Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this rule. Comments that will provide the most assistance to the Department of Justice will reference a specific portion of the rule, explain the reason for any recommended change, and include data, information, or authority supporting the recommended change.

All submissions received must include the agency name and EOIR Docket No. 159P.

Posting of Public Comments: Please note that all comments received are considered part of the public record and made available for public inspection online at www.regulations.gov. Such information includes personal identifying information (such as your name, address, etc.) voluntarily submitted by the commenter.

If you want to submit personal identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online, you must include the phrase “PERSONAL IDENTIFYING INFORMATION” in the first paragraph of your comment. You must also locate all the personal identifying information you do not want posted online in the first paragraph of your comment and identify what information you want redacted.

If you want to submit confidential business information as part of your comment but do not want it to be posted online, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You must also prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted on http://www.regulations.gov.

Personal identifying information identified and located as set forth above will be placed in the agency's public docket file, but not posted online. Confidential business information identified and located as set forth above will not be placed in the public docket file. If you wish to inspect the agency's public docket file in person by appointment, please see the “For Further Information Contact” paragraph.

Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov. Submitted comments may also be inspected at the Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 22041. To make an appointment, please contact the Executive Office for Immigration Review at (703) 305-0470 (not a toll free call).

On January 9, 2006, Attorney General Alberto Gonzales directed a comprehensive review of the Immigration Courts and the Board. This review was undertaken in response to concerns about the quality of decisions being issued by the immigration judges and the Board and about reports of intemperate behavior by some immigration judges.

At that time, the Deputy Attorney General and the Associate Attorney General assembled a review team, which over the course of several months conducted hundreds of interviews, administered an online survey, and analyzed thousands of documents to assess the Executive Office for Immigration Review (EOIR) adjudicative process. With regard to the Board's appellate process, the review team received much commentary about the streamlining and Board reform regulations, specifically the Procedural Reforms To Improve Case Management Rule, 67 FR 54878 (August 26, 2002) (“Board reform rule”). This rule provided for improved case management procedures and expanded the number of cases that could be referred to a single Board member for review. This new case management system was intended to reduce delays in the appellate review process, reduce the backlog of pending cases, and allow Board members to focus more attention on cases presenting novel or significant issues.

Critics of the procedural reforms rule speculated that the revised procedures allowed Board members insufficient time to review cases thoroughly and made it more difficult for the Board to publish adequate numbers of precedential decisions. Supporters observed that the reforms brought much-needed efficiency to the appellate process, which allowed the Board to eliminate a large backlog of cases and to adjudicate cases in a timely manner.

On August 9, 2006, Attorney General Gonzales announced that the review was complete, and he directed that a series of measures be taken to improve adjudications by the immigration judges and the Board. EOIR is implementing most of those initiatives through administrative and management actions, although several of the initiatives require changes to the existing regulations. This rule is one of several new regulatory actions resulting from this senior level review, and implements three initiatives relating to the Board.

The Department considered the Board's current and predicted caseload, its resources, and the need to adjudicate cases thoroughly and in a timely manner and concluded that the basic principles set forth in the Board reform rule were still necessary to prevent future backlogs and delays in adjudication. Accordingly, the Department is not reopening or seeking public comment on the existing final regulations that were adopted in 2002.

However, the Department has concluded that three specific adjustments to the Board reform rule are appropriate, and it is with respect to these three changes that we seek public comments. The proposed rule, accordingly, would revise the regulations governing the Board to (1) encourage the increased use of one-member written opinions to address poor or intemperate immigration judge decisions, instead of issuing affirmances without opinion, (2) allow for the use of three-member written opinions to provide greater legal analysis in a small class of particularly complex cases, and (3) authorize three-member panels, by majority vote, to designate their decisions as precedent decisions. The Department has already published a separate rule increasing the number of Board members in order to carry out the Board's expanded responsibilities. 71 FR 70855 (Dec. 7, 2006).

Historically, with a few exceptions not mentioned here, the Board adjudicated all of its cases in panels of three Board members. Those three-member panels generally issued full written decisions explaining the order in each case. However, as the Board's caseload began to grow dramatically over the years, changes were necessary to help the Board manage its docket.

In 1999, a regulatory amendment authorized the Board to affirm the decision of an immigration judge without issuing a separate written opinion. See Board of Immigration Appeals; Streamlining, 64 FR 56135 (Oct. 18, 1999). This kind of order is called an affirmance without opinion (AWO), and the decision contains only two sentences prescribed by regulation, without any additional language or explanation about the reasons for the affirmance. See 8 CFR 1003.1(e)(4)(ii). The Board implemented the AWO process successfully, although the process was initially utilized only in certain categories of cases pending before the Board, and all other cases were still referred to a three-member panel for decision. Despite the use of this new procedural device, however, the Board's backlog of pending cases continued to grow and the average period of time that cases remained pending on appeal to the Board lengthened considerably.

More than five years ago, Attorney General John Ashcroft published the Board reform rule. See 67 FR 54878 (Aug. 26, 2002). That rule retained the basic AWO process as introduced in 1999, but expanded the use of affirmances without opinion by providing for the Board to issue an AWO in any case when certain regulatory criteria are met. Compare 8 CFR 3.1(a)(7)(ii) (2000) (providing that a single Board member “may” affirm without opinion) with 8 CFR 1003.1(e)(4)(i) (2006) (providing that, in certain circumstances, a single Board member “shall” affirm without opinion). 1 Under the current regulations, a single Board member will affirm an immigration judge's decision without opinion when he or she is satisfied that the immigration judge's decision reached the correct result, that any errors were harmless or nonmaterial, and that the issues on appeal are either (1) squarely controlled by precedent and do not require an application of precedent to a novel factual scenario, or (2) are not so substantial as to warrant the issuance of a written opinion in the case. See 8 CFR 1003.1(e)(4)(i). When a single Board member is satisfied that the regulatory criteria are met and issues an AWO, the order will state that “[t]he Board affirms, without opinion, the result of the decision below. The decision below is, therefore, the final agency determination.” 8 CFR 1003.1(e)(4)(ii).

When the Board member determines that an AWO is not warranted in a case, the current regulation provides that most such cases will be resolved by an opinion issued by a single Board member rather than referred to a panel of three Board members. A single Board member may issue a decision that affirms, modifies, or remands an immigration judge's decision, and may provide any explanation or address any issue he or she deems appropriate. The majority of single member decisions, in fact, are not AWOs, but are fuller orders addressing the issues raised on appeal. In fact, in fiscal year 2007, only 10% of the Board's decisions were issued as AWOs.

In addition to restructuring the decisional process, the Board reform rule set specific time limits for the disposition of appeals after the record on appeal is completed and the case is ready for adjudication. See 8 CFR 1003.1(e)(8). With rare exceptions, a Board member must adjudicate a case within 90 days of completion of the record. If the case is referred to a three-member panel, the case must be adjudicated within 180 days of referral.

With the Board reform rule, the Department provided the Board with powerful tools to address a burgeoning number of appeals and a growing backlog of cases. When he announced the Board's restructuring in February 2002, Attorney General Ashcroft cited the size of the Board's backlog and the substantial delays in reaching final decisions as the basis for the reform. At that time, 56,000 cases were pending before the Board. More than 10,000 of those cases had been pending for more than three years and another 34,000 had been pending for more than one year. Presently, approximately 27,000 cases are pending at the Board—more than a 50% decrease—even though the number of cases being filed with the Board has remained very high, with 40,000 new cases received during FY2006. Except for cases on regulatory hold, see 8 CFR 1003.1(e)(8)(ii), virtually none of the 27,000 current cases has been pending for more than three years. The vast majority of the pending cases were filed in FY2007 or 2008; only 10 percent were filed in FY2006. In short, the Board has essentially eliminated the backlog of pending appeals and reduced the time for processing appeals and motions in compliance with the regulatory time frames governing the completion of cases. 2

Although individuals have challenged the Board reform rule on due process and administrative law grounds, the federal courts have consistently affirmed the Attorney General's authority to adopt the rule. See Blanco de Belbruno v. Ashcroft, 362 F.3d 272 (4th Cir. 2004); Zhang v. United States Dep't of Justice, 362 F.3d 155 (2d Cir. 2004); Yuk v. Ashcroft, 355 F.3d 1222 (10th Cir. 2004); Dia v. Ashcroft, 353 F.3d 228, 238-45 (3d Cir. 2003) (en banc); Denko v. INS , 351 F.3d 717, 724-32 (6th Cir. 2003); Falcon Carriche v. Ashcroft, 350 F.3d 845 (9th Cir. 2003); Georgis v. Ashcroft, 328 F.3d 962 (7th Cir. 2003); Mendoza v. U.S. Att'y Gen., 327 F.3d 1283 (11th Cir. 2003); Soadjede v. Ashcroft, 324 F.3d 830 (5th Cir. 2003); Albathani v. INS, 318 F.3d 365 (1st Cir. 2003); Capital Area Immigrants' Rights Coalition v. U.S. Dep't of Justice, 264 F. Supp. 2d 14 (D.D.C. 2003).

The success of the reform regulation rests on both the ability of the Board to adjudicate the majority of cases by single-member review and the ability of the Board to affirm the decision of an immigration judge without issuing a full opinion. See Guyadin v. Gonzales, 449 F.3d 465, 469 (2d Cir. 2006) (highlighting the importance of the streamlining regulations to address a “crushing backlog”). The number of decisions issued by a single Board member has remained relatively constant since the effective date of the reform regulation. In contrast, the rate of AWOs has been decreasing. In fiscal year 2003, approximately 36% of the Board's decisions were AWOs. That number declined to approximately 32% in fiscal year 2004, 20% in fiscal year 2005, and 15% in fiscal year 2006. The AWO rate for fiscal year 2007 is only 10%.

Despite the success of the Board's reform rule in addressing delays in decision times and in managing a very heavy caseload, some courts of appeals have levied pointed criticism in some cases where the immigration judge's conduct was intemperate or abusive, raising the concern that such conduct was not adequately addressed by the Board's decisions, particularly in cases where the Board issued an AWO. See, e.g., Fiadjoe v. U.S. Att'y Gen., 411 F.3d 135 (3d Cir. 2005); Cham v. U.S. Att'y Gen. , 445 F.3d 683, 693-94 (3d Cir. 2006); Huang v. Gonzales, 453 F.3d 142 (2d Cir. 2006). Some courts of appeals have also criticized the quality of the immigration judge and Board decisions. See Benslimane v. Gonzales, 430 F.3d 828 (7th Cir. 2005), and cases cited therein. The criticism has been limited to a relatively small number of cases and a minority of circuit courts. Moreover, the overall rate at which the federal courts have overturned Board decisions on judicial review has remained fairly constant, averaging only 10 to 12 percent. It should also be borne in mind that only the aliens are able to petition for review in the circuit courts. DHS may not appeal adverse Board decisions to the courts of appeals; thus, the courts never see the thousands of cases in which the aliens are granted relief or protection from removal. Nevertheless, the Attorney General has concluded that some adjustments to the Board's streamlining practices are now appropriate to improve the quality of the Board's review of complex or problematic cases while retaining the fundamentals of streamlining.

Attorney General Gonzales directed the Board to increase the use of single-member written opinions to address immigration judge decisions that are poor in quality and cases in which the immigration judge's conduct during the hearing was intemperate or abusive. This rule meets that objective by providing the Board with greater flexibility to issue decisions that respond to the concerns expressed by the federal circuit courts.

Under this rule, single Board members will have discretion to decide whether to issue an AWO or to issue a written opinion with an explanation of the reasons for the decision. The existing regulations already provide that a single Board member is not required to issue an AWO when there is a substantial factual or legal issue in the case warranting the issuance of a written opinion, but this rule recognizes that Board members may choose to issue either an AWO or a written opinion, as a matter of discretion, in cases where the regulatory criteria in 8 CFR 1003.1(a)(4)(i) are met.

In determining whether to exercise its discretion to issue an AWO or a single-member opinion, the Board may consider available resources to balance the need to complete cases efficiently while evaluating whether there is a need to provide further guidance to the immigration judge, the parties, and the federal courts through a written decision addressing the issues in a case. The Board is best positioned to assess its resources and the importance of various competing demands, because the Board sees the full expanse of issues presented in the more than 40,000 cases filed each year from decisions of the immigration judges and of DHS service centers or other adjudicating officers in those cases subject to review by the Board. The Board is thus able to see recurring problems or issues arising in the decisions under review.

The Board may consider exercising its discretion to issue a written order in those cases in which the immigration judge's decision would otherwise meet the criteria for AWO, but the immigration judge exhibited inappropriate conduct at the hearing or made intemperate comments in the oral decision. Likewise, the Board may consider issuing single-member opinions in those cases in which the infirmities in the decision under review are not prejudicial, but are of such a nature and extent that the Board may find it appropriate to address the basis for the decision. Examples include where the immigration judge reaches the correct result but does not provide a complete analysis, the immigration judge's analysis includes some immaterial or technical error, or the immigration judge fails to include citations to applicable precedent or regulations. While the result may be correct and the errors harmless, the Board member may consider that, in these kinds of cases, further explanation is warranted.

With the greater level of flexibility afforded by this rule, the Board is better situated to address the concern expressed by some courts that AWOs allow room for confusion in the record about the basis for the Board's decision, and thus, the jurisdiction of the federal circuit courts. See generally Lanza v. Ashcroft , 389 F.3d 917 (9th Cir. 2004). The Department acknowledges the high volume of cases now pending before the courts of appeals and sees this rule as a means of addressing some of the courts' concerns and of promoting greater uniformity in the way the courts review administrative decisions.

Existing regulations establish that when the Board issues an AWO, the decision of the immigration judge becomes the “final agency determination.” 8 CFR 1003.1(e)(4)(ii). Although the immigration judge's decision becomes the “final agency determination,” the Board remains the final agency decision maker exercising the authority delegated by the Attorney General. It is the Board's AWO that triggers the time period for seeking review in a circuit court. When an alien petitions for review following the Board's issuance of an AWO, the courts review the merits of the immigration judge's decision.

Some circuits, however, have concluded that, in addition to reviewing the merits of the underlying immigration judge's decision, the court may also review the Board's decision to issue an AWO, as opposed to another type of order. Other circuits have reached the opposite conclusion. This inconsistency threatens the goal of the Board's procedural reforms: securing finality in immigration cases as efficiently as possible.

The Eighth and Tenth Circuits have concluded that the Board's decision to issue an AWO is not reviewable. See Ngure v. Ashcroft , 367 F.3d 975, 981-88 (8th Cir. 2004); Tsegay v. Ashcroft , 386 F.3d 1347, 1355-58 (10th Cir. 2004). In particular, the Tenth Circuit found it lacked jurisdiction to review the Board's procedural decision to issue an AWO, as opposed to a single-member decision with an opinion or a three-member decision. The court noted that when the Board affirms an immigration judge's decision without opinion, the immigration judge's decision becomes the final agency decision. The Tenth Circuit concluded that because the Immigration and Nationality Act vests jurisdiction in the courts of appeals to review a “final order of removal,” the court was without jurisdiction to review the Board's AWO decision because an AWO is not in the nature of a final agency decision. Id. at 1353. The Tenth Circuit also concluded that because the decision to issue an AWO is committed to the Board's discretion, the Administrative Procedure Act did not confer jurisdiction on the circuit courts to review the Board's decision to issue an AWO. Id. at 1355.

The Fourth Circuit has reached a conclusion similar in effect to the decisions of the Eighth and Tenth Circuits. The Fourth Circuit held that even if the Board's decision to issue an AWO is erroneous, the court simply reviews the merits of the underlying decision of the immigration judge. See Blanco de Belbruno v. Ashcroft , 362 F.3d 272, 281 (4th Cir. 2004) (analyzing the similar AWO provision previously found at 8 CFR 3.1(a)(7)). In sum, the Fourth, Eighth, and Tenth Circuits do not review the Board's decision to issue an AWO, but simply review the merits of the underlying decision, as prescribed by the language in the Board's AWO order.

In contrast, the Third Circuit has concluded that the Board's decision to issue an AWO is reviewable, separate and apart from the question of whether the underlying merits decision is supported. See Smriko v. Ashcroft , 387 F.3d 279, 290-95 (3d Cir. 2004). The First Circuit also regards as reviewable the Board's determination of whether the AWO criteria exist in a particular case. See Haoud v. Ashcroft , 350 F.3d 201 (1st Cir. 2003). A divided panel of the Ninth Circuit reached the same conclusion in Chen v. Ashcroft , 378 F.3d 1081, 1088 (9th Cir. 2004). The court in Chen concluded that, unless the underlying issue in a case rests on a discretionary determination, it has jurisdiction to review whether the use of an AWO was appropriate. Such review causes the court to examine the propriety of the Board's decision to apply its AWO authority and summarily affirm the immigration judge's decision. This approach results in a superfluous and unnecessary layer of review about an issue—the Board's decision to affirm without opinion rather than affirm with an opinion—that does not resolve the dispositive issue, namely whether the underlying decision of the immigration judge withstands review.

The Sixth and Seventh Circuits have not squarely decided the reviewability issue. However, both circuits have suggested that, although the Board's decision to issue an AWO may be separately reviewable, the review of the decision to AWO often will merge with the review of the underlying decision of the immigration judge. See Denko v. INS , 351 F.3d 717, 731-32 (6th Cir. 2003); Georgis v. Ashcroft , 328 F.3d 962, 966-67 & n.4 (7th Cir. 2003). Where those decisions essentially merge, the Seventh Circuit has stated that “it makes no practical difference whether the BIA properly or improperly streamlined review.” Georgis v. Aschcroft, supra at 967; see also Hamdan v. Gonzales , 425 F.3d 1051 (7th Cir. 2005).

The inconsistency in the circuit courts has prompted the Department to propose a revision to the regulatory language. The rule clarifies that the decision to issue an AWO is discretionary and is based on an internal agency directive created for the purpose of efficient case management that does not create any substantive or procedural rights. The Board reform rule was successful in creating procedures that increased efficiency and promoted finality in immigration cases without sacrificing fairness. The additional layer of review in some circuits is not consistent with the reform rule's goal of promoting efficiency and finality in the immigration system. The efficient and fair adjudication of immigration appeals remains a priority of the Department. This revision to the AWO regulation in no way reflects a diminished commitment to timely and fair adjudications at the administrative level. In light of the strict regulatory time frames governing the adjudication of appeals and the Board's decreasing use of AWOs, the Department expects that the Board will continue to manage its docket efficiently following this revision to the AWO procedure.

Finally, this rule clarifies that, when the Board chooses to issue an AWO or a short order adopting all or part of the immigration judge's decision, that decision is based not only on the nature of the case and whether it fits the criteria for AWO, but also on the nature of the issues and claims of error properly raised on appeal. The Board's decision to issue an AWO or short order affirming the immigration judge's decision should not be construed as waiving a party's obligation to exhaust issues and claims before the Board. While it is true that the Board has the discretion to consider issues not raised on appeal, this does not excuse a party from filing a Notice of Appeal and supporting brief that are sufficiently precise in identifying any claims, errors, and other issues in the immigration judge's decision with which the party disagrees. Further, it is not enough for a party to raise an issue on appeal in passing. Rather, the party must spell out, in a meaningful way, its arguments and claims of error in the Notice of Appeal or supporting brief. In addition, the regulation clarifies that the Board need not specifically address every issue raised on appeal, but is presumed to have considered all properly raised issues on appeal in reaching its decision, even if that decision is an AWO or short order that does not specifically discuss every issue the parties may have raised on appeal. See, e.g., Toussaint v. Attorney General , 455 F.3d 409 (3d Cir. 2006), citing Zubeda v. Ashcroft , 333 F.3d 463 (3d Cir. 2003); Mansour v. INS , 230 F.3d 902 (7th Cir. 2000).

For purposes of complying with the mandate to exhaust administrative remedies as of right under section 242(d)(1) of the Act, 8 U.S.C. 1252(d)(1), claims of error raised in the Notice of Appeal or the brief shall be deemed the matters presented to the Board for review and thereby exhausted. Exhaustion of administrative remedies is an indispensable component of administrative decision making and judicial review of an agency's decisions. See McCarthy v. Madigan , 503 U.S. 140 (1992) (superseded by statute). Litigants fail to exhaust their claims at their own peril, in that they waive matters that might have been corrected by the agency. Courts that ignore this rule usurp the agency's role and function by setting aside an agency decision on grounds that were not raised to and disposed of by the agency. See Unemployment Compensation Comm'n of Alaska v. Aragon , 329 U.S. 143, 155 (1946).

In the Immigration and Nationality Act, Congress has dictated that the Attorney General shall, in the first instance, resolve a controversy before judicial intervention, see 8 U.S.C. 1252(d)(1), and the Attorney General by regulation has delegated that function to the Board. The federal courts have consistently held that they do not sit as administrative agencies. Failure to raise an issue on appeal to the Board constitutes failure to exhaust administrative remedies or preserve the issue for appeal, and deprives the courts of appeal of jurisdiction to consider the issue. See Rivera-Zurita v. INS , 946 F.2d 118 (10th Cir. 1991); Ravindran v. INS , 976 F.2d 754 (1st Cir. 1992); Farrokhi v. INS , 900 F.2d 697 (4th Cir. 1990); Martinez-Zelaya v. INS , 841 F.2d 294 (9th Cir. 1988); Campos-Guardado v. INS , 809 F.2d 285 (5th Cir. 1987); Cisternas-Estay v. INS , 531 F.2d 155 (3d Cir. 1976). The courts have concluded that when the agency resolves the matter first, the legal and factual issues have been sufficiently developed to aid the court in reviewing a person's claim and the agency's findings and conclusions regarding such claim. See Madigan , 503 U.S. at 145-46.

Recently, two courts of appeal have concluded otherwise when the Board's decision has been an AWO or a short order affirming the immigration judge's decision. In Abebe v. Gonzales , 432 F.3d 1037 (9th Cir. 2005), the Court of Appeals for the Ninth Circuit held that when the Board adopts or affirms the decision of an immigration judge without further opinion, and the Board does not explicitly state in its decision that it is declining to consider any arguments not raised on appeal, then the Board's adoption of the immigration judge's decision, which discusses all issues litigated below, is enough to satisfy the exhaustion requirement. Likewise, in Pasha v. Gonzales , 433 F.3d 530 (7th Cir. 2005), the Court of Appeals for the Seventh Circuit held that when the Board summarily affirms the immigration judge's decision below, the Board waives failure to exhaust, especially where the Board fails to specify that it was confining its review to the questions raised on appeal and deemed all others waived.

Under the rule of law created by Abebe and Pasha , aliens can circumvent the appellate process set up by the Attorney General, which is designed specifically to review and correct any errors raised on appeal. Without a Notice of Appeal or brief that points out specific errors the parties believe the immigration judge made, the Board might choose to issue an AWO or short order affirming the immigration judge. The alien can then go to the courts of appeals and raise and fully brief arguments never made to the Board.

This rule reaffirms the historical practice of the Board with respect to exhaustion requirements. The Board has repeatedly stated that it need not address issues that are not raised. See, e.g., Matter of Cervantes-Gonzales , 22 I&N Dec. 560, 561 n.1 (BIA 1999) (noting that “[a]s the respondent does not raise this issue on appeal, we decline to address it”); Matter of Gutierrez , 19 I&N Dec. 562, 565 n.3 (BIA 1988) (stating that “[a]s the Service does not directly raise this issue on appeal, we shall not address it”).

When the Board invokes its AWO authority or issues a short decision adopting the immigration judge's decision, there is no cause to depart from the foregoing exhaustion principles. Adopting the immigration judge's decision or designating the immigration judge's decision as the final agency determination under the AWO regulation is the final act of the Board that triggers the alien's opportunity to seek judicial review, but it occurs only after the alien has set the issues to be determined by the Board. It is those issues that the Board takes into account in determining what type of decision to issue.

This rule would make clear, however, that the Board may address an issue that was not raised on appeal sua sponte when the Board in its discretion concludes that the issue warrants attention. See generally 8 CFR 1003.1(c) (authorizing the Board to certify a case to itself). See also Ghassan v. INS , 972 F.2d 631, 635 (5th Cir. 1992) (noting that the Board may consider an issue that has not been appealed by either party). The Board will continue to review the record and address any errors that it finds, in its discretion, could result in a miscarriage of justice.

Under the current regulations, a single Board member “may only” refer a case to a three-member panel if the case fits one or more of the enumerated criteria set out in 8 CFR 1003.1(e)(6)(i)-(vi). These circumstances are circumscribed and include the following: (1) The need to settle inconsistencies among the rulings of different immigration judges, (2) the need to establish a precedent construing the meaning of laws, regulations, or procedures, (3) the need to review a decision by an immigration judge or DHS that is not in conformity with the law, (4) the need to resolve a case or controversy of major national import, (5) the need to review a clearly erroneous factual determination by an immigration judge, or (6) the need to reverse the decision of an immigration judge or DHS. Id. The streamlining provisions anticipated that a single Board member would decide a substantial majority of the cases either through an AWO or through a short order.

While the streamlining provisions allowed the Board to resolve its backlog, the Attorney General has determined that the Board is in a better position to devote more resources to improving its review of complex or problematic cases. This regulation expands the criteria for three-member decisions by allowing a Board member, in the exercise of discretion, to refer a case to a three-member panel when the case presents a complex, novel, or unusual legal or factual issue. The Attorney General anticipates that three-member review of complex or problematic cases may enhance the review and analysis of the issues presented, and may provide more authoritative guidance.

This provision will also permit the panels to publish more cases as precedent decisions because the Board members will have greater discretion to refer cases to a three-member panel, and will therefore have more cases to consider for publication. Under the Board's current practice, opinions issued by a single Board member are not considered for publication as a precedent decision. Cases involving unusual or complex legal or factual issues are often the type of case that the Board would consider for publication of a precedent decision.

In exercising its discretion to refer a case to a three-member panel under this provision, the Board may consider available resources and the best use of those resources while fulfilling its many responsibilities such as providing a full and fair review in each individual case, offering guidance to immigration judges and the federal courts of appeals when they are faced with recurring issues, promoting national uniformity in the interpretation of the immigration laws, and the need for issuing published precedential decisions. The Board will be able to determine the need for enhanced review and analysis, and the need to issue guidance, in evaluating which cases to refer for three-member review.

Another criticism that emerged during the Attorney General's review was that the promulgation of the Board reform rule made it more difficult for the Board to publish adequate numbers of precedential decisions. In fact, one of Attorney General Ashcroft's goals in adopting the Board reform rule in 2002 was to promote the cohesiveness and collegiality of the Board's decision-making process and to facilitate the publication of more precedent decisions with greater uniformity. See 67 FR at 54894. 3

Initially, after publication of the Board reform rule, the Board reduced the number of precedent decisions published. Instead, the Board concentrated its efforts and resources on implementing the many changes mandated by the rule, the most pressing of which was to address the backlog of cases and to create case management practices that would allow the Board to complete appeals in a timely fashion. As noted earlier, the Board has been successful in these endeavors, while adjusting to a smaller number of Board members. Now that the backlog has been brought under control and case management practices are firmly in place, the Board has been able to turn its attention to increasing the number of published decisions. In fiscal year 2006 the Board published more precedents (25) than in any other year since fiscal year 2000, and surpassed that number in fiscal year 2007, publishing 40 decisions.

At a time when the Board has been issuing some 44,000 decisions annually, the Attorney General has concluded that publishing a greater number of precedent decisions is required to resolve more of the important and recurring legal issues, factual settings, procedural questions, and matters of discretion facing the Board and the immigration judges. Given that there are approximately 220 immigration judges around the country who are adjudicating 350,000 cases annually, there is an important need not only to provide clear guidance but also to promote a degree of national uniformity and consistency in the disposition of these cases. Without published precedent decisions, immigration judges may continue to interpret the law in inconsistent ways, requiring duplicative litigation and appeals by the parties, which in turn raises the specter of possible inconsistencies in the Board's dispositions. At the least, in the absence of published precedent decisions addressing the interpretation of a particular statutory or regulatory provision, there is no clear assurance to the parties and the federal courts that the Board and the immigration judges are resolving issues consistently through unpublished decisions in a series of different cases.

The number of Board decisions published as precedents also has important implications for judicial review. The courts of appeals have been issuing hundreds of precedent decisions each year in reviewing cases decided by the Board, and a substantial number of the court decisions are interpreting the immigration laws and regulations. As a result, the courts of appeals, in many cases, have found themselves faced with the need to resolve key interpretive or procedural issues without the benefit of any precedential guidance from the Board on those issues.

In some cases, the courts of appeals have proceeded to announce their own interpretations, which then may become binding with respect to other immigration cases arising within that circuit. 4 This effect has been particularly evident in the Ninth Circuit, which hears slightly less than half of all of the immigration cases being appealed from the Board each year; thus, a precedent decision from the Ninth Circuit affects a very large number of other pending immigration cases. In any of the circuits, though, the result all too often is that the interpretation of the immigration laws has become fragmented, with the interpretation of legal or procedural issues often varying substantially depending solely on the circuit in which each case arises. Such results frustrate the goal of national uniformity and consistency in the immigration process.

In other cases, particularly in recent years, some courts of appeals instead have remanded pending cases back to the Board, allowing the Board to issue a precedent decision on the issues raised in the case, rather than having the court of appeals announce its own legal interpretation as a matter of first impression. These remand orders provide an opportunity for the Board to resolve the legal issues in each such case before the court adopts its own interpretations.

In Yuanliang Liu v. U.S. Dept. of Justice, 455 F.3d 106 (2d Cir. 2006), the Second Circuit remanded a case to the Board with instructions to develop precedential standards and procedures for the immigration judges to follow in deciding whether an alien has knowingly filed a frivolous asylum application. Section 208(d)(6) of the INA provides that, if the Attorney General determines that an alien has knowingly made a frivolous asylum application after receiving notice of the statutory penalties for doing so, the alien shall be permanently ineligible for any benefits under the INA. Despite the significance of such a powerful sanction, the court of appeals found that the existing regulatory provision in 8 CFR 1208.20 leaves important substantive and procedural questions unresolved, and noted that the Board has not issued a precedent decision relating to section 208(d)(6) since it took effect over nine years ago. However, rather than undertaking to establish its own legal standards as a matter of first impression, the court remanded the case to the Board to provide precedential guidance on the issues arising under this provision. The Second Circuit's explanation of its reasons for doing so are relevant in a broader sense, as they set forth in a concise fashion many of the reasons why the Board itself may be considering the publication of precedent decisions, including the need for national uniformity, the absence of prior precedents, the existence of a statutory ambiguity, the volume of cases raising the same or similar issues, the importance of the issues, and the need for clearer standards to avoid ad hoc decision making. Liu, 455 F.3d at 116-17. In response to the remand, the Board recently issued a precedent decision addressing the interpretive issues with respect to frivolous asylum applications, Matter of Y-L- , 24 I&N Dec. 151 (BIA 2007). 5

Three other recent developments also emphasize the importance of precedential guidance from the Board. First, in Gonzales v. Thomas, 547 U.S. 183 (2006), the Supreme Court reversed a decision by the Ninth Circuit that had interpreted the asylum laws to mean that a person's membership in a nuclear family constitutes a “particular social group” for purposes of evaluating claims of persecution. The Supreme Court reversed, noting that such determinations should be made in the first instance by the Board rather than the federal courts. With respect to such issues arising under the immigration laws, Thomas emphasizes the importance of the Board's role to provide interpretive guidance. Cf. Ucelo-Gomez v. Gonzales, 464 F.3d 163, 172 (2d Cir. 2006) (“Our mandate serves the convenience of the BIA as well as this Court, and promotes the purposes of the INA. Thomas requires that we (in effect) certify this question. There is a press of cases raising similar questions in this Court, in the BIA, and before immigration judges; and the common project of deciding asylum cases promptly will be advanced by prompt guidance.”); Jian Hui Shao v. BIA, 465 F.3d 497, 502 (2d Cir. 2006) (noting the foreign policy considerations relating to Chinese coercive population control asylum cases and the large number of affected aliens and stating: “We believe, in light of these concerns, that it would be unsound for each of the several Courts of Appeals to elaborate a potentially non-uniform body of law; only a precedential decision by the BIA—or the Supreme Court of the United States—can ensure the uniformity that seems to us especially desirable in cases such as these.”); Matter of J-H-S -, 24 I&N Dec. 196 (BIA 2007) (responding to Shao v. BIA, supra ).

Second, the Ninth Circuit has recently concluded that interpretations of the provisions of the INA announced in unpublished decisions of the Board are not entitled to judicial deference under the standards of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). See Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1012-14 (9th Cir. 2006). The court of appeals determined that, in light of the Supreme Court's more recent decision in United States v. Mead Corp., 533 U.S. 218, 226-27 (2001), only published precedent decisions of the Board are entitled to Chevron deference. More recently, the Second Circuit also concluded that it will follow a similar approach with respect to unpublished BIA decisions. Rotimi v. Gonzales, 473 F.3d 55 (2d Cir. 2007). Given the disproportionate share of immigration cases arising in the Ninth Circuit and the Second Circuit, we recognize the importance of the issuance of precedent decisions in order to promote national uniformity and obtain Chevron deference for the Board's interpretive decisions.

Third, the Supreme Court has made clear that an administrative agency is free to adopt a new interpretation of an ambiguous statutory provision, even though a federal court may have already issued a decision adopting a different interpretation of that same statute. See National Cable & Telecomm. Ass'n v. Brand X Internet Services, 545 U.S. 967 (2005). “A court's prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.” Id . at 982. Brand X Internet makes clear that—unless the court finds the statutory provision unambiguous under Chevron step one—the administrative agency is free to adopt a contrary interpretation, as long as it does so with proper foundation and explanation, and the courts are thereafter required to defer to the agency's new interpretation if it is sustainable under Chevron step two. 6 The Supreme Court also noted that leaving the agency free to reinterpret statutory provisions, notwithstanding prior judicial precedents to the contrary, reflects the proper interpretive authority vested by Congress in the agency with respect to ambiguous statutory provisions. See id. at 983-84 (“In all other respects, the court's prior ruling remains binding law (for example, as to agency interpretations to which Chevron is inapplicable). The [court's] precedent has not been `reversed' by the agency, any more than a federal court's interpretation of a State's law can be said to have been ‘reversed' by a state court that adopts a conflicting (yet authoritative) interpretation of state law.”) Cf. Jian Hui Shao, 465 F.3d at 502 (“Accordingly, any effort expended by us interpreting the statute would be for nought should the BIA subsequently reach a different, yet reasonable, interpretation of this ambiguous provision.”).

The Supreme Court's decision in Brand X Internet offers an important opportunity for the Attorney General and the Board to be able to reclaim Chevron deference with respect to the interpretation of ambiguous statutory provisions in the immigration laws, notwithstanding contrary judicial interpretations, as long as the agency interpretation is within the scope of Chevron step two deference. Implementation of the interpretive authority recognized under Brand X Internet is undertaken through formal agency processes— i.e. , by rulemaking or by a precedent decision by the Board or the Attorney General.

As a recent example, in Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006), the Board issued a precedent decision interpreting the provisions of section 212(a)(9)(C)(ii) of the Immigration and Nationality Act (INA) and 8 CFR 212.2, as they relate to an alien seeking to establish admissibility in conjunction with an application for adjustment of status under section 245(i) of the INA. The Board's precedent decision explained at length why the Board disagreed with a prior decision of the Ninth Circuit that interpreted these same provisions to reach an opposite result. See Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004), recon. denied, 403 F.3d 1116 (9th Cir. 2005); Torres-Garcia, 23 I&N Dec. at 873-76. The Ninth Circuit has recognized that its prior decision in Perez-Gonzalez is no longer good law, because the court is required, under Brand X Internet, to defer to the Board's decision in Torres-Garcia that adopted a different, reasonable interpretation of the provisions at issue. See Gonzales v. DHS, 508 F.3d 1227 (9th Cir. 2007) (“under Chevron and Brand X we are required to defer to In re Torres-Garcia's interpretation of the statutory scheme, regardless of whether the agency once adhered to a different interpretation. * * * [W]e hold today that we are bound by the BIA's interpretation of the applicable statutes in In re Torres-Garcia, even though that interpretation differs from our prior interpretation in Perez-Gonzalez. ”).

Under the current regulations, the Board's decisions are published as precedents upon a majority vote of the permanent Board members. While that process ensures that precedent decisions are fully considered by the members of the Board, it also means that the Board's panels are not able to designate their decisions as precedential unless a majority of the Board members agree.

At a time when the Board had only 5 members (which was the case until 1995), it made sense to require that a majority of Board members would be needed to designate any decision as a precedent. At that time, the three members of each panel constituted a majority of the Board members, and thus the members of a panel would have been able, on their own authority, to publish unanimous decisions of that panel as precedents. In fact, when the Board had only 5 members, the Board often published as many as 50 or 60 precedent decisions annually, at a time when the Board had a much smaller caseload and there were far fewer immigration judges whose decisions were being reviewed.

To facilitate the publication of precedent decisions, the Attorney General has decided to revise the Board's processes to allow three-member panels to publish precedent opinions if a majority of the permanent Board members of a panel votes to publish a decision. This rule also proposes to codify the Attorney General's authority to direct the Board to publish a decision as a precedent. 7

The Department acknowledges that most of the more than 40,000 decisions issued by the Board each year do not articulate a new rule of law or procedure, and indeed even a substantial number of the cases that are referred to a three-member panel under the specific standards of 8 CFR 1003.1(e)(6) may not merit publication as a precedent. However, in cases where a majority of the Board members issuing a panel decision conclude that a case involves one or more issues that the Board has not previously resolved in a precedent decision, 8 and that publishing a precedent would be appropriate, in the exercise of discretion, this rule facilitates the publication of Board decisions in order to provide authoritative guidance to the aliens and their representatives, the immigration judges, the administrative agencies, and the federal courts.

This rule encourages publication of opinions which meet certain criteria, such as whether: (1) The case involves a substantial issue of first impression; (2) the case involves a legal, factual, or procedural issue that can be expected to arise frequently in immigration cases; (3) the case announces, modifies, or clarifies a rule of law; (4) the case resolves a conflict in decisions by immigration judges or the federal courts; (5) there is a need to achieve or maintain national uniformity of interpretation under the immigration laws and regulations with respect to the issues presented in the case, or to restore such uniformity of interpretation pursuant to interpretive authority recognized by the Supreme Court in Brand X Internet ; or (6) the case warrants publication in light of other factors that give it general public interest. 9

The Board members will apply these standards on a case-by-case basis, in the exercise of their discretion, in determining which decisions to designate as precedents. Also, either of the parties may file a motion with the Board suggesting the appropriateness of designating a previously unpublished decision as a precedent. In addition, in view of the increasing importance of precedent decisions in the judicial review process, the Department recognizes that the Civil Division's Office of Immigration Litigation may suggest to EOIR the appropriateness of designating a decision as a precedent.

Although under this proposed rule a panel of three Board members may publish a precedent decision, the underlying purpose of the rule is to encourage the Board to provide clear and consistent guidance to the immigration judges, the parties in removal proceedings, and the federal courts. In that regard, the rule provides that the Board Chairman or the Board en banc may set a policy that all decisions selected for publication by a panel will be circulated to all the Board members for a period of time prior to issuance. Such an opportunity for prior consideration is appropriate, because a published panel decision represents the precedential opinion of the Board and is binding on all panels. As provided in the existing regulations, 8 CFR 1003.1(a)(5), a case may be referred to the Board for en banc consideration and decision by vote of a majority of permanent Board members or by direction of the Chairman, and en banc review may be necessary to ensure that the decision reflects the views of a majority of the Board or if a potential exists for inconsistent decisions among the panels. In order not to delay the process, the Chairman or the Board en banc may establish appropriate time limits for the Board members to consider a panel's precedent decision prior to publication.

Finally, although the regulations are being revised to facilitate publication, the parties should keep in mind that, while the immigration bar often looks to the Board to publish cases covering certain issues of law or circumstance, the Board may only address novel or important issues of law in the context of cases as they appear before it. The Board favors publication where both parties have submitted briefs clearly addressing the issues presented by the case and, conversely, prefers not to publish where the parties have not adequately briefed the issues. Therefore, parties should be prepared to fully develop the issues in well-presented briefs in order to facilitate the Board's publication of precedent decisions. However, in some cases the Board may choose to issue a new briefing schedule to facilitate participation by amicus curiae in order to address the issues in a case presenting important, unresolved issues.

Pursuant to the Regulatory Flexibility Act (RFA), the Attorney General certifies that this rule will not have a significant economic impact on a substantial number of small businesses or small governmental entities. This rule is related to agency organization and management of cases pending before the immigration judges and the Board of Immigration Appeals. Accordingly, the preparation of a Regulatory Flexibility Analysis is not required.

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 considers this rule to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, and accordingly it has been submitted to the Office and Management and Budget for 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 requirements.

Accordingly, for the reasons stated in the preamble, chapter V of title 8 of the Code of Federal Regulations is proposed to be amended as follows:

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2008-0640; Directorate Identifier 2008-NM-070-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD 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 proposed AD.

The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (66 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83).

Among other actions, SFAR 88 requires certain type design ( i.e. , type certificate (TC) and supplemental type certificate (STC)) holders to substantiate that their fuel tank systems can prevent ignition sources in the fuel tanks. This requirement applies to type design holders for large turbine-powered transport airplanes and for subsequent modifications to those airplanes. It requires them to perform design reviews and to develop design changes and maintenance procedures if their designs do not meet the new fuel tank safety standards. As explained in the preamble to the rule, we intended to adopt airworthiness directives to mandate any changes found necessary to address unsafe conditions identified as a result of these reviews.

In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: single failures, single failures in combination with a latent condition(s), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action.

We have determined that the actions identified in this AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.

As a result of the SFAR 88 design review activity, Boeing has found that certain single failure modes within the electric scavenge pump could cause heating and sparking, which could create a potential ignition source inside the main fuel tank #2. This condition, if not corrected, could result in a fire or explosion in the main fuel tank #2 and consequent loss of the airplane.

We have reviewed Boeing Special Attention Service Bulletin 747-28-2260, dated March 13, 2008. The service bulletin describes procedures for installing an extension tube to the existing pump discharge port of the scavenge pump on the outboard side of the center fuel tank in the main fuel tank #2.

We are proposing this AD because we evaluated all relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the(se) same type design(s). This proposed AD would require accomplishing the actions specified in the service information described previously.

We estimate that this proposed AD would affect 31 airplanes of U.S. registry. We also estimate that it would take about 16 work-hours per product to comply with this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $900 per product. Based on these figures, we estimate the cost of this proposed AD to the U.S. operators to be $67,580 fleet cost, or $2,180 per product.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

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

For the reasons discussed above, I certify this proposed regulation:

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

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

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

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

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

This document contains proposed Income Tax Regulations (26 CFR part 1) under section 411(b) of the Code. 1

Section 401(a)(7) provides that a trust is not a qualified trust under section 401 unless the plan of which such trust is a part satisfies the requirements of section 411 (relating to minimum vesting standards).

Section 411(a) requires a qualified plan to provide that an employee's right to the normal retirement benefit is nonforfeitable upon attainment of normal retirement age and that an employee's right to his or her accrued benefit is nonforfeitable upon completion of the specified number of years of service under one of the vesting schedules set forth in section 411(a)(2). Section 411(a)(7)(A)(i) defines a participant's accrued benefit under a defined benefit plan as the employee's accrued benefit determined under the plan, expressed in the form of an annual benefit commencing at normal retirement age, subject to an exception in section 411(c)(3) under which the accrued benefit is the actuarial equivalent of the annual benefit commencing at normal retirement age in the case of a plan that does not express the accrued benefit as an annual benefit commencing at normal retirement age.

Section 411(a) also requires that a defined benefit plan satisfy the requirements of section 411(b)(1). Section 411(b)(1) provides that a defined benefit plan must satisfy one of the three accrual rules of section 411(b)(1)(A), (B), and (C) with respect to benefits accruing under the plan. The three accrual rules are the 3 percent method of section 411(b)(1)(A), the 133 1/3 percent rule of section 411(b)(1)(B), and the fractional rule of section 411(b)(1)(C).

Section 411(b)(1)(A) provides that a defined benefit plan satisfies the requirements of the 3 percent method if, under the plan, the accrued benefit payable upon the participant's separation from service is not less than (A) 3 percent of the normal retirement benefit to which the participant would be entitled if the participant commenced participation at the earliest possible entry age under the plan and served continuously until the earlier of age 65 or the normal retirement age under the plan, multiplied by (B) the number of years (not in excess of 33 1/3 years) of his or her participation in the plan. Section 411(b)(1)(A) provides that, in the case of a plan providing retirement benefits based on compensation during any period, the normal retirement benefit to which a participant would be entitled is determined as if the participant continued to earn annually the average rate of compensation during consecutive years of service, not in excess of 10, for which his or her compensation was highest. Section 411(b)(1)(A) also provides that Social Security benefits and all other relevant factors used to compute benefits are treated as remaining constant as of the current plan year for all years after the current year.

Section 411(b)(1)(B) provides that a defined benefit plan satisfies the requirements of the 133 1/3 percent rule for a particular plan year if, under the plan, the accrued benefit payable at the normal retirement age is equal to the normal retirement benefit, and the annual rate at which any individual who is or could be a participant can accrue the retirement benefits payable at normal retirement age under the plan for any later plan year is not more than 133 1/3 percent of the annual rate at which the individual can accrue benefits for any plan year beginning on or after such particular plan year and before such later plan year.

For purposes of applying the 133 1/3 percent rule, section 411(b)(1)(B)(i) provides that any amendment to the plan which is in effect for the current year is treated as in effect for all other plan years. Section 411(b)(1)(B)(ii) provides that any change in an accrual rate which does not apply to any individual who is or could be a participant in the current plan year is disregarded. Section 411(b)(1)(B)(iii) provides that the fact that benefits under the plan may be payable to certain participants before normal retirement age is disregarded. Section 411(b)(1)(B)(iv) provides that Social Security benefits and all other relevant factors used to compute benefits are treated as remaining constant as of the current plan year for all years after the current year.

Section 411(b)(1)(C) provides that a defined benefit plan satisfies the fractional rule if the accrued benefit to which any participant is entitled upon his or her separation from service is not less than a fraction of the annual benefit commencing at normal retirement age to which the participant would be entitled under the plan as in effect on the date of separation if the participant continued to earn annually until normal retirement age the same rate of compensation upon which the normal retirement benefit would be computed under the plan, determined as if the participant had attained normal retirement age on the date on which any such determination is made (but taking into account no more than 10 years of service immediately preceding separation from service). This fraction, which cannot exceed 1, has a numerator that is the total number of the participant's years of participation in the plan (as of the date of separation from service) and a denominator that is the total number of years the participant would have participated in the plan if the participant separated from service at normal retirement age. Section 411(b)(1)(C) also provides that Social Security benefits and all other relevant factors used to compute benefits are treated as remaining constant as of the current plan year for all years after the current year.

Section 1.411(a)-7(a)(1) of the Income Tax Regulations provides that, for purposes of section 411 and the regulations under section 411, the accrued benefit of a participant under a defined benefit plan is either (A) the accrued benefit determined under the plan if the plan provides for an accrued benefit in the form of an annual benefit commencing at normal retirement age, or (B) an annual benefit commencing at normal retirement age which is the actuarial equivalent (determined under section 411(c)(3) and § 1.411(c)-1)) of the accrued benefit under the plan if the plan does not provide for an accrued benefit in the form of an annual benefit commencing at normal retirement age.

Section 1.411(b)-1(a)(1) provides that a defined benefit plan is not a qualified plan unless the method provided by the plan for determining accrued benefits satisfies at least one of the alternative methods in § 1.411(b)-1(b) for determining accrued benefits with respect to all active participants under the plan. The three alternative methods are the 3 percent method, the 133 1/3 percent rule, and the fractional rule. A defined benefit plan may provide that accrued benefits for participants are determined under more than one plan formula. Section 1.411(b)-1(a)(1) provides that, in such a case, the accrued benefits under all such formulas must be aggregated in order to determine whether or not the accrued benefits under the plan for participants satisfy one of these methods. Under § 1.411(b)-1(a)(1), a plan may satisfy different methods with respect to different classifications of employees, or separately satisfy one method with respect to the accrued benefits for each such classification, provided that such classifications are not so structured as to evade the accrued benefit requirements of section 411(b) and § 1.411(b)-1.

Section 1.411(b)-1(b)(2)(i) provides that a defined benefit plan satisfies the 133 1/3 percent rule for a particular plan year if (A) under the plan the accrued benefit payable at the normal retirement age (determined under the plan) is equal to the normal retirement benefit (determined under the plan), and (B) the annual rate at which any individual who is or could be a participant can accrue the retirement benefits payable at normal retirement age under the plan for any later plan year cannot be more than 133 1/3 percent of the annual rate at which the participant can accrue benefits for any plan year beginning on or after such particular plan year and before such later plan year.

Section 1.411(b)-1(b)(2)(ii)(A) through (D) sets forth a series of rules that correspond to the rules of section 411(b)(1)(B)(i) through (iv). For example, § 1.411(b)-1(b)(2)(ii)(A) sets forth a special plan amendment rule for purposes of satisfying the 133 1/3 percent rule that corresponds to section 411(b)(1)(B)(i). Under that rule, any amendment to a plan that is in effect for the current year is treated as if it were in effect for all other plan years.

Section 1.411(b)-1(b)(2)(ii)(E) provides that a plan is not treated as failing to satisfy the requirements of § 1.411(b)-1(b)(2) for a plan year merely because no benefits under the plan accrue to a participant who continues service with the employer after the participant has attained normal retirement age. 2 Section 1.411(b)-1(b)(2)(ii)(F) provides that a plan does not satisfy the requirements of § 1.411(b)-1(b)(2) if the base for the computation of retirement benefits changes solely by reason of an increase in the number of years of participation.

Rev. Rul. 2008-7 (2008-7 IRB 419), see § 601.601(d)(2)(ii)( b ), describes the application of the accrual rules of section 411(b)(1)(A) through (C) and the regulations under section 411(b)(1)(A) through (C) to a defined benefit plan that was amended to change the plan's benefit formula from a traditional formula based on highest average compensation to a new lump sum-based benefit formula. Under the terms of the plan described in the revenue ruling, for an employee who was employed on the day before the change, a hypothetical account was established equal to the actuarial present value of the employee's accrued benefit as of that date, and that account was also to be credited with subsequent pay credits and interest credits. Under transition rules set forth in the plan, the accrued benefit of certain participants is the greater of the accrued benefit provided by the hypothetical account balance at the age 65 normal retirement age and the accrued benefit determined under the traditional formula as in effect on the day before the change, but taking into account post-amendment compensation and service for a limited number of years.

Revenue Ruling 2008-7 describes how the accrued benefits of different participant groups satisfy, or fail to satisfy, the accrual rules under section 411(b)(1)(A) through (C), taking into account the requirement in § 1.411(b)-1(a)(1) that a plan that determines a participant's accrued benefits under more than one formula must aggregate the accrued benefits under all of those formulas in order to determine whether or not the accrued benefits under the plan satisfy one of the alternative methods under section 411(b)(1)(A) through (C). However, Revenue Ruling 2008-7 explains that, in the case of a plan amendment that replaces the benefit formula under the plan for all periods after the amendment, pursuant to section 411(b)(1)(B)(i) and § 1.411(b)-1(b)(2)(ii)(A), the rule that would otherwise require aggregation of the multiple formulas does not apply. Under section 411(b)(1)(B)(i) and § 1.411(b)-1(b)(2)(ii)(A), any amendment to the plan which is in effect for the current plan year is treated as if it were in effect for all other plan years (including past and future plan years).

Revenue Ruling 2008-7 illustrates the application of this rule with respect to participants who only accrue benefits under the new formula (who in the ruling are referred to as participants who are not “grandfathered”). For these participants, the plan amendment completely ceases accruals under a traditional pension benefit formula that provides an annuity at normal retirement age based on service and average pay and, for all periods after the amendment, provides for the greater of the section 411(d)(6) protected benefit under the pre-amendment formula and the benefit under a new post-amendment lump sum-based benefit formula. In such a case, as stated in Revenue Ruling 2008-7, the section 411(d)(6) protected benefit under the pre-amendment formula is not aggregated with the post-amendment formula, but rather is entirely disregarded, for purposes of applying the 133 1/3 percent rule because the new formula is treated under section 411(b)(1)(B)(i) and § 1.411(b)-1(b)(2)(ii)(A) as having been in effect for all plan years. This analysis was reflected in Register v. PNC Fin. Servs. Group, Inc., 477 F.3d 56 (3d Cir. 2007).

In addition to satisfying the requirements of section 411(b)(1)(B), a defined benefit plan must also satisfy the age discrimination rules of section 411(b)(1)(H), taking into account section 411(b)(5), as added to the Code by the Pension Protection Act of 2006, Pub. L. 109-280 (120 Stat. 780) (PPA '06). In the case of a conversion of a plan to a statutory hybrid plan pursuant to an amendment that is adopted after June 29, 2005 (a “post-PPA conversion plan”), the conversion amendment must satisfy the rule of section 411(b)(5)(B)(iii) that prohibits wearaway of benefits upon conversion. In the case of a plan converted to a statutory hybrid plan pursuant to an amendment that is adopted on or before June 29, 2005 (a “pre-PPA conversion plan”), as provided in Notice 2007-6, the IRS will not consider and will not issue determination letters with respect to whether such a pre-PPA conversion plan satisfies the requirements of section 411(b)(1)(H) (as in effect prior to the addition of section 411(b)(5) by PPA '06), including the effect of any wearaway. Thus, although wearaway upon conversion is expressly prohibited with respect to post-PPA conversion plans pursuant to section 411(b)(5), the IRS will not address and will not issue determination letters with respect to whether a conversion that results in wearaway with respect to a pre-PPA conversion plan violates the age discrimination rules of section 411(b)(1)(H). See § 601.601(d)(2)(ii)( b ).

Revenue Ruling 2008-7 provides a different analysis as to whether a plan with wearaway fails to satisfy the accrual rules of section 411(b)(1)(B) when the pre-amendment formula continues in place after the amendment for a group of participants. In such a case, where an amendment has gone into effect but continues the prior formula for some period of time with respect to one or more participants, the application of the rule in section 411(b)(1)(B)(i) and § 1.411(b)-1(b)(2)(ii)(A) does not result in a disregard of the prior plan formula (which remains in effect after the amendment). Instead, the 133 1/3 percent rule must be applied with respect to those participants based on the combined effect of the two ongoing formulas. 3

Revenue Ruling 2008-7 provides relief from disqualification under the Internal Revenue Code (under the authority of section 7805(b)) for a limited class of plans under which a group of employees specified under the plan receives a benefit equal to the greatest of the benefits provided under two or more formulas (an applicable “greater-of” benefit), provided that each such formula standing alone would satisfy an accrual rule of section 411(b)(1)(A), (B), or (C) for the years involved. Under the relief set forth in Rev. Rul. 2008-7, for plan years beginning before January 1, 2009, the IRS will not treat a plan eligible for the relief as failing to satisfy the accrual rules of section 411(b)(1)(A), (B), and (C) solely because the plan provides an applicable “greater-of” benefit, where the separate formulas, standing alone, would satisfy an accrual rule of section 411(b)(1)(A), (B), and (C).

The fact pattern described in Revenue Ruling 2008-7 has occurred in a number of situations over the past few years. Employers sponsoring these plans have suggested that their plans should satisfy the accrual rules of section 411(b)(1)(A), (B), and (C), contending that any technical violation of the accrual rules is directly because the participant has higher frontloaded accruals under one formula when compared to the other formula that will ultimately provide the larger benefit under the plan. While the relief under section 7805(b) that is provided under Revenue Ruling 2008-7 addresses the situation for past years, the relief does not apply for the parallel accrual rules of section 204(b)(1)(A), (B) and (C) of ERISA and only applies to plan years beginning before January 1, 2009.

The proposed regulations would provide a limited exception to the existing requirement under § 1.411(b)-1(a)(1) to aggregate the accrued benefits under all formulas in order to determine whether or not the accrued benefits under the plan for participants satisfy one of the alternative methods under section 411(b)(1)(A) through (C). Under this limited exception, certain plans that determine a participant's benefits as the greatest of the benefits determined under two or more separate formulas would be permitted to demonstrate satisfaction of the 133 1/3 percent rule of section 411(b)(1)(B) by demonstrating that each separate formula satisfies the 133 1/3 percent rule of section 411(b)(1)(B). 4

A plan would be eligible for this exception only if each of the separate formulas uses a different basis for determining benefits. For example, a plan would be eligible for this special rule if it provides a benefit equal to the greater of the benefits under two formulas, one of which determines benefits on the basis of highest average compensation and the other of which determines benefits on the basis of career average compensation. As another example, a traditional defined benefit plan which determined benefits based on highest average compensation that is amended to add a cash balance formula (as in the facts of Rev. Rul. 2008-7) would be eligible for this exception where, in order to provide a better transition for longer service active participants, the plan provides that a group of participants is entitled to the greater of the benefit provided by the hypothetical account balance and the benefit determined under the continuing traditional formula. In each of the above two examples, each separate formula under the plan uses a different basis for determining benefits and, therefore, both of those plans would be eligible to utilize this exception. Accordingly, both plans would be permitted to demonstrate satisfaction of the 133 1/3 percent rule of section 411(b)(1)(B) by demonstrating that each separate formula under the plan satisfies the 133 1/3 percent rule of section 411(b)(1)(B).

The utility of this exception can be seen from the following example of a plan that provides a benefit equal to the greater of two formulas. One formula provides a benefit of 1 percent of average compensation for the 3 consecutive years of service with the highest such average multiplied by the number of years of service at normal retirement age (not in excess of 25 years of service), and the other formula provides a benefit that is the accumulation of 1.5 percent of compensation for each year of service. Under the existing final regulations, the 133 1/3 percent rule of section 411(b)(1)(B) is applied by reference to the annual rate of accrual for each year from the year of the test through normal retirement age. If the participant's accrued benefit currently is determined using the 1 percent formula (because the high-3 average compensation is significantly higher than the effective career average compensation that is used under the 1.5 percent formula), but the participant's normal retirement benefit will ultimately be determined using the 1.5 percent formula if service continues to normal retirement age (because the 25-year service cap will apply to the 1 percent formula, but not the 1.5 percent formula), then the annual rate of accrual will have to be determined for testing purposes on a consistent basis for each year, either using each year's compensation or high-3 average compensation. Thus, in order to test the plan under the 133 1/3 percent rule, the existing final regulations would require that either the accruals under the 1 percent formula be expressed in terms of a single year's pay or the accruals under the 1.5 percent formula be expressed in terms of high-3 average compensation. In either case, the annual rates of accrual would differ from the stated rates under the plan formulas. In addition, the annual rates of accrual for the accumulation formula when those rates are expressed in terms of high-3 average compensation could be negative in some cases. In contrast, using the exception set forth in the proposed regulation would enable the plan to be tested using the annual rates of accrual expressed in the plan formulas.

The proposed regulations would also provide an extension of this exception in the case of a plan that provides benefits based on the greatest of three or more benefit formulas. In such a case, the plan would be eligible for a modified version of the formula-by-formula testing under the proposed regulations. Under this modification, the accrued benefits determined under all benefit formulas that have the same basis are first aggregated and then those aggregated formulas are treated as a single formula for purposes of applying the separate testing rule under the proposed regulations.

Eligibility for separate testing under the proposed regulations would be constrained by an anti-abuse rule. The proposed regulations would provide that a plan is not eligible for separate testing if the Commissioner determines that the plan's use of separate formulas with different bases is structured to evade the general requirement to aggregate formulas under § 1.411(b)-1(a)(1) (for example, if the differences between the bases of the separate formulas are minor).

These regulations are proposed to be effective for plan years beginning on or after January 1, 2009.

It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because the regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, this regulation has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

Before these proposed regulations are adopted as final regulations, consideration will be given to any written (a signed original and eight (8) copies) or electronic comments that are submitted timely to the IRS. The IRS and the Treasury Department specifically request comments on the clarity of the proposed regulations and how they may be made easier to understand. All comments will be available for public inspection and copying.

Under these proposed regulations, a plan eligible for the separate testing option would not violate the accrual rules merely because the plan provides higher frontloaded accruals under one formula when compared to the other formula that will ultimately provide the larger benefit under the plan. Some commentators have suggested a broader rule that would modify the regulations to provide that a plan does not violate the accrual rules where the plan provides a pattern of accruals that affords higher benefits in earlier years (that is, benefit accruals are frontloaded) relative to a pattern of accruals that satisfies the accrual rules. The 3 percent method of section 411(b)(1)(A) and the fractional rule of section 411(b)(1)(C) automatically achieve this result because they are cumulative tests that test on the basis of the total accrued benefit compared to the projected normal retirement benefit. By contrast, the 133 1/3 percent rule is based on a comparison of the “annual rate at which any individual who is or could be a participant can accrue the retirement benefits payable at normal retirement age” for a later plan year with the annual rate for an earlier plan year. The existing final regulations include an example (§ 1.411(b)-1(b)(2)(iii), Example (3) ) that demonstrates how a plan fails the 133 1/3 percent rule where it provides accruals in earlier years that are frontloaded relative to accruals that apply in later years. The proposed regulations do not include a provision under the 133 1/3 percent rule that recognizes prior frontloading of benefits. However, commentators who would suggest such a provision under the 133 1/3 percent rule should describe how that provision would fit within the statutory language of section 411(b)(1)(B), including the application of section 411(b)(1)(B)(i) (which requires that an amendment to the plan that is in effect for the current year be treated as in effect for all other plan years).

A public hearing has been scheduled for October 15, 2008, beginning at 10 a.m. in the Auditorium, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. In addition, all visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the FOR FURTHER INFORMATION CONTACT section of this preamble.

The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing must submit written or electronic comments by September 16, 2008, and an outline of topics to be discussed and the amount of time to be devoted to each topic (a signed original and eight (8) copies) by September 24, 2008. A period of 10 minutes will be allotted to each person for making comments. An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing.

The principal authors of these regulations are Lauson C. Green and Linda S. F. Marshall, Office of Division Counsel/Associate Chief Counsel (Tax Exempt and Government Entities). However, other personnel from the IRS and the Treasury Department participated in the development of these regulations.

Accordingly, 26 CFR part 1 is proposed to be amended as follows:

Background

This document contains proposed amendments to 26 CFR part 1 under section 642 of the Code. Section 642 was added to the Code under the Internal Revenue Code of 1954 (68A Stat. 215). Section 642(c) of the Code provides that an estate or trust (other than a trust meeting the specifications of subpart B) shall be allowed a deduction in computing its taxable income any amount of the gross income, without limitation, which pursuant to the terms of the governing instrument is, during the taxable year, paid for a purpose specified in section 170(c) (determined without regard to section 170(c)(2)(A)).

The regulations under § 1.642(c)-3 provide guidance concerning adjustments and other special rules for computing the charitable contributions deduction. The regulations under § 1.643(a)-5 provide guidance concerning rules for computing the amount of tax-exempt income included in distributable net income. These proposed regulations clarify the existing regulations under §§ 1.642(c)-3(b) and 1.643(a)-5(b). Section 1.642(c)-3(b)(2) provides that, in determining whether an amount of income paid to a charitable beneficiary includes particular items of income not included in gross income (for example, tax exempt income), provisions in the governing instrument will control if they specifically provide as to the source out of which amounts are to be paid to the charitable beneficiary. In the absence of specific provisions in the governing instrument or in local law, the amount of income distributed to each charitable beneficiary is deemed to consist of the same proportion of each class of the items of income of the estate or trust as the total of each class bears to the total of all classes.

Section 1.643(a)-5(b) provides rules for reducing the amount of tax-exempt interest includable in distributable net income when tax-exempt interest is deemed to be included in income paid, permanently set aside, or to be used for the purposes specified in section 642(c). As similarly provided in § 1.642(c)-3(b), § 1.643(a)-5(b) provides “[i]f the governing instrument specifically provides as to the source out of which amounts are paid, permanently set aside, or to be used for such charitable purposes, the specific provisions control. In the absence of specific provisions in the governing instrument, an amount to which section 642(c) applies is deemed to consist of the same proportion of each class of the items of income of the estate or trust as the total of each class bears to the total of all classes.”

The IRS and the Treasury Department believe that the current regulations under §§ 1.642(c)-3(b) and 1.643(a)-5(b) require that such a specific provision in a governing instrument or in local law that identifies the source(s) of the amounts to be paid, permanently set aside or used for a purpose specified in section 642(c) must have economic effect independent of income tax consequences in order for the specific provision in the governing instrument or in local law to be respected for Federal tax purposes. This belief is based on the structure and provisions of Subchapter J as a whole, as well as on an analysis of the existing regulations with their interrelated cross-references. Section 1.642(c)-3(b) and § 1.643(a)-5(b) refer to examples in §§ 1.662(b)-2 and 1.662(c)-4 to illustrate the rules of §§ 1.642(c)-3(b) and 1.643(a)-5(b). Section 1.662(b)-2 provides that, in determining the character of amounts distributed to a beneficiary when a charitable contribution is made, “* * * the principles contained in §§ 1.652(b)-1 and 1.662(b)-1 generally apply.” Section 1.652(b)-1 provides that “[i]n determining the gross income of a beneficiary, the amounts includible under § 1.652(a)-1 have the same character in the hands of the beneficiary as in the hands of the trust.” Section 1.652(b)-2(a) elaborates on the general principle in § 1.652(b)-1 by providing that the amount distributed to a beneficiary and includible in gross income under § 1.652(a)-1 generally consists of the same proportion of each class of items included in the trust's distributable net income (DNI) as the total of each such class bears to the total DNI. These principles are repeated in § 1.662(b)-1. In addition, § 1.652(b)-2(b) defines the exception to this rule by providing that “[t]he terms of the trust are considered specifically to allocate different classes of income to different beneficiaries only to the extent that the allocation is required in the trust instrument, and only to the extent that it has economic effect independent of the income tax consequences of the allocation.”

Section 1.681(a)-2(b)(2) provides guidance on the method of allocating gross income to unrelated business income that is not deductible under section 642(c). This regulation provides that “[u]nless the facts clearly indicate to the contrary * * *” the payment to charity consists of the same ratio of unrelated business income as the ratio of unrelated business income to all of the trust's taxable income. Examples given in this regulation confirm that a specific allocation of income items will be recognized when such specific allocation has economic effect independent of its tax consequences, such as when the amount of the charitable distribution will be dependent upon the amount of the class of income.

The IRS and the Treasury Department believe that the chain of references discussed above requires that a specific provision of the governing instrument or a provision under local law has economic effect independent of income tax consequences in order to be respected for Federal income tax purposes, and that this principle applies throughout Subchapter J. To make this concept clearer and easier to understand, the proposed regulations amend the regulations under section 642(c) to add the principle of economic effect directly into the language of the regulation itself, rather than being incorporated by reference to other regulation provisions. Thus, the proposed regulation will amend the regulations under section 642(c) to confirm that a provision in a governing instrument or in local law that specifically provides as to the source out of which amounts are to be paid, permanently set aside or used for a purpose specified in section 642(c) must have economic effect independent of income tax consequences in order to be respected for Federal tax purposes. If such provision does not have economic effect independent of income tax consequences, income distributed for a purpose specified in section 642(c) will consist of the same proportion of each class of the items of income as the total of each class bears to the total of all classes. See § 1.642(c)-3(b)(2).

As an example, CLTs pay an annuity or unitrust amount to a charity for a determinable period, measured by a term of years or by reference to the life of one or more individuals. See section 170(f)(2)(B). At the end of the term, the remainder passes to one or more non-charitable beneficiaries. CLTs may earn various types of income (such as ordinary income, capital gains, unrelated business tax income and tax-exempt income) in any given taxable year. Some trust instruments attempt to source the payments to charity so as to maximize the tax benefits to the trust and beneficiaries. For example, the governing documents might include a provision directing that the charity's annuity or unitrust payment be made first out of ordinary income and capital gains in order to minimize the trust's tax liability. Thus, the trust attempts to retain the unrelated business taxable income and tax-exempt income (for which no section 642(c) deduction may be claimed or for which the deduction is limited by section 681). Such a provision in the governing instrument does not have economic effect independent of the income tax consequences, because the amount paid to the charitable beneficiary is not dependent upon the type of income it is allocated. Rather, such amount is the same regardless of the source of the income. An annuity payment is a fixed amount from year to year, and a unitrust amount is based upon a predetermined percentage of the trust's value. Thus, the amount of each type of income the trust earns is irrelevant to the amount the charity is entitled to receive.

Accordingly, a provision under local law or in the governing instrument of a CLT that provides that the payment to charity (eligible for a deduction under section 642(c)) is deemed to consist of particular classes of income, determined on a non-pro rata basis, will not be respected because such a provision does not have economic effect independent of income tax consequences. Instead, such a payment to a charity will consist of the same proportion of each class of the items of income of the trust as the total of each class bears to the total of all classes. See § 1.642(c)-3(b)(2). This proposed amendment to the regulation serves only to confirm the economic effect requirement of the current regulations.

The proposed regulations also similarly clarify the corresponding language in § 1.643(a)-5(b).

Finally, the proposed regulations remove § 1.642(c)-3(b)(4) because the provisions of section 116 were repealed by the Tax Reform Act of 1986 (Pub. L. 99-514).

The regulations, as proposed, apply to trusts and estates for taxable years beginning after the date final regulations are published in the Federal Register .

It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because these regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Therefore, a Regulatory Flexibility Analysis is not required. Pursuant to section 7805(f) of the Code, this notice of proposed rulemaking will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

Before these proposed regulations are adopted as final regulations, consideration will be given to any written (a signed original and eight (8) copies) or electronic comments that are submitted timely to the IRS. The IRS and the Treasury Department also request comments on the clarity of the proposed rules and how they can be made easier to understand. All comments will be available for public inspection and copying.

A public hearing has been scheduled for October 8, 2008, at 10 a.m. in the auditorium of the Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. In addition, all visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the FOR FURTHER INFORMATION CONTACT section of this preamble.

The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing must submit electronic or written comments by September 16, 2008, and an outline of the topics to be discussed and the time to be devoted to each topic (signed original and eight (8) copies) by September 16, 2008. A period of 10 minutes will be allotted to each person for making comments. An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing.

The principal author of these proposed regulations is Vishal R. Amin, Office of the Chief Counsel (Passthroughs and Special Industries).

Accordingly, 26 CFR part 1 is proposed to be amended as follows:

The PCT enables United States applicants to file one application (an international or PCT application) in a standardized format in English in a Receiving Office (either the United States Patent and Trademark Office or the International Bureau of the World Intellectual Property Organization (WIPO)) and have that application acknowledged as a regular national or regional filing by PCT member countries. See Manual of Patent Examining Procedure (MPEP) § 1801 (8th ed. 2001) (Rev. 6, Sept. 2007). The primary benefit of the PCT system is the ability to delay the expense of submitting papers and fees to the PCT national offices. See MPEP 1893.

The Office acts as a Receiving Office (RO) for United States residents and nationals. See 35 U.S.C. 361(a), 37 CFR 1.412(a), and MPEP 1801. An RO functions as the filing and formalities review organization for international applications. See MPEP 1801. The Office, in its capacity as a PCT Receiving Office, received over 50,000 international applications in each of fiscal years 2006 and 2007. The Office also acts as an International Searching Authority (ISA). See 35 U.S.C. 362(a), 37 CFR 1.413(a), and MPEP 1840. The primary functions of an ISA are to establish: (1) International search reports, and (2) written opinions of the ISA. See MPEP 1840.

The transmittal and search fees for an international application are provided for in 35 U.S.C. 376. See 35 U.S.C. 376 (the Office “may also charge” a “transmittal fee,” “search fee,” “supplemental search fee,” and “any additional fees” (35 U.S.C. 376(a)), and the “amounts of [these] fees * * * shall be prescribed by the Director” (35 U.S.C. 376(b)). In addition, 35 U.S.C. 41(d) provides that fee amounts set by the Office “recover the estimated average cost to the Office of such processing, services, or materials.” See 35 U.S.C. 41(d). The Office has no basis for maintaining the PCT transmittal, search, and supplemental search fees at amounts less than that necessary to recover the estimated average cost to the Office of performing these functions for PCT international applications. Therefore, the Office is proposing to adjust the PCT transmittal fee and search fees to recover the estimated average cost to the Office of processing PCT international applications and preparing international search reports and written opinions for PCT international applications. The Office's cost analysis for these activities reveals that the average cost of the initial processing of PCT international applications is slightly over $415.00 and the average cost of search and preparation of ISA search reports or written opinions for international applications and for a supplemental search is slightly over $2,225.00 for each invention.

Title 37 of the Code of Federal Regulations, part 1, is proposed to be amended as follows:

Section 1.445: Section 1.445(a)(1) is proposed to be amended to change the transmittal fee from $300.00 to $415.00. Section 1.445(a)(2) is proposed to be amended to change the search fee from $1,800.00 to $2,225.00. Section 1.445(a)(3) is proposed to be amended to change the supplemental search fee from $1,800.00 to $2,225.00.

1. Description of the reasons that action by the agency is being considered: The Office is proposing to revise the rules of practice to adjust the transmittal and search fees for international applications filed under the PCT. The Office is proposing to adjust the PCT transmittal and search fees to recover the estimated average cost to the Office of processing PCT international applications and preparing international search reports and written opinions for PCT international applications.

2. Succinct statement of the objectives of, and legal basis for, the proposed rules: The Office is proposing to adjust the PCT transmittal and search fees to recover the estimated average cost to the Office of processing PCT international applications and preparing international search reports and written opinions for PCT international applications. The changes proposed in this notice are authorized by 35 U.S.C. 41(d) and 376.

3. Description and estimate of the number of affected small entities: The Small Business Administration (SBA) small business size standards applicable to most analyses conducted to comply with the Regulatory Flexibility Act are set forth in 13 CFR 121.201. These regulations generally define small businesses as those with fewer than a maximum number of employees or less than a specified level of annual receipts for the entity's industrial sector or North American Industry Classification System code. The Office, however, has formally adopted an alternate size standard as the size standard for the purpose of conducting an analysis or making a certification under the Regulatory Flexibility Act for patent-related regulations. See Business Size Standard for Purposes of United States Patent and Trademark Office Regulatory Flexibility Analysis for Patent-Related Regulations , 71 FR 67109 (Nov. 20, 2006), 1313 Off. Gaz. Pat. Office 60 (Dec. 12, 2006). This alternate small business size standard is the previously established size standard that identifies the criteria entities must meet to be entitled to pay reduced patent fees. See 13 CFR 121.802. If patent applicants identify themselves on the patent application as qualifying for reduced patent fees, the Office captures this data in the Patent Application Location and Monitoring (PALM) database system, which tracks information on each patent application submitted to the Office.

Unlike the SBA small business size standards set forth in 13 CFR 121.201, this size standard is not industry-specific. Specifically, the Office's definition of small business concern for Regulatory Flexibility Act purposes is a business or other concern that: (1) Meets the SBA's definition of a “business concern or concern” set forth in 13 CFR 121.105; and (2) meets the size standards set forth in 13 CFR 121.802 for the purpose of paying reduced patent fees, namely an entity: (a) Whose number of employees, including affiliates, does not exceed 500 persons; and (b) which has not assigned, granted, conveyed, or licensed (and is under no obligation to do so) any rights in the invention to any person who made it and could not be classified as an independent inventor, or to any concern which would not qualify as a non-profit organization or a small business concern under this definition. See Business Size Standard for Purposes of United States Patent and Trademark Office Regulatory Flexibility Analysis for Patent-Related Regulations , 71 FR at 67112, 1313 Off. Gaz. Pat. Office at 63.

The changes in this proposed rule will apply to any small entity who files a PCT international application in the United States Receiving Office and who requests a search by the United States International Searching Authority. The Office received between 52,000 and 53,000 PCT international applications in each of fiscal years 2006 and 2007. There is no provision in 35 U.S.C. 376 (or elsewhere) for a small entity reduction for the transmittal or search fees for an international application. Thus, PCT applicants do not indicate and the Office does not record whether a PCT application is by a small entity or a non-small entity. The Office's PALM and Revenue Accounting and Management (RAM) systems indicate that 12,043 of the PCT international applications in fiscal year 2006 claim priority to a prior application (nonprovisional or provisional) that has small entity status, and that 2,559 of the PCT international applications in fiscal year 2006 do not claim priority to any prior nonprovisional application or provisional application. The Office's PALM and RAM systems indicate that 12,716 of the PCT international applications in fiscal year 2007 claim priority to a prior application (nonprovisional or provisional) that has small entity status, and that 4,016 of the PCT international applications in fiscal year 2007 do not claim priority to any prior nonprovisional application or provisional application.

4. Description of the projected reporting, recordkeeping and other compliance requirements of the proposed rules, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record: This notice does not propose any reporting, recordkeeping and other compliance requirements. This notice proposes only to adjust the PCT transmittal and search fees. As discussed previously, there is no provision in 35 U.S.C. 376 (or elsewhere) for a small entity reduction for the search fees for an international application. The following table (Table 1) indicates the PCT international stage fee, the number of payments of the fee received by the Office in fiscal year 2007 (number of entities who paid the applicable fee in fiscal year 2007), the current fee amount, the proposed fee amount, and the net amount of the fee adjustment.

The PCT international search fee and supplemental search fee were adjusted from $1,000.00 to $1,800.00 in November of 2007. See April 2007 Revision of Patent Cooperation Treaty Procedures , 72 FR 51559 (Sept. 10, 2007), 1323 Off. Gaz. Pat. Office 26 (Oct. 2, 2007) (final rule). Thus, the change to the search and supplemental search fee proposed in this notice is a $425.00 increase over the current search fee and supplemental search fee set in November of 2007, and a $1,225.00 increase over the search fee and supplemental search fee that was in effect prior to November of 2007.

The PCT does not preclude United States applicants from filing patent applications directly in the patent offices of those countries which are Contracting States of the PCT (with or without previously having filed a regular national application under 35 U.S.C. 111(a) or 111(b) in the United States) and taking advantage of the priority rights and other advantages provided under the Paris Convention and the World Trade Organization (WTO) administered Agreement on Trade-Related Aspects of Intellectual Property (TRIPs Agreement). See MPEP 1801. That is, the PCT is not the exclusive mechanism for seeking patent protection in foreign countries, but is instead simply an optional alternative route available to United States patent applicants for seeking patent protection in those countries that are Contracting States of the PCT. See id.

In addition, an applicant filing an international application under the PCT in the United States Receiving Office (the United States Patent and Trademark Office) is not required to use the United States Patent and Trademark Office as the International Searching Authority. The European Patent Office (except for applications containing business method claims) or the Korean Intellectual Property Office may be selected as the International Searching Authority for international applications filed in the United States Receiving Office. The applicable search fee if the European Patent Office is selected as the International Searching Authority European is currently $2,496.00 (set by the European Patent Office), and the applicable search fee if the Korean Intellectual Property Office is selected as the International Searching Authority is currently $244.00 (set by the Korean Intellectual Property Office).

5. Description of any significant alternatives to the proposed rules which accomplish the stated objectives of applicable statutes and which minimize any significant economic impact of the proposed rules on small entities: The alternative of not adjusting the PCT transmittal and search fees would have a lesser economic impact on small entities, but would not accomplish the stated objectives of applicable statutes. See 35 U.S.C. 41(d) (requires that fees set by the Office recover the estimated average cost to the Office of the processing, services, or materials).

6. Identification, to the extent practicable, of all relevant Federal rules which may duplicate, overlap or conflict with the proposed rules: The Office is the sole agency of the United States Government responsible for administering the provisions of title 35, United States Code, pertaining to examination and granting patents. Therefore, no other federal, state, or local entity shares jurisdiction over the examination and granting of patents.

The Office previously proposed changes to adjust the patent fees set by statute to reflect fluctuations in the Consumer Price Index (CPI). See Revision of Patent Fees for Fiscal Year 2009 , 73 FR 31655 (June 3, 2008) (proposed rule). The changes proposed in that rule making do not duplicate, overlap, or conflict with the changes proposed in this notice.

Other countries, however, have their own patent laws, and an entity desiring a patent in a particular country must make an application for patent in that country, in accordance with the applicable law. Although the potential for overlap exists internationally, this cannot be avoided except by treaty (such as the Paris Convention for the Protection of Industrial Property, or the PCT). Nevertheless, the Office believes that there are no other duplicative or overlapping rules.

B. Executive Order 13132 (Federalism): This rule making does not contain policies with federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (Aug. 4, 1999).

C. Executive Order 12866 (Regulatory Planning and Review): This rule making has been determined to be significant for purposes of Executive Order 12866 (Sept. 30, 1993), as amended by Executive Order 13258 (Feb. 26, 2002) and Executive Order 13422 (Jan. 18, 2007).

D. Executive Order 13175 (Tribal Consultation): This rule making will not: (1) Have substantial direct effects on one or more Indian tribes; (2) impose substantial direct compliance costs on Indian tribal governments; or (3) preempt tribal law. Therefore, a tribal summary impact statement is not required under Executive Order 13175 (Nov. 6, 2000).

E. Executive Order 13211 (Energy Effects): This rule making is not a significant energy action under Executive Order 13211 because this rule making is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required under Executive Order 13211 (May 18, 2001).

F. Executive Order 12988 (Civil Justice Reform): This rule making meets applicable standards to minimize litigation, eliminate ambiguity, and reduce burden as set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 (Feb. 5, 1996).

G. Executive Order 13045 (Protection of Children): This rule making is not an economically significant rule and does not concern an environmental risk to health or safety that may disproportionately affect children under Executive Order 13045 (Apr, 21, 1997).

H. Executive Order 12630 (Taking of Private Property): This rule making will not effect a taking of private property or otherwise have taking implications under Executive Order 12630 (Mar. 15, 1988).

I. Congressional Review Act: Under the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq. ), prior to issuing any final rule, the United States Patent and Trademark Office will submit a report containing the final rule and other required information to the U.S. Senate, the U.S. House of Representatives and the Comptroller General of the Government Accountability Office. The changes proposed in this notice are not expected to result in an annual effect on the economy of 100 million dollars or more, a major increase in costs or prices, or significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. Therefore, this rule making is not likely to result in a “major rule” as defined in 5 U.S.C. 804(2).

J. Unfunded Mandates Reform Act of 1995: The changes proposed in this notice do not involve a Federal intergovernmental mandate that will result in the expenditure by State, local, and tribal governments, in the aggregate, of 100 million dollars (as adjusted) or more in any one year, or a Federal private sector mandate that will result in the expenditure by the private sector of 100 million dollars (as adjusted) or more in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions are necessary under the provisions of the Unfunded Mandates Reform Act of 1995. See 2 U.S.C. 1501 et seq.

K. National Environmental Policy Act: This rule making will not have any effect on the quality of environment and is thus categorically excluded from review under the National Environmental Policy Act of 1969. See 42 U.S.C. 4321 et seq.

L. National Technology Transfer and Advancement Act: The requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) are inapplicable because this rule making does not contain provisions which involve the use of technical standards.

M. Paperwork Reduction Act: The changes proposed in this notice involve information collection requirements which are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). The collection of information involved in this notice has been reviewed and approved by OMB under OMB control number 0651-0021. The Office is not resubmitting an information collection package to OMB for its review and approval because the changes proposed in this notice concern revised fees for existing information collection requirements associated with the information collection under OMB control number 0651-0021. The Office will submit fee revision changes to the inventory of the information collection under OMB control number 0651-0021 if the changes proposed in this notice are adopted.

Comments are invited on: (1) Whether the collection of information is necessary for proper performance of the functions of the agency; (2) the accuracy of the agency's estimate of the burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information to respondents.

Interested persons are requested to send comments regarding these information collections, including suggestions for reducing this burden, to: (1) The Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10202, 725 17th Street, NW., Washington, DC 20503, Attention: Desk Officer for the Patent and Trademark Office; and (2) Robert A. Clarke, Director, Office of Patent Legal Administration, Commissioner for Patents, P.O. Box 1450, Alexandria, VA 22313-1450.

Notwithstanding any other provision of law, no person is required to respond to nor shall a 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 OMB control number.

Accordingly, the Office proposes to amend 37 CFR part 1 as follows:

In the “Rules and Regulations” section of this Federal Register , we are updating the existing motor vehicle refrigerant recovery only equipment standards, as a direct final rule without a prior proposed rule. If we receive no adverse comment, we will not take further action on this proposed rule. If a public hearing is held, it will be at EPA Headquarters in Washington, DC.

This document proposes to take action on motor vehicle air-conditioning refrigerant recovery only equipment standards. We have published a direct final rule updating EPA's motor vehicle refrigerant recovery only equipment standards in the “Rules and Regulations” section of this Federal Register because we view this as a noncontroversial action and anticipate no adverse comment. We have explained our reasons for this action in the preamble to the direct final rule and are not repeating those here.

If we receive no adverse comment, we will not take further action on this proposed rule. If we receive adverse comment, we will withdraw the direct final rule and it will not take effect. We would address all public comments in any subsequent final rule based on this proposed rule. We do not intend to institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information, please see the information provided in the ADDRESSES section of this document.

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

This action does not impose any new information collection burden. The recordkeeping and reporting requirements included in this action are already included in an existing information collection burden. This action does not make any changes that would affect burden. However, the Office of Management and Budget (OMB) has previously approved the information collection requirements contained in the existing regulations, 40 CFR part 82, under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control number 2060-0247. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

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

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

After considering the economic impacts of this proposed rule on small entities, we certify that this action will not have a significant economic impact on a substantial number of small entities. The requirements of this proposed rule do not require an immediate replacement of existing equipment with equipment certified to the new SAE standard. Rather, MVAC service shop owners will purchase equipment certified to the new SAE standard to replace existing refrigerant handling equipment as it approaches the end of its life. We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts.

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

EPA has determined that this rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. This proposed rule does not affect State, local, or tribal governments. The impact of this proposed rule on the private sector will be less than $100 million per year. Thus, this proposed rule is not subject to the requirements of sections 202 and 205 of the UMRA. EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. This regulation does not apply to governmental entities.

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

This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This proposed rule applies directly to facilities that use these substances and not to governmental entities. Thus, Executive Order 13132 does not apply to this proposed rule.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This proposed rule does not have tribal implications, as specified in Executive Order 13175. It does not significantly or uniquely affect the communities of Indian tribal governments, because this regulation applies directly to facilities that use these substances and not to governmental entities. Thus, Executive Order 13175 does not apply to this proposed rule.

Executive Order 13045: “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This proposed rule is not subject to Executive Order 13045 because it is based on technology performance and not on health or safety risks.

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

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law No. 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This rulemaking explicitly references technical standards; EPA proposes to use SAE Standard J2810 which is the revised version of SAE Standard J1732. These standards can be obtained from http://www.sae.org/technical/standards/.

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

EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This action updates a regulatory reference to an obsolete standard to avoid confusion on the part of refrigerant handling equipment manufacturers, service technicians, automobile dismantling operators, and A/C service shop owners.

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:

• Crop production (NAICS code 111), e.g., agricultural workers; greenhouse, nursery, and floriculture workers; farmers.

• Animal production (NAICS code 112), e.g., cattle ranchers and farmers, dairy cattle farmers, livestock farmers.

• Food manufacturer (NAICS code 311), e.g., agricultural workers; farmers; greenhouse, nursery, and floriculture workers; ranchers; pesticide applicators.

• Pesticide manufacturer (NAICS code 32532), e.g., agricultural workers; commercial applicators; farmers; greenhouse, nursery, and floriculture workers; residential users.

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in [insert appropriate cite to either another unit in the preamble or a section in a rule]. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

1. Docket. EPA has established a docket for this action under docket identification (ID) number EPA-HQ-OPP-2002-0043. Publicly available docket materials are available either in the electronic docket at http://www.regulations.gov , or, if only available in hard copy, at the Office of Pesticide Programs (OPP) Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Building), 2777 S. Crystal Drive Arlington, VA. The hours of operation of this Docket Facility are from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket telephone number is (703) 305-5805.

2. Tips for preparing your comments . When submitting comments, remember to:

i. Identify the document by docket ID number and other identifying information (subject heading, Federal Register date, and page number).

ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

iv. Describe any assumptions and provide any technical information and/or data that you used.

v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

vi. Provide specific examples to illustrate your concerns and suggest alternatives.

vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

viii. Make sure to submit your comments by the comment period deadline identified.

EPA's Office of Pesticide Programs (OPP) has developed a commodity vocabulary data base entitled “Food and Feed Commodity Vocabulary.” The data base was developed to consolidate all the major OPP commodity vocabularies into one standardized vocabulary. As a result, all future pesticide tolerances issued under 40 CFR part 180 will use the “preferred commodity term” as listed in the aforementioned data base. Previously, seven documents in a series of documents revising the terminology of commodity terms currently in tolerances in 40 CFR part 180 have been published. Final Rules, revising pesticide tolerance nomenclature, were published in the Federal Register on June 19, 2002 (67 FR 41802) (FRL-6835-2); June 21, 2002 (67 FR 42392) (FRL-7180-1); July 1, 2003 (68 FR 39428) (FRL-7308-9) and (68 FR 39435)(FRL-7316-9); December 13, 2006 (71 FR 74802) (FRL-8064-3); and September 18, 2007 (72 FR 53134)(FRL-8126-5); corrected on October 31, 2007 (72 FR 61535)(FRL-8151-4).

This document proposes changes to certain commodity terminology in 40 CFR part 180. EPA is proposing to make the following format changes to the terminology of the commodity terms in 40 CFR part 180 to the extent the terminology is not already in this format:

1. The first letter of the commodity term is capitalized. All other letters, including the first letter of proper names, are changed to lower case.

2. Commodity terms are listed in the singular, although there are the following exceptions: leaves, roots, tops, greens, hulls, vines, fractions, shoots, and byproducts.

3. Commodity terms are amended so that generic terms precede modifying terms. Example - Aspirated grain fractions would be replaced with Grain, aspirated fractions.

4. Abbreviated terms would be replaced with the appropriate commodity terms. Example - Cattle, mbyp would be replaced with Cattle, meat byproducts.

5. Crop group terms would be revised to standardize with the “Food and Feed Vocabulary”. Examples are:

• Vegetable, leafy greens, except Brassica, group 4 would be replaced with Vegetable, leafy, except brassica, group 4.

• Legume vegetables, succulent or dried (except soybean) would be replaced with Vegetable, legume, group 6, except soybean.

• Vegetable, legume, edible podded, subgroup would be replaced with Vegetable, legume, edible podded, subgroup 6A.

In addition to format changes to the commodity terms, this document also proposes many revisions to the commodity terms in 40 CFR part 180, subpart C. These proposed revisions, if adopted, would replace certain commodity terms that are no longer used by EPA with the appropriate matching term in the “Food and Feed Vocabulary.” For example:

1. Carrot would be replaced with Carrot, roots.

2. Cotton, oil and Peanut oil would be replaced with Cotton, refined oil and Peanut, refined oil.

3. Cacao and Cacao bean would be replaced with Cacao bean, bean.

4. Coffee and Coffee, bean would be replaced with Coffee, bean, green.

5. Coffee, postharvest would be replaced with Coffee, bean, roasted bean, postharvest.

6. Citron would be replaced with Citron, citrus.

7. Corn, field, grain, flour would be replaced with Corn, field, flour.

8. Date would be replaced with Date, dried fruit.

9. Grass, fodder would be replaced with Grass, straw.

10. Guar bean would be replaced with Guar, seed.

11. Hop would be replaced with Hop, dried cones.

12. Millet, fodder would be replaced with Millet, straw. Milo, grain; Milo, fodder; and Milo, forage would be replaced with Sorghum, grain, grain; Sorghum, grain, stover; and Sorghum, grain, forage.

13. Mulberry, Indian would be replaced with Noni.

14. Oat milling fractions (except flour) and Oat, milled fractions (except flour) would be replaced with Oat, groats/rolled oats.

15. Pea, vines would be replaced with Pea, field, vines.

16. Peavine, hay would be replaced with Pea, field, hay.

17. Prickly pear cactus, fruit and Prickly pear cactus, pads would be replaced with Cactus, fruit and Cactus, pads.

18. Red beet roots and Red beet tops would be replaced with Beet, garden, roots and Beet, garden tops.

19. Soybean, aspirated grain fractions would be replaced with Grain, aspirated fractions.

20. Wheat, grain, milled byproducts and Wheat, milled feed fractions would be replaced with Wheat, milled byproducts.

In certain instances, more than one replacement commodity term exists in the “Food and Feed Vocabulary for the older commodity terms in 40 CFR part 180, subpart C. For example, the preferred commodity terms for Grass are Grass, forage and Grass, hay. Certain revisions included in this document were made by choosing a replacement commodity term from the “Food and Feed Vocabulary“ based on the old commodity term and existing tolerances for related food or feed commodities. These changes are specific to the amended sections and paragraphs in 40 CFR part 180, supbart C. For example:

In § 180.154(a) and § 180.169(a)(1) the commodity term Alfalfa would be replaced with Alfalfa, forage. Alfalfa, forage and Alfalfa, hay are preferred commodity terms for Alfalfa. Alfalfa, forage was chosen to replace Alfalfa since tolerances are established for Alfalfa, hay.

In § 180.121(e) Beet (with or without tops) would be replaced with Beet, garden roots. Beet, garden, roots and Beet, garden, tops are the preferred commodity terms for Beet (with or without tops). Beet, garden roots was chosen since a tolerance is established for Beet, garden, tops. In § 180.408(a) Beet, garden would be replaced with Beet, garden, roots. A tolerance is established for Beet, garden, tops.

In § 180.154(a) Birdsfoot trefoil would be replaced with Trefoil, forage. Trefoil, forage and Trefoil, hay are the preferred commodity terms for Birdsfoot trefoil. Trefoil forage was chosen since a tolerance is established for Trefoil, hay.

In § 180.154(a) and § 180.169(a)(1) Clover would be replaced with Clover, forage. Clover, forage and Clover, hay are preferred commodity terms for Clover. Clover, forage was chosen since tolerances are established for Clover, hay.

In § 180.121(a), § 180.204(a) and § 180.288(a), the commodity term Corn, forage would be replaced with Corn, field, forage. Corn, field, forage and Corn, sweet, forage are the preferred commodity terms for Corn, forage. Since there are no tolerances for sweet corn; Corn, field, forage was chosen to replace Corn, forage. In § 180.412(a) the commodity term Corn, field, forage was chosen to replace Corn, forage since a tolerance is established for Corn, sweet, forage.

In § 180.111(a)(1) and § 180.169(a)(1) the commodity term Grass would be replaced with Grass, forage. The preferred terms for Grass are Grass, forage and Grass, hay. Grass, forage was chosen since tolerances are established for Grass, hay.

In § 180.121(e) Rutabagas (with or without tops) would be replaced with Rutabaga, roots. Rutabaga, roots and Rutabaga, tops are the preferred terms for Rutabagas (with or without tops). Rutabaga, roots was chosen since a tolerance is established for Rutabaga tops.

In § 180.342(a)(2) Turnip would be replaced with Turnip, roots. The preferred terms for Turnip are Turnip, roots and Turnip, greens. Turnip, roots was chosen since tolerances are established for Turnip, greens. In § 180.121(e) Turnip (with or without tops) would be replaced with Turnip, roots since a tolerance is established for Turnip, greens.

This document also proposes to delete certain terms that are not needed to identify the tolerance commodities.

1. The term Peanut, meat (hulls removed) would be changed to Peanut.

2. The term Banana, pulp (no peel) would be changed to Banana, pulp.

3. The commodity term Peach (includes nectarines) would be changed to Peach; the “Food and Feed Vocabulary” uses the term Peach to include peach and nectarines.

4. The terms Horseradish, roots and Potato, tuber would be changed to Horseradish and Potato.

5. The terms Garlic, bulb and Garlic (bulb) would be changed to Garlic.

6. The terms Plum (fresh) and Pineapple, fresh would be changed to Plum and Pineapple.

This document proposes technical amendments to the Code of Federal Regulations which have no substantive impact on the underlying regulations, and does not otherwise impose or amend any requirements. As such, the Office of Management and Budget (OMB) has determined that a technical amendment is not a “significant regulatory action” subject to review by OMB under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this proposed rule has been exempted from review under Executive Order 12866 due to its lack of significance, this proposed rule is not subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001). This proposed rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental organizations. After considering the economic impacts of today's proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This action proposes technical amendments to the Code of Federal Regulations which have no substantive impact on the underyling regulations. These technical amendments will not have any negative economic impact on any entities, including small entities. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This proposed rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of the FFDCA. For these same reasons, the Agency has determined that this proposed rule does not have any “tribal implications” as described in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” This proposed rule will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this proposed rule.

The Councils published an Advance notice of proposed rulemaking in the Federal Register at 73 FR 15962, March 26, 2008. To allow additional time for interested parties to review the Advance notice of proposed rulemaking and submit comments, the comment period is reopened for an additional 30 days.

Background

Section 4(b)(3)(A) of the Act (16 U.S.C. 1531 et seq. ) requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information to indicate that the petitioned action may be warranted. We are to base this finding on information provided in the petition, supporting information submitted with the petition, and information otherwise available in our files at the time we make the determination. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition, and publish our notice of this finding promptly in the Federal Register .

Our standard for substantial information within the Code of Federal Regulations (CFR) with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial information was presented, we are required to promptly commence a review of the status of the species.

In making this finding, we based our decision on information provided by the petitioner and otherwise available in our files at the time of the petition review, and we evaluated this information in accordance with 50 CFR 424.14(b). Our process for making a 90-day finding under section 4(b)(3)(A) of the Act and 50 CFR 424.14(b) of our regulations is limited to a determination of whether the information in the petition meets the “substantial information” threshold.

On February 10, 2000, we received an undated petition from Nancy Hillstrand, Homer, Alaska, to list the long-tailed duck as endangered and to designate critical habitat in southcentral and southeastern Alaska, including Kodiak and the Aleutians, the Yukon-Delta National Wildlife Refuge, and the National Petroleum Reserve. The petition itemizes threats to the species based on personal observations. The petition references, but does not provide supporting data on, multiple threats to the long-tailed duck and other species of the Tribe Mergini. As the petition does not specify the particular population to be listed as endangered, the Service assumed the petitioned action was to list the species as endangered throughout its entire range. On March 10, 2000, the Service informed the petitioner that funds available for listing activities were fully allocated to higher-priority actions associated with statutory requirements and active litigation, and that we would address the petition as funding became available. We also concluded in our March 10, 2000, letter that emergency listing of the long-tailed duck was not indicated. Responding to the petition was further delayed due to the high priority of responding to court orders and settlement agreements regarding other species, until funding recently became available to respond to the petition. This finding fulfills the Service's obligation under 16 U.S.C. 1533(b)(3)(A) and its implementing regulations at 50 CFR 424.14(b).

The long-tailed duck ( Clangula hyemalis ) (Order Anseriformes, Family Anatidae) is a small to medium-sized sea duck, with a long tail, steep forehead, flattened crown, small stout bill, and strongly contrasting plumages of white, black, and brown. It is most similar to the harlequin duck ( Histrionicus histrionicus ) and Steller's eider ( Polysticta stelleri ). Adults weigh roughly 750 to 1,000 grams (1.7 to 2.2 pounds) and measure roughly 38 to 53 centimeters (15 to 21 inches) in length. Average male body mass and size is greater than that of the female.

The long-tailed duck is Holarctic in distribution, breeding in tundra and taiga regions around the globe as far north as 80 degrees north latitude. With a worldwide population of more than seven million birds, this species may be the most abundant Arctic sea duck. The following information regarding the description and natural history of the long-tailed duck has been condensed from Robertson and Savard (2002) and Wilbor (1999). Specific references are cited for data of particular relevance to this finding.

In North America, the long-tailed duck breeds from the northern coast of Alaska east across Canada to Ellesmere and Baffin Islands and northern Labrador south to southern and central Alaska, northwestern British Columbia, eastern and southcentral Ontario, and Hudson and James Bays (Robertson and Savard 2002, p. 3). This species winters on both coasts of North America and on the Great Lakes. In western North America, it winters throughout the Aleutian Islands and Kodiak Island and along coastal southern Alaska, the entire British Columbia coast, the Puget Sound, and coastal Washington State south to northern Oregon (Robertson and Savard 2002, p. 3). It is rare along the Oregon and California coasts and present throughout all western provinces and States east to Colorado and Utah and south to Gulf of California, Mexico. On the east coast of North America, it winters from southern Labrador, Newfoundland, St. Lawrence estuary, Gulf of St. Lawrence, Prince Edward Island, Nova Scotia, Gulf of Maine, and along the New England coast and Chesapeake Bay south to Cape Hatteras, North Carolina. It is common south to the north shore of the Gulf of Mexico and Atlantic Coast to Florida and rare as far south as Bermuda. Inland, it winters on all five Great Lakes. Small numbers are scattered throughout many water bodies in eastern North America. It remains in northern areas as long as open water is available.

In the Palearctic, the breeding range of the long-tailed duck is circumpolar, including all of coastal Greenland (except the far north), Iceland, northern Scandinavia, the north coast of continental arctic Russia to the Chukotska Peninsula, and most offshore islands. It winters in southwest Greenland and throughout most of Iceland. Large numbers winter in the Baltic Sea and Finland, and in the North Sea and coastal Norway. In the Pacific, the species winters along eastern and southern Kamchatka Peninsula, along Commander Island, Bering Strait, and northern Anadyr Gulf.

Long-tailed ducks breed over a vast range and at low densities, making comprehensive surveys of their abundance difficult. They are even more difficult to monitor in winter due to their offshore distribution. Although incomplete survey coverage reduces reliability of population size and trend estimates, current population estimates suggest they are the most abundant Arctic sea duck. The North American population may number up to two million birds (USFWS 2001, p. 45). Approximately 200,000 birds breed in Alaska; the remainder breeds in Canada (USFWS 2003, p. 50). Miyabayashi and Mundkur (1999, p. 118) estimate 500,000 to 1,000,000 birds breed and winter in eastern Asia. Nearly 150,000 birds breed in Iceland and Greenland (Wetlands International 2002, p. 97), and an estimated 4,600,000 breed in western Siberia and northern Europe (Scott and Rose 1996, p. 208). The size of the pre-breeding population (birds less than 3 years old) is unknown.

Although the Icelandic breeding population experienced a marked decline in the early 20th century, the breeding populations in Iceland and Greenland are now thought to be stable (Wetlands International 2002, p. 97). Scott and Rose (1996, p. 208) indicated that post-breeding numbers on the tundra of western and central Siberia and breeding populations in northern Europe were stable between 1972 and 1989. In contrast, several surveys suggest declining long-tailed duck populations in some parts of Alaska and Canada. The North American Waterfowl Breeding Population Survey indicated an average annual decline of 5.3 percent from 1973 to 1997 (USFWS 2001, p. 45), and Conant and Groves (2005, p. 5) report a 29-year downward trend for long-tailed ducks in Alaska and the Yukon Territory. Larned, et al. (2005, p. 7) reported an insignificant decline in long-tailed duck numbers on the Arctic Coastal Plain in Alaska, and Mallek, et al. (2006, p. 4) reported a significant downward 20-year trend for the same area. However, existing breeding population surveys must be interpreted with caution. Both Conant and Groves (2005, p. 9) and Larned, et al. (2005, p. 7) suggest that survey timing relative to spring arrival (whether early or late) may account for the lower abundances detected in recent years. The North American Waterfowl Breeding Population Survey does not include major breeding grounds in Canada and Alaska, its transect lines are not located systematically throughout all habitat strata, and it is unlikely that birds are evenly distributed in the sampled area. Such incomplete survey coverage represents an obstacle to providing reliable population and trend estimates for species like the long-tailed duck that occur over vast regions at low densities (USFWS 2001, p. 45). In contrast to suggested population declines in northern Alaska, the Yukon-Kuskokwim Delta Coastal Zone Survey indicated significantly increasing populations for long-tailed ducks since 1988 (Platte and Stehn 2005, p. 6).

Long-tailed ducks have the most complex molt of any waterfowl species, with three different plumages (basic, supplemental, and alternate) during the year; plumage is changing almost continuously. In winter and spring, male plumage is mainly white with a black ear patch, black collar around the breast, completely dark wings, and dark central tail feathers; the male has a short dark bill with a pink subterminal band. In early spring and early summer, males appear mostly dark, with a pale gray facial patch. By mid-summer, males have gray flanks and buff on their wings. The pattern of plumage change in the female is similar to that of the male, lighter in winter and darker in summer, but lacks the sharp contrast of dark and white, thus appearing darker than the male in winter plumage. Females also do not possess long central tail feathers. Juveniles resemble females but are duller, and the white areas are less distinct than in adult plumages. There are no recognized subspecies or geographic variations.

Long-tailed ducks nest in small clusters in subarctic and arctic wetlands on lake islands and by ponds in open tundra and taiga, rarely to tree line; offshore islands with freshwater ponds and tundra-like vegetation are also used. Nests are usually in upland habitat, concealed in vegetation, and close to fresh water with emergent vegetation ( Arctophila spp. or Carex spp.) for cover, and open deep water for feeding. Nest site selection may be influenced by predation pressure from foxes ( Vulpes spp. and Alopex spp.), gulls ( Larus spp.), ravens ( Corvus corax ), and jaegers ( Stercorarius spp.). Long-tailed ducks avoid nesting on ponds where herring gulls ( Larus argentatus ), Pacific loons ( Gavia pacifica ), and common eiders ( Somateria mollissima ) nest (Robertson and Savard 2002, pp. 5, 12-13).

While male long-tailed ducks defend a territory, females are not territorial at any stage. Although information on the mating system is scarce, site fidelity of males and females to breeding grounds suggests long-term monogamy. Data from Hudson Bay (Alison 1975, pp. 10, 43) indicate that females show a strong tendency to return to their previous nest area and suggest some level of subadult female philopatry to natal breeding areas as well.

A diurnal feeder, the long-tailed duck dives for food and has a highly variable diet of animal prey, focusing on locally abundant food items. Diving to depths greater than 60 meters (196.8 feet), it is probably the deepest diver among waterfowl (Robertson and Savard 2002, p. 6). On breeding grounds, its diet consists mainly of larval and adult aquatic insects, crustaceans, fish roe, and vegetable matter. On marine wintering grounds, epibenthic crustaceans, amphipods, mysids, isopods, bivalves, gastropods, fish, and fish eggs are important in the diet; amphipods, fish, mollusks, and oligochaete worms make up the diet on freshwater wintering grounds (Robertson and Savard 2002, p. 7).

Nest sites, selected by the female, are generally close to water on islands in freshwater ponds, on mainland tundra, in marshy habitat, in scrubland ( Salix spp. and Betula spp.), and in dry uplands. Alison (1975, p. 43) documented nest reuse for three successful females. Between six and eight smooth, pale gray to olive buff eggs are laid between late June and late July, depending on location and weather, particularly snow melt. Hatching occurs after 24-29 days of incubation (by the female only), between early July and early August. Ducklings are precocial, and leave the nest 1-2 days after hatching, feeding on material that surfaces when the female dives. The female will lead broods to new ponds when food resources become depleted in the occupied pond. Hens and broods tend to use lakes without fish and may use 10-20 different ponds during the pre-fledging period. Young birds fledge 35-40 days after hatching. Re-nesting following nest failure is not documented in this species and is unlikely at high latitudes.

Mean annual survival rate of adult females in Alaska is estimated to be 75 percent (+8 Standard Error (SE)) (Robertson and Savard 2002, p. 15). In Iceland, mean annual survival of banded adults is 72 percent (Robertson and Savard 2002, p. 15). Although little information is available, first breeding is thought to begin at age 2 years, but first attempts to breed are likely unsuccessful. Periodic non-breeding may occur, although it is poorly documented. Long-tailed ducks are thought to be long-lived; band recovery data include a male at least 15 years old recovered alive and a male at least 18 years old that had been harvested.

Very little data are available on percent of eggs that eventually result in fledged young, fledging success of hatched young, or mean number of young fledged per nest attempt. Nest success ranges from 41.3 percent in western Alaska to 58.9 percent in northern Manitoba (Robertson and Savard 2002, p. 14). Duckling success in western Alaska is reported to average 9 percent (Robertson and Savard 2002, p. 14). In North America during years with warmer arctic temperatures, more immature birds are harvested, suggesting that temperatures influence reproductive success. In northern Sweden, the proportion of females that reared at least one brood to fledging was higher in years with abundant small rodents ( Lemmus spp. and Microtus spp.) (Robertson and Savard 2002, p. 15).

The long-tailed duck is a short-to-medium-distance migrant that stages in the thousands at traditional coastal locations before migrating north. Northerly movements begin in late February in western North America and late March on the east coast of North America (Robertson and Savard 2002, p. 4; Wilbor 1999, p. 16). Northward migration from the Great Lakes area begins in late February. Birds travel along the northeast Alaska coast from late May to mid-June, and move inland to nesting areas from Baffin Bay during mid-to late June. Large flocks make use of ice leads in the Arctic until breeding areas become available for nesting. Birds arrive on the breeding grounds from mid-May in southerly areas to June in arctic Alaska, Baffin Island, and Ellesmere Island (Robertson and Savard 2002, p. 4).

Post-breeding males begin molting-migration mid-June in Manitoba and late June along the north Alaska coast. Sub-adults leave Arctic Coastal Plain breeding areas by late June. Females migrate to molting sites several weeks after males in mid-to late August. Small molting populations are thought to occur throughout most of the breeding range. Major molting habitats in the Beaufort Sea occur near St. Lawrence Island and in coastal lagoons on the west and north coasts of Alaska. Other important molting sites, with concentrations numbering 30,000 to 40,000 individuals, are located between Prudhoe Bay and Demarcation Bay. A large number of birds molt along the coasts of western Baffin Bay. North American breeders may also molt in coastal eastern Russia and northwestern Greenland (Robertson and Savard 2002, p. 5).

Long-tailed ducks winter in either offshore marine habitat or inland freshwater areas. Southerly migration begins in late fall with arrival at the Pacific coast, Great Lakes, and Atlantic coast wintering areas in October. Resident populations may exist in Alaska and Hudson Bay (Robertson and Savard 2002, p. 4). Migration routes are both marine (coastal and up to 160 kilometers (km) (99.4 miles (mi)) from offshore) (Fischer, et al. 2002, p. 76) and overland. Few long-tailed ducks have been banded, making it difficult to determine affiliations between breeding and wintering locations. Breeding birds banded in northern Manitoba were found to winter primarily in the Great Lakes and to a lesser extent on the Atlantic Coast (Chesapeake Bay). Birds banded in Alaska have never been recovered on the Atlantic Coast (Robertson and Savard 2002, p. 5).

Although there may be two or more geographic populations of long-tailed ducks in North America that are separated by the breeding and wintering distribution, the delineation of these populations is not documented (USFWS 2001, p. 45). Traditional band recovery data are insufficient to determine the relationship between breeding, molting, migrating, and wintering groups of long-tailed ducks across their distribution.

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations at 50 CFR 424 set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act: (A) The present or threatened destruction, modification, or curtailment of habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. In making this finding, we evaluated whether threats to the long-tailed duck presented in the petition and other information available in our files at the time of the petition review reasonably indicate that listing the long-tailed duck may be warranted. Our evaluation of these threats is presented below. In the discussion below, we have evaluated the threats listed in the petition under the most appropriate listing factor.

Certain aspects of long-tailed duck ecology and demography should be considered when evaluating the species' status and threats. When compared with dabbling (Anatini) and diving (Aythyini) ducks, long-tailed ducks are considered K-selected species. Healthy populations of K-selected species are characterized by delayed sexual maturity, low annual recruitment, relatively low and variable breeding propensity, and high adult survival. Low annual productivity rates and high annual survival rates balance to ensure that individuals replace themselves with offspring that survive to recruit into the breeding population. Although factors that compromise productivity can cause populations to decline, population growth rates are most sensitive to changes in adult survival (Goudie, et al. 1994, p. 30). K-selected species will decline in abundance most rapidly if adults are removed from the population prior to replacing themselves ( i.e. , if adult survival is decreased).

The petitioner listed, but did not discuss in detail or provide supporting biological data, the following reasons for the petition that may be addressed under Factor A: increasing oil exploration and development and associated oil spills, removal of biomass from the marine environment by fishing in the North Pacific, and “mussel beds.” Only the indirect, habitat-related effects to long-tailed ducks of oil spills and operational waste discharges are discussed under Factor A; direct effects to long-tailed ducks from exposure to oil and operational wastes will be discussed in Factor E. Lacking more specific information, we interpreted the term “mussel beds” to refer to potential competition with nearshore marine aquaculture facilities. The petitioner provided no supporting information to support these claims; therefore, we relied on information in Service files to clarify these potential threats.

No direct measures of habitat degradation are available (Robertson and Savard 2002, p. 18), nor is habitat loss (nesting, molting, or wintering) implicated as a factor influencing the Bering/Pacific or North American long-tailed duck population decline (Wilbor 1999, p. 49).

Several sources cite oil pollution as a threat to marine birds in general and long-tailed ducks in particular [in Alaska (Wilbor 1999, p. 51; USFWS 2003, p. 51); in the North Sea (International Council for the Exploration of the Sea 2004, p. 24); in the Baltic Sea (Laine and Backer 2002, p. 2); in Britain and Ireland (Kirby, et al. 1993, p. 123); and globally (Robertson and Savard 2002, p. 17)]. However, most are concerned with the acute mortality phase of exposure to oil (to be discussed under Factor E), and none reported any evidence of long-term effects on long-tailed duck populations due to habitat degradation.

Franson, et al. (2004, p. 504) analyzed blood from long-tailed ducks collected at near-shore islands in the vicinity of Prudhoe Bay and at a reference site for trace elements to compare contaminant levels in sea ducks using the marine environment near the Prudhoe Bay oil fields. In marine ecosystems, persistent contaminants, including trace elements and organochlorines, reach their greatest concentrations in coastal regions, and, except for selenium, concentrations of metals in blood were low and were not consistently higher at one location (Franson, et al. 2004, pp. 504-505).

Flint, et al. (2003, p. 38) utilized nearshore and offshore aerial surveys, as well as ground-based studies, in both industrialized and control areas to evaluate how long-tailed ducks may be affected by industrialization. Their data demonstrated that, even when flightless, long-tailed ducks moved considerable distances. There was little evidence of displacement of individuals associated with disturbance; rather, patterns of movements were thought to be primarily influenced by weather conditions, particularly wind direction. Further, declines in duck numbers in the seismic area could not be attributed to underwater seismic activities, as similar changes in aerial survey counts and lagoon movements were observed in both the industrial and control areas (Flint, et al. 2003, p. 55).

The potential for competition with mussel aquaculture in the nearshore environment is limited to areas where overwintering long-tailed ducks and marine aquaculture overlap, and is anticipated to be low due to the broad diversity of the winter diet of the species (Robertson and Savard 2002, p. 7). Additionally, aquaculture sites may present an attractive foraging site for long-tailed ducks.

The removal of biomass from the marine environment through overfishing of herring and other species may reduce the availability of spawn for migrating long-tailed ducks (Robertson and Savard 2002, p. 18); however, no correlation between these indirect impacts and long-tailed duck population trends has been documented.

Increasing oil exploration and development and associated oil spills, removal of biomass from the marine environment by fishing in the North Pacific, and “mussel beds,” as identified by the petitioner, are all potential habitat-related threats to the long-tailed duck. However, no evidence of long-term effects on long-tailed duck populations due to habitat degradation or loss has been documented. We find that the petition does not present substantial scientific or commercial information indicating that listing the long-tailed duck as endangered may be warranted due to the present or threatened destruction, modification, or curtailment of its habitat or range.

The petitioner asserts that subsistence harvest is increasing, and collection by museums continues despite population declines. The petitioner provided no information to support these statements; therefore, we relied on information in Service files to clarify these potential threats.

The majority of long-tailed ducks harvested during the migratory game bird season are taken on the Atlantic Coast. Alaska accounts for approximately 2 percent of the total harvest of approximately 14,500 birds (Trost and Drut 2002, p. 28), which is less than 1 percent of the world population. Wilbor (1999, p. 51) estimated the total long-tailed duck subsistence harvest in the Alaska/Pacific flyway to be 11,000 birds annually (plus 1,000 during the migratory game bird season); however, Service data (Alaska Migratory Bird Co-Management Council 2007) and Trost and Drut (2002, p. 28) reported much lower harvest levels: fewer than 5,000 (subsistence) and fewer than 500 (sport). Based on an annual take of 12,000 birds, Wilbor (1999, p. 51) estimated that about 2 percent of the total Bering/Pacific long-tailed duck population is harvested annually and concluded that the impact on the population dynamics of this segment of the population was low. Although the long-tailed duck is believed to be an important species in the eastern Russian commercial sea duck harvest (Goudie, et al. 1994, p. 36), no information is available on the Russian and Japanese harvests. A review of migratory game bird harvest data reported by Trost and Drut (2002, p. 28) indicates that harvest of long-tailed ducks in Alaska has remained relatively stable between 1966 and 2001, as has subsistence harvest of the species in Alaska (Wentworth and Wong 2001, p. 96). Finally, Robertson and Savard (2002, p. 18) report scientific research activities have no obvious impacts.

Accordingly, we find that the petition does not present substantial scientific or commercial information indicating that listing the long-tailed duck as endangered may be warranted due to overutilization of long-tailed ducks for commercial, recreational, scientific, or educational purposes.

The petition does not provide information or state that disease or predation is a threat to the species. In addition, there is no information in our files to indicate that disease or predation is a threat to the long-tailed duck.

The petitioner lists lack of protection under the Migratory Bird Treaty Act (16 U.S.C. 703-712), inadequacy of existing regulatory mechanisms, increased hunting pressure on long-tailed ducks due to bag limit reductions on dabbler and goose species, unchanged bag limits despite population declines, and legalization of the spring subsistence hunt as threats to the species. The petitioner provided no additional evidence to support these claims; therefore, we relied on information in Service files to clarify these potential threats.

The long-tailed duck is not currently listed under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), nor is it included on the International Union for the Conservation of Nature (IUCN) Red List (Threatened Animals of the World) (Wilbor 1999, p. 3). No specific State or provincial designation has been given to the long-tailed duck in the United States, Northwest Territories, Yukon Territory, Canada, or Russia (Wilbor 1999, p. 4).

The long-tailed duck is protected under the Migratory Bird Treaty Act of 1918 (MBTA) in the United States, and is covered by treaties with Canada, Russia, and Japan. Unless permitted by regulations, the MBTA provides that it is unlawful to pursue, hunt, take, capture or kill, possess, sell or purchase, or transport or export any migratory bird, part, nest, egg or product. The MBTA grants the Secretary of the Interior the authority to establish hunting seasons for any of the migratory game bird species, including the long-tailed duck, listed in the MBTA. The Fish and Wildlife Service has determined that hunting is appropriate only for those species for which hunting is consistent with population status and long-term conservation. The Fish and Wildlife Service annually publishes migratory game bird regulations in the Federal Register . State and provincial game laws formulated in conjunction with the Fish and Wildlife Service and Canadian Wildlife Service establish bag limits and seasons. In Canada and Russia, long-tailed duck sport hunting is managed under hunting regulations set forth by the Canadian Wildlife Service and the Russian Ministry of Environment and Natural Resources, respectively.

Monitoring requirements of the MBTA, the fall/winter migratory game bird hunting regulations, and the spring/summer subsistence harvest regulations provide mechanisms to limit the harvest of long-tailed ducks if necessary for population regulation. We have no documented information that these mechanisms will not adequately protect long-tailed duck populations.

Accordingly, we find that the petition does not present substantial scientific or commercial information indicating that listing the long-tailed duck as endangered may be warranted due to the inadequacy of existing regulatory mechanisms.

Threats listed by the petitioner that may be addressed under Factor E include increased oil spills due to offshore drilling and “the climatic decadal oscillation.” The discussion of oil-related effects under this factor will be limited to the acute, direct effects to long-tailed ducks from exposure to oil. Indirect effects of habitat degradation resulting from offshore oil development and oil spills are discussed above under Factor A. Furthermore, as the petitioner provided no additional information to support these claims, we relied on information in Service files to clarify these potential threats.

Stehn and Platte (2000, p. 1) constructed a spatial model by overlaying bird density estimates with predicted spill trajectories. Spills of various sizes were used to estimate the potential effects of an offshore spill from the proposed Liberty Project in the nearshore Beaufort Sea. Their model predicted that the average number of birds that would be exposed to oil in the event of a spill at the site was greatest for long-tailed ducks (as high as 2,062) and that the average proportion of the total long-tailed duck population in the study area that would be exposed to oil in the event of a spill at the site was between 3 percent and 9 percent, and may approach 19 percent.

The petitioner did not define the term “Pacific Decadal Oscillation” or identify specific concerns regarding the relationship between this mode of interdecadal climatic variation and long-tailed duck populations. Hare and Mantua (2000, p. 105) describe the Pacific Decadal Oscillation (PDO) as a long-lived El Niño (ENSO)-like pattern of Pacific climate variability that explains variations in the Pacific Basin and North American regions. The PDO is characterized by fluctuations between warm- and cold-water regimes.

No data exist evaluating the relationship between long-tailed duck productivity, survival, or population trends and large-scale climate patterns. Species like the long-tailed duck have the ability to exploit a wider range of habitats and food sources, are less sensitive to early stages of ice formation, and respond to persistent ice cover in the nearshore zone by concentrating in offshore areas (Zydelis 2001, p. 307). Zydelis and Ruskyte (2005, p. 139) found body condition and fat reserves in winter to be equivalent between long-tailed ducks feeding primarily on mollusks and those feeding on mobile, energy-rich food items such as crustaceans.

The possible effects of exposure to oil on long-tailed ducks are thought to be localized, and have not been implicated in global population declines. Additionally, no localized long-tailed duck declines have been documented. While climate patterns and oceanographic conditions are important factors influencing long-tailed duck habitat, food resources, and distribution, the relative ecological plasticity of the species in selecting winter habitat and food suggests it is less sensitive to inter-annual and inter-decadal climatic variability (Zydelis and Ruskyte 2005, p. 139) than other sea ducks. In spite of potential localized impacts resulting from oil spills, the long-tailed duck remains the most abundant arctic sea duck and continues to occupy historical breeding and wintering ranges. For these reasons, we believe the impact of these potential threats on the population dynamics of this species is negligible. Therefore, we find that the petition does not provide substantial scientific or commercial information indicating that listing the long-tailed duck as endangered may be warranted as a result of increased oil spills due to offshore drilling and “the climatic decadal oscillation” or any other natural or manmade factors affecting the species' continued existence.

The petition does not specify a population of concern, it does not articulate that the long-tailed duck should be listed in any particular portion of its range, and it does not specify any particular portion of the species' range that it maintains is significant. Therefore, we based our threats analysis on the entire range of the species. Nearly all of the threats identified in the petition appear to be potential threats which could occur, rather than actual threats, with no documented correlation between these potential threats and impacts on long-tailed duck populations. Our threats analysis does not find substantial information to indicate that any of the five factors poses a threat to the long-tailed duck. If we were to determine in the future that the long-tailed duck is threatened or endangered in a significant portion of its range, we would add the species to the candidate list and propose its listing.

We have reviewed and evaluated the five listing factors with regard to the long-tailed duck, based on the information in the petition and available in our files. On the basis of this review and evaluation, we conclude that the petition does not present substantial scientific or commercial information to indicate that listing the long-tailed duck as endangered under the Act may be warranted.

While the petitioner did not provide detailed information on the abundance or geographic distribution of the long-tailed duck, information in Service files indicates that the long-tailed duck is currently numerous and widespread. Its breeding range has not contracted. The information provided in the petition on the potential impacts to the species caused by offshore oil exploration and development, removal of biomass due to fishing, and potential competition with nearshore marine aquaculture is inadequate to determine that these activities are destroying or modifying habitat in a manner and at a level that affects the species to such an extent that a reasonable person could conclude that listing may be warranted. Likewise, evidence in our files concerning hunting (both sport and subsistence), collecting by scientific institutions, and oil spill losses does not provide substantial information to support a conclusion that listing the species may be warranted. No data exist evaluating the relationship between long-tailed duck productivity, survival, or population trends and large-scale climate patterns such as Pacific Decadal Oscillation. We also found the evidence in our files inadequate to corroborate the petitioner's assertion that the MBTA may not be an effective regulatory mechanism, because under the MBTA, the harvest of long-tailed ducks is regulated and monitored.

After reviewing and evaluating the petition and information available in our files, we find that the petition does not present substantial scientific or commercial information to indicate that listing the long-tailed duck as endangered may be warranted at this time. Although we will not commence a status review in response to this petition, we will continue to monitor the long-tailed duck population status and trends, potential threats, and ongoing management actions that might be important with regard to the conservation of the long-tailed duck. If you wish to provide information regarding the long-tailed duck, you may submit your information and materials to the Anchorage Fish and Wildlife Field Office (see ADDRESSES ).

A complete list of all references cited in this document is available, upon request, from the Anchorage Fish and Wildlife Field Office (see ADDRESSES ).

The primary author of this document is staff of the Anchorage Fish and Wildlife Field Office (see ADDRESSES ).

The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq. )

Regulations Schedule for 2008

On May 28, 2008, we published in the Federal Register (73 FR 30712) a proposal to amend 50 CFR part 20. The proposal provided a background and overview of the migratory bird hunting regulations process, and dealt with the establishment of seasons, limits, and other regulations for hunting migratory game birds under §§ 20.101 through 20.107, 20.109, and 20.110 of subpart K. This document is the second in a series of proposed, supplemental, and final rules for migratory game bird hunting regulations. We will publish proposed early-season frameworks in early July and late-season frameworks in early August. We will publish final regulatory frameworks for early seasons on or about August 17, 2008, and for late seasons on or about September 14, 2008.

The Service Migratory Bird Regulations Committee will meet June 25-26, 2008, to review information on the current status of migratory shore and upland game birds and develop 2008-09 migratory game bird regulations recommendations for these species, plus regulations for migratory game birds in Alaska, Puerto Rico, and the Virgin Islands. The Committee will also develop regulations recommendations for September waterfowl seasons in designated States, special sea duck seasons in the Atlantic Flyway, and extended falconry seasons. In addition, the Committee will review and discuss preliminary information on the status of waterfowl.

At the July 30-31, 2008, meetings, the Committee will review information on the current status of waterfowl and develop 2008-09 migratory game bird regulations recommendations for regular waterfowl seasons and other species and seasons not previously discussed at the early-season meetings. In addition, the Committee will develop recommendations for the 2009 spring/summer migratory bird subsistence season in Alaska. In accordance with Departmental policy, these meetings are open to public observation. You may submit written comments to the Service on the matters discussed.

Service representatives will be present at the individual meetings of the four Flyway Councils this July. Although agendas are not yet available, these meetings usually commence at 8 a.m. on the days indicated.

Atlantic Flyway Council: July 24-25, Princeton Westin at Forrestal Village, Princeton, NJ.

Mississippi Flyway Council: July 24-25, Crown Plaza Hotel, Knoxville, TN.

Central Flyway Council: July 24-25, Holiday Inn, Overland Park, KS.

Pacific Flyway Council: July 25, Red Lion Hotel at the Park, Spokane, WA.

This supplemental rulemaking describes Flyway Council recommended changes based on the preliminary proposals published in the May 28, 2008, Federal Register . We have included only those recommendations requiring either new proposals or substantial modification of the preliminary proposals and do not include recommendations that simply support or oppose preliminary proposals and provide no recommended alternatives. We will publish responses to all proposals and written comments when we develop final frameworks. In addition, this supplemental rulemaking contains the regulatory alternatives for the 2008-09 duck hunting seasons. We have included all Flyway Council recommendations received relating to the development of these alternatives.

We seek additional information and comments on the recommendations in this supplemental proposed rule. New proposals and modifications to previously described proposals are discussed below. Wherever possible, they are discussed under headings corresponding to the numbered items identified in the May 28 proposed rule. Only those categories requiring your attention or for which we received Flyway Council recommendations are discussed below.

Duck harvest management categories are: (A) General Harvest Strategy; (B) Regulatory Alternatives, including specification of framework dates, season length, and bag limits; (C) Zones and Split Seasons; and (D) Special Seasons/Species Management.

Council Recommendations: The Upper- and Lower-Region Regulations Committees of the Mississippi Flyway Council recommended that regulations changes be restricted to one step per year, both when restricting as well as liberalizing hunting regulations. Both Committees further recommended not implementing the western mallard Adaptive Harvest Management (AHM) protocol.

The Central Flyway Council recommended not implementing the western mallard AHM protocol.

The Pacific Flyway Council recommended implementing the Service's proposal for a revised protocol for managing the harvest of mallards in Western North America. They further recommended inclusion of the following initial components:

(1) Regulation packages that are currently in place in the Pacific Flyway and generally described as Liberal, Moderate, Restrictive, and Closed, with associated target harvest rates of 12, 8, 4, and 0 percent, respectively;

(2) A harvest objective that corresponds to no more than 95 percent of the Maximum Sustained Yield (MSY) on the yield curve (they further note that current harvest estimates suggest that the current Pacific Flyway mallard harvest is at 80 percent of MSY);

(3) Consider use of a weighting factor within the decision matrix that would soften the knife-edge effect of optimal policies when regulation changes are warranted;

(4) No change in the duck regulation provisions for Alaska, except implementation through the western mallard AHM strategy;

(5) An optimization based only on western mallards; and

(6) Clarification of the impacts of removing Alaska from the mid-continent mallard strategy.

They also requested that the Service explore options of incorporating mallards and other waterfowl stocks derived from surveyed areas in Canada important to the Pacific Flyway ( e.g. , Alberta, Northwest Territories) into the decision process in the future.

Service Response: As we stated in the May 28 Federal Register , the final Adaptive Harvest Management protocol for the 2008-09 season will be detailed in the early-season proposed rule, which will be published in mid-July.

Council Recommendations: The Atlantic Flyway Council recommended that the current restriction of two hens in the 4-bird mallard daily bag limit be removed from the “liberal” package in the Atlantic Flyway to allow the harvest of 4 mallards of any sex.

The Upper- and Lower-Region Regulations Committees of the Mississippi Flyway Council and the Central Flyway Council recommended that regulatory alternatives for duck hunting seasons remain the same as those used in 2007.

Service Response: As we stated in the May 28 Federal Register , the final regulatory alternatives for the 2008-09 season will be detailed in the early-season proposed rule, which will be published in mid-July.

Council Recommendations: The Atlantic Flyway Council endorsed the interim international harvest strategy for black ducks, with the following modifications: (1) the original criteria of a 25 percent change in the 5-year running average from the long-term (1998-2007) breeding population (BPOP) should be changed to a 15 percent change measured by a 3-year running average, and (2) the original criteria of a 5-year running average to measure parity should be changed to a 3-year running average.

The Upper- and Lower-Region Regulations Committees of the Mississippi Flyway Council endorsed the agreement in concept and the interim approach to the harvest management of black ducks as outlined by the Black Duck International Management Group.

Service Response: For several years we have consulted with the Atlantic and Mississippi Flyway Councils, the Canadian Wildlife Service, and provincial wildlife agencies in eastern Canada concerning the development of an international harvest strategy for black ducks. In 2008, U.S. and Canadian waterfowl managers developed a draft interim harvest strategy that was designed to be employed by both countries over the next three seasons (2008-09 to 2010-11), allowing time for the development of a formal strategy based on the principles of Adaptive Harvest Management. The interim harvest strategy is prescriptive, in that it would call for no substantive changes in hunting regulations unless the black duck breeding population, averaged over the most recent 3 years, exceeds or falls below the long-term average breeding population by 15 percent or more. It would allow additional harvest opportunity (commensurate with the population increase) if the 3-year average breeding population exceeds the long-term average by 15 percent or more, and would require reduction of harvest opportunity if the 3-year average falls below the long-term average by 15 percent or more. The strategy is designed to share the black duck harvest equally between the two countries; however, recognizing incomplete control of harvest through regulations, it will allow realized harvest in either country to vary between 40 and 60 percent. We propose to adopt this interim international black duck harvest strategy for the 2008-09, 2009-10, and 2010-11 seasons. To expedite development of a formal Adaptive Harvest Management strategy, we seek input from the Atlantic and Mississippi Flyway Councils on an appropriate long-term harvest management objective.

Council Recommendations: The Atlantic Flyway Council recommended that the canvasback harvest strategy be modified to include a provision to allow a daily bag limit of 2 canvasbacks when the predicted breeding population is greater than 750,000 birds.

The Upper- and Lower-Region Regulations Committees of the Mississippi Flyway Council recommended an alternative canvasback harvest management strategy that uses threshold levels based on breeding population size in order to determine bag limits. These threshold levels would allow 2 canvasbacks per day when the population is above 800,000, 1 canvasback per day when the population is between 400,000 and 800,000, and close the season when the population drops below 400,000.

The Central Flyway Council recommended maintaining the current canvasback harvest strategy and updating harvest predictions in the current model.

The Pacific Flyway Council requested revision of the canvasback harvest strategy to include a harvest management prescription for a two-bird, full season option when the canvasback breeding population and predicted harvest will sustain the population at or above 600,000.

Service Response: We support modification of the existing canvasback strategy to allow for a 2-bird daily bag limit when the projected breeding population in the next year exceeds an established threshold level. This support is contingent on receiving Flyway Council and public input regarding the exact threshold level to be employed for the bag limit increase. Based on our recent biological assessment this threshold should fall between 600,000 and 750,000 canvasbacks projected as the next year's breeding population. If the input received fails to indicate a reasonable consensus on the appropriate value, we propose to continue using the current canvasback harvest management strategy for the 2008-2009 hunting season.

Council Recommendations: The Atlantic Flyway Council recommended several modifications and considerations for the proposed pintail derived harvest strategy. They recommended we continue exploration of a derived strategy versus a prescribed strategy and consider a closure constraint. They also commented that Flyway-specific bag limits may not be needed to maintain the desired harvest distribution.

The Upper- and Lower-Region Regulations Committees of the Mississippi Flyway Council recommended continued use of the current prescribed northern pintail harvest management strategy until they can see further modeling results of emphasizing a management objective that minimizes the frequency of closed and partial seasons.

The Central Flyway Council recommended that the proposed derived pintail harvest strategy not be adopted and recommended continued use of the current prescribed strategy.

The Pacific Flyway Council recommended that the current prescribed harvest management protocol for pintail be continued in 2008.

Service Response: Based on Flyway Council comments and recommendations, we propose to continue the use of the current pintail harvest strategy for the 2008-09 season. We will continue to work with the Flyway Councils to address their concerns on a derived strategy over the next year.

Council Recommendations: The Atlantic Flyway Council recommended implementation of the proposed scaup harvest strategy in the 2008 conditional upon several modifications:

(1) A harvest management objective that achieves 95 percent of the long-term cumulative harvest when the breeding population is less than 4.0 million birds;

(2) Seasons remain open when the breeding population is at or above 2 million scaup;

(3) Agreement to use alternative methodology developed by the Atlantic Flyway Technical Section to predict scaup harvests in the Atlantic Flyway;

(4) Allow a “hybrid” season option for the Atlantic Flyway that allows for at least 20 days of the general duck season to have a daily bag limit of at least 2 while the remaining days would have a daily bag limit of 1;

(5) A “restrictive” harvest package in the Atlantic Flyway consisting of a 20-day season with a daily bag limit of 2, and a 40-day season with a daily bag limit of 1;

(6) A “moderate” harvest package in the Atlantic Flyway consisting of a 60-day season with a daily bag limit of 2;

(7) A “liberal” harvest package in the Atlantic Flyway consisting of a 60-day season with a daily bag limit of 3;

(8) Designation of the proposed strategy as “interim” and subject to immediate reconsideration if alternative/competing scaup population models are available that will inform management decisions; and

(9) Reconsideration of the model elements after 3 years.

The Council also urged us to expedite the exploration of alternative/competing models describing scaup population dynamics that may be used to inform a harvest management strategy.

The Upper- and Lower-Region Regulations Committees of the Mississippi Flyway Council recommended we not adopt the proposed scaup harvest strategy and urged us to delay implementation until some alternative models can be developed.

The Central Flyway Council recommended that we delay implementation of the proposed scaup harvest strategy until alternative models are developed and evaluated.

The Pacific Flyway Council supported the implementation of a scaup harvest strategy in 2008, with the following conditions:

(1) A “shoulder” strategy objective that corresponds to 95 percent of MSY;

(2) Revision of harvest prediction models to provide a greater capacity to predict Pacific Flyway scaup harvest; and

(3) Revision of flyway harvest allocations to recognize proportions of greater scaup in flyway harvests.

They also urged us to continue to work on alternative models to incorporate into the decision framework as soon as possible.

Service Response: We propose to adopt the scaup harvest strategy as originally proposed last year (June 8 and July 23, 2007, Federal Register , 72 FR 31789 and 72 FR 40194). We believe that an informed, scientifically-based decision process is far preferable to any other possible approach. Further, we have been patient in allowing additional time for review by the Flyway Councils and general public of the proposed strategy. We note that no substantive criticisms suggesting that the proposed approach is not valid have been offered. We acknowledge and support the comments received that suggest additional models based on changing carrying capacity should be investigated and used if they can be reasonably developed and are supported by existing scaup population data. However, we note that we consider all strategies currently employed for species-specific harvest regulation to be subject to further analysis, review and improvement as new information becomes available, and we fully intend to pursue such improvements for the proposed scaup strategy as well as all of the other species-specific strategies employed by the Service. We also note that we have requested specific input from the Councils and the public regarding the specific harvest management objective that should be employed for the scaup harvest strategy. Based on input to date, we propose the harvest management objective be established as 95 percent of the expected MSY for scaup on an annual basis and we solicit further review and comment on this objective from the Flyway Councils and public.

Council Recommendations: The Atlantic Flyway Council provided the following comments on the proposed wood duck harvest strategy:

(1) The Council endorses the use of the Potential Biological Removal method for calculating allowable harvest;

(2) Adult males should be the cohort to monitor;

(3) The management objective should be MSY, with the test criteria that the upper 95 percent confidence interval of the 3-year running average of both northern and region-wide adult male observed kill rates not exceed MSY based on their respective allowable kill rates;

(4) Should monitoring show impact on northern males, the harvest strategy should revert to a 2-bird daily bag limit;

(5) Bag limits should be allowed to differ between flyways; and

(6) The strategy should be adopted in 2008.

The Upper- and Lower-Region Regulations Committees of the Mississippi Flyway Council endorsed use of the Potential Biological Removal method to assess wood duck harvest potential and provided the following guidance on outstanding wood duck harvest management policy issues:

(1) Monitor adult male kill rates from the Atlantic and Mississippi Flyways combined to determine whether actual kill rates exceed allowable kill rates;

(2) Use the point of Maximum Sustained Yield ( 1/2 r max ), combined with a test criteria requirement that the upper 95 percent confidence interval of the observed kill rate be below the allowable kill rate, as the management objective;

(3) Allow wood duck bag limits to differ between the Atlantic and Mississippi Flyways; and

(4) Implement in the 2008-09 season.

The Central Flyway Council recommended that the Central Flyway be included in the development and implementation of the wood duck harvest strategy for the Atlantic and Mississippi Flyways.

Service Response: We support a wood duck harvest strategy based on the Potential Biological Removal method, with the management objective of 95 percent confidence that harvest will not exceed maximum sustained yield. Although we prefer a test criterion based on range-wide kill rates of adult males, we recognize the Atlantic Flyway Council's concerns about the potential impacts on northern wood ducks. We do not endorse implementing the proposed strategy until those concerns have been addressed to the satisfaction of the Atlantic, Mississippi, and Central Flyway Councils.

Council Recommendations: The Atlantic Flyway Council recommended allowing a 10-day experimental extension of the September Resident Canada goose season in Delaware from September 16 to September 25 consistent with September Canada goose seasons in Atlantic Population (AP) zones in the adjacent States of Pennsylvania and New Jersey and other States in the Atlantic Flyway. They requested that this experimental season be permitted for a 3-year period, at which time an analysis of direct band recoveries will be conducted to determine if the harvest of AP Canada geese exceeds 10 percent of the overall goose harvest during Delaware's 10-day extension of the early season. This extended season will not incorporate the “expanded hunting methods” and would be implemented in 2008.

The Pacific Flyway Council recommended allowing Wyoming to modify its current framework that allows 4 geese per season to a 4-bird possession limit.

Council Recommendations: The Upper- and Lower-Region Regulations Committees of the Mississippi Flyway Council recommended that the framework opening date for all species of geese for the regular goose seasons in Michigan and Wisconsin be September 16, 2008.

Council Recommendations: The Central and Pacific Flyway Councils recommended using the 2008 Rocky Mountain Population (RMP) sandhill crane harvest allocation of 1,633 birds as proposed in the allocation formula using the 3-year running average. They further recommended that a new RMP greater sandhill crane hunt area be established in Uinta County, Wyoming.

The Pacific Flyway Council recommended modifying Wyoming's RMP hunt areas by: (1) expanding the hunt area in Lincoln County to include the Hams Fork drainage, and (2) expanding Area 6 in the Bighorn Basin to include all of Park, Bighorn, Hot Springs and Washakie Counties. The Council also recommended initiating a limited hunt for Lower Colorado River sandhill cranes in Arizona, with the goal of the hunt being a limited harvest of 6 cranes in January. To limit harvest, Arizona would issue permit tags to hunters and require mandatory checking of all harvested cranes. To limit disturbance of wintering cranes, Arizona would restrict the hunt to one 3-day period. Arizona would also coordinate with the National Wildlife Refuges where cranes occur.

Council Recommendations: The Atlantic Flyway Council and the Upper- and Lower-Region Regulations Committees of the Mississippi Flyway Council recommended that States within the Eastern Management Unit should be offered a 70-day season and 15-bird daily bag limit for the 2008-2009 mourning dove hunting season, and the dichotomous hunting season structure should be eliminated.

Council Recommendations: The Pacific Flyway Council recommended maintaining status quo in the Alaska early-season framework, except for increasing the daily bag limit for canvasbacks to 2 per day with 6 in possession, and increasing the daily bag limit for brant to 3 per day with 6 in possession.

Council Recommendations: The Atlantic Flyway Council recommended that Puerto Rico be permitted to adopt a 20-bird bag limit for doves in the aggregate for the next three hunting seasons, 2008-2010. Legally hunted dove species in Puerto Rico are the Zenaida dove, the white-winged dove, and the mourning dove. They also recommended that the 20-bird aggregate bag limit should include no more than 10 Zenaida doves and no more than 3 mourning doves.

The Department of the Interior's policy is, whenever practicable, to afford the public an opportunity to participate in the rulemaking process. Accordingly, we invite interested persons to submit written comments, suggestions, or recommendations regarding the proposed regulations. Before promulgation of final migratory game bird hunting regulations, we will take into consideration all comments received. Such comments, and any additional information received, may lead to final regulations that differ from these proposals.

You may submit your comments and materials concerning this proposed rule by one of the methods listed in the ADDRESSES section. We will not consider comments sent by e-mail or fax or to an address not listed in the ADDRESSES section. Finally, we will not consider hand-delivered comments that we do not receive, or mailed comments that are not postmarked, by the date specified in the DATES section.

We will post your entire comment—including your personal identifying information—on http://www.regulations.gov. If you provide personal identifying information in your comment, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so.

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Division of Migratory Bird Management, Room 4107, 4501 North Fairfax Drive, Arlington, VA 22203.

For each series of proposed rulemakings, we will establish specific comment periods. We will consider, but possibly may not respond in detail to, each comment. As in the past, we will summarize all comments received during the comment period and respond to them after the closing date in any final rules.

NEPA considerations are covered by the programmatic document “Final Supplemental Environmental Impact Statement: Issuance of Annual Regulations Permitting the Sport Hunting of Migratory Birds (FSES 88-14),” filed with the Environmental Protection Agency on June 9, 1988. We published Notice of Availability in the Federal Register on June 16, 1988 (53 FR 22582). We published our Record of Decision on August 18, 1988 (53 FR 31341). In addition, an August 1985 environmental assessment entitled “Guidelines for Migratory Bird Hunting Regulations on Federal Indian Reservations and Ceded Lands” is available from the address indicated under the caption FOR FURTHER INFORMATION CONTACT .

In a notice published in the September 8, 2005, Federal Register (70 FR 53376), we announced our intent to develop a new Supplemental Environmental Impact Statement for the migratory bird hunting program. Public scoping meetings were held in the spring of 2006, as detailed in a March 9, 2006, Federal Register (71 FR 12216). We have prepared a scoping report summarizing the scoping comments and scoping meetings.

The report is available by either writing to the address indicated under FOR FURTHER INFORMATION CONTACT or by viewing on our Web site at http://www.fws.gov/migratorybirds.

Prior to issuance of the 2008-09 migratory game bird hunting regulations, we will comply with provisions of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531-1543; hereinafter, the Act), to ensure that hunting is not likely to jeopardize the continued existence of any species designated as endangered or threatened, or modify or destroy its critical habitat, and is consistent with conservation programs for those species. Consultations under Section 7 of this Act may cause us to change proposals in this and future supplemental rulemaking documents.

The Office of Management and Budget has determined that this rule is significant and has reviewed this rule under Executive Order 12866. OMB bases its determination upon the following four criteria:

(a) Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government.

(b) Whether the rule will create inconsistencies with other Federal agencies' actions.

(c) Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.

(d) Whether the rule raises novel legal or policy issues.

We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(a) Be logically organized;

(b) Use the active voice to address readers directly;

(c) Use clear language rather than jargon;

(d) Be divided into short sections and sentences; and

(e) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

The regulations have a significant economic impact on substantial numbers of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). We analyzed the economic impacts of the annual hunting regulations on small business entities in detail as part of the 1981 cost-benefit analysis discussed under Executive Order 12866. This analysis was revised annually from 1990-95. In 1995, the Service issued a Small Entity Flexibility Analysis (Analysis), which was subsequently updated in 1996, 1998, 2004, and 2008. The primary source of information about hunter expenditures for migratory game bird hunting is the National Hunting and Fishing Survey, which is conducted at 5-year intervals. The 2008 Analysis was based on the 2006 National Hunting and Fishing Survey and the U.S. Department of Commerce's County Business Patterns, from which it was estimated that migratory bird hunters would spend approximately $1.2 billion at small businesses in 2008. To make our cost/benefit analysis as complete as possible, we seek additional information and comments. You must submit comments on the analysis by June 27, 2008. Copies of the Analysis are available upon request from the address indicated under FOR FURTHER INFORMATION CONTACT or from our Web site at http://www.fws.gov/migratorybirds/reports/ reports.html or at http://www.regulations.gov.

This rule is a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. For the reasons outlined above, this rule has an annual effect on the economy of $100 million or more. However, because this rule establishes hunting seasons, we do not plan to defer the effective date under the exemption contained in 5 U.S.C. 808(1).

We examined these regulations under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). The various recordkeeping and reporting requirements imposed under regulations established in 50 CFR part 20, Subpart K, are utilized in the formulation of migratory game bird hunting regulations. Specifically, OMB has approved the information collection requirements of our Migratory Bird Surveys and assigned control number 1018-0023 (expires 2/28/2011). This information is used to provide a sampling frame for voluntary national surveys to improve our harvest estimates for all migratory game birds in order to better manage these populations. OMB has also approved the information collection requirements of the Alaska Subsistence Household Survey, an associated voluntary annual household survey used to determine levels of subsistence take in Alaska, and assigned control number 1018-0124 (expires 1/31/2010).

A Federal agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.

We have determined and certify, in compliance with the requirements of the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq. , that this rulemaking will not impose a cost of $100 million or more in any given year on local or State government or private entities. Therefore, this rule is not a “significant regulatory action” under the Unfunded Mandates Reform Act.

The Department, in promulgating this proposed rule, has determined that this proposed rule will not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of Executive Order 12988.

In accordance with Executive Order 12630, this proposed rule, authorized by the Migratory Bird Treaty Act, does not have significant takings implications and does not affect any constitutionally protected property rights. This rule will not result in the physical occupancy of property, the physical invasion of property, or the regulatory taking of any property. In fact, these rules allow hunters to exercise otherwise unavailable privileges and, therefore, reduce restrictions on the use of private and public property.

On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. While this proposed rule is a significant regulatory action under Executive Order 12866, it is not expected to adversely affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.

Due to the migratory nature of certain species of birds, the Federal Government has been given responsibility over these species by the Migratory Bird Treaty Act. We annually prescribe frameworks from which the States make selections regarding the hunting of migratory birds, and we employ guidelines to establish special regulations on Federal Indian reservations and ceded lands. This process preserves the ability of the States and tribes to determine which seasons meet their individual needs. Any State or Indian tribe may be more restrictive than the Federal frameworks at any time. The frameworks are developed in a cooperative process with the States and the Flyway Councils. This process allows States to participate in the development of frameworks from which they will make selections, thereby having an influence on their own regulations. These rules do not have a substantial direct effect on fiscal capacity, change the roles or responsibilities of Federal or State governments, or intrude on State policy or administration. Therefore, in accordance with Executive Order 13132, these regulations do not have significant federalism effects and do not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

The rules that eventually will be promulgated for the 2008-09 hunting season are authorized under 16 U.S.C. 703-712 and 16 U.S.C. 742 a-j.