. 603(a). RFA analysis is not required when a rule is exempt from notice and comment rulemaking under 5 U.S.C. 553(b). This rule is exempt from notice and comment rulemaking. Therefore, no RFA analysis under 5 U.S.C. 603 is required for this rule.

This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Act of 1996, 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

The Department does not consider this rule to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review.

This rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, this rule does not have sufficient federalism implications to warrant preparation of a federalism summary impact statement.

This rule has been prepared in accordance with the standards in sections 3(a) and 3(b)(2) of Executive Order 12988.

This rule does not create any information collection requirement.

On February 29, 2008, the FAA published a final rule (73 FR 10987) that provided new and revised airworthiness standards for normal and transport category rotorcraft. The amendment re-designated § 27.79, as new § 27.87. However, in § 27.25(a)(1)(iv) and § 27.1587(a), we inadvertently made references to § 27.79 instead of § 27.87 as intended. This document makes the correction to reflect § 27.87 as the intended reference. This correction will not impose any additional requirements.

The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. This streamlined process will allow us to adopt MCAI safety requirements in a more efficient manner and will reduce safety risks to the public. This process continues to follow all FAA AD issuance processes to meet legal, economic, Administrative Procedure Act, and Federal Register requirements. We also continue to meet our technical decision-making responsibilities to identify and correct unsafe conditions on U.S.-certificated products.

This AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The AD contains text copied from the MCAI and for this reason might not follow our plain language principles.

The European Aviation Safety Agency (EASA), which is the technical agent for the Member States of the European Community, has issued an MCAI in the form of EASA Airworthiness Directive No. 2007-0295R1-E, dated December 4, 2007 (referred to after this as “the MCAI”), to correct an unsafe condition for these Italian-certificated helicopters. The MCAI states:

Agusta has issued Alert Bollettino Tecnico No. 109EP-83, No. 109S-18, and No. 119-25, all dated November 29, 2007. The actions described in the MCAI are intended to correct the same unsafe condition as that identified in the service information.

This product has been approved by the aviation authority of Italy, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, we have been notified of the unsafe condition described in the MCAI and the service information. We are issuing this AD because we evaluated all pertinent information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.

We have reviewed the MCAI and related service information and, in general, agree with their substance. However, we have made the following changes:

• The compliance times in this AD are stated in terms of hours time-in-service rather than calendar dates, as stated in the MCAI.

• This AD is not applicable to the Model A109LUH helicopters because they are not type certificated in the United States.

In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. These differences are highlighted in the “Differences Between the FAA AD and the MCAI” section in the AD.

We estimate that this AD will affect 140 helicopters of U.S. registry and that it will take about 1 work-hour to inspect both doors and 2 work-hours to re-work both doors, if necessary, per helicopter. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of the AD on U.S. operators to be $33,600, assuming all 140 helicopters are inspected and require rework of both doors.

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because inspecting for interference between the pilot and co-pilot door lower hinge and the fuselage structure is required within 5 hours time-in-service, and, if there is no interference, rework is required within 100 hours time-in-service (which equates to approximately 2 months of operations), both very short compliance times, and if interference is found, corrective action is required before further flight. Therefore, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in fewer than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2008-0630; Directorate Identifier 2008-SW-19-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 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 an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

Authority for This Rulemaking

This rulemaking is promulgated under the authority described in 49 U.S.C. 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.

The ETOPS final rule, Extended Operations (ETOPS) of Multi-Engine Airplanes, published in the Federal Register on January 16, 2007, (72 FR 1808) applies to part 121 and part 135 turbine powered multi-engine airplanes used in passenger-carrying, extended-range operations. All cargo operations in airplanes with more than two engines of both part 121 and part 135 were exempted from the majority of this rule. The rule established regulations governing the design, operation, and maintenance of certain airplanes operated on flights involving long distances from an adequate airport. It codified current FAA policy, industry best practices and recommendations, and international standards designed to ensure long range flights will continue to operate safely. To ease the transition for current operators, the rule included delayed compliance dates for certain ETOPS requirements. However, as written, the final rule language does not accurately reflect the intent of the FAA to have a qualified mechanic perform the ETOPS pre-departure service check (PDSC) even though this intent is clearly stated in the preamble.

The regulatory evaluation, found in the docket of the final rule (Docket No. 2002-6717), further substantiates the FAA's intent by using the hourly wage rate of an aircraft mechanic as the basis for establishing the cost of this requirement.

We find that notice and public comment under 5 U.S.C. 553(b) is impracticable because part 121 regulation, as currently written, would clearly require the use of mechanics with airframe and powerplant ratings to be the only people who could certify by signature the ETOPS pre-departure service check for ETOPS flights, even for flights outside of the United States. As written, an operator would be required to comply with an almost impossible requirement to have mechanics with an airframe and powerplant rating, issued by the FAA, positioned at numerous maintenance facilities outside of the United States. As literally written in the final rule, this requirement is overly burdensome and was not (1) The intent of the FAA, (2) contained in any previous FAA guidance, and (3) contained in the notice of proposed rulemaking for this rule.

We find that notice and public comment under 5 U.S.C. 553(b) is unnecessary for the amendment to part 135 regulations because this intent is clearly stated in the preamble to the final rule. In response to the comment “that the check required immediately before a flight and certified by an ETOPS qualified maintenance person is unrealistic for part 135 operators who do not fly ETOPS routes on a regular basis”, the FAA responded, “The FAA disagrees that a predeparture service check is unrealistic for 135 operators. Part 135 operators are already required to have procedures in place to ensure that maintenance is performed by properly qualified maintenance personnel. Allowing a pilot to perform a PDSC degrades the importance of the check and places a safety critical task below the level of performance required to change a tire or replace a light bulb for reading” (72 FR 1858, January 16, 2007).

Following publication of the ETOPS final rule, the FAA learned that the qualification requirements for mechanics certifying by signature the completion of the ETOPS PDSC did not codify existing FAA ETOPS guidance for part 121 operators. Since 1998, FAA Advisory Circular (AC) 120-42A, Extended Range Operation with Two-Engine Airplanes (applicable to part 121 operators) has stated, “This check should be accomplished and signed off by an ETOPS qualified maintenance person, immediately prior to an ETOPS flight.”

In the United States, this person is typically a certificated mechanic with an airframe and powerplant rating who received adequate airplane and engine specific training, as well as ETOPS specific training focused on the special nature of ETOPS flights. Outside of the United States, however, it is extremely difficult for an operator to ensure that a certificated mechanic with an airframe and powerplant rating performs the pre-departure service check. In many cases, these maintenance technicians do not possess U.S. Mechanic's Certificates with Airframe and Powerplant Ratings. Instead, they have their country's Civil Aviation Authority's equivalent to an airframe and powerplant rating. The FAA does not officially recognize maintenance technicians' certificates from other countries except in the case of the Canadian equivalent to the U.S. Airframe and Powerplant Certificate (14 CFR 43.17).

In order for U.S. ETOPS operators to function overseas, the FAA consistently allowed part 121 operators to establish alternative qualification criterion to ensure an equivalent level of safety for maintenance technicians who conduct pre-departure service checks for ETOPS flights. Outside the U.S., the FAA always allowed the pre-departure service check for ETOPS flights for part 121 operators to be accomplished and signed off by trained maintenance personnel who work for a repair station or another part 121 operator.

The final rule did not accurately convey the FAA's intent to codify current practice and apply it to both part 121 and part 135 operators. This rule clarifies FAA's intent and corrects the regulatory language in §§ 121.374(b)(3) and Appendix G to Part 135, section G135.2.8(b)(3) and new (b)(4).

The language in current § 121.374(b)(3), as written, requires the use of mechanics with airframe and powerplant ratings to be the only people who can certify by signature the ETOPS pre-departure service check for ETOPS flights, including flights outside the United States. As written, an operator is required to comply with an almost impossible requirement to have mechanics with an airframe and powerplant rating, issued by the FAA, positioned at numerous maintenance facilities outside of the United States. This requirement is (1) overly burdensome, (2) not the intent of the FAA, and (3) contrary to FAA guidance. The FAA has reconsidered the applicability of this rule in consideration of existing guidance and determined that this requirement must be consistent with existing guidance and practice.

The language in current Appendix G to Part 135, section G135.2.8(b)(3), does not accurately reflect the intent of the FAA to have a qualified maintenance person perform the ETOPS PDSC.

The intent is clearly stated in the preamble of the final rule (72 FR 1808, January 16, 2007). In response to the public comment “* * * that the check required immediately before a flight and certified by an ETOPS qualified maintenance person is unrealistic for part 135 operators who do not fly ETOPS routes on a regular basis”, the FAA responded, “The FAA disagrees that a pre-departure service check is unrealistic for part 135 operators.”

There are no new requirements for information collection associated with these amendments.

The FAA included a detailed discussion of the new information collection requirements of the proposed rule at 68 FR 64782, November 14, 2003. No comments were received on these estimated requirements.

In keeping with U.S. obligations under the convention on International Civil Aviation, it is FAA policy to comply with International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has reviewed the corresponding ICAO Standards and Recommended Practices and has identified no differences with these regulations.

Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 directs each Federal agency to propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, this Trade Act also requires agencies to consider international standards and, where appropriate, use them as the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this final rule.

Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If the expected cost impact is so minimal that a proposed or final rule does not warrant a full evaluation, this order permits that a statement to that effect, and the basis for it, be included in the preamble if a full regulatory evaluation of the cost and benefits is not prepared. Such a determination has been made for this final rule. The reasoning for this determination follows:

Since this final rule merely clarifies FAA regulations covering ETOPS flights, the expected outcome will be a minimal impact with positive net benefits and a regulatory evaluation was not prepared.

FAA has, therefore, determined that this final rule is not a “significant regulatory action” as defined in section 3(f) of Executive Order 12866 and is not “significant” as defined in DOT's Regulatory Policies and Procedures.

The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and explain the rationale for their actions to assure such proposals are given serious consideration. The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations and small governmental jurisdictions.

Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.

However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.

This final rule merely clarifies FAA regulations covering ETOPS flights. The expected outcome will have minimal impact on any small entity affected by this rulemaking action.

Therefore, as the Acting FAA Administrator, I certify that this rule will not have a significant economic impact on a substantial number of small entities.

The Trade Agreements Act of 1979 (Pub. L. 96-039) prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.

The requirements imposed on both domestic and foreign operators create no obstacles to the foreign commerce of the United States. Thus, complies with the Trade Agreements Act of 1979.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $136.1 million in lieu of $100 million.

This final rule does not contain such a mandate; therefore, the requirements of Title II of the Act do not apply.

The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. We determined that this action will not have a substantial direct effect on the States, or the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, we have determined that this final rule does not have federalism implications.

You can get an electronic copy of rulemaking documents using the Internet by:

(1) Searching the Federal eRulemaking Portal at http://www.regulations.gov ;

(2) Visiting the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies/ ; or

(3) Accessing the Government Printing Office's Web page at http://www.gpoaccess.gov/fr/index.html .

You can also get a copy by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue, SW., Washington, DC 20591, or by calling (202) 267-9680. Make sure to identify the amendment number or docket number of this rulemaking.

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. Therefore, any small entity that has a question regarding this document may contact their local FAA official or the person listed under FOR FURTHER INFORMATION CONTACT heading at the beginning of the preamble. You can find out more about SBREFA on the Internet at http://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

The Missile Technology Control Regime (MTCR) is an export control arrangement among 34 nations, including most of the world's advanced suppliers of ballistic missiles and missile-related materials and equipment. The regime establishes a common export control policy based on a list of controlled items (the Annex) and on guidelines (the Guidelines) that member countries implement in accordance with their national export controls. The goal of maintaining the Annex and the Guidelines is to stem the flow of missile systems capable of delivering weapons of mass destruction to the global marketplace.

While the MTCR was originally created to prevent the spread of missiles capable of carrying a nuclear warhead, it was expanded in January 1993 to also stem the flow of delivery systems for chemical and biological weapons. MTCR members voluntarily pledge to adopt the regime's export Guidelines and to restrict the export of items contained in the regime's Annex. The implementation of the regime's Guidelines is effectuated through the national export control laws and policies of the regime members.

This final rule revises the Export Administration Regulations (EAR) to reflect changes to the MTCR Annex agreed to at the November 2007 Plenary in Athens, Greece. Specifically, in section 772.1 (Definitions of Terms as Used in the Export Administration Regulations), this rule amends the technical notes to the definition of the term “payload” to include munitions supporting structures and deployment mechanisms under paragraphs (e)(5) and (e)(7) (MTCR Annex Change Definitions: “Payload” Technical Notes 5.e and 5.g). This will clarify under the paragraph (e) technical notes to the definition of “payload” that payload for “other UAVs” (Unmanned Aerial Vehicles) includes munitions supporting structures and deployment mechanisms.

In addition, this rule amends the Commerce Control List (CCL) (Supplement No. 1 to Part 774 of the EAR) to reflect changes to the MTCR Annex. Specifically, the following Export Control Classification Numbers (ECCNs) are affected:

ECCN 1C111 paragraph (b) is amended by adding additional text to clarify the scope of materials controlled in this entry (MTCR Annex Change Category II: Item 4.C.5). Specifically, paragraph b.1 is amended to state that carboxy-terminated polybutadiene includes carboxyl-terminated polybutadiene. Similarly, paragraph b.2 is amended to state that hydroxy-terminated polybutadiene includes hydroxyl-terminated polybutadiene. BIS expects this change to have a minimal impact on license applications.

ECCN 1C116 is amended by adding text to the heading to clarify the scope of the entry (MTCR Annex Change Category II: Item 6.C.8). This change is made to clarify that maraging steels are iron alloys generally characterized by high nickel, very low carbon content, and the use of substitutional elements or precipitates to produce strengthening and age-hardening of the alloy. BIS expects this change to have a minimal impact on license applications.

ECCN 2B116 paragraph (a) is amended by removing the word “and” and replacing it with “while” to clarify the scope of the vibration test modes controlled under this paragraph (MTCR Annex Change Category II: Item 15.B.1.a). BIS expects this change to have no impact on license applications.

ECCN 9B106 is amended by modifying the heading to read “Environmental chambers usable for rockets, missiles, or unmanned aerial vehicles capable of achieving a “range” equal to or greater than 300 km and their subsystems, as follows (see List of Items Controlled)”. This change makes it clear that this ECCN controls these types of environmental chambers useable for these types of systems and their subsystems. Paragraph (a) of this ECCN is amended by removing paragraph a.1, redesignating paragraph a.2 as a new paragraph a.1, and inserting a new paragraph a.2 that includes a new control parameter. The new control parameter in paragraph a.2 specifies that environmental chambers controlled by this ECCN include those incorporating, or designed or modified to incorporate, a shaker unit or other vibration test equipment that produce vibration environments equal to or greater than 10 g rms, measured ‘bare table', between 20 Hz and 2 kHz imparting forces equal to or greater than 5 kN (MTCR Annex Change Category II: Item 15.B.4).

In addition, paragraph (a) of ECCN 9B106 is amended by adding a technical note to clarify the control text and to include controls on environmental chambers that are capable of incorporating shaker units or vibration test equipment, even if the shaker units or vibration test equipment are not included at the time of export (MTCR Annex Change Category II: Item 15.B.4). This change is being made to the EAR to address a missile proliferation concern of the MTCR members with regard to this type of equipment and its usefulness in MTCR type systems (e.g., missile delivery systems). Prior to this change, environmental chambers that were capable of incorporating shaker units or vibration test equipment could be exported without being subject to an MT control when the chambers were exported separately from the shaker units or vibration test equipment controlled under this ECCN. In addition, prior to this change, shaker units or vibration test equipment, when exported separately from the environmental chambers controlled under this ECCN, could be exported without being subject to an MT control. BIS expects this amendment to the EAR to cause a slight increase in license applications.

Shipments of items removed from eligibility for a License Exception or export or reexport without a license (NLR) as a result of this regulatory action that were on dock for loading, on lighter, laden aboard an exporting or reexporting carrier, or en route aboard a carrier to a port of export or reexport, on June 16, 2008, pursuant to actual orders for export or reexport to a foreign destination, may proceed to that destination under the previous eligibility for a License Exception or export or reexport without a license (NLR) so long as they are exported or reexported before July 16, 2008 . Any such items not actually exported or reexported before midnight, on July 16, 2008 , require a license in accordance with this rule.

Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as extended by the Notice of August 15, 2007, 72 FR 46137 (August 16, 2007), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act.

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

2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act, unless that collection of information displays a currently valid Office of Management and Budget Control Number. This rule contains a collection of information subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq. ). This collection has been approved by the Office of Management and Budget under control number 0694-0088, “Multi-Purpose Application,” which carries a burden hour estimate of 58 minutes for a manual or electronic submission.

3. This rule does not contain policies with Federalism implications as that term is defined under E.O. 13132.

4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military and foreign affairs function of the United States (5 U.S.C. 553(a)(1)). Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under the Administrative Procedure Act or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not applicable. Therefore, this regulation is issued in final form.

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “* * * a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act.* * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to the Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the West Virginia program on January 21, 1981. You can find background information on the West Virginia program, including the Secretary's findings, the disposition of comments, and conditions of approval of the West Virginia program in the January 21, 1981, Federal Register (46 FR 5915). You can also find later actions concerning West Virginia's program and program amendments at 30 CFR 948.10, 948.12, 948.13, 948.15, and 948.16.

By letter dated April 8, 2008, and received electronically on April 17, 2008 (Administrative Record Number WV-1503), the West Virginia Department of Environmental Protection (WVDEP) submitted an amendment to its program under SMCRA (30 U.S.C. 1201 et seq. ). The amendment includes changes to the West Virginia Code of State Regulations (CSR) and West Virginia Surface Coal Mining and Reclamation Act (WVSCMRA) as contained in Committee Substitutes for Senate Bills 373 and 751 concerning a variety of topics including new language regarding technical completeness, sediment control, storm water runoff, blasting, excess spoil fills, bonding programs, special reclamation tax, water quality, seismograph records, and definitions. OSM is publishing, under a separate Federal Register notice, the proposed rule and request for comments on changes in the amendment that are not specifically addressed by this action.

Committee Substitute for Senate Bill 751 amended Section 22-3-11 of the WVSCMRA. As stated in the April 8, 2008, letter transmitting the amendment, the revisions contained in Senate Bill 751 related “* * * generally to the special reclamation tax by establishing the Special Reclamation Water Trust Fund; continuing and reimposing a tax on clean coal mined for deposit into both funds; requiring the Secretary to look at alternative programs; and authorizing the Secretary to promulgate legislative rules implementing the alternative programs.”

Specifically, the amended language relating to the special reclamation tax and the Special Reclamation Water Trust Fund reads as follows:

Effective upon publication of this interim rule, we are approving the revisions to section 22-3-11(g) and (h)(1) of the WVSCMRA, which reinstate and increase the Special Reclamation Tax and create the Special Reclamation Water Trust Fund on an interim basis. Since these revisions increase revenues into the State's alternative bonding system and establish a Special Reclamation Water Trust Fund to be used to design, construct and maintain water treatment systems on forfeited sites, we find that they are no less effective than the Federal regulations at 30 CFR 800.11(e). Because our approval of these revisions is interim in nature, and in order to satisfy the public participation requirements for approval or disapproval of State program amendments we will accept comments on the reinstatement of and increase in the Special Reclamation Tax and on the creation of the Special Reclamation Water Trust Fund in accordance with section IV of this Federal Register notice. Following our review of the comments received, we will issue a final rule announcing the Director's final decision on the revisions to section 22-3-11(g) and (h)(1) of the WVSCMRA that are the subject of this interim rule.

Pursuant to the Administrative Procedure Act at 5 U.S.C. § 553(b)(3)(B), we find that good cause exists to approve the revisions to section 22-3-11(g) and (h)(1) of the WVSCMRA on an interim basis without notice and opportunity for comment, because to require notice and opportunity for comment now would be contrary to the public interest in that it would delay the start of the collection of the increased Special Reclamation Tax. Enrolled Committee Substitute for Senate Bill 751 becomes effective under State law on July 1, 2008, and the public interest in the accomplishment of prompt and thorough reclamation of bond forfeiture sites, including water treatment of discharges therefrom, will be adversely affected if the 7.4 cent per ton Special Reclamation Tax cannot be collected on and after that effective date. In any event, as explained above, the public will have an opportunity to comment on the reinstatement of and increase in the Special Reclamation Tax, and on the creation of the Special Reclamation Water Trust Fund, before we make a final decision.

Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether these amendments satisfy the applicable program approval criteria of 30 CFR 732.15. If we approve these revisions, they will become part of the West Virginia program.

Send your written comments to OSM at one of the addresses given above. Your comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommendations. We may not consider or respond to your comments when developing the final rule if they are received after the close of the comment period (see DATES ) or sent to an address other than those listed above (see ADDRESSES ).

Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m. (Eastern time), on July 1, 2008 . If you are disabled and need reasonable accommodation to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT . We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold a hearing.

To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at the public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard.

If there is only limited interest in participating in a public hearing, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT . All such meetings will be open to the public and, if possible, we will post notices of meetings at the locations listed under ADDRESSES . We will make a written summary of each meeting a part of the Docket for this rulemaking.

Based on the above findings, we are approving on an interim basis, the specific revisions outlined above to the West Virginia program as provided to us on April 17, 2008. To implement this decision, we are amending the Federal regulations at 30 CFR Part 948, which codify decisions concerning the West Virginia program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this interim rule effective immediately. Section 503(a) of SMCRA requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this rule effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.

This rule does not have takings implications. This determination is based on an analysis of the State submission.

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

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met.

This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and Section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally-recognized Indian tribes and have determined that the rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. The basis for this determination is that our decision is on a State regulatory program and does not involve a Federal regulation involving Indian lands.

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq .).

The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). The State previously had a special reclamation tax of $0.07 per ton of clean coal mined which expired on September 1, 2006. The tax was used to reclaim bond forfeiture sites in the State. On March 27, 2008, the Governor signed into law a bill that reinstated and increased the special reclamation tax to $0.074 per ton for the period July 1, 2008, through June 30, 2009 and created the Special Reclamation Water Trust Fund for the purpose of designing, constructing and maintaining water treatment systems at bond forfeiture sites. Mined coal would also be subject to an additional tax of $0.07 or a total tax of $0.144 per ton. The combined tax rate of $0.144 will yield approximately $10.7 million in additional revenue for bond forfeiture reclamation, including water treatment, during this 12-month period. The tax is payalabe by all coal operators mining coal in West Virginia, regardless of size.

Based upon the above analysis and discussion, we have determined that this rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the analysis performed under various laws and executive orders for the counterpart Federal regulations.

This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the analysis performed under various laws and executive orders for the counterpart Federal regulations.

On May 18, 2005, the FRA's Railroad Safety Advisory Committee (RSAC) accepted a task statement and agreed to establish the Railroad Operating Rules Working Group (Working Group) whose overall purpose was to recommend to the full committee how to reduce the number of human factor caused train accidents/incidents and related employee injuries. After consideration of the Working Group's recommendations, FRA published a Notice of Proposed Rulemaking (NPRM) on October 12, 2006 to establish greater accountability on the part of railroad management for administration of railroad programs of operational tests and inspections, and greater accountability on the part of railroad supervisors and employees for compliance with those railroad operating rules that are responsible for approximately half of the train accidents related to human factors. See 71 FR 60372. FRA received written comment on the NPRM as well as advice from its Working Group in preparing a final rule, which was published on February 13, 2008. See 73 FR 8442.

Following publication of the final rule, parties filed petitions seeking FRA's reconsideration of the rule's requirements. These petitions principally related to the following subject areas: the implementation dates; shove lights; the need for individual liability and enforcement; good faith challenge procedures; the point protection technology standard for remote control locomotive operations; and FRA's rulemaking authority.

This document responds to all the issues raised in the petitions for reconsideration except the issue pertaining to FRA's rulemaking authority which is being addressed in a separate letter to that specific petitioner. FRA will make that response part of the public docket related to this proceeding. The amendments contained in this document in response to the petitions for reconsideration generally clarify the requirements currently contained in the final rule or allow for greater flexibility in complying with the rule, and are within the scope of the issues and options discussed, considered, or raised in the NPRM.

The specific issues and recommendations raised by the petitioners, and FRA's response to those petitions, are discussed below. The discussion will aid the regulated community in understanding the requirements of the rule.

The Association of American Railroads (AAR) and the American Public Transportation Association (APTA) each submitted a petition for reconsideration requesting delays for the implementation of training and program deadlines found in 49 CFR 217.9 and 218.95. AAR is a trade association whose membership includes freight railroads that operate 72 percent of the line-haul mileage, employ 92 percent of the workers, and account for 95 percent of the freight revenue of all railroads in the United States. AAR's membership also includes passenger railroads that operate intercity passenger trains and provide commuter rail service. APTA's members include commuter railroads. The National Railroad Passenger Corporation (Amtrak) is a member of both AAR and APTA.

AAR and APTA raised similar concerns and requested the same action. Both associations requested that each implementation date contained in 49 CFR 217.9 and 218.95 be extended by six months.

Both petitions for reconsideration explained that railroads will need to overcome certain obstacles to establish a program of operational tests and inspections under 49 CFR 217.9. For example, AAR stated that the recent amendments to this section require each railroad to conduct specific types of periodic reviews and that some railroads have not been using any formal periodic reviews. In addition, those railroads implementing periodic reviews for the first time will need time to craft and implement a carefully thought out and worthwhile program. AAR also pointed out that oversight of the program will require a recordkeeping system that will aid in implementation and tracking compliance and that it is unaware of any railroad having such a recordkeeping system currently in place. Similarly, APTA stated that four months is not enough time for passenger railroads to review accident/incident records, determine which operating rules require particular emphasis in the testing and inspection program, develop the additional testing and inspection procedures, and qualify railroad testing officers on how to properly conduct the tests and inspections. APTA emphasized that passenger railroads are requesting additional time to do the job right rather than just quickly.

Both associations raised concerns with the requirements in § 217.9(b) that pertain to qualifying railroad testing officers and keeping written records documenting each railroad testing officer's qualification. APTA pointed out that the requirements pertaining to railroad testing officers are new, and implied that each railroad would need to expend additional resources to confirm that each railroad testing officer is qualified and to maintain records supporting each qualification decision. AAR stated that the July 1, 2008 deadline for implementing paragraph (b) is unrealistic because it does not provide a railroad with sufficient time to qualify supervisors on the new requirements. AAR also suggested that many railroads will want to maintain an electronic recordkeeping system for tracking the qualifications of supervisors; and the applicability deadline of July 1, 2008 does not provide sufficient time to establish a new recordkeeping system. AAR also disliked FRA's suggestion that “if a railroad has not previously kept a record of whether an officer is qualified on the operational testing program, that the railroad create a short survey which would allow an officer to acknowledge whether the officer considers himself/herself qualified on the various aspects of the program, as well as qualified (either through experience or prior instruction, training, and examination) on the various types of tests and inspections that the officer may be asked to conduct.” 73 FR 8457. AAR asserts that if training took place before the establishment of a recordkeeping system, FRA and a railroad could be reliant on oral testimony, which could well result in controversial enforcement citations. Implied in AAR's concern is that some railroad testing officers may believe they know how to conduct certain tests or inspections, but the officer's ability to conduct a particular test or inspection has not been confirmed by the railroad. Consequently, AAR is concerned that a railroad testing officer that exaggerates his or her abilities could potentially subject a railroad to liability if the officer were to conduct an improper test. See § 217.9(b)(1).

Both AAR and APTA are members of RSAC and were told by FRA that the agency's goal was to publish the final rule by the fall of 2007. APTA states that had FRA published the rule in the fall of 2007, its members could have complied with the training in the 2008 training cycle. AAR and APTA both requested that FRA consider that a consequence of publishing the final rule in the first quarter of 2008 was that the vast majority of railroads that typically conduct the bulk of training during the first quarter of the year are now thwarted from doing so. Both associations argued that it would be too difficult to alter training programs by July 1, 2008 pursuant to § 218.95(a) because new training course material is usually developed in the second half of the year. Railroads primarily allocate the first quarter of each year to training employees, but often that training continues into the second quarter. The trainers are typically the same people employed to revise the training programs in the second half of the year. Thus, it would be difficult for the railroads to finish the training already planned for 2008 while revising the training required by the final rule. AAR and APTA also argued that it would be difficult and costly to qualify employees in accordance with 49 CFR part 218, subpart F, by January 1, 2009 because employees are not as available as they are during the first quarter of the year due to personal and business obligations.

When FRA published the final rule, the agency did not fully appreciate the difficulties most railroads would face in trying to comply with the implementation dates. FRA was under the impression that it was providing a sufficient amount of time for a railroad to comply and that the implementation dates would not be controversial. FRA understood that by publishing the rule in mid-February, each railroad would need to qualify its employees and supervisors, as well as implement the new and revised programs outside of the railroads regular schedule for such actions. FRA perceived the actions needed for compliance to be not that much different than existing railroad programs relating to operating rules.

Now that FRA has reviewed AAR and APTA's petitions for reconsideration, we agree with the associations that delayed implementation is warranted for the reasons expressed in the petitions. It is important that each railroad effectively qualify its railroad testing officers and implement a meaningful program of tests and inspections under 49 CFR 217.9. The associations are certainly correct that ensuring railroad testing officers are qualified is an important aspect of the revised section and that keeping accurate records of the qualifications of each railroad testing officer is an integral component of that requirement. Thus, FRA is granting AAR and APTA's requests to amend the applicability dates in 49 CFR 217.9, the logistics of which are described in the section-by-section analysis for that section.

FRA also agrees with AAR and APTA's requests to amend the applicability dates in 49 CFR 218.95. The associations' petitions for reconsideration helped FRA understand the full extent of the burden the final rule will place on each railroad. FRA certainly prefers providing each railroad with the additional time it needs to fully implement 49 CFR part 218, subpart F than have a situation where many railroad programs are put together so quickly that the programs contain mistakes or fall short in some way, or training is rushed to the extent that employees do not fully understand the operating rules and the importance of them. Thus, FRA is granting AAR and APTA's requests to amend the applicability dates in 49 CFR 218.95, the logistics of which are described in the section-by-section analysis for that section.

AAR's petition requested reconsideration of FRA's decision to exclude shove lights as an acceptable technological alternative to visually protecting the point pursuant to the requirements in 49 CFR 218.99(b)(3)(i) unless either: (1) The track is completely circuited to indicate occupancy; or, (2) a visual determination is made that the track is clear to the beginning of the circuited section of the track. 73 FR 8478. Shove lights are lights that are sequentially circuited on the ends of departure tracks in classification yards to indicate a shoving movement's approach to the opposite end of a track. There are a variety of different shove light arrangements, some using a single aspect/light and others using multiple aspects that have the ability to provide greater information regarding how much room is left in the circuited portion of the track. At some locations, radio messages are generated, instead of lights, to indicate when the cars being shoved have reached the bonded or circuited section of track.

AAR acknowledges that “since shove lights or radios technically provide protection only for the length of the bonded track, not the entire length of the departure track, they arguably do not provide the equivalent of direct visual observation.” Despite this acknowledgment, AAR's petition requests that FRA reconsider the shove light issue as a permitted operational exception under § 218.99(e). AAR makes two arguments in support of permitting shove lights and radio signal arrangements. One argument is that there is no evidence that the use of shove lights has caused accidents or injuries despite having been used for over thirty years. A second argument is that a prohibition on shove lights and radio arrangements creates an increased risk of injuries and thus does not justify the prohibition. AAR attributes the potential for an increase in injuries to the risks employees would need to take to visually determine the departure track is clear. For example, an employee who undertakes the riding of a long shove move or chooses to walk along the track would be at risk of a slip and fall injury due to the need to mount and dismount equipment or the need to walk carefully—especially in inclement weather. Another added risk to riding the shove move or walking the track is the danger posed by the close proximity to other tracks, i.e., close clearances. An employee riding a shove move where there are close clearances is at risk of being struck by equipment on an adjacent track.

A joint response to AAR's petition was filed by the presidents of six labor organizations (Joint Labor Petition): the American Train Dispatchers Association (ATDA); the Brotherhood of Locomotive Engineers and Trainmen, a division of the Rail Conference of the International Brotherhood of Teamsters (BLET); the Brotherhood of Maintenance of Way Employes Division of the Rail Conference of the International Brotherhood of Teamsters (BMWED); the Brotherhood of Railway Carmen Division of the Transportation Communications International Union (BRC); the Brotherhood of Railroad Signalmen (BRS); and the United Transportation Union (UTU). These labor organizations represent over 140,000 railroad workers engaged in train and engine service, train dispatching operations, equipment inspection, maintenance and repair, roadway worker activities, and signal construction, maintenance and repair. The Transportation Trades Department, AFL-CIO (TTD) filed a separate comment in support of the Joint Labor Petition.

The Joint Labor Petition opposes AAR's request for reconsideration of the shove light exception. This opposition is based on the fact that the track, unless completely circuited, will not be determined to be clear. The Joint Labor Petition points out that the final rule permits technology to substitute for a direct visual determination and thus one option is for a railroad to add additional indicator circuits. FRA notes that the Joint Labor Petition did not respond to AAR's assertions that there is no evidence that the use of shove lights has caused accidents or injuries despite having been used for over thirty years and that a prohibition on shove lights and radio arrangements creates an increased risk of injuries that does not justify the prohibition. The Joint Labor Petition argues that AAR seeks to institutionalize a practice that is dangerous and will lead to an increase in accidents, incidents, and injuries, but the response does not elaborate on this conclusion.

In response to AAR's petition, and after considering the Joint Labor Petition's comments, FRA has decided to grant AAR's petition for reconsideration in part and deny it in part. FRA agrees to add an operational exception under § 218.99(e)(5) for shoving or pushing movements made in the direction of the circuited end of a designated departure track equipped with a shove light system under certain specified conditions. The operational exception and the specified conditions are described in the section-by-section analysis. Many railroads with existing shove light systems should find that few changes, if any, will be necessary to comply with the requirements for the exception in new paragraph (e)(5).

After publication of the final rule, FRA received feedback that some railroads were disappointed with FRA's position on shove lights. As the issue did not initiate much discussion during the Working Group meetings, FRA had not compiled much information on it. In anticipation that a petition for reconsideration on the shove light issue might be filed, FRA conducted a review of shove light systems utilized by the major railroads.

Between February 25 and March 21, 2008, FRA reviewed procedures and observed operations on departure tracks with shove light systems throughout the country. FRA surveyed the major railroads to find out where shove lights were used and received information that five of the seven major railroads used shove light systems at thirty-four major classification yards in seventeen states. FRA confirmed through inspections that the railroads did not utilize shove light systems at any other major yard. The thirty-four yards contained a total of 356 departure tracks equipped with shove lights. Only seven of the thirty-four yards were found to provide point protection by having the departure tracks entirely circuited or by using cameras to determine that the track is clear. Thus, FRA focused its attention on whether the remaining twenty-seven yards that did not already meet FRA's new requirement for point protection under § 218.99(b)(3) were safe operations nonetheless.

For instance, FRA conducted a review of accident/incident data that supports AAR's position that departure tracks that use shove light systems are reasonably safe operations. FRA reviewed data for the twenty-seven departure yard operations that utilize shove lights for the twenty-six month period from January 2006 through February 2008. The total number of tracks available for use as departure tracks at these twenty-seven yards is 291. FRA's review included railroad records of all reportable and accountable rail equipment accidents/incidents, and thus FRA's review included minor incidents that would not have met FRA's reportable threshold for an accident/incident. See 49 CFR 225.5 (defining “accident/incident” and “accountable rail equipment accident/incident”); 225.19 (defining the three groups of railroad accidents/incidents that are reportable); and 225.21(i) (requiring that a record of initial rail equipment accidents/incidents be completed and maintained). If FRA's review had included only reportable accidents/incidents, and not accountable rail equipment accidents/incidents, the scope of the review would have been significantly more limited and would not have included derailments and collisions that caused minor damage to track or on-track equipment.

The records revealed that eighteen of the twenty-seven departure yard operations, i.e. , 67 percent of the yards, did not have any human factor caused reportable or accountable rail equipment accidents/incidents during the twenty-six month period, and only one yard had recorded more than two accidents/incidents. Nine departure yard operations recorded a total of nineteen human factor caused reportable or accountable rail equipment accidents/incidents during the review period. Although FRA did not conduct investigations to determine whether the primary cause listed by each railroad is accurate, the records suggest that five of these nineteen accidents/incidents would not have been prevented through compliance with the point protection requirement of § 218.99(b)(3) or any of the requirements in 49 CFR part 218, subpart F; i.e. , four accidents/incidents were caused by some form of train handling error and one accident/incident was caused by a remote control operator's failure to hear a radio transmission to stop the movement. In addition, five accidents/incidents were caused by either improperly lining, locking, or latching switches, which are concerns addressed by requirements found in subpart F. Thus, FRA finds that, during the twenty-six month review period, only nine human factor caused reportable or accountable rail equipment accidents/incidents might have been prevented through compliance with point protection requirements rather than relying on shove light systems and attendant procedures.

FRA found fair to good illumination throughout the departure yard tracks, particularly at the entry and departure ends of each track. The circuited portion of the departure tracks ranged from 150 feet to a little over 500 feet, with an average of 360 feet.

At all twenty-seven yards, non-visual procedures were in place that provided yardmasters with a high degree of confidence with respect to the status of any of the departure tracks. One procedure common to all twenty-seven yards included a “turn-over” report, i.e., a job briefing, given verbally from one yardmaster to the next, based on the information logged on a written turn-over sheet. In addition to the turnover report, at many yards, the yardmaster had access to a computer generated inventory allowing the yardmaster to monitor each car from the moment it arrived onto the receiving yard tracks. Many of these yardmasters were also able to track by computer the movements of each car through the yard complex. Some yardmasters also received information about each transfer job that brought cars from the classification yard to the departure yard. At some yards, railroads instituted standard instructions that required any car cut-off a departing train to be left on the circuited section of the track on which it was to be placed. Thus, if a car was left on the circuited section of track, a person observing the shove light would know that some equipment was left there and would be required to take appropriate action to determine what was left on the departure track prior to initiating a shoving or pushing movement. Meanwhile, other yards maintained similar instructions that any car to be cut-off a departing train must be left as close as possible to the end of the track opposite the circuited end of the departure track without fouling another track. This instruction permitted the person directing the movement to readily observe that the track was not clear and to take appropriate action to protect the shoving or pushing movement.

The descriptions of these different non-visual procedures is not intended to be an exhaustive list of all the types of procedures that have been or could be implemented. FRA is describing these types of procedures because our recent review suggests that having these types of procedures help establish a reliable means of determining track occupancy. As each departure yard may have its own set of safety concerns and already established procedures, FRA is not requiring that all railroads adopt a particular set of non-visual procedures. However, as these types of procedures contribute to the overall safety record of departure tracks utilizing shove lights, the final rule contains a requirement that the types of procedures which provide for a reliable means of determining track occupancy prior to commencing a shoving or pushing movement must be adopted in writing so that yardmasters and other employees can fully understand the operation. See § 218.99(e)(5)(iii).

FRA's observations revealed that shove light systems can maintain an acceptable degree of safety. Our review suggests that, in addition to the establishment of non-visual procedures, several factors collectively promote a safe operation. For instance, there is a relatively small number of moves onto and off of the departure tracks. Compared to other yard operations, there is typically less danger on departure tracks with shove light systems in that fewer switches are operated in the departure yard and there are no free rolling cars. Furthermore, FRA noticed that each of the twenty-seven departure yards were well supervised by either a yardmaster or other qualified employee.

FRA's observations at the twenty-seven departure yards with shove light systems also revealed that some of the departure tracks evaluated have close clearances that could potentially pose a risk of an accident or injury to a rail employee attempting to make a visual determination that the departure track is clear. FRA found five of the departure yards had at least some tracks with close clearances that pose a significant potential risk of an injury to an employee protecting the point. While some departure yards had tracks with very good clearances, most tracks were found to have normal clearances—which could still pose injury hazards due to the amount of clearance. Furthermore, it could be difficult for an employee riding the point of the move to see that a derail is applied and that employee could be seriously injured if the movement were to operate over the derail. In addition, FRA noted that departure tracks were generally long yard tracks. The length of the departure tracks is a factor in deciding whether to allow shove light systems to be used in lieu of point protection because employees would probably walk or ride the side of a car to provide point protection and lengthy departure tracks would expose employees to injury risk for a longer period than if the tracks were shorter. In conclusion, FRA's observations corroborated AAR's assertion that if employees were required to provide point protection by riding the side of a car or walking along the departure tracks, there would be an increased risk of injuries.

FRA is granting AAR's petition for reconsideration in part, and will allow a shove light system under certain conditions to substitute for point protection, because the recent accident/incident histories at eighteen out of the twenty-seven major railroad departure yards have been excellent. FRA's decision is not based on AAR's concern that employees need to be protected from the dangers posed by protecting the point where there are close clearances. FRA believes that the risks of employees suffering injuries could be avoided greatly if more departure tracks equipped with shove light systems were either completely circuited or had cameras added that could be remotely viewed to determine the track is clear. In fact, FRA found five major railroad departure yards that maintain such cameras and two major railroad departure yards that maintain shove light systems with completely circuited departure tracks. Although FRA is promulgating an operational exception for shove light systems, we encourage each railroad to consider installing cameras or fully circuiting the departure tracks—especially in departure yards where non-compliance with yard procedures adopted under § 218.99(e)(5)(iii) are found on a regular basis. Meanwhile, FRA has concluded that under certain conditions, a shove light system is a safe operation. Therefore, a railroad may utilize a shove light system, under the conditions specified in § 218.99(e)(5), as an alternative to having a qualified employee make a visual determination that the departure track is clear.

FRA is, however, denying that portion of AAR's petition that requests the inclusion of shove warning systems that rely solely on radio signal warnings because radio signals offer a lower level of safety to that of a shove light system. One of the essential conditions considered in partially granting AAR's petition allowing shove light systems to substitute for a qualified employee visually determining the track is clear, is that the shove light system must be demonstrated to be failsafe. Shove warning systems that rely solely on radio signal warnings are not considered failsafe and FRA is skeptical that a system based on radio signals alone can ever be made failsafe.

Radio signal based shove systems are designed to send radio signal warnings when the movement is occupying the circuited track. The radio warning typically states how much room is left in the departure track for the shoving or pushing movement by indicating a number of car lengths. If the shoving or pushing movement has not reached the circuited end of the departure track, the system will be silent. Thus, the train crewmember or other qualified employee listening to the radio and directing the move will interpret silence to mean the track is clear to continue the shoving or pushing movement. Silence may not always mean that the movement is not occupying the circuited end of the track. For example, the radio may be silent because it is malfunctioning. A radio may be silent if its battery is expired. Also, a person listening to a radio may not hear a radio warning for a variety of reasons including, but not limited to, a weak transmission signal; static; the radio's volume is too low; or, a radio signal is blocked by a competing transmission because it is not broadcast on a dedicated channel. Finally, unlike shove light systems which remain continuously illuminated until the circuited section of track is occupied, FRA observed that the radio signal based shove system does not continuously send radio warnings that help monitor the departure end of the track once the movement has completely occupied the circuited section of track.

FRA might be willing to reconsider this decision or grant a waiver for a shove warning system that relies solely on radio signal warnings if it can be demonstrated to be failsafe. However, given the logistical hurdles of arranging such a system, it would probably be easier to switch to a shove light system or add some kind of light component to the existing radio signal based shove system. As FRA found only one major railroad departure yard that solely used radio signals as a shove system, FRA does not anticipate that this denial decision will have any significant impact on that railroad or on the industry.

The Joint Labor Petition requested reconsideration of the willful civil penalties published in the penalty schedule at 49 CFR part 218, app. A and the need for individual liability for willful violations; TTD's comment supported the Joint Labor Petition. The Joint Labor Petition analyzed the accident data showing that there has been a reduction in both the raw number of accidents/incidents and the corresponding rates for the period 2005 through 2007 that exceeded the increase for the period 2000 through 2004. Based on the analysis of that data, the Joint Labor Petition concludes that “[w]hile Petitioners concur that discipline—on the part of both our members and their supervisors—is an essential element in rule compliance, our analysis of FRA's data establishes beyond question that the spikes in the number of human factor accidents/incidents and the frequency with which they occurred were not due to any industry-wide breakdown in rules compliance discipline.” Thus, on this first issue, the petition contends that the empirical basis no longer exists for FRA's decision to include individual liability for civil penalties in the final rule.

The labor filing is a model of railroad safety scholarship, describing in broad strokes the major changes in the industry that, in the view of the writers, may have influenced safety trends. The resulting explanations attempt to fit safety data within a multi-factor analysis and lay the foundation for the requested relief. The history of a major industry is complex; and this proceeding is not the proper venue to agree or disagree about such theorems, however interesting that discussion might be.

Rather, it is necessary to state that the central premise of the joint labor filing is incorrect, because it is not FRA actions that invoke the potential for civil penalty sanctions. Rather, civil penalty sanctions are a statutorily-imposed consequence of regulatory non-compliance. 49 U.S.C. 21301. Labor organizations have been among the more strenuous advocates of strong civil penalties as an answer to non-compliance by railroads and rail contractors, and even if FRA were at liberty to provide blanket immunity from statutory sanctions, there is nothing in the filing to support the conclusion that such sanctions would be less successful in influencing the intentional actions of individual employees than the unintentional or intentional actions of railroads and rail contractors. Indeed, individual employees are already accountable for personal compliance with a significant number of FRA regulations; and FRA is satisfied that the deterrent effect associated with the availability of a monetary sanction is helpful in preventing accidents that might occur through sloth or knowing reckless behavior. FRA has seldom found it necessary to invoke these sanctions against individuals, and in many cases where such action has been taken the targets have been railroad officers, rather than rank and file employees.

Whether or not one subscribes to the proposition that penalties are necessary, giving the subject rules the status of Federal law should without question promote awareness among officers and employees regarding their responsibilities to one another and to the public. The labor filing (at page 5) acknowledges that “a more substantial framework of regulations” (FRA's phrase) should be helpful in maintaining discipline during the current period of change in the railroad industry. The potential for civil penalties follows automatically, based on congressional action.

Although FRA agrees with the Joint Labor Petition that the number of human factor incidents has declined over the past few years, we do not agree that this trend diminishes the need for a regulation containing the potential to demand payment of civil money penalties from individuals for willful violations. There are a variety of reasons for the recent downward trend including, but not limited to, FRA's focus on the increase in human factor caused accidents/incidents from 2000 through 2004 in the RSAC and Working Group meetings. By bringing this issue to the railroad industry's attention, railroads have placed increased emphasis on compliance with the operating rules FRA expressed an intention to consider regulating. Focused compliance reviews by FRA and aggressive, direct contacts with responsible railroad operating officers have no doubt contributed to this good result. Historically, FRA has noted previous positive trends after raising a safety concern with the industry, but prior to promulgation of a regulation. These trend lines do not always continue positively, and, without a regulation, FRA would be left with fewer options if accidents/incidents were to suddenly increase. Further, it would be fundamentally wrong to assume that major additional advances in the safety of railroad operations are not achievable. Rules compliance requires clear and unambiguous rules and procedures, common expectations for compliance that are modeled by line supervisors, excellent training, and regular verification that rules and procedures are being followed. This is the foundation for acceptable safety performance, and on that foundation can be built truly outstanding safety performance if the culture of the organization and the processes in place support open and productive communication to identify hazards, enhance crew performance, and refine work processes. FRA appreciates that this regulation cannot construct the entire edifice, but it can and must provide the foundation.

As FRA has statutory authority to issue penalties against individuals for willful violations, FRA would retain this authority even if it deleted the willful penalties in the schedule of civil penalties (which section 49 U.S.C. 21301(a)(2) directs us to provide). As FRA explained in its “Statement of Agency Policy Concerning Enforcement of the Federal Railroad Safety Laws” found at 49 CFR part 209, app. A, the Rail Safety Improvement Act of 1988 ( see 49 U.S.C 21304) made individuals liable for willful violations of the Federal railroad safety statutes that FRA enforces under delegation from the Secretary of Transportation. See 49 CFR 1.49(c), (d), (f), (g), and (m). In that published policy statement, FRA explains how the agency intends to decide if an individual has acted willfully and how it will consider whether enforcement action is warranted against an individual. In the preamble to the final rule, FRA also explained that it did not single this regulation out for individual liability enforcement, but that “[e]ach of FRA's rail safety regulations permit enforcement against any person who violates a regulatory requirement or causes the violation of any requirement.” 73 FR 8452-53. The publishing of the schedule amounts are merely meant to provide guidance as to FRA's policy in predictable situations, not to bind FRA from using the full range of penalty authority where extraordinary circumstances warrant it. FRA will continue to exercise appropriate discretion with regard to individual liability enforcement matters as it does in all civil penalty matters cited against railroads.

The Joint Labor Petition's second request in this area was that FRA should eliminate the willful civil penalties published in the penalty schedule at 49 CFR part 218, app. A and FRA should not seek civil penalty enforcement against individuals under 49 CFR part 218. The petitioner contends that individual liability produces a chilling effect that will diminish, rather than enhance, safety. The Joint Labor Petition disagreed with FRA's position that an employee would have an incentive to self-report noncompliance because such self-reporting would likely be considered a reason for FRA to exercise its enforcement discretion not to take enforcement action against the individual. Instead, the Joint Labor Petition focused on FRA's statement that “[s]elf-reporting is not * * * a defense to a potential individual liability action, and self-reporting does not absolutely preclude FRA from taking enforcement action against an individual.” 73 FR 8453. The Joint Labor Petition concludes that an employee has a disincentive to self-report as the employee is likely to face a railroad disciplinary sanction and an FRA civil penalty.

In FRA's view, the Joint Labor Petition did not acknowledge FRA's caveat that “FRA would consider self-reporting a strong reason for mitigation of the civil penalty, disqualification order, or other enforcement remedy.” 73 FR 8453. The flip side of that argument is also true in that FRA would consider the failure to self-report non-compliance immediately after the non-compliance is discovered to be an aggravating factor justifying a higher penalty or longer period of disqualification. In the preamble, FRA emphasized that when each railroad instructs its employees on its operating rules, it should emphasize this incentive to self-report. FRA continues to encourage each railroad to reconsider its own discipline policy so that it does not discourage self-reporting of inadvertent noncompliance. For example, FRA continues to fund and promote the Confidential Close Call Reporting System Demonstration Project, which permits participating employees to self-report certain types of non-compliance without fear of railroad discipline or FRA enforcement. FRA believes that by encouraging self-reporting, an analysis of the data may reveal the identification of accident precursors or suggest ways to reduce the likelihood of future non-complying incidents that have the potential to cause accidents/incidents.

FRA also expects that most individuals would self-report because it is the safe course of action. An individual who chooses not to self-report after realizing he or she failed to comply with an important operating rule is likely to be putting him or her self, or colleagues, at risk of serious injury or death. Thus, FRA would expect that individuals who discover their own non-compliance would find the risks associated with choosing not to self-report far worse than the potential of being disciplined or fined for failing to comply, especially if the risk of a more severe disciplinary action or greater penalty is likely for a violation discovered and not immediately reported.

The Joint Labor Petition also raised the issue that an innocent employee could be held liable for a civil penalty under the final rule if the employee was the last person recorded as handling a switch that was later found misaligned. The petition explained that it might be possible, on some railroads, for a roadway worker to manipulate main track switches in non-signaled territory without track authority or permission from the train dispatcher or control operator. The petition stated that FRA could end up enforcing a civil penalty against the wrong individual, and thus FRA should not cite individuals for civil penalties. FRA's response is that this issue raises an evidentiary proof matter and a concern FRA will need to address on a case-by-case basis. However, FRA does not view this issue as a reason to completely forgo the agency's statutory authority to cite individuals for civil penalties.

In the conclusion section of the Joint Labor Petition, the petition suggests that FRA forgo the agency's statutory authority to cite individuals for civil penalties in favor of FRA's disqualification procedures. See 49 CFR part 209, subpart D. The petition argued that disqualifying an individual from performing safety sensitive service is a “more than sufficient means available to enforce [part 218,] subpart F” and that “there is neither a sound basis, nor a public interest, in the creation of individual liability for civil penalties.” We disagree. These are two different enforcement mechanisms and there may be instances where a disqualification is not warranted, and the less drastic response of a reasonable civil penalty is more appropriate. For instance, there may be instances where a person has a long work history of complying with operating rules but is found to have committed a willful violation one time. In these instances, it is likely more appropriate to demand a one-time civil penalty and allow the person to continue working in safety sensitive service than to initiate disqualification proceedings. In other circumstances, a person with or without a good history of compliance may be found to have committed a willful violation but there are aggravating circumstances that suggest the more extreme penalty of disqualification is unwarranted. Thus, in order to permit FRA to consider the appropriate enforcement mechanism and to provide maximum flexibility in its enforcement actions, FRA is denying the Joint Labor Petition's requests to eliminate the willful civil penalties published in the penalty schedule at 49 CFR part 218, app. A and for FRA to pledge not to seek civil penalty enforcement against individuals under 49 CFR part 218, subpart F.

AAR's petition for reconsideration requests that FRA reconsider the need for any good faith challenge regulation. See 49 CFR 218.97. According to AAR, employees have statutory protection under 49 U.S.C. 20109 against retaliation for refusing to comply with a directive to violate a Federal regulation and thus it is puzzling why FRA is promulgating a regulation which has the potential to interfere significantly with railroad operations. In addition, AAR objects to a good faith challenge regulation because the final rule did not adequately create a record for suspecting that employees have been, or will be, asked to engage in tasks that violate Federal regulations or these types of railroad operating rules. The Joint Labor Petition and TTD's comment disagreed with AAR's position on this issue.

FRA disagrees with AAR and finds that there is a need for the good faith challenge regulation. The driving force for much of the final rule was the data showing significant increases in human factor caused accidents, and the high number of violations FRA found when it conducted inspections and investigations related to certain human factor cause codes. Prior to the effective date of the final rule, each railroad maintained similar operating rules governing the safe operation of shoving or pushing movements, leaving cars out to foul, and handling switches and fixed derails; meanwhile, over the first five years of this decade, human factor caused accidents accounted for 38 percent of all train accidents, and, in 2004, violations of the operating rules required in 49 CFR part 218, subpart F accounted for nearly 48 percent of all human factor accidents. Considering the mandatory nature of these railroad operating rules, it seems that there has been a high disregard for them either intentionally or unintentionally. Although we agree that FRA did not cite to specific examples of intentional non-compliance with railroad operating rules, FRA is aware of the pressure to occasionally shortcut an operating rule in order to maintain or increase production. FRA's awareness is derived from inspections and investigations, as well as shared experiences from FRA personnel who have previously worked for one or more railroads. The good faith challenge procedures are intended to empower employees who choose to abide by the railroad's operating rules but are either intentionally or unintentionally given a non-complying directive. The procedures are necessary to ensure that employees may challenge potentially non-complying directives immediately while the statutory protections in 49 U.S.C. 20109 primarily protect an employee from retaliation for refusing to comply with non-complying directives. Thus, the good faith challenge regulation has a different purpose than the statutory protections.

In the alternative, AAR's petition for reconsideration requests that FRA amend the good faith challenge procedures required by 49 CFR 218.97 so that they more closely resemble the roadway worker good faith challenge provisions. AAR states that FRA has departed from past precedent by issuing good faith challenge procedures that are different from those required for roadway workers. In AAR's view, the roadway worker regulations are clear and easily implemented, while the procedures in § 218.97 are complex and could result in delaying railroad operations. For example, AAR states that there may be situations when a supervisor and employee cannot resolve a challenge, and a suitable railroad officer is not available to provide for immediate review under paragraph (d)(1). (It appears that AAR might also be asking FRA to reconsider or make an exception to the immediate review required in paragraph (d)(1) for any railroad regardless of size.) The Joint Labor Petition disagreed with AAR's position on this issue.

FRA acknowledges that when it first began discussing this issue with the RSAC Working Group, FRA suggested that good faith challenge procedures similar to those promulgated for roadway workers might be appropriate. Discussions within the Working Group, especially with members representing labor organizations, revealed that roadway workers generally share a more cooperative working relationship with their supervisors than operating employees do with yardmasters, trainmasters and their other railroad officer supervisors. A supervisor of roadway workers is likely to be out at the work site and may share in the danger if the work gang is not adequately protected because the group failed to comply with a rule. A railroad officer supervising operating employees will likely not be at risk of injury to himself/herself through the issuance of a non-complying order but may be putting the operating employees executing the order, or other employees in the vicinity of the operation, in peril. For these reasons, a different approach, permitting a good faith challenge, is necessary.

With regard to the request that FRA should eliminate the requirement for immediate review under § 218.97(d)(1), FRA is denying the request. Any railroad with 400,000 or more total employee work hours annually should employ at least one railroad officer who can be on call in case a challenge requires immediate review. Each railroad should consider whether to address in its program the issues of who can be contacted and what protocol should be followed if the person issuing the challenged directive has difficulty finding an officer suitable for immediate review. FRA suggests that AAR ask its members to voluntarily keep track of problems associated with implementing the good faith challenge procedures so that it can be raised as a future task for the RSAC or in a future petition for rulemaking.

After publication of the final rule, FRA met with labor organizations and railroad associations to discuss issues related to implementation. During those meetings, several parties raised the fact that the rule does not address how the good faith challenge is required to be implemented in joint operations territory. For example, FRA has been asked what happens if employees from Railroad #1 are directed to perform a shoving or pushing movement in a yard on Railroad #2 and the employees believe they are being asked to violate a rule because the point is not being properly protected. FRA has been asked which railroad's good faith challenge procedures apply, and if Railroad #2's procedures apply, then are Railroad #1's employees required to be trained on Railroad #2's procedures.

FRA acknowledges that the rule is silent on these issues. Generally, we would expect that the host railroad, i.e., Railroad #2 in the example, would want to maintain control of challenges made on its property and would therefore provide all reviews required. Although we expect quite a bit of uniformity among railroads, railroads who operate in joint operations will need to ensure that its employees know which railroad's procedures apply and what those procedures require. Meanwhile, as the rule is silent on this issue, we would not object to railroads engaged in joint operations making other arrangements as long as those arrangements are explained to its employees during the required training and provided for in its procedures. In conclusion, unless otherwise specified in a railroad's procedures, the host railroad's procedures will apply and it will be the host railroad's obligation to provide review of the alleged non-complying order and to maintain a record when necessary.

AAR's petition explains that § 218.99(c)(2) provides that if technology is relied on to provide pull-out protection by preventing the movement from exceeding the limits of a remote control zone, the technology must be demonstrated to be failsafe or provide suitable redundancy. AAR does not object to the regulatory text. Instead, AAR's petition for reconsideration raises the question of whether a particular discussion in the preamble regarding the point protection technology standard for remote control zones is intended to be a requirement.

AAR is concerned that the preamble language will be read as a requirement. The preamble states that “[w]hen determining whether the technology, such as transponders backed up by a global positioning system (GPS) with a facility database is acceptable, FRA finds that 49 CFR part 236, subpart H and the corresponding appendix C to part 236 (“Safety Assurance Criteria and Processes”) contains appropriate safety analysis principles.” 73 FR 8479. AAR requests confirmation that the preamble reference to the safety analysis principles is meant to illustrate one way of determining if a technology is acceptable and the citation to part 236 is not meant to be a requirement. (Presumably, if FRA disagrees with AAR's understanding, AAR's petition is meant to request an amendment to this section as AAR implies that it objects to this reference if it is a requirement.).

The Joint Labor Petition responded to AAR's petition. First, the Joint Labor Petition points out that the final rule preamble contained an error when it stated that no comments were received in response to the NPRM concerning this issue. BLET specifically responded to FRA's request for comments by recommending that (1) the technologies used to “fence” remote control zones should be at least fail-safe and (2) to the extent that any of these technologies are not currently in use, they should be required to meet the criteria for processor-based signal and train control systems found in 49 CFR part 236, subpart H. The Joint Labor Petition reiterated BLET's recommendations and stated that remote control zone pull-out protection technology is, by definition, a train control system.

FRA agrees with AAR that the preamble language reference to 49 CFR part 236, subpart H is intended to illustrate one way of determining if a technology is acceptable and the citation to part 236 is not meant to be a requirement.

In response to the Joint Labor Petition, FRA offers the following clarification. First, FRA wishes to thank BLET for reminding FRA that BLET had commented on the NPRM preamble language. Second, although FRA has provided that remote control zone pull-out protection technology must be demonstrated to be failsafe or provide suitable redundancy to prevent unsafe failure, a result consistent with the general approach of 49 CFR part 236, subpart H, FRA does not believe that this is the appropriate forum within which to determine the formal applicability of part 236. Although pullout protection arrangements are provided to restrict the movement of rolling equipment, they are not employed to authorize to control train movements; accordingly, using traditional interpretations they would not fall within the concept of a train control system. Nor do they resemble in function block signal systems. FRA is aware of views of some that a variety of innovative technologies that perform functions analogous to traditional signal and train control systems should be regulated under part 236; however, FRA strongly believes that such issues should not be addressed piecemeal. Accordingly, FRA declines in this forum to assert the applicability of part 236 to systems used to prevent shoving movements from exceeding the intended boundaries.

Based on the discussion contained above, FRA is not amending the regulatory text as suggested in either AAR's petition or the Joint Labor Petition.

FRA is amending four paragraphs of this section to delay certain applicability dates. In the preamble section titled “Implementation Dates,” FRA explains the basis for amending each of these compliance deadlines. In summary, FRA considered the petitions which suggested that, due to the routine most railroads use to schedule training during the first quarter of each calendar year, many railroads might have rushed through implementation merely to meet the deadline without regard for the program's likely effectiveness. FRA is amending the applicability dates in this section because we would prefer to provide each railroad with a reasonable opportunity to come into compliance with an effective amended program of operational tests and inspections, rather than to have compliance that is technically timely but ineffective.

The introductory text of paragraph (b) is amended to make the requirements contained in this paragraph (b) applicable beginning January 1, 2009. As the applicability date was previously July 1, 2008, the amendment extends the deadline for compliance by six months.

Paragraph (c)(1) requires the program to provide for operational testing and inspection under the various operating conditions on the railroad. The applicability date of this paragraph has been amended, so that on or after January 1, 2009, each railroad shall be required to amend its program to “address with particular emphasis those operating rules that cause or are likely to cause the most accidents or incidents, such as those accidents or incidents identified in the quarterly reviews, six month reviews, and the annual summaries as required under paragraphs (e) and (f) of this section, as applicable.” As the applicability date was previously July 1, 2008, the amendment extends the deadline for compliance by six months.

Paragraph (c)(6) requires the program show the railroad's designation of an officer to manage the program at each level of responsibility (division or system, as applicable). The applicability date of this paragraph has been amended, so that compliance with it is not required until January 1, 2009. As the applicability date was previously July 1, 2008, the amendment extends the deadline for compliance by six months.

Paragraph (e) requires each railroad to do reviews of its program of operational tests and inspections at certain specified periodic intervals. There are two applicability dates in introductory paragraph (e) and both dates have been amended to provide railroads with additional time to comply. Introductory paragraph (e) is amended so that the requirements in paragraph (e) apply to each Class I railroad and the National Railroad Passenger Corporation beginning April 1, 2009, and to all other railroads subject to this paragraph beginning July 1, 2009. Thus, each Class I railroad and the National Railroad Passenger Corporation are being provided an additional ten months to comply with the requirements in paragraph (e) and all other railroads subject to this paragraph are being provided an additional six months to comply.

A definition of departure track is added to this section because this term is used in added paragraph (e)(5) to § 218.99. A departure track is a track located in a classification yard where rolling equipment is placed and made ready for an outgoing train movement. Thus, a departure track is typically the last type of track that cars will be on in the yard before the cars are completely assembled as a train and are ready to leave the confines of the classification yard. The “classification yard” is a term used to describe the greater yard area that contains, but is not limited to, run-through tracks, van yard tracks that are used for trailers on flat cars or containers on flat cars (tofc/cofc), car repair tracks, locomotive servicing tracks, repair-in-place (rip) tracks, receiving tracks, bowl or classification tracks, and departure tracks. Some railroads have added shove light systems to departure tracks to aid train crews shoving or pushing large cuts of cars onto departure tracks; i.e., a person observing the shove light will be notified when the circuited end of the track is occupied without actually viewing the circuited end of the track.

Paragraph (a) requires that each railroad maintain a written program that will qualify its employees for compliance with operating rules implementing the requirements of this subpart to the extent these requirements are pertinent to the employee's duties. FRA is amending this paragraph to require establishment and continued maintenance of the program beginning no later than January 1, 2009. As the applicability date was previously July 1, 2008, the amendment extends the deadline for compliance by six months.

Paragraphs (a)(3) and (a)(4) are also being amended to provide additional time to implement this subpart. Paragraph (a)(3) is amended to require that each employee performing duties subject to the requirements in this subpart shall be initially qualified prior to July 1, 2009. As the applicability date for paragraph (a)(3) was previously January 1, 2009, the amendment extends the deadline for compliance by six months. Paragraph (a)(3) is also amended by eliminating the requirement that “employees hired between April 14, 2008 and January 1, 2009, and all employees thereafter required to perform duties subject to the requirements in this subpart shall be qualified before performing duties subject to the requirements in this subpart.” The elimination of this requirement follows from the decision to delay implementation of the program in paragraph (a) to January 1, 2009. The program implementation date is being delayed so that railroads will have time to adequately prepare a written program of training. As FRA has accepted AAR and APTA's reasons for delaying implementation of the program, it seems logical to provide railroads additional time to train both the employees hired prior to the effective date of the rule as well as the newly hired employees.

Similarly, the applicability date in paragraph (a)(4) is amended to require that, beginning July 1, 2009, no employee shall perform work requiring compliance with the operating rules implementing the requirements of this subpart unless qualified on these rules within the previous three years. As the applicability date for paragraph (a)(4) was previously January 1, 2009, the amendment extends the deadline for compliance by six months. Thus, as of July 1, 2009, each employee performing work subject to this subpart is required to be qualified regardless of when the employee was hired.

Paragraph (e)(5) is added to permit each railroad the option of using a shove light system in lieu of point protection under 49 CFR 218.99(b)(3), as long as certain specified conditions are met. In section II. B. of the preamble, titled “Shove Lights,” FRA explains why it is permitting railroads to choose this option. In summary, FRA reviewed initial rail equipment accident/incident records over a recent twenty-six month period that suggested railroads have safely conducted shoving or pushing movements on departure tracks that utilize shove light systems without a point protection requirement. FRA conducted observations of 34 locations where shove light or radio systems were in operation and found that certain best practices increased the likelihood that the operation could be conducted safely. FRA has promulgated the best practices into requirements that allow a railroad to exercise this operational exception. In addition, FRA has determined that systems based on radio signals alone are not as safe as those that contain a visual display. Consequently, the operational exception uses the term “shove light system” which is intended to descriptively exclude the use of a radio system that does not utilize a light.

Paragraph (e)(5)(i) requires that the shove light system is demonstrated to be failsafe. The safety concern is that, without a specific requirement, some railroads might try to implement technology that is not demonstrated to be safe and therefore provides a false sense of protection to rail employees. Fortunately, most shove light arrangements appear to utilize traditional signal circuits which by design fail safe. (For analogous requirements applicable to track circuits and occupancy display in block signal territory see, e.g. , 49 CFR 236.5, 236.51.) Although the present rule in no way dictates the technology employed, it does require that it be failsafe in operation. (For principles pertinent to evaluating innovative detection technologies, see Appendix C to part 236.) In order to demonstrate that the system is failsafe, FRA would expect that when the system is not working properly, it would produce the least favorable aspect—indicating that the movement should immediately be stopped or, if not yet begun, not started.

Paragraph (e)(5)(ii) requires that the shove light system be arranged to display a less favorable aspect when the circuited section of the track is occupied. If the shove light system has only a single light, the light will turn off, i.e., go dark, when the circuited section of the track is occupied. If the shove light system has multiple lights or a single light with the ability to display multiple aspects or colors, the light will turn from a favorable aspect to a less favorable aspect when the circuit is first occupied, and later turn to a more restrictive aspect as the circuited track reaches full occupancy. Of course, shove light systems with multiple lights may simply go from a favorable aspect, e.g., green, to a less favorable aspect, e.g., red, in order to meet the requirement of this paragraph.

Paragraph (e)(5)(iii) requires that written procedures be adopted and complied with that provide for a reliable means of determining track occupancy prior to commencing a shoving or pushing movement. The preamble section titled “Shove Lights” contains a description of various procedures many railroads have already established for departure tracks within departure yards equipped with shove light systems. The establishment of procedures is a way to create a uniform method of leaving a car or cut of cars on a departure track safely, thus permitting the yardmaster or next crew entering to know that the entire length of a particular departure track is not clear. Some railroads may choose to institute procedures that aid in tracking cars, either in writing, computer inventory, GPS tracking, or other electronic tracking. FRA is not requiring that all railroads must adopt and comply with a particular set of procedures. However, FRA believes these types of procedures contribute to the overall safety record of departure tracks utilizing shove lights and that such procedures must be established in writing so that all employees working in the departure yard can be expected to fully understand the operation. When FRA conducts inspections of these departure yards, we intend to review these procedures to ensure that any particular procedure, or lack thereof, does not create an undue safety risk and that the departure yard operation utilizing the shove light system is managed in a safe manner.

Paragraph (e)(5)(iv) requires that the departure track be designated in writing. This is an important requirement because it is an exception to providing point protection and it is therefore imperative that employees know specifically on which tracks the exception applies. FRA is promulgating this requirement even though we are unaware of shove light systems being installed on other than designated departure tracks. The requirement in this paragraph is intended to prevent a railroad from installing shove lights on yard tracks that are not departure tracks and attempting to circumvent the point protection requirements under paragraph (b)(3) of this section.

Paragraph (e)(5)(v) requires that the track be under the exclusive and continuous control of a yardmaster or other qualified employee. FRA's recent observations of departure tracks at major railroad classification yards, described above, found that a universal best practice is to have an employee, typically a yardmaster, who controls all movements in and out of the departure tracks. Without such an employee, there would likely not be any person who would be tracking movements into or out of the departure tracks, and there would not be anyone who could reliably relay information to train crewmembers who need to know the status of a particular departure track.

The operational exception in paragraph (e)(5) differs from the other numbered exceptions in paragraph (e) because, although introductory paragraph (e) states that “[a] railroad does not need to comply with paragraphs (b) through (d) of this section in the following circumstances,” the rule excepting shove lights does include some requirements within paragraphs (b) through (d). For instance, paragraph (e)(5)(vi) requires that “[t]he train crewmember or other qualified employee directing the shoving or pushing movement complies with the general movement requirements contained in paragraphs (b)(1) and(b)(2) of this section.” Thus, even though a shove light system may be used, this paragraph requires that employees conduct a proper job briefing under paragraph (b)(1) and that the employee directing the movement not engage in any task unrelated to the oversight of the shoving or pushing movement under paragraph (b)(2). Similarly, paragraph (e)(5)(vii) requires that “[a]ll remote control shoving or pushing movements comply with the requirements contained in paragraph (c)(1) of this section.” Hence, remote control operations utilizing shove lights are not excused from the requirement that either the remote control operator or a crewmember visually determine the direction the equipment moves, and, in the case of a crewmember making the observation, that the operator is promptly informed before continuing the movement.

Paragraph (e)(5)(viii) requires that the shove light system be continuously illuminated when the circuited section of the track is unoccupied. FRA is including this requirement to ensure that the employee observing the shove light is always viewing a lit aspect when the circuited section of the track is unoccupied. To allow otherwise would mean that a shove light system with a single aspect shove light could remain dark until it lit up when the circuited section of the track is occupied. Such an arrangement would not be failsafe if the light bulb failed. In arranging a failsafe system, railroads that utilize a multiple aspect shove light system will need to address each possible scenario for one or more light bulb or aspect failures. If the system has multiple aspects and a bulb or aspect failed, an employee viewing the shove light should be able to tell that the system is not continuously illuminating a proper aspect. If the system fails to continuously illuminate, the operational exception under paragraph (e)(5) would no longer be available and the movement would be required to stop immediately. Thus, the safest course of action is required when there is a technological failure such as the system fails to continuously illuminate.

This action has been evaluated in accordance with existing policies and procedures, and determined to be non-significant under both Executive Order 12866 and DOT policies and procedures (44 FR 11034; Feb. 26, 1979). The original final rule was determined to be non-significant. Furthermore, the amendments contained in this action are not considered significant because they generally clarify requirements currently contained in the final rule or allow for greater flexibility in complying with the rule. These amendments, additions, and clarifications will have a minimal net effect on FRA's original analysis of the costs and benefits associated with the final rule.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) and Executive Order 13272 require a review of proposed and final rules to assess their impact on small entities. FRA certifies that this action is not expected to have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act or Executive Order 13272. Because the amendments contained in this document generally clarify requirements currently contained in the final rule or allow for greater flexibility in complying with the rule, FRA has concluded that there are no substantial economic impacts on small units of government, businesses, or other organizations resulting from this action.

The information collection requirements in the agency's response to petitions of reconsideration of this final rule have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. The sections that contain the new information collection requirements and the estimated time to fulfill each requirement are as follows:

All estimates include the time for reviewing instructions; searching existing data sources; gathering or maintaining the needed data; and reviewing the information. For information or a copy of the paperwork package submitted to OMB, contact Mr. Robert Brogan, Information Clearance Officer, at 202-493-6292 or Ms. Nakia Poston at 202-493-6073, or via e-mail at robert.brogan@dot.gov or nakia.poston@dot.gov.

OMB is required to make a decision concerning the collection of information requirements contained in this final rule between 30 and 60 days after publication of this document in the Federal Register . Therefore, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication. Any comments should be sent to: The Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503, att: FRA Desk Officer. Comments may also be sent via e-mail to OMB at the following address: oira_submissions@omb.eop.gov.

FRA is not authorized to impose a penalty on persons for violating information collection requirements which do not display a current OMB control number, if required. FRA intends to obtain current OMB control numbers for any new information collection requirements resulting from this rulemaking action prior to the effective date of the final rule. The OMB control number, when assigned, will be announced by separate notice in the Federal Register .

Executive Order 13132, “Federalism” (64 FR 43255, Aug. 10, 1999), requires FRA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, the agency may not issue a regulation with Federalism implications that imposes substantial direct compliance costs and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, the agency consults with State and local governments, or the agency consults with State and local government officials early in the process of developing the proposed regulation. Where a regulation has Federalism implications and preempts State law, the agency seeks to consult with State and local officials in the process of developing the regulation.

This is an action with preemptive effect. Subject to a limited exception for essentially local safety hazards, its requirements will establish a uniform Federal safety standard that must be met, and State requirements covering the same subject are displaced, whether those standards are in the form of State statutes, regulations, local ordinances, or other forms of state law, including State common law. Preemption is addressed in §§ 217.2 and 218.4, both titled “Preemptive effect.” As stated in the corresponding preamble language for §§ 217.2 and 218.4 in the original final rule, section 20106 of Title 49 of the United States Code provides that all regulations prescribed by the Secretary related to railroad safety preempt any State law, regulation, or order covering the same subject matter, except a provision necessary to eliminate or reduce an essentially local safety or security hazard that is not incompatible with a Federal law, regulation, or order and that does not unreasonably burden interstate commerce. This is consistent with past practice at FRA, and within the Department of Transportation.

FRA has analyzed this action in accordance with the principles and criteria contained in Executive Order 13132. FRA notes that the above factors have been considered throughout the development of this rulemaking both internally and through consultation within the RSAC forum, as described in Section I of this preamble. After the Railroad Operating Rules Working Group failed to reach a consensus recommendation on the NPRM, FRA reported the Working Group's unofficial areas of agreement and disagreement to the RSAC. After publication of the NPRM, FRA permitted the Working Group to meet and discuss the comments received; some consensus on the comments was derived and forwarded to the RSAC where it was ratified as a recommendation to the FRA. The RSAC has as permanent voting members two organizations representing State and local interests: AASHTO and ASRSM. The RSAC regularly provides recommendations to the FRA Administrator for solutions to regulatory issues that reflect significant input from its State members. To date, FRA has received no indication of concerns about the Federalism implications of this rulemaking from these representatives or from any other representative. States and other governments were afforded opportunity to consult by virtue of the NPRM and comment period, and the agency's procedures permitting petitions for reconsideration.

For the foregoing reasons, FRA believes that this action is in accordance with the principles and criteria contained in Executive Order 13132.

FRA has evaluated this action in accordance with its “Procedures for Considering Environmental Impacts” (FRA's Procedures) (64 FR 28545, May 26, 1999) as required by the National Environmental Policy Act (42 U.S.C. 4321 et seq.), other environmental statutes, Executive Orders, and related regulatory requirements. FRA has determined that this action is not a major FRA action (requiring the preparation of an environmental impact statement or environmental assessment) because it is categorically excluded from detailed environmental review pursuant to section 4(c)(20) of FRA's Procedures. 64 FR 28547, May 26, 1999. In accordance with section 4(c) and (e) of FRA's Procedures, the agency has further concluded that no extraordinary circumstances exist with respect to this regulation that might trigger the need for a more detailed environmental review. As a result, FRA finds that this final rule is not a major Federal action significantly affecting the quality of the human environment.

Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).” Section 202 of the Act (2 U.S.C. 1532) further requires that “before promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) currently $128,100,000 in any 1 year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement” detailing the effect on State, local, and tribal governments and the private sector. This action would not result in the expenditure, in the aggregate, of $128,100,000 or more in any one year, and thus preparation of such a statement is not required.

Executive Order 13211 requires Federal agencies to prepare a Statement of Energy Effects for any “significant energy action.” 66 FR 28355 (May 22, 2001). Under the Executive Order, a “significant energy action” is defined as any action by an agency (normally published in the Federal Register ) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking: (1)(i) That is a significant regulatory action under Executive Order 12866 or any successor order, and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (2) that is designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. FRA has evaluated this action in accordance with Executive Order 13211. FRA has determined that this action is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Consequently, FRA has determined that this regulatory action is not a “significant energy action” within the meaning of Executive Order 13211.

FRA has not provided additional notice and request for public comment prior to making the amendments contained in this rule. FRA concluded that such notice and comment were impractical, unnecessary and contrary to the public interest since FRA is, for the most part, only making minor technical changes in response to requests for reconsideration of issues that were previously the subject of detailed notice and extensive comment in the development of the initial final rule in this proceeding.

Certain of the amendments are so critical to the effective implementation of this rule that the delay that a notice and comment period would cause would clearly be contrary to the public interest in railroad safety. For example, the amendments delaying certain implementation of the rule need to go into effect immediately or some of the implementation dates in the initial final rule would go into effect before the amendments would. If the amendments were not allowed to go into effect immediately, many railroads would be rushing to develop and implement training and testing programs, and the quality of the programs and the training would suffer. In addition, an exemption or relief from a restriction is provided by allowing railroads to utilize existing shove light systems without establishing point protection. If this exemption is not immediately placed in effect, some railroads may require an employee to ride the side of a car or walk along a departure track equipped with shove lights, thereby increasing the employee's risk of an injury. Under these circumstances, FRA has concluded that the rule may be made effective immediately. 5 U.S.C. 553(d).

Anyone is able to search the electronic form of all comments or petitions for reconsideration received into any of FRA's dockets by the name of the individual submitting the comment or petition for reconsideration (or signing the comment or petition for reconsideration, 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 (65 FR 19477-78), or you may visit http://DocketsInfo.dot.gov.

Table of Contents I. Introduction II. Summary of ES-2RE Part 572 Final Rule III. Petitions for Reconsideration IV. Response to the Petitions a. Neck Assembly Qualification Test b. Lumbar Spine c. Thorax Assembly, Rib Drop Test d. Thorax Assembly, Full-Body Test e. Cross-References and Typographical Errors in Regulatory Text f. Drawing Package and Other Materials V. Rulemaking Analyses and Notices Appendix A to Preamble I. Introduction

This final rule responds to petitions for reconsideration of a final rule (71 FR 75304; Docket No. NHTSA-2004-25441) that was published on December 14, 2006, amending 49 CFR Part 572 to add specifications and qualification requirements in Subpart U for a new mid-size adult male side impact test dummy, called the “ES-2re” test dummy, for use in Federal Motor Vehicle Safety Standard (FMVSS) No. 214 (“Side impact protection”). The notice of proposed rulemaking (NPRM) preceding the December 14, 2006 final rule was published on September 15, 2004 (69 FR 55550; Docket 18864; reopening of comment period, January 12, 2005, 70 FR 2105).

The ES-2re is technically superior to both the SID-HIII 50th percentile adult male test dummy (49 CFR Part 572, subpart M) currently used in the optional pole test of FMVSS No. 201 and the side impact New Car Assessment Program tests, and the SID 50th percentile adult male test dummy (49 CFR Part 572, subpart F) now used in the moving deformable barrier (MDB) test of FMVSS No. 214. The ES-2re can be instrumented with a wide array of sensors to better predict a wider range of injury potential than any other currently available mid-size male side impact test dummy. It can assess the potential for head injury (measuring the resultant head acceleration, which is used to calculate the Head Injury Criterion (HIC)); thoracic injuries in terms of spine and rib accelerations and rib deflections; abdominal injuries through three load cells to assess the magnitude of lateral and oblique forces; pelvic injuries, and other injuries.

The use of the ES-2re test dummy in FMVSS No. 214 was discussed in and made part of a final rule upgrading FMVSS No. 214 (49 CFR 571.214) published on September 11, 2007 (72 FR 51908; Docket No. NHTSA-29134). 1 The final rule added a dynamic pole test to FMVSS No. 214, to supplement the MDB test currently in the standard. In the dynamic pole test, a vehicle is propelled sideways into a rigid pole at an angle of 75 degrees, at any speed up to 32 km/h (20 mph). Compliance with the pole test will be determined in two test configurations, one using the ES-2re test dummy representing mid-size adult males and the other using a test dummy representing small adult females. 2 The final rule required vehicles to protect against head, thoracic and other injuries as measured by the two test dummies. The final rule also specified using the dummies in FMVSS No. 214's MDB test, which simulates a vehicle-to-vehicle, “T-bone” type intersection crash.

For any test dummy to be a useful test device in a compliance or vehicle rating setting, responses to controlled inputs must be reproducible and repeatable. The December 14, 2006 ES-2re final rule specified a qualification process for the ES-2re dummy, i.e. , a series of specified component and whole body-level tests, to verify that a test dummy's response measurements fall within prescribed ranges. The tests and response ranges (or performance corridors) for the ES-2re, specified in 49 CFR Part 572 Subpart U, ensure that the dummy's responses to controlled inputs are reproducible and repeatable, thus assuring full and accurate evaluation of occupant injury risk in vehicle tests. The test procedures and performance specifications for qualification of the ES-2re as set forth in the December 14, 2006 final rule established performance levels for the dummy's head assembly, neck assembly, lumbar spine, shoulder assembly, thorax (upper torso) assembly, abdomen assembly and pelvis. (An overview of the test requirements is provided in Appendix A to this preamble.)

Today's document relates to the following test procedures and performance specifications of the final rule:

• Neck Assembly: The neck-headform assembly of the ES-2re is attached to a specified pendulum which is released so that it contacts a decelerating mechanism at an impact velocity of 3.4 meters per second (m/s). As the pendulum decelerates, its velocity must fall within time-dependent velocity corridors described in the regulatory text, and at zero velocity, the pendulum must be vertical within ±1 degree. The rotation of the neck-headform in time is measured to evaluate the dummy's performance.

• Lumbar Spine: The lumbar spine is tested in a similar fashion as the neck. The spine is assembled with the headform assembly and attached to a specified pendulum. The pendulum is then released from a height so that it impacts the decelerating mechanism at a velocity of 6.05 m/s. The deceleration of the pendulum is defined by time-dependent velocity corridors. As with the neck assembly test, the rotation of the lumbar spine-headform assembly in time is measured and must fall within the specified response corridors.

• Thorax (upper torso) Assembly: Two procedures are specified to test the response of the ES-2re thorax. The first is an individual rib drop test. In this test, each rib module is mounted in a test fixture and a guided mass is dropped from two different heights to impact the rib. For each drop height, the resulting deflection of the rib is measured and used to determine the rib's suitability for compliance testing. The second thorax test is a full-body test performed on a seated dummy with its complete set of ribs. This test involves impacting the side of a seated dummy at the centerline of the middle rib, at a velocity of 5.5 m/s ± 0.1 m/s. Response ranges used to qualify the dummy are defined for the deflections of the upper, middle and lower ribs, and for the maximum force of the impactor at 6 ms or more after time zero.

The Alliance of Automobile Manufacturers (Alliance), Denton ATD (Denton) and First Technology Safety Systems (FTSS) petitioned for reconsideration of the December 14, 2006 final rule. The petitioners generally supported the incorporation of the ES-2re into 49 CFR Part 572, 3 but had concerns with engineering aspects of the Part 572 specifications and with the drawings incorporated by reference into the regulation. The suggestions of each of the petitioners are summarized below:

a. The Alliance petitioned to specify the use and thickness of aluminum honeycomb in the test procedures for assessing the neck assembly and the lumbar spine. The petitioner also asked NHTSA to revise specifications for the thorax assembly tolerances for rib module tuning springs, to eliminate the thorax individual rib drop test and to reduce the speed for the full body thorax test. The petitioner also suggested corrections to cross-references and typographical errors in the Part 572 regulatory text.

b. Denton also petitioned to specify the use of honeycomb material in the neck qualification test procedure. In addition, the petitioner requested that NHTSA eliminate the full body thorax impact test because of concerns that the test reduces the durability of the dummy, and because Denton believed “it impossible for the certification test to be a repeatable and reproducible evaluation of the dummy.” Alternatively, Denton suggested that if NHTSA retained the full body thorax impact test, that the agency adopt new corridors for the test developed by the Society of Automotive Engineers (SAE) Dummy Testing Equipment Subcommittee (DTESC) of the Human Biomechanics and Simulation Standards Committee. Denton also identified portions of the regulatory text and a number of drawings incorporated by reference into Part 572 that the petitioner believed needed correction.

c. FTSS requested that NHTSA consider data for the full-body thorax impact test from FTSS, Denton and GM and revise the probe force after 6 millisecond specification. FTSS also identified a number of drawings that the petitioner believed needed correction.

In response to the petitions for reconsideration of the December 14, 2006 final rule, this document slightly revises the specifications for conducting the neck assembly qualification test, narrows the tolerances for the tuning spring rates for the dummy's thorax, revises performance corridors for the full body thorax test, corrects cross-references and typographical errors in the Part 572 regulatory text and makes minor changes to the drawing package and NHTSA user's manual (Procedures for Assembly, Disassembly and Inspection) for the dummy.

The Alliance believed that the requirement in § 572.183(c) that at zero velocity, the pendulum must be vertical within ±1 degree “is broad and that it would not be possible to fail this requirement as long as a 3 inch piece of aluminum honeycomb is used.” The Alliance stated that “it would be more precise to simply state in the regulation the need to utilize a 3-inch thick piece of aluminum honeycomb, rather than include the more complicated specification for verticality of the pendulum beam.” Denton also petitioned that a 3-inch piece of aluminum honeycomb should be specified as the decelerating mechanism for the neck pendulum in place of the current angular position specification. Denton claimed that retaining the specification for ±1 degree from vertical at 0 m/s would only “add expense and difficulty to the test with no value,” as labs would have to measure the angular position of the pendulum for every test. This petitioner believed that the angular position specification came from “ES-2 user's manuals from TNO and FTSS,” but it was “originally intended by TNO to show that 3 inch thick honeycomb should be used for this test.”

We generally concur with the request. The requirement to measure the pendulum to ±1 degree from vertical was taken from the manufacturer's user's manual for the dummy. While this measurement would not require a great amount of effort to attain, we conclude that its removal from the test procedure would not affect dummy responses. Additionally, for all Hybrid III dummies, as well as for the SID-IIsD dummy, there is no requirement for the vertical alignment of the pendulum at zero velocity, nor is there a specified honeycomb thickness. All of these dummies reference the pendulum in 49 CFR Part 572 Subpart E (Figure 22), which only specifies the honeycomb density and the horizontal distance between the pivot of the pendulum and the honeycomb face. By maintaining consistency between test procedures for different dummies, the familiarity of lab technicians with the instructions for the dummy is increased, as will be the ease and efficiency of conducting tests.

Accordingly, NHTSA has decided to remove the requirement for the pendulum to be vertical ±1 degree at zero velocity, as petitioned. However, we are not adding a specification for honeycomb thickness, since laboratories may have alternative pendulum designs that achieve the desired deceleration. These changes will allow for the ES-2re neck qualification test to be consistent with those for all other currently-used dummies.

Similar to its recommendation to specify the neck pendulum decelerating mechanism as a 3-inch thick piece of aluminum honeycomb, the Alliance also petitioned to add to § 572.187(b)(3) a specification that the decelerating mechanism should have a thickness of 6 inches.

We do not agree to this request. Honeycomb thickness is not specified for any pendulum qualification tests for the Hybrid III family of dummies or for the SID-IIsD. The deceleration of the pendulum in neck or lumbar tests is defined by the velocity-time profile provided in the regulatory text, thus it is unnecessary to specify a honeycomb thickness.

The Alliance petitioned to delete the rib drop test because “it may not sufficiently identify poor performing ribs.” The petitioner referred to Denton data from six rib drop tests (three tests at 3 meters per second (m/s) and three at 4 m/s).

We are denying the request. It is not evident how the Denton results supported the request, and the petitioner did not explain its point. The six results provided by the Alliance all fell within the displacement corridors of the NPRM and the final rule. Presumably, the Alliance believes that some or all of these ribs should have failed this test as “poor” performers. However, no indication was given that these ribs were problematic, or that they should not have met the requirements of the rib drop test.

While analyzing the petitioner's data to try to understand the Alliance concern, we noticed that although the tests were conducted after the issuance of the final rule, the procedures used by the petitioner followed the NPRM specifications (which specified impact velocities) rather than the final rule's procedures (which specified drop heights). For all six tests, drop heights (which the agency calculated from the provided impact velocities) did not meet the specifications of the final rule. 4 Assuming that the Alliance was trying to illustrate that tests conducted outside the specifications of the final rule could still meet the deflection corridors, we still do not concur that this occurrence indicates that the test is deficient. Because of variation in dummy responses, the rib response at drop heights close to the final rule specifications may or may not also fall within the deflection corridor. No source of support for the Alliance petition could be identified in the provided data.

The individual rib drop test was originally specified in the manufacturer's user's manual and has received support throughout the rulemaking process. The Alliance's test results do not appear to demonstrate inadequacies in the individual rib drop test nor has the petitioner provided an explanation of the alleged deficiency of this test. Accordingly, the agency is denying the request to delete the individual rib drop test.

Petitioners raised two issues about the final rule's tuning springs specifications. First, the Alliance, Denton and FTSS pointed out a discrepancy between the user's manual (Procedures for Assembly, Disassembly and Inspection (PADI)) and Drawing 175-4040 regarding the spring rate for the middle (black) spring. The PADI specifies the spring rate as 16.6 Newtons per millimeter (N/mm), whereas the drawing has a 16.4 N/mm specification. The Alliance believed that the latter specification is correct. We confirm that the spring rate of 16.4 N/mm is correct and we have corrected the typographical error in the PADI.

The second issue relates to the 10 percent tolerance of the spring rates shown in several drawings of the springs (Note 2 in drawing 175-4040, black spring (16.4 N/mm spring rate); in drawing 175-4041, white spring (13.8 N/mm); and in drawing 175-4042, blue spring (19.0 N/mm)). (Each rib of the dummy contains a spring that can be changed out to adjust the amount of rib deflection upon impact.) All petitioners believed that the tolerances were too large. FTSS and Denton recommended a tolerance of ±1 N/mm for all three drawings. Denton noted that with the currently specified spring tolerances which allow overlap of the spring rates, springs could be replaced for tuning purposes but the lab will not “get the expected effect because of spring variability.” Denton states that they have manufactured these springs under tighter tolerances than ±1 N/mm, and that although it increases the spring cost to do so, “it prevents much larger costs that result from trial and error in testing while trying to tune rib modules.” The Alliance stated that the tolerances for the three tuning springs are such that the specified spring rates can overlap and recommended that the tolerance on the springs be limited to ±5 percent, rather than the current tolerance of ±10 percent. The Alliance stated that the SAE DTESC also recommended a tolerance of ±5 percent.

NHTSA agrees that the tolerance of ±10 percent is too large for the reasons provided by the petitioners and has decided to adopt a ±1 N/mm tolerance as recommended by FTSS and Denton. Changing the tolerance to ±1 N/mm will result in a tighter control of the rib response than the specification of the final rule and will prevent overlap of the tuning spring rates, while providing more leeway in meeting the tolerance than the ±5 percent tolerance suggested by the Alliance. Accordingly, we have revised drawings 175-4040, 175-4041 and 175-4042 to specify a spring rate tolerance of ±1.0 N/mm.

Denton requested that the full-body thorax impact test be eliminated because the petitioner believed the test “is destructive, and redundant to the drops [sic] tests in 572.185.” Denton stated that the impact—

Alternatively, Denton suggested new performance corridors for the dummy's response ranges (deflections of the upper, middle and lower ribs, and the maximum force of the impactor at 6 ms or more after time zero) based on a DTESC-compiled data set, which included test data from NHTSA, Denton and GM. Denton endorsed the DTESC's use of ±3 times the standard deviation of the data set to establish corridors. In contrast to Denton's endorsement of corridors based on ±3 times the standard deviation, in its petition the Alliance stated that it analyzed the DTESC data and recommended corridors based on ±2 times the standard deviation of the data set.

NHTSA is denying the request to eliminate the full body thorax impact test. The test is necessary to assess the dummy's thorax performance as a system, as opposed to assessing the performance of each rib individually in the rib drop test. A full-body test such as the ES-2re full body thorax impact test is also included in the qualification test procedures for other side impact dummies, including the SID, SID-IIsD and WorldSID. 5 Performance corridors for the full body thorax test were formed as discussed below in section IV.d.5 of this preamble.

The Alliance petitioned to revise the test speed for the full body thorax impact test “such that it does not significantly degrade the rib foam.” The petitioner stated that a study by Denton showed that force variation was shown to occur in repeat tests due to degradation of the rib foam material, eventually resulting in responses falling out of the corridor for the maximum force of the impactor 6 ms or more after time zero. The Alliance stated that “force [is] the most sensitive parameter and increase[s] as more tests are conducted due to rib foam degradation. This could require rib replacement after approximately 20-50 certification tests, which the Alliance considers unacceptable in terms of durability.” (Alliance petition, p. 3)

The agency is not reducing the impact velocity for the test. The impact velocity was reduced from the NPRM's value of 6.7 m/s to the final rule's value of 5.5 m/s, in response to FTSS's comment to the NPRM (NHTSA Docket No. 18864-22) that the impact velocity (6.7 m/s) was too severe, and that a more appropriate impact velocity would probably be between 5.0 and 6.0 m/s. NHTSA evaluated the comment by conducting full-body thorax qualification tests to determine a more appropriate test speed. The results of the test series led to the establishment of an impact speed of 5.5 m/s, which fell within the range suggested by FTSS.

The impact velocity for the ES-2re full body thorax impact test was chosen to achieve rib deflections at the levels considered for the ES-2re Injury Assessment Reference Value (IARV) in the FMVSS No. 214 rulemaking that incorporated the test dummy into the side impact protection safety standard. The September 11, 2007 FMVSS No. 214 final rule specifies that the deflection of any of the upper, middle, and lower ribs shall not exceed 44 millimeters (mm) (1.65 inches). 6 NHTSA sought an impact velocity for the full body thorax impact test that verified the dummy's response at this IARV level of rib deflection. Repeatable, reliable responses in qualification tests that exercise the ribs to this IARV level will ensure repeatable and reliable results from one vehicle test to another. As described in the report, “Development of a Reduced-Severity Full Body Thorax Certification Procedure and Response Requirements for the ES-2re Dummy” (Docket DMS 25441-13), the impact velocity of 5.5 m/s was chosen because it was the lowest impact velocity that produced rib deflections near the IARV. A lower impact speed would not produce sufficient rib deflection and thus would not give indication of the dummy's performance at the critical 44 mm deflection levels.

Following establishment of an impact speed of 5.5 m/s, the agency conducted a series of tests to generate performance corridors for the full-body thorax test. These tests subjected three dummies to 15 impacts each, with five impacts for each tuning spring stiffness. Although some impacts produced deflections that were above the IARV of 44 mm, no problems with rib durability were observed. Furthermore, the petitioners did not provide conclusive evidence that the 5.5 m/s impact speed produced the reported rib degradation. Rib durability is discussed further below; however, it does not appear to be an issue related to the test speed.

The Alliance, referencing the SAE DTESC meeting minutes from January 19, 2007, stated that repeat full-body thorax tests caused degradation of the rib foam material, which in turn resulted in variation of the “Impactor Force after 6 ms” measurements. This caused force responses to eventually fall outside the prescribed corridor. The Alliance also referenced linear regression plots showing “the variation of rib deflections and force as repeat full body thorax tests were conducted,” and additional linear regression plots provided in the DTESC meeting attachments that indicate that the impactor force is the “most sensitive parameter and increas[es] as more tests are conducted due to rib foam degradation.” The Alliance claimed that the ribs could require “replacement after approximately 20-50 certification tests,” which it “considers unacceptable in terms of durability.” Denton, which also referenced the January 19, 2007 DTESC Meeting Minutes, had similar comments regarding durability.

As mentioned in the previous discussion, the full body thorax impact test is necessary for evaluation of the dummy as a system. Additionally, the test is conducted at 5.5 m/s because this speed is required to induce rib deflections at the level of the IARV. The dummy must be tested at this level of deflection to ensure that its performance in a crash test will be reliable.

Results from agency full-body thorax qualification tests conducted at 5.5 m/s cannot be appropriately analyzed for trends such as those described by the petitioners, as there are not enough tests of any one dummy to confidently state that the responses are behaving in a certain manner (5 tests are available for each dummy). However, these five tests per dummy do not show strong trends in the behavior of the peak impactor force. The durability of the ES-2re was an issue discussed in response to comments to the December 14, 2006 NPRM. In responding to the comments, the agency discussed the durability of the ES-2re in agency testing. It was found that after full-body thorax impacts conducted at 6.7 m/s  7 on two dummies (5 impacts on one dummy, 15 on the other), no parts of the dummy exhibited any observable component damage or failure. Additionally, no significant durability problems were identified after 14 pole tests and 14 MDB vehicle crash tests. The final rule therefore concluded that the durability of the ES-2re is fully acceptable for its intended use in FMVSS No. 214.

Although NHTSA has conducted a number of tests on the ES-2re dummy without any durability issues arising in the ribs, the data provided in the DTESC meeting attachments submitted by Denton and referenced by the Alliance were also carefully analyzed, and the following observations were made:

• The “Impactor Force after 6 ms” data  8 that the Alliance refers to as eventually falling outside the prescribed corridor is a compilation of results from a number of different dummies. Most of the dummies produced fairly consistent results, whether within or somewhat outside the final rule performance corridor. The ES2-LAB dummy, tested at Denton ATD, had rising response measurements that eventually exceeded the final rule corridor limit (see middle set of “Removed Dummies” in Figure 4 of this preamble, infra. ). Three ES2-LAB dummy measurements significantly exceeded the upper performance limit; these were conducted after an “investigational test series,” the conditions of which were not provided. The photograph of a damaged rib provided by Denton in the DTESC minutes was taken after these three tests. Therefore it is unknown whether the damage was related to the final rule qualification procedures or to the investigational test series conducted earlier on this dummy. The reason that this dummy responded in this manner is unknown; however, the trend was unique to this dummy and does not indicate durability problems with the ES-2re in general.

• The linear regression plot of the “Impactor Force after 6 ms” results referred to by petitioners Denton and the Alliance shows a positive slope, suggesting that the response is rising as more tests are conducted. However, the correlation is very weak (R 2 = 0.1072), and furthermore all data fall within the final rule corridors. Therefore, this plot does not illustrate any problematic responses.

• It appears that as more tests are conducted, the impactor force before 6 ms rises. However, this response is not important for qualification or crash tests. As long as the dummy responds in a consistent manner at high deflections, such as those in qualification and crash tests, its inertial response (before 6 ms) is inconsequential.

As discussed, the petitioners do not provide strong evidence of rib durability problems. However, the agency recognizes that other side impact dummies ( i.e. , SID-IIsD, WorldSID) are specified to have an impact speed of 4.3 m/s for testing the full-body thorax. Therefore, to ensure that the severity of qualification tests is consistent between side impact dummies, the rib deflections required for qualification of the SID-IIsD were compared to their respective IARV levels. (For the WorldSID, an IARV is not yet available as injury criteria are still under development.) The SID-IIsD dummy has a monitored IARV limit of 38 mm for all thoracic ribs, 9 although at this time FMVSS No. 214 does not specify a rib deflection limit for this dummy. To make a fair comparison between the deflection levels of the qualification test versus the IARV for the SID-IIsD and ES-2re, the SID-IIsD test conditions should be as close as possible to the ES-2re test conditions. Therefore, the deflections of the SID-IIsD “thorax without arm” test (rather than the “thorax with arm” test) were compared to its monitored IARV limit because the ES-2re full body thorax test is conducted with the struck-side arm removed. The rib deflection corridors for qualification of the SID-IIsD dummy are presented in Table 1 below.

Comparison of the qualification test corridors to the monitored IARV limit of the SID-IIsD thoracic ribs show that the deflections for the thorax without arm qualification test are in line with the monitored IARV for the thoracic ribs. Thus, even though the impact speed is slower for the SID-IIsD qualification than for the ES-2re, the induced rib deflections, like those in the ES-2re qualification test, are at the level of the monitored IARV.

A similar comparison can be made using the Hybrid III 50th percentile male (Subpart E) dummy. For qualification of this dummy's thorax, the front of the dummy thorax is impacted using the same probe as that used on the ES-2re at a velocity of 6.7 m/s (22 feet per second (fps)), and the sternum displacement relative to the spine is specified to be 68 ± 4.57 mm (2.68 ± 0.18 inches). As of September 2006, 10 FMVSS No. 208's frontal barrier tests specify a maximum compressive deflection of the sternum of 63 mm for the Hybrid III 50th percentile male driver and passenger dummies in these tests. Therefore again, the amount of compression specified in the qualification test is consistent with the IARV required by the corresponding vehicle crash test.

Finally, both the Alliance and Denton estimated that under the current qualification test procedure, the ribs would require replacement after 20-50 certification (qualification) tests. However, inasmuch as dummies are rarely subjected to such high numbers of repeat qualification tests, this number does not provide a clear indication of dummy durability. The purpose of qualification is to assure the dummy's performance in a sled or crash test, therefore after it is qualified, the dummy will be used in these types of tests. Because sled and crash tests can be of varying severity, wear-and-tear on the dummy over time will differ based on the test conditions. Thus, the life of the dummy's components is more dependent on the severity, rather than the number, of tests to which the dummy is subjected. Given this, the agency cannot concur that replacement after 20-50 qualification tests is indicative of poor rib durability.

In conclusion, an issue with rib durability cannot be clearly identified by the data provided, and the relative severity of the test with respect to the resulting rib deflection is comparable to those of the SID-IIsD and Hybrid III 50th percentile male dummies. Although petitioners provide an estimated number of qualification tests before rib replacement would be necessary, this estimate does not reflect the typical use of dummies and thus does not give an indication of the level of rib durability. Therefore, the full body thorax test will remain a requirement for ES-2re qualification, and the impact speed will remain as specified in the final rule.

Denton believed that “the fact that the dummy changes with every test makes it impossible for the certification test to be a repeatable and reproducible evaluation of the dummy.” This comment refers to the petitioner's earlier discussion on rib durability, where they claim that “this full body thorax impact test causes damage to the foam on the dummy ribs with every impact that is done” and “every single impact to the dummy degrades the foam on the ribs.”

As discussed in previous sections, the data provided by the petitioner do not sufficiently support a finding of a dummy durability problem for the ES-2re. Also, the data set used to form performance corridors shows very good repeatability and reproducibility. This data set included five different dummies from two labs and two manufacturers that were each tested at least five times. The coefficient of variations (CVs) for rib deflection responses from individual dummies ranged from 0.44 percent—2.09 percent, and the CVs for peak force after 6 ms ranged from 0.82 percent—3.85 percent, indicating excellent repeatability. In terms of reproducibility, rib deflection CVs ranged from 2.66 percent—2.96 percent, and the CV for peak force after 6 ms was 4.76 percent (see Table 2, below). These low CV values show that measurements from one dummy to the next were very consistent, i.e. , the test results are reproducible. 11 For these reasons, the agency disagrees with the petitioner that this test does not provide a repeatable and reproducible evaluation of the dummy.

Current regulations, implemented under Framework Adjustment 9 to the FMP, and expanded under Amendment 7 to the FMP, contain a NE multispecies fishing mortality and bycatch reduction measure that is applied to the Gulf of Maine (GOM), Georges Bank (GB), and Southern New England (SNE) Exemption Areas. This measure prohibits vessels from fishing in these areas unless they are fishing under a NE multispecies or a scallop DAS allocation, are fishing with exempted gear, are fishing under the Small Vessel Handgear (A or B) or Party/Charter permit restrictions, or are fishing in an exempted fishery. The procedure for adding, modifying, or deleting fisheries from the list of exempted fisheries is found in § 648.80. A fishery may be exempted by the Administrator, Northeast Region, NMFS (RA), after consultation with the New England Fishery Management Council (Council), if the RA determines, based on available data or information, that the bycatch of regulated species is, or can be reduced to, on average, less than 5 percent per trip, by weight on board, and that such exemption will not jeopardize the fishing mortality objectives of the FMP.

At present, there are three scallop exemptions for scallop dredge vessels when fishing under the open access scallop General Category permit, or under the limited access scallop permit when not fishing under a scallop DAS. They are referred to as: The GOM Scallop Dredge Exemption Area, established in Framework 21 to the FMP (February 1997); the SNE Scallop Dredge Exemption Area, established in Amendment 13 to the FMP (April 2004); and the Great South Channel (GSC) Scallop Dredge Exemption Area, established by the authority of the RA (August 2006). On November 2, 2007, a request was submitted on behalf of the General Category scallop fleet to establish an incidental monkfish catch limit of 50 lb (23 kg) tail weight or 166 lb (75 kg) whole weight per trip, consistent with the Monkfish FMP, within the three scallop exemptions. This rule creates three new exemptions, identical to the existing scallop exemption areas, described at § 648.80(a)(11)(i)(A), (a)(18)(ii)(A), and (b)(11)(ii)(A), with the addition of a 50-lb (23-kg) tail weight or 166-lb (75-kg) whole weight incidental monkfish catch limit per trip, provided the fishery does not jeopardize the fishing mortality objectives of the FMP.

The data analyzed for this action consist of observer data from both General Category and limited access scallop dredge trips within the GOM, GSC, and SNE scallop exemption areas from 2001 to 2007. A total of 85 General Category trips and 198 limited access trips were observed during that period. Bycatch rates were calculated on a trip-by-trip basis by adding up the total weight of NE multispecies, scallops (in-shell weight), and all other catch on each observed trip, and then calculating the percentage of the total catch represented by regulated NE multispecies. The percent bycatch of regulated NE multispecies in the exemption areas ranged from 0 to 10.33 percent in General Category trips (N=85), and 0 to 8.6 percent in limited access trips (N=198). The mean percent bycatch of regulated NE multispecies by weight of the total catch across all areas in the General Category and limited access fisheries was less than 1 percent. From a total of 85 observed General Category trips into the exemption areas, the mean percent bycatch was 0.97 percent of the total catch. From the 198 observed limited access scallop dredge trips into those same areas, the mean percent bycatch was estimated to be 0.93 percent of the total catch.

Monkfish discards were analyzed within this same dataset. Monkfish discards within the current exemption areas ranged from 0 to 611 lb (0-277 kg) tail weight per trip in the General Category fishery (N=85). From a total of 85 General Category trips into the current exemption areas, the mean monkfish discard was 48.1 lb (22 kg) tail weight per trip, and the mean trip was 0.44 days (11 hr). This action will allow a level of monkfish incidental bycatch within the scallop exemptions of 50 lb (23 kg) tail weight or 166 lb (75 kg) whole weight per trip. This level of monkfish fishing mortality from scallop dredge vessels is within the allowable limit specified under Framework 4 of the Monkfish FMP (72 FR 53942, September 21, 2007; i.e., 150 lb (68 kg) tail weight or 498 lb (226 kg) whole weight per trip).

From a total of 38 observed General Category trips into the current GSC Scallop Exemption, the mean monkfisk catch per trip was 28.98 lb (13 kg) tail weight, and only 1 trip discarded more than 150 lb (68 kg) tail weight. Monkfish bycatch ranged between 0-302.71 lb (0-137 kg) tail weight per trip.

From a total of 29 observed General Category trips into the GOM Scallop Exemption, the mean monkfish catch per trip was 40.6 lb (18 kg) tail weight, and only 3 trips discarded in excess of 150 lb (68 kg) tail weight. Monkfish bycatch ranged between 0-425 lb (0-193 kg) tail weight per trip.

From a total of 18 observed General Category trips into the SNE Scallop Exemption, the mean monkfish catch per trip was 100.5 lb (46 kg) tail weight, and only 3 trips discarded more than 150 lb (68 kg) tail weight. Monkfish bycatch ranged between 0-611 lb (277 kg) tail weight per trip.

The observed level of monkfish discard within the current scallop exemptions, as detailed above, is consistent with the monkfish incidental catch limit instituted by this action. This level of monkfish fishing mortality in the General Category scallop dredge fleet was previously analyzed within Framework 4 to the Monkfish FMP. Since the data indicate that the monkfish incidental catch limit instituted by this action is currently being discarded, no change in fishing behavior is expected, and it is not anticipated that there will be an increase in regulated species bycatch. These new scallop exemptions are identical to the existing scallop exemptions, with the addition of an incidental catch of monkfish, and are therefore expected to meet both the bycatch and the fishing mortality requirements of the regulations. Public comment regarding this action was solicited in the proposed rule (73 FR 23175, April 29, 2008). The comment period closed on May 14, 2008.

Based on the analysis of available data, the bycatch of regulated species by scallop dredge vessels is less than, on average, 5 percent per trip, by weight on board, within the exemption areas and the monkfish bycatch is consistent with the incidental catch level analyzed within the Monkfish FMP. The data analysis shows that, on average, scallop dredge vessels are currently discarding 48.1 lb (22 kg) tail weight of monkfish per trip within the three exemption areas, a level consistent with the monkfish incidental catch (50 lb (23 kg) tail weight or 166 lb (75 kg) whole weight per trip) instituted by this action. In addition, there are no data to suggest that modifying the present exemptions to accommodate a monkfish incidental catch at 50 lb (23 kg) tail weight or 166 lb (75 kg) whole weight per trip would cause a shift in effort towards monkfish or NE multispecies. Therefore, the RA has determined that a monkfish incidental catch of 50 lb (23 kg) tail weight or 166 lb (75 kg) whole weight per trip, within the GOM, SNE, and GSC Scallop Exemptions, meets the exemption requirements specified in § 648.80(a)(8), and would not be inconsistent with the monkfish fishing mortality goals of the Monkfish FMP.

Therefore, this rule creates three scallop exemptions (GOM, SNE, and GSC), identical to the existing scallop exemptions, with the addition of a 50-lb (23-kg) tail weight or 166-lb (75-kg) whole weight per trip monkfish incidental catch possession limit. These new scallop exemptions are restricted to vessels issued either a General Category Atlantic sea scallop permit or a limited access sea scallop permit (when not fishing under a scallop DAS limitation), when fishing with small dredges (combined width not to exceed 10.5 ft (3.2 m)). Vessels that land an incidental catch of monkfish within these new scallop exemptions are required to possess, and have onboard, a valid limited access monkfish permit, or a monkfish open access Incidental Catch permit.

There was one comment received in support of the proposed rule, and there are no substantive changes to the proposed rule. Additional language was added to the final rule, to clarify that scallop dredge vessels that land an incidental catch of monkfish within these new scallop exemptions, who do not currently possess a monkfish permit, must obtain a monkfish open access Incidental Catch permit.

NMFS has determined that this final rule is consistent with the FMP and has determined that it is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.

This final rule has been determined to be not significant for purposes of 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 and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared. There are no Federal rules that duplicate, overlap, or conflict with the final rule. This action creates three scallop exemptions for General Category scallop vessels, or limited access scallop vessels not fishing on a DAS allocation, identical to the current scallop exemptions, with the addition of an incidental catch of monkfish. This action was categorically excluded under the National Environmental Policy Act, as an action that includes minor technical additions, corrections, or changes to an FMP.

The economic impacts of the action are expected to be minimal and positive. This action allows the General Category scallop fleet, while fishing under a scallop exemption, to land up to 50 lb (23 kg) tail weight or 166 lb (75 kg) whole weight of monkfish per trip, in addition to scallops. This allows the fleet to utilize these resources in a manner consistent with the bycatch and mortality objectives of the FMP. This action allows a small incidental catch of monkfish, and as such is expected to minimally increase revenues for scallop dredge vessels fishing under the General Category permit provisions.

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 action 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. Copies of the guide will be sent to all holders of commercial Federal scallop permits. The guide will also be available on the internet at http://www.nero.noaa.gov . Copies of the guide can also be obtained from the Regional Administrator (see ADDRESSES ).

This action does not contain an additional collection-of-information requirement subject to review by the Office of Management and Budget under the Paperwork Reduction Act.

Fisheries, Fishing, Reporting and recordkeeping requirements.

Regulations governing the scup fishery are found at 50 CFR part 648. The regulations at § 648.121 require the Regional Administrator to monitor the commercial scup quota for each quota period and, based upon dealer reports, state data, and other available information, to determine when the commercial quota for a period has been harvested. NMFS is required to publish a notification in the Federal Register advising and notifying commercial vessels and dealer permit holders that, effective upon a specific date, the scup commercial quota has been harvested and no commercial quota is available for landing scup for the remainder of the Summer Period. Based upon recent projections, the Regional Administrator has determined that the Federal commercial quota of 1,437,588 lb (652 mt) for the 2008 Summer Period will be fully harvested by or before October 31, 2008. To maintain the integrity of the 2009 Summer Period quota by avoiding or minimizing quota overages, the commercial scup fishery will close for the remainder of the Summer Period (through October 31, 2008) in Federal waters, effective as of the date specified above (see DATES ).

Section 648.4(b) provides that Federal scup moratorium permit holders agree, as a condition of the permit, not to land scup in any state after NMFS has published a notification in the Federal Register stating that the commercial quota for the period has been harvested and that no commercial quota for scup is available. Therefore, effective 0001 hours, June 16, 2008, further landings of scup by vessels holding Federal scup moratorium permits are prohibited through October 31, 2008. Effective 0001 hours, June 16, 2008, federally permitted dealers are also advised that they may not purchase scup from federally permitted vessels that land in coastal states from Maine through North Carolina for the remainder of the Summer Period (through October 31, 2008). The Winter II Period for commercial scup harvest will open on November 1, 2008.

This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.

The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) requires that each regional fishery management council submit any Fishery Management Plan (FMP) amendment it prepares to NMFS for review and approval, disapproval, or partial approval by the Secretary of Commerce. The Magnuson-Stevens Act also requires that NMFS, upon receiving an FMP amendment, immediately publish a notice in the Federal Register announcing that the amendment is available for public review and comment.

The North Pacific Fishery Management Council (Council) submitted Amendment 24 to the FMP to NMFS on March 6, 2008. The notice of availability for Amendment 24 was published in the Federal Register on March 19, 2008 (73 FR 14766). The public comment period closed on May 19, 2008. NMFS received 1 public comment and considered this comment in determining whether to approve this FMP amendment. NMFS has summarized and responded to the public comment received in this notice under Public Comments, below.

In December 2007, the Council unanimously recommended Amendment 24. Amendment 24 satisfies the Magnuson-Stevens Act requirement that FMPs contain objective and measurable criteria for determining whether a stock is overfished, whether overfishing is occurring, and for rebuilding overfished stocks. Section 301(a) of the Magnuson-Stevens Act establishes national standards for fishery conservation and management, and requires that all FMPs create management measures consistent with those standards. National Standard 1 requires that conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from fisheries in federal waters.

The Alaska Fisheries Science Center (AFSC) reviewed the proposed overfishing definitions in Amendment 24 and supporting environmental assessment for compliance with guidelines provided for National Standards 1 and 2 in 50 CFR part 600. During this review, the AFSC recommended modifications to the amendment text to clarify the Council's intent and comply with the Magnuson-Stevens Act. At its February 2008 meeting, the Council adopted the FMP text for Amendment 24 which included the AFSC's recommendations. On February 14, 2008, the AFSC certified that the proposed definitions (1) have sufficient scientific merit, (2) are likely to result in effective Council action to protect a managed stock from closely approaching or reaching an overfished status, (3) provide a basis for objective measurement of the status of a managed stock against the definition, and (4) are operationally feasible.

Amendment 24 (1) specifies a five-tier system for determining the status of the crab stocks managed under the FMP, (2) establishes a process for annually assigning each crab stock to a tier and for setting the overfishing and overfished levels, and (3) reduces the number of crab stocks managed under the FMP. The stock status determination criteria in Amendment 24 reflect current scientific information and accomplish the following:

• Provide an FMP framework to annually define overfishing values using the best available scientific information;

• Provide a new tier system that accommodates varying levels of uncertainty of information and takes advantage of alternative biological reference points; and

• Define the status determination criteria and their application to the appropriate component of the population.

Under Amendment 24, the stock status determination criteria for crab stocks is annually calculated using a five-tier system that accommodates varying levels of uncertainty of information. The five-tier system incorporates new scientific information and provides a mechanism to continually improve the stock status determination criteria as new information becomes available. The five-tier system is used to determine the status of the crab stocks and whether (1) overfishing is occurring or the rate or level of fishing mortality for a stock or stock complex is approaching overfishing, and (2) a stock or stock complex is overfished or a stock or stock complex is approaching an overfished condition.

Overfishing is determined by comparing the overfishing level, as calculated in the five-tier system for the crab fishing year, with the catch estimates for that crab fishing year.

Annually, the overfishing level for each stock is calculated based on the most recent abundance estimates and prior to the State setting the total allowable catch or guideline harvest level for that stock's upcoming crab fishing season. First, a stock is assigned to one of the five tiers based on the availability of information for that stock. Tier assignments are made through the Council's Crab Plan Team process and recommended by the Council's Scientific and Statistical Committee.

Once a stock is assigned to a tier, the stock status level is determined based on biomass estimates from recent survey data and simulation models, as available. The tier system specifies three levels of stock status: “a,” “b,” and “c.” At stock status level “a,” current stock biomass exceeds the biomass estimated to produce maximum sustainable yield to the fishery (B MSY ). At status level “b,” current stock biomass is less than necessary to produce B MSY , but greater than a level specified as the critical biomass threshold. At stock status level “c,” current stock biomass is below the critical biomass threshold and directed fishing is prohibited. The stock status level determines the equation for calculating the fishing rate (F) used to determine the overfishing level (F OFL ). For stocks in Tiers 1 through 4, F is reduced as biomass declines by stock status level.

For Tiers 1 through 3, reliable estimates of biomass, B MSY , and the fishing rate expected to result in maximum sustainable yield to the fishery (F MSY ), or their respective proxy values, are available. Tier 4 is for stocks where essential life-history, recruitment information, and understanding are lacking. In Tier 4, a default value of natural mortality rate (M) or an M proxy, and a scalar, gamma (γ), are used in the calculation of the F OFL . Use of the scalar γ is intended to allow adjustments in the overfishing definitions to account for differences in biomass measures. Amendment 24 sets a default value of γ = 1.0, with the understanding that the Council's Scientific and Statistical Committee may recommend a different value for a specific stock or stock complex as merited by the best available scientific information.

Tier 5 stocks have no reliable estimates of biomass or natural mortality and only historical data of retained catch is available. For stocks in Tier 5, the overfishing level is specified in terms of an average catch value over an historical time period, unless the Scientific and Statistical Committee recommends an alternative value based on the best available scientific information.

After the crab fishing year, NMFS determines whether overfishing occurred by comparing the overfishing level with the catch from the previous crab fishing year. For stocks where non-target fishery removal data are available, catch includes all fishery removals, including retained catch and discard losses. Discard losses will be determined by multiplying the appropriate handling mortality rate by observer estimates of bycatch discards. For stocks where only retained catch information is available, the overfishing level is set for and compared to the retained catch.

An overfished condition is determined by comparing annual biomass estimates to the established minimum stock size threshold (MSST), defined as one half the biomass estimated to produce maximum sustainable yield to the fishery. For stocks where MSSTs (or proxies) are defined, if the biomass drops below the MSST (or proxy thereof) then the stock is considered to be overfished. MSST or proxies are set for stocks in Tiers 1 through 4. For Tier 5 stocks, it is not possible to set an MSST because there are no reliable estimates of biomass.

Annually, the Council, Scientific and Statistical Committee, and Crab Plan Team will review the stock assessment documents, the OFLs and total allowable catches or guideline harvest levels for the upcoming crab fishing year, NMFS's determination of whether overfishing occurred in the previous crab fishing year, and NMFS's determination of whether any stocks are overfished.

Amendment 24 removes 12 state-managed stocks from the FMP. NMFS and the Council found that the State of Alaska (State) has a legitimate interest in the conservation and management of these stocks. As explained in the EA, federal management of these stocks is no longer necessary because under the deferred authority of the FMP, the State has either closed the directed fishery, managed a limited incidental or exploratory fishery, or the majority of catch occurs in state waters. The State will continue to manage these stocks as they currently do under the deferred management authority of the FMP.

An EA was prepared for Amendment 24 that describes the management background, the purpose and need for action, the management alternatives, and the environmental and socio-economic impacts of the alternatives (see ADDRESSES ).

Comment: Add the following sentence from the draft EA to the Amendment 24 language on Tier 4: “The value for γ is frameworked, depending on the values of F MSY and it's proxy (F35%) and M.” Adding this sentence would clarify that the default γ value is a scalar to adjust M to the proxy F MSY and avoid confusion about the role of γ in the determination of F OFL . The notion that default γ should be set at a value of 1.0 is overly conservative for Bering Sea and Aleutian Islands crab stocks, and simply does not conform to our current understanding of crab population dynamics. NMFS should rely on the simulation modeling estimates of γ generated from the analyses in the EA as best available science and set γ accordingly.

Response: NMFS has determined that Amendment 24 is sufficiently clear regarding specifying a value for γ for Tier 4 stocks and does not agree that Amendment 24 FMP should be changed to include the sentence suggested in the comment. NMFS cannot add language to an FMP amendment submitted by a regional fishery management council. Furthermore, Amendment 24 is consistent with the Magnuson-Stevens Act and other applicable law without this addition.

Amendment 24 provides a default of γ = 1, which applies to all Tier 4 stocks until a stock specific γ can be estimated based on the best available scientific information and reviewed by the Council's Scientific and Statistical Committee. A default γ is necessary until stock specific values can be determined. A γ = 1 allows the F MSY proxy to equal M which is an appropriate default given our current level of scientific information for the group of Tier 4 stocks. In the stock assessment process, a γ can be set more or less conservatively for each stock based on simulation modeling and the best available information during the stock assessment process.

Amendment 24 provides the flexibility to set γ at the appropriate value for each Tier 4 stock based on stock assessments that use the best available information. Stock specific γ values depend on the relationship between fishery selectivities (discard and retained catch) and maturity and growth estimates. The Council's Crab Plan Team discussed ways to estimate γ for each Tier 4 stock, including the methods analyzed in the EA. In May 2008, the Crab Plan Team recommended that assessment authors analyze alternative γ values for each Tier 4 stock to assist in determining the appropriate value for that stock. Using the method analyzed in the EA may not be appropriate for a particular stock if fishery selectivities, maturity, growth, and discards relative to retained catch are not the same as the proxy stock. For example, it may be appropriate to use F35% estimated for Bristol Bay red king crab to estimate γ for a stock like Pribilof red king crab; however, it may not be appropriate to use that same value for blue king crab.