On November 16, 2006 (71 FR 66648), the NRC published a direct final rule amending its regulations in 10 CFR Part 50 so that the requirements governing criticality control for spent fuel pool storage racks do not apply to the fuel within a spent fuel transportation package or storage cask when a package or cask is in a spent fuel pool. In the direct final rule, NRC stated that if no significant adverse comments were received, the direct final rule would become effective on January 30, 2007. The NRC did not receive any significant adverse comments on the direct final rule, as described below. Therefore, this rule will become effective as scheduled.

The NRC received two comments during the public comment period. The first comment, submitted by the Nuclear Energy Institute on December 15, 2006, endorsed this rule change to 10 CFR 50.68 without further comment. Since the comment does not oppose the rule, this comment is not considered a significant adverse comment.

The second comment, submitted by Carolina Power & Light Company, a.k.a. Progress Energy Carolinas Inc. (PEC), on December 18, 2006, supported the rule language, commenting that “the rule wording is acceptable and technically justified, and that the Direct Final Rule should be made effective on January 30, 2007, assuming no significant adverse comments are received.” However, an additional PEC comment suggested revision or clarification to the rulemaking technical basis, presented in Appendix A to the direct final rule. More specifically, the commenter questioned the NRC staff's interpretation of 10 CFR 72.124(c), which states in part, “Underwater monitoring is not required when special nuclear material is handled or stored beneath water shielding.” The commenter also questioned the use of area radiation monitors (ARMs) as a means of complying with this regulation.

The thrust of the PEC comment is on implementation issues with the criticality safety requirements of 10 CFR 72.124(c). These requirements are used as part of the technical justification for providing adequate criticality safety under 10 CFR Part 72. The commenter discusses technical issues with the use of ARMs as a means of complying with the regulations set forth in 10 CFR 72.124(c). The NRC staff's position regarding compliance with 10 CFR 72.124(c) continues to be that ARMs may be used as the criticality monitors required by 10 CFR 72.124(c) if it can be demonstrated that the radiation monitoring system is capable of detecting any possible criticality events due to spent fuel movement to or from a dry storage cask or transportation container. The PEC comment deals with implementation of 10 CFR 72.124(c). These requirements, although used in the technical basis in this direct final rule, do not change as a result of this direct final rule.

The NRC staff reviewed the comment to determine whether it should be considered a significant adverse comment. First, the commenter specifically endorses the rule language, as presented in the direct final rule, without further comment. Second, the commenter states that the rule is adequately supported by the technical basis presented as Appendix A in the direct final rule. The comments provided do not specifically oppose the rule as written, but rather request that the NRC provide clarification on implementation considerations with the requirements of 10 CFR 72.124(c). The commenter questioned the use of ARMs to comply with this regulation. The rulemaking did not require, state, or imply that licensees must or should use ARMs as criticality monitors. The direct final rule does reference the 10 CFR 72.124(c) requirement for criticality monitoring and how criticality monitors support the technical basis for the rulemaking. However, neither the direct final rule, nor the technical basis, nor other portions of the statements of consideration rely on a specific method for how a licensee may choose to meet the requirement for criticality monitoring. Further, as stated in the paragraph above, it is the licensee's responsibility to ensure, if ARMs are used to comply with 10 CFR 72.124(c), that the ARMs are capable of performing the intended function. On this basis, the NRC staff concluded that this comment was outside the scope of the rulemaking change to 10 CFR 50.68. In addition, as a result of this comment, the NRC staff was not required to revise the rule language, technical basis, or statements of consideration for the rulemaking nor does it cause the staff to revise its regulatory position on compliance with 10 CFR 72.124(c). Therefore, the comment is not considered a significant adverse comment.

The NRC staff's responses to the public comments received provide the clarification the commenter requested. This action completes the record for this rulemaking.

In Title 12 of the Code of Federal Regulations, Parts 220 to 299, revised as of January 1, 2006, on page 576, in Appendix A to Part 229, under the Ninth Federal Reserve District, Helena Branch, the first entry in the second column, “2020”, is corrected to read “2920”.

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on November 29, 2006 (71 FR 69083). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states that:

The condition described in the MCAI may result in a forced autorotation landing, the inability to continue safe flight or a fire.

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

One commenter, NorthStar Trekking, LLC, claims that the AD is unnecessary because the five-year-old service bulletin has been incorporated into the maintenance manual. We do not agree. The inspection is a one-time inspection to address an unsafe condition that was not previously covered in the maintenance manual. The fact that the service bulletin is five years old, or the fact that the inspections have been incorporated into the manual, have no bearing on the unsafe condition. However, if the inspection was done any time in the last five years per the service bulletin, then the AD is complied with, requiring no further action by the operator.

The same commenter states that costs for inflation were not included in the costs of compliance in the proposed AD. We do not agree. The cost analysis in the proposed AD is a conservative assessment. It assumes that all ignition solenoid/start drain valves will have to be replaced. We do not know what percentage of parts will require replacement, but we anticipate that only a small percentage of these parts will actually require replacement.

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

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

We might also have required different actions in this AD from those in the MCAI in order to follow our FAA policies. Any such differences are described in a separate paragraph of the AD, and take precedence over the actions copied from the MCAI.

Based on the service information, we estimate that this AD will affect about 790 products of U.S. registry. We also estimate that it will take about 1.5 work-hours per product to comply with this AD. The average labor rate is $80 per work-hour. Required parts will cost about $6,000 per product. Based on these figures, we estimate the cost of the AD on U.S. operators to be $4,834,800, or $6,120 per product.

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

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

You may examine the AD docket on the Internet at http://dms.dot.gov ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone (800) 647-5227) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

You may examine the airworthiness directive (AD) docket on the Internet at http://dms.dot.gov or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the street address stated in the ADDRESSES section.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to all Airbus Model A310 airplanes. That NPRM was published in the Federal Register on October 3, 2006 (71 FR 58320). That NPRM proposed to require doing repetitive inspections for any missing, damaged, or incorrectly installed wiper rings in the splined couplings of the flap transmissions shafts; inspections for any missing, damaged, or incorrectly installed rubber gaiters and straps on the sliding bearing/plunging joints of the flap transmission; and corrective action if necessary.

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

Airbus requests that the type of inspection specified in paragraph (f) of the NPRM be revised from general visual inspection to detailed inspection. The commenter states that calling the inspection a detailed inspection would be more relevant because cleaning of the work area is specified in the service bulletin referenced in paragraph (f) of the NPRM.

We agree with the commenter. We have revised this final rule to clarify that our intent is to require a detailed inspection. Additionally, we have added a note to the final rule to define that inspection.

The Modification and Replacement of Parts Association (MARPA) states that typically airworthiness directives are based on service information originating with the type certificate holder or its suppliers. MARPA also states that manufacturer's service documents are privately authored instruments generally enjoying copyright protection against duplication and distribution. MARPA contends that when a service document is incorporated by reference pursuant to 5 U.S.C. 552(a) and 1 CFR part 51 into a public document such as an airworthiness directive, it loses its private, protected status and becomes itself a public document. MARPA explains that if a service document is used as a mandatory element of compliance it should not simply be referenced, but should be incorporated into the regulatory document. MARPA states that public laws by definition must be public which means they cannot rely for compliance upon private writings. MARPA is concerned that failure to incorporate essential service information could result in a court decision invalidating the airworthiness directive.

MARPA also states that incorporation by reference service documents should be made available to the public by publication in the Docket Management System (DMS) keyed to the action that incorporates them. MARPA explains that the stated purpose of the incorporation by reference method of the Federal Register is brevity; to keep from expanding the Federal Register needlessly by publishing documents already in the hands of the affected individuals. MARPA notes that traditionally, “affected individuals” has meant aircraft owners and operators who are generally provided service information by the manufacturer. However, MARPA states that a new class of affected individuals has emerged since the majority of aircraft maintenance is now performed by specialty shops instead of aircraft owners and operators. MARPA states that this new class includes maintenance and repair organizations, component servicing and repair shops, parts purveyors and distributors and organizations manufacturing or servicing alternatively certified parts under section 21.303 (“Replacement and modification parts”) of the Federal Aviation Regulations (14 CFR 21.303). Further, MARPA states that the concept of brevity is now nearly archaic as documents exist more frequently in electronic format than on paper.

We understand MARPA's comment concerning incorporation by reference. The Office of the Federal Register (OFR) requires that documents that are necessary to accomplish the requirements of the AD be incorporated by reference during the final rule phase of rulemaking. This final rule incorporates by reference the document necessary for the accomplishment of the requirements mandated by this AD. Further, we point out that while documents that are incorporated by reference do become public information, they do not lose their copyright protection. For that reason, we advise the public to contact the manufacturer to obtain copies of the referenced service information.

In regard to the commenter's request to post service bulletins on the Department of Transportation's DMS, we are currently in the process of reviewing issues surrounding the posting of service bulletins on the DMS as part of an AD docket. Once we have thoroughly examined all aspects of this issue and have made a final determination, we will consider whether our current practice needs to be revised. No change to the final rule is necessary in response to this comment.

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

The following table provides the estimated costs for U.S. operators to comply with this AD.

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

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

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

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

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

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

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

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation.

You may examine the airworthiness directive (AD) docket on the Internet at http://dms.dot.gov or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the street address stated in the ADDRESSES section.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to certain Fokker Model F27 Mark 050 and Model F.28 Mark 0070 and 0100 airplanes. That NPRM was published in the Federal Register on June 30, 2006 (71 FR 37510). That NPRM proposed to require repetitively removing the two existing escape rope assemblies in the flight compartment and installing new escape rope assemblies.

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

The Modification and Replacement Parts Association (MARPA) states that, typically, airworthiness directives are based on service information originating with the type certificate holder or its suppliers. MARPA adds that manufacturer service documents are privately authored instruments generally having copyright protection against duplication and distribution. MARPA notes that when a service document is incorporated by reference into a public document, such as an airworthiness directive, it loses its private, protected status and becomes a public document. MARPA adds that if a service document is used as a mandatory element of compliance, it should not simply be referenced, but should be incorporated into the regulatory document; by definition, public laws must be public, which means they cannot rely upon private writings. MARPA adds that incorporated by reference service documents should be made available to the public by publication in the Docket Management System (DMS), keyed to the action that incorporates them. MARPA notes that the stated purpose of the incorporation by reference method is brevity, to keep from expanding the Federal Register needlessly by publishing documents already in the hands of the affected individuals; traditionally, “affected individuals” means aircraft owners and operators, who are generally provided service information by the manufacturer. MARPA adds that a new class of affected individuals has emerged, since the majority of aircraft maintenance is now performed by specialty shops instead of aircraft owners and operators. MARPA notes that this new class includes maintenance and repair organizations, component servicing and repair shops, parts purveyors and distributors, and organizations manufacturing or servicing alternatively certified parts under section 21.303 (“Replacement and modification parts”) of the Federal Aviation Regulations (14 CFR 21.303). MARPA adds that the concept of brevity is now nearly archaic as documents exist more frequently in electronic format than on paper. Therefore, MARPA asks that the service documents deemed essential to the accomplishment of the NPRM be incorporated by reference into the regulatory instrument, and published in the DMS.

We understand MARPA's comment concerning incorporation by reference. The Office of the Federal Register (OFR) requires that documents that are necessary to accomplish the requirements of the AD be incorporated by reference during the final rule phase of rulemaking. This final rule incorporates by reference the document necessary for the accomplishment of the actions required by this AD. Further, we point out that while documents that are incorporated by reference do become public information, they do not lose their copyright protection. For that reason, we advise the public to contact the manufacturer to obtain copies of the referenced service information. We agree that incorporation by reference was authorized to reduce the volume of material published in the Federal Register and the Code of Federal Regulations. However, as specified in the Federal Register Document Drafting Handbook, the Director of the Office of the Federal Register (OFR) decides when an agency may incorporate material by reference. As the commenter is aware, the OFR files documents for public inspection on the workday before the date of publication of the rule at its office in Washington, DC. As stated in the Federal Register Document Drafting Handbook, when documents are filed for public inspection, anyone may inspect or copy filed documents during the OFR's hours of business. Further questions regarding publication of documents in the Federal Register or incorporation by reference should be directed to the OFR.

In addition, regarding the commenter's request to post service bulletins on the Department of Transportation's DMS, we are currently in the process of reviewing issues surrounding the posting of service bulletins on the DMS as part of an AD docket. Once we have thoroughly examined all aspects of this issue and have made a final determination, we will consider whether our current practice needs to be revised. No change to the AD is necessary in response to this comment.

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

This AD affects about 2 airplanes of U.S. registry. The removal and installation take about 2 work hours per airplane, at an average labor rate of $80 per work hour. Required parts cost between $387 and $425 per airplane, depending on airplane configuration. Based on these figures, the estimated cost of the AD for U.S. operators is between $1,094 and $1,170, or between $547 and $585 per airplane, per removal and installation.

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

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

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

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

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

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

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

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation.

You may examine the airworthiness directive (AD) docket on the Internet at http://dms.dot.gov or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the street address stated in the ADDRESSES section.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to certain Airbus Model A300 and A310 airplanes; and Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model C4-605R Variant F airplanes (collectively called A300-600 series airplanes). That NPRM was published in the Federal Register on September 26, 2006 (71 FR 56054). That NPRM proposed to require replacing the pressure limiter of the parking brake system with a new or modified pressure limiter.

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

Airbus has informed us that the applicable service bulletins identified in the NPRM have all been reissued at Revision 01, and requests that we revise the NPRM to refer to Airbus Service Bulletins A300-32-0448 and A300-32-6094, both Revision 01, both dated October 26, 2006. However, Airbus has determined that the subject modification is incompatible with Model A310 airplanes and informed the European Aviation Safety Agency (EASA) of this situation. Airbus states that:

• EASA intends to revise EASA airworthiness directive 2006-0178, dated June 26, 2006, to remove Model A310 airplanes from the effectivity;

• Airbus intends to issue a new revision of Service Bulletin A310-32-2133 with a revised modification for Model A310 airplanes; and

• EASA intends to issue a new airworthiness directive to address the revised issue of Service Bulletin A310-32-2133 and to mandate the revised modification for Model A310 airplanes.

We agree for the reasons stated. We have removed all references to Model A310 airplanes and Service Bulletin A310-32-2133 from the summary, estimated costs, applicability, and body of the AD. Further, we have reviewed Service Bulletins A300-32-0448 and A300-32-6094, both Revision 01, both dated October 2, 2006. Certain airplanes have been removed and the operator listings have been updated in the effectivities of the revised service bulletins, but no new work is described. As these changes are relieving in nature and reduce the number of affected airplanes, we have determined that it is not necessary to provide additional time for public comment. Therefore, we have changed Table 1 of paragraph (f) of the AD to reflect the revised service bulletins. We have also added new paragraph (g) to the AD to give credit for actions accomplished before the effective date of the AD in accordance with the original issues of the service bulletins and re-identified the subsequent paragraphs of the AD accordingly. In regard to Model A310 airplanes, when Airbus and EASA have issued revised documentation, we may consider further rulemaking then.

One commenter, Lufthansa Technik AG, requests that we refer to EASA airworthiness directive 2006-0178, dated June 26, 2006, in the AD. The commenter states that it would be helpful for European airlines if we specified that the content of the NPRM already appears in the EASA airworthiness directive and that accomplishing the requirements of the EASA airworthiness directive is acceptable for compliance with the requirements of the AD.

We partially agree. Paragraph (i), “Related Information,” of the NPRM (paragraph (j) of the final rule), identifies EASA airworthiness directive 2006-0178, dated June 26, 2006, as being related to the subject of this AD; the NPRM was written to directly reflect the content of the EASA airworthiness directive. While airplanes placed on the U.S. Register must comply with this AD, airplanes placed on European registries must comply with the EASA airworthiness directive. No change to the AD is needed in this regard.

One commenter, the Modification and Replacement Parts Association (MARPA), requests that we revise our procedures for incorporation by reference (IBR) of service information in ADs. MARPA asserts that ADs are frequently derived from privately-authored, copyright-protected manufacturer service documents, but that when such a document is incorporated by reference into a public document like an AD, it loses its private, protected status and becomes itself a public document. MARPA continues, stating that public laws by definition must be public and cannot rely for compliance upon private writings, and that unless such writings are incorporated by reference, a court of law will not consider them in interpreting the AD and might invalidate the AD. MARPA contends that IBR service documents should be published in the Docket Management System (DMS), keyed to the action that incorporates them. MARPA states that IBR was adopted to relieve the Office of the Federal Register (OFR) from publishing documents already held by affected individuals, which traditionally meant aircraft owners and operators who received service information from manufacturers. However, MARPA contends that a new affected class of maintenance and repair organizations (MRO), component service and repair shops, parts purveyors and distributors, and organizations that manufacture or service alternatively certified parts under section 21.303 of the Federal Aviation Regulations (14 CFR 21.303) now perform a majority of aircraft maintenance. MARPA continues, stating that service information distributed to owners and operators who are financing or leasing institutions may not reach this class, who may actually be responsible for accomplishing ADs. MARPA therefore requests that service documents deemed essential to accomplishing this proposed action be (1) incorporated by reference into the regulatory instrument, and (2) published in the DMS.

We understand MARPA's comment and its requests. The OFR requires that documents that are necessary to accomplish the requirements of the AD be incorporated by reference during the final rule phase of rulemaking. This final rule incorporates by reference the documents necessary for the accomplishment of the requirements mandated by this AD. Further, we point out that while documents that are incorporated by reference do become public information, they do not lose their copyright protection. For that reason, we advise the public to contact the manufacturer to obtain copies of the referenced service information.

In regard to MARPA's request to post service bulletins on the Department of Transportation's DMS, we are currently in the process of reviewing issues surrounding the posting of service bulletins on the DMS as part of an AD docket. Once we have thoroughly examined all aspects of this issue and have made a final determination, we will consider whether our current practice needs to be revised. No change to the final rule is necessary in response to this comment.

MARPA requests that we revisit the manner in which replacement parts are addressed in the NPRM. MARPA asserts that type certificate holders, particularly foreign manufacturers, almost universally ignore any possible parts approved under a parts manufacturer approval (PMA) while frequently specifying replacing a part with a part having a different part number as a corrective action in their service documents. MARPA contends that this runs afoul of 14 CFR 21.303 which permits development, certification, and installation of PMA parts. MARPA continues, stating that mandating only one part is not generally favored and can prevent installing perfectly good parts while prohibiting development of new parts as permitted under 14 CFR 21.303. MARPA expresses concern that this could change the basis of the AD, since prohibiting the development, sale and use of a perfectly airworthy part is an issue of economics rather than safety. MARPA contends that courts might construe such ADs as being outside their statutory basis and, as such, unenforceable; and therefore, as courts lack technical knowledge to rewrite specific portions of rules, the courts may simply void such rules. MARPA believes that identifying specifically numbered parts for installation should be only one of several methods of addressing the problem. MARPA continues, stating that this action, as written, also does not comply with proposed FAA Order 8040.2 which would permit the use of any PMA part and require including such parts in the applicability of the AD. MARPA states that other directorates have published ADs containing language permitting the use of “FAA-approved equivalent parts” or “airworthy parts,” and, because of these differences, the requirements of Executive Order 12866 for all agencies to act uniformly on a given issue are not being met. MARPA therefore requests that the NPRM be modified to consider and permit the use of PMA parts pursuant to existing laws and regulations.

We do not agree with this request. The NPRM did not address PMA parts as provided in draft FAA Order 8040.2, because the Order was only a draft that was out for comment at the time. After issuance of the NPRM, the Order was revised and issued as FAA Order 8040.5 with an effective date of September 29, 2006; however, FAA Order 8040.5 does not address PMA parts in ADs.

We acknowledge the need to ensure that unsafe PMA parts are identified and addressed in MCAI-related ADs. Further, the FAA recognizes the need for standardizing directorate policies and is currently in the process of reviewing issues that address the use of PMAs in ADs at the national level. Once we have made a final determination, we will consider how our policy regarding PMA parts in ADs needs to be revised. However, the Transport Airplane Directorate considers that to delay this particular AD action would be inappropriate, since we have determined that an unsafe condition exists and that replacement of certain parts must be accomplished to ensure continued safety. Therefore, no change has been made to the final rule in this regard.

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

This AD will affect about 165 airplanes of U.S. registry. The required actions will take about 2 work hours per airplane, at an average labor rate of $80 per work hour. The manufacturer states that it will supply required parts to the operators at no cost. Based on these figures, the estimated cost of the AD for U.S. operators is $26,400, or $160 per airplane.

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

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

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

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

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

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

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

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation.

You may examine the airworthiness directive (AD) docket on the Internet at http://dms.dot.gov or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the street address stated in the ADDRESSES section.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to certain Boeing Model 777-200, -300, and -300ER series airplanes. That NPRM was published in the Federal Register on May 26, 2006 (71 FR 30338). That NPRM proposed to require replacement of the gimbal plates of the left and right outboard trailing edge flaps with improved gimbal plates and other specified actions.

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

Boeing, British Airways, American Airlines, and the Air Transport Association (ATA) support the intent of the NPRM.

Delta Airlines requests that we either have Boeing revise Alert Service Bulletin 777-27A0073, dated March 30, 2006, or that we revise paragraph (f) of the NPRM to allow operators to deviate from the referenced service bulletin. The commenter would like to continue to use existing gimbal plates having part numbers (P/Ns) 113W1112-3, 113W1112-4, 113W1212-3, and 113W1212-4. As justification, the commenter states the service bulletin specifies installing improved gimbal plates having P/Ns 113W1112-7, 113W1112-8, 113W1212-7, and 113W1212-8, but it does not specify to replace or remove the existing parts. The commenter also cites paragraph (g) of the NPRM, which allows installation of the existing parts if an airplane is modified in accordance with paragraph (f) of the NPRM.

We do not agree to allow use of the existing gimbal plates. Although the existing gimbal plate part numbers are not identified explicitly in the service bulletin, we confirmed with Boeing that they are P/Ns 113W1112-3, 113W1112-4, 113W1212-3, and 113W1212-4. Further, the effectivity of Boeing Alert Service Bulletin 777-27A0073 identifies Model 777-200, -300, and -300ER series airplanes that have the existing gimbal plates installed and approved as part of their type design. The intent of the service bulletin is to replace the existing gimbal plates with new, improved gimbal plates having P/Ns 113W1112-7, 113W1112-8, 113W1212-7, and 113W1212-8. These new, improved gimbal plates are identified clearly in the service bulletin and must be installed to adequately address the unsafe condition of this AD. We acknowledge that paragraph (g) of the NPRM is confusing in that it contains the phrase “* * * unless it has been modified in accordance with paragraph (f) of this AD.” However, that phrase is not accurate and was inadvertently included in the NPRM. We have deleted that phrase from paragraph (g) of this AD.

Delta Airlines requests clarification on the new, improved gimbal plates. The commenter states that the NPRM and Boeing Alert Service Bulletin 777-27A0073, dated March 30, 2006, do not appear to be in agreement regarding use of existing gimbal plate P/Ns 113W1112-3, 113W1112-4, 113W1212-3, and 113W1212-4. The commenter also states that these part numbers are not referenced in the service bulletin. The commenter further requests that we provide more information regarding usage of the new, improved P/Ns 113W1112-7, 113W1112-8, 113W1212-7, and 113W1212-8.

We acknowledge that paragraph (g) of the NPRM has caused confusion regarding the existing and new, improved part numbers. As stated previously, we have deleted a certain phrase to clarify that the existing parts may no longer be installed on the affected airplanes. Installation of the new, improved parts is necessary to adequately address the unsafe condition of this AD. No further change has been made to this AD in this regard.

British Airways requests that we extend the compliance time of the NPRM to 30 months. The commenter states that the maintenance planning document schedules zonal inspections at intervals of 6,000 flight cycles or 1,125 days, and that the commenter currently performs these inspections at intervals of 750 days (corresponding to just under 25 months). The commenter contends that the proposed compliance time could cause it to accomplish the gimbal replacement during minor maintenance. The commenter states that extending the compliance time would allow it to accomplish the gimbal replacement at a heavy maintenance facility.

We do not agree with the commenter's request to extend the compliance time. In developing an appropriate compliance time for this action, we considered the safety implications, parts availability, and normal maintenance schedules for the timely accomplishment of the replacement. In consideration of these items, we have determined that a compliance time of 24 months will ensure an acceptable level of safety and allow the modifications to be done during scheduled maintenance intervals for most affected operators. However, under the provisions of paragraph (h) of this AD, we may approve requests for adjustments to the compliance time if data are submitted to substantiate that such an adjustment would provide an acceptable level of safety. We have not revised this AD in this regard.

British Airways requests that we express the compliance time in units of flight cycles. The commenter asserts that calendar time is an inappropriate unit of life control. As justification, the commenter states that flap operations would primarily influence the failure experienced. The commenter proposes 6,000 flight cycles as a more appropriate compliance time.

We disagree with revising the compliance time. Although failure of the pivot link is primarily affected by airplane flight cycles, the original design of the flap system was certified to withstand such a failure. A design deficiency exists in the gimbal plate structure within the flap system. This design deficiency is not fatigue related and accordingly not flight-cycle related. Therefore, it is appropriate to use a calendar time to express the compliance time. The compliance time of 24 months was selected to allow replacement of the gimbal plates during a routine maintenance visit. We have not revised this AD in this regard.

American Airlines requests that we adjust the costs estimated in the NPRM. American Airlines states that it has accomplished the gimbal plate replacement in accordance with Boeing Alert Service Bulletin 777-27A0073, dated March 30, 2006, on 2 of its 45 affected airplanes. American Airlines estimates that the cost impact for accomplishing the NPRM will be approximately $84,200 per airplane, or $3,789,000 for its entire fleet. We infer the commenter would like us to revise the Cost of Compliance paragraph in this AD.

We disagree. The cost information in this AD describes only the direct costs of the specific actions required by this AD. Based on the best data available, the manufacturer provided the number of work hours (153) necessary to do the required actions. This number represents the time necessary to perform only the actions actually required by this AD. We recognize that, in doing the actions required by an AD, operators may incur incidental costs in addition to the direct costs. The cost analysis in AD rulemaking actions, however, typically does not include incidental costs such as the time required to gain access and close up, time necessary for planning, or time necessitated by other administrative actions. Those incidental costs, which may vary significantly among operators, are almost impossible to calculate. We have not changed this AD in this regard.

We have added a note to paragraph (f) of this AD informing operators to pay particular attention that grease or lubricant is not applied to the gimbal plate bolts, bushings, washers, or nuts. Yielding or failure of the bolts could occur due to overtorquing a lubricated attachment that was intended to be installed without lubricant.

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

There are about 546 airplanes of the affected design in the worldwide fleet. This AD affects about 145 airplanes of U.S. registry. The required actions take about 153 work hours per airplane, at an average labor rate of $80 per work hour. Required parts cost about $69,850 per airplane. Based on these figures, the estimated cost of the AD for U.S. operators is $11,903,050, or $82,090 per airplane.

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

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

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

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

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

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

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

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation.

You may examine the airworthiness directive (AD) docket on the Internet at http://dms.dot.gov or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the street address stated in the ADDRESSES section.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that supersedes AD 2004-16-05, amendment 39-13761 (69 FR 48359, August 10, 2004). The existing AD applies to all Boeing Model 747 airplanes. That NPRM was published in the Federal Register on June 21, 2006 (71 FR 35581). That NPRM proposed to continue to require a one-time inspection to determine whether the outer cylinder of the wing landing gear has certain part numbers, and replacement of the outer cylinder of the wing landing gear with a new, improved, or reworked part if necessary. That NPRM also proposed to require, for certain airplanes, an additional one-time inspection to determine whether the outer cylinder has a certain other part number. For those certain airplanes, that NPRM also proposed to require replacement of the outer cylinder with a reworked or new, improved part and related investigative/corrective actions, if necessary.

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

Boeing requests that we revise paragraph (j) of the NPRM so that it reads similar to paragraph (g) of the NPRM. Boeing states that the compliance time of “before further flight after the replacement” is confusing; Boeing is unclear as to whether that phrase applies to a removed outer cylinder or to an airplane on which an outer cylinder has been replaced. Boeing further states that if an affected part has been replaced with a reworked or new, improved part, then no additional work needs to be accomplished on that airplane.

We agree that if all affected outer cylinders are replaced with reworked or new, improved parts, no additional work is necessary on that airplane. The related investigative and corrective actions that we described in the NPRM are instructions for reworking an outer cylinder. We have revised paragraph (j) of this AD to more clearly specify that if a reworked part is installed on an airplane, then the rework must be done by accomplishing all of the related investigative actions and applicable corrective actions in accordance with the referenced service bulletin. We have also deleted the compliance time for accomplishing those actions “before further flight after the replacement.”

Boeing requests that we insert the words “and body” after the word “wing” in paragraph (h) of the NPRM. Boeing states that the load evening system attaches to both the wing and body landing gears and that it must be removed from both.

We agree that the proposed words clarify the requirement to remove the load evening system. We have revised paragraph (h) of this AD as requested by Boeing.

Boeing requests that the NPRM exempt airplanes delivered after the effective date of this AD from the requirements of paragraphs (f) through (k). As justification, Boeing states that the affected outer cylinders would not be found on newly delivered airplanes during an inspection, since the affected parts are no longer in production and are not currently part of the type design for Model 747 airplanes. Boeing also states that operators have objected to ADs that require inspecting newly delivered airplanes for parts that are known not to exist on those airplanes. Boeing, however, states that because landing gear components are interchangeable among airplanes, paragraph (l) of the NPRM should still apply to all airplanes.

We disagree. The appropriate means of excluding the newly delivered airplanes from the requirements of this AD is to limit the applicability of the AD. However, Boeing has not identified the production date or line number for when it ceased installing the affected outer cylinders in production. Further, as the commenter notes, all airplanes are subject to paragraph (l) of the AD. To delay this action would be inappropriate, since we have determined that an unsafe condition exists and that an inspection must be conducted to ensure continued safety. However, under the provisions of paragraph (m) of this AD, we may consider requests for approval of an alternative method of compliance if we are provided with the production date or line number of when affected outer cylinders were no longer installed on airplanes in production.

The Modification and Replacement Parts Association (MARPA) states that, typically, the action stated in the NPRM cannot be accomplished without access to the referenced service information published by the airplane manufacturer. MARPA adds that manufacturer service documents are privately authored instruments generally having copyright protection against duplication and distribution. MARPA notes that when a service document is incorporated by reference into a public document, such as an AD, it loses its private, protected status and becomes a public document. MARPA adds that if a service document is used as a mandatory element of compliance, it should not simply be referenced, but should be incorporated into the regulatory document; by definition, public laws must be public, which means they cannot rely upon private writings. MARPA adds that incorporated by reference service documents should be made available to the public by publication in the Docket Management System (DMS), keyed to the action that incorporates them. MARPA notes that the stated purpose of the incorporation by reference method is brevity, to keep from expanding the Federal Register needlessly by publishing documents already in the hands of the affected individuals; traditionally, “affected individuals” means aircraft owners and operators, who are generally provided service information by the manufacturer. MARPA adds that a new class of affected individuals has emerged, since the majority of aircraft maintenance is now performed by specialty shops instead of aircraft owners and operators. MARPA notes that this new class includes maintenance and repair organizations, component servicing and repair shops, parts purveyors and distributors, and organizations manufacturing or servicing alternatively certified parts under section 21.303 (“Replacement and modification parts”) of the Federal Aviation Regulations (14 CFR 21.303). MARPA adds that the concept of brevity is now nearly archaic as documents exist more frequently in electronic format than on paper. Therefore, MARPA asks that the service documents deemed essential to the accomplishment of the NPRM be incorporated by reference into the regulatory instrument, and published in the DMS.

We do not agree that documents should be incorporated by reference during the NPRM phase of rulemaking. The Office of the Federal Register (OFR) requires that documents that are necessary to accomplish the requirements of the AD be incorporated by reference during the final rule phase of rulemaking. This final rule incorporates by reference the document necessary for the accomplishment of the requirements mandated by this AD. Further, we point out that while documents that are incorporated by reference do become public information, they do not lose their copyright protection. For that reason, we advise the public to contact the manufacturer to obtain copies of the referenced service information.

In regard to the commenter's request that service documents be made available to the public by publication in the Federal Register , we agree that incorporation by reference was authorized to reduce the volume of material published in the Federal Register and the Code of Federal Regulations. However, as specified in the Federal Register Document Drafting Handbook, the Director of the OFR decides when an agency may incorporate material by reference. As the commenter is aware, the OFR files documents for public inspection on the workday before the date of publication of the rule at its office in Washington, DC. As stated in the Federal Register Document Drafting Handbook, when documents are filed for public inspection, anyone may inspect or copy file documents during the OFR's hours of business. Further questions regarding publication of documents in the Federal Register or incorporation by reference should be directed to the OFR.

In regard to the commenter's request to post service bulletins on the Department of Transportation's DMS, we are currently in the process of reviewing issues surrounding the posting of service bulletins on the DMS as part of an AD docket. Once we have thoroughly examined all aspects of this issue and have made a final determination, we will consider whether our current practice needs to be revised. No change to the final rule is necessary in response to this comment.

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

There are about 1,106 Model 747 airplanes of the affected design in the worldwide fleet. Of those airplanes, there are about 66 Model 747-100, 747-100B, 747-100B SUD, and 747SR series airplanes of the affected design in the worldwide fleet that are subject to the new actions. The following table provides the estimated costs, at an average labor rate of $80 per hour, for U.S. operators to comply with this AD.

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

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

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

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

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

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

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

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation.

On July 4, 2006, in defiance of international calls for restraint, the Democratic People's Republic of Korea (North Korea) proceeded with the launch and testing of a series of ballistic missiles. On July 15, 2006, the United Nations (UN) Security Council adopted Resolution 1695 (UNSCR 1695), condemning North Korea for its actions. In UNSCR 1695, the Security Council demanded that North Korea suspend all ballistic missile-related activity and reinstate its moratorium on missile launches. Subsequently, the President signed the North Korea Nonproliferation Act of 2006 (Pub. L. 109-353), which affirmed Congress' statement that it should be the policy of the United States to impose sanctions on persons who supported North Korea's missile or weapons of mass destruction programs.

On October 9, 2006, despite the adoption of UNSCR 1695, and in flagrant disregard of the admonitions of the international community, North Korea conducted a nuclear test. On October 14, 2006, the UN Security Council adopted Resolution 1718 (UNSCR 1718), which condemned the nuclear test and expressed the gravest concern over the challenge such a test constitutes to the Treaty on the Non-Proliferation of Nuclear Weapons, to peace and stability in the region, and to international efforts to strengthen the global nonproliferation regime. Among other things, UNSCR 1718 decides that all UN Member States shall prevent the direct or indirect supply, sale, or transfer to North Korea of: (1) Certain arms and related materiel; (2) items set out in the lists in UN documents S/2006/814, S/2006/815, and S/2006/853 (available at http://www.un.org/Docs/sc/committees/1718/1718SelEng.htm ), as well as other items identified by the Security Council or the Sanctions Committee established by UNSCR 1718 that could contribute to North Korea's nuclear-related, ballistic missile-related, and other weapons of mass destruction-related programs; and (3) luxury goods. UNSCR 1718 also decides that Member States shall prevent transfers to North Korea of technical training, advice, services, or assistance related to the provision, manufacture, maintenance or use of the items specified above. Furthermore, UNSCR 1718 demands that North Korea, in a verifiable and irreversible manner, abandon nuclear weapons, existing nuclear programs, and all other existing weapons of mass destruction programs. The Resolution also decides that North Korea must suspend all ballistic missile activities, demands that North Korea return to the Treaty on the Non-Proliferation of Nuclear Weapons, and requires that North Korea act in accordance with the terms and conditions of its International Atomic Energy Agency (IAEA) Safeguards Agreement.

On December 7, 2006, in accordance with Section 102(b) of the Arms Export Control Act, as amended (22 U.S.C. 2799aa-1), the President determined that North Korea had detonated a nuclear explosive device. The President directed the relevant agencies and instrumentalities of the United States to take the necessary actions to impose the sanctions described in Section 102(b)(2) of that Act. See 72 FR 1899 (Jan. 16, 2007). Section 102(b)(2)(G) of that Act provides that dual-use export control authorities shall be used to prohibit exports of specific goods and technology to any country so identified by the President.

As a result of North Korea's test launch of ballistic missiles in July, 2006, and testing of a nuclear device in October, 2006, and consistent with UNSCR 1718, the United States is imposing new export and reexport controls on North Korea.

Under this final rule, in accordance with UNSCR 1718 and the foreign policy interests of the United States, the Bureau of Industry and Security (BIS) will require a license for the export and reexport to North Korea of all items subject to the Export Administration Regulations (EAR), except food and medicines that are not on the Commerce Control List (CCL). Although a license is already required to export and reexport to North Korea all items controlled on the CCL for Nuclear Nonproliferation (NP) and Missile Technology (MT) reasons, BIS also will require a license for these items (except for items classified under Export Commodity Classification Number (ECCN) 7A103) in accordance with the President's December 7, 2006 directive regarding implementation of Section 102(b) of the Arms Export Control Act.

Pursuant to new Section 746.4(c) of the EAR, BIS will review license applications for the export or reexport of luxury goods to North Korea under a general policy of denial. This policy of denial applies to, but is not limited to applications to export and reexport luxury goods including, for example: Luxury automobiles; yachts; gems; jewelry; other fashion accessories; cosmetics; perfumes; furs; designer clothing; luxury watches; rugs and tapestries; electronic entertainment software and equipment; recreational sports equipment; tobacco; wine and other alcoholic beverages; musical instruments; art; and antiques and collectible items, including but not limited to rare coins and stamps. These and similar items have been imported by North Korea for the use and benefit of government officials and their families, rather than for the good of the North Korean people. In new Supplement No. 1 to part 746 of the EAR, BIS will provide further detail regarding the illustrative list of luxury goods set forth in Section 746.4(c). The determination of whether an item is a luxury good will be made on a case-by-case basis. In some cases, the end-use or end-user will be relevant to this determination. For example, an item being exported to a humanitarian organization for purposes of providing humanitarian assistance to the people of North Korea may not be considered a luxury good, but the same item going to a different end-user might be considered a luxury good and might not be approved. Computer laptops and luxury automobiles will be exempted from the general policy of denial if they are being exported or reexported to organizations legitimately involved in humanitarian relief efforts, other internationally sanctioned efforts, or in the interest of the U.S. Government.

BIS will review under a general policy of approval license applications for the export or reexport of humanitarian items other than food or medicine (e.g., blankets, medical supplies, heating oil, and other items meeting subsistence needs) intended for the benefit of the North Korean people. This policy applies to license applications to export or reexport items in support of UN humanitarian efforts and programs. The general policy of approval also extends to agricultural commodities (as defined in Section 102 of the Agricultural Trade Act of 1978) and medical devices (as defined in Section 201 of the Federal Food, Drug, and Cosmetic Act) that are determined by BIS, in consultation with the interagency license review community, not to be luxury goods. Applications for all other exports and reexports of EAR99 items will be reviewed on a case-by-case basis.

Consistent with UNSCR 1718 and existing U.S. export control policy, BIS will review license applications for arms and related materiel controlled on the CCL and items controlled on the multilateral export control regime control lists (the Missile Technology Control Regime, the Nuclear Suppliers Group, the Australia Group, and the Wassenaar Arrangement) under a general policy of denial. This includes items specified in UN documents S/2006/814, S/2006/815 and S/2006/853. BIS will also generally deny applications to export and reexports other items that the UN Security Council or the Sanctions Committee has determined could contribute to North Korea's nuclear-related, ballistic missile-related or other weapons of mass destruction-related programs. In addition, applications to export or reexport items controlled on the CCL for NP and MT reasons (except ECCN 7A103 items) will be reviewed under a general policy of denial. Applications to export or reexport other items on the CCL will be reviewed in accordance with the licensing policy set forth in Section 742.19 of the EAR (Anti-terrorism: North Korea). Section 742.19 is being amended to make technical corrections and also to provide that applications to export or reexport parts and components for safety-of-flight will be reviewed on a case-by-case basis.

This final rule makes inapplicable for North Korea most license exceptions set forth in part 740 of the EAR. The only license exceptions that remain available for North Korea, as provided in new Section 746.4(b) are: TMP (15 CFR 740.9(a)(2)(viii) only) for items for use by the news media; GOV (15 CFR 740.11(a), (b)(2)(i), and (b)(2)(ii) only) for items for personal or official use by personnel and agencies of the U.S. Government, the IAEA, or the European Atomic Energy Community (Euratom); GFT (15 CFR 740.12) for the export or reexport of gift parcels not containing luxury goods by an individual to an individual or a religious, charitable or educational organization, and for the export or reexport by groups or organizations of certain donations to meet basic human needs; TSU (15 CFR 740.13(a) and (b) only) for operation technology and software for lawfully exported items and sales technology; BAG (15 CFR 740.14 (a) through (d) only) for exports of items by individuals leaving the United States as personal baggage; and AVS (15 CFR 740.15(a)(4) only) for civil passenger aircraft on temporary sojourn.

Finally, to conform with the above-described changes and to make minor technical corrections, this rule makes limited revisions to Sections 732.1 and 732.3 (Steps for Using the EAR); Supplement No. 1 to Part 738 (the Country Chart); Sections 740.2 and 740.10 (License Exceptions); Sections 742.1 and 742.19 (Control Policy—CCL Based Controls); Section 746.1 (Embargoes and Other Special Controls); Section 772.1 (Definitions of Terms as used in the EAR); and Supplement No. 1 to Part 774 (Commerce Control List) of the EAR.

This rule imposes new export controls for foreign policy reasons. As required by Section 6 of the Export Administration Act of 1979, as amended (the Act), a report on the imposition of these controls was delivered to Congress on January 16, 2007. Although the Act expired on August 20, 2001, Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as extended by the Notice of August 3, 2006, 71 FR 44551 (Aug. 7, 2006), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act.

Items that did not require a license prior to the publication of this rule for export or reexport to North Korea and that are on dock for loading, on lighter, laden aboard an exporting carrier or en route aboard a carrier to a port of export on January 26, 2007, may be exported or reexported without being subject to this rule if the items are exported or reexported before midnight as of February 9, 2007. Any such item not actually exported or reexported before midnight February 9, 2007, may be exported or reexported only if authorized pursuant to this final rule. Exporters holding valid licenses for export or reexport to North Korea prior to January 26, 2007 are authorized to continue shipments pursuant to the terms and conditions of their licenses.

1. This final rule has been determined to be significant for purposes of E.O. 12866.

2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This rule contains a collection of information subject to the requirements of the PRA. This collection has previously been approved by OMB under Control Number 0694-0088 (Multi-Purpose Application), which carries a burden hour estimate of 58 minutes to prepare and submit form BIS-748. This rule is not expected to result in any change for collection purposes. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, to David Rostker, Office of Management and Budget (OMB), and to the Regulatory Policy Division, Bureau of Industry and Security, Department of Commerce, as indicated in the ADDRESSES section of this rule.

3. This rule does not contain policies with Federalism implications as this term is defined under Executive Order 13132.

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

Therefore, this regulation is issued in final form. Although there is no formal comment period, public comments on this regulation are welcome on a continuing basis. Comments should be submitted to publiccomments@bis.doc.gov, by fax to (202) 482-3355, or to Jeffery Lynch, Regulatory Policy Division, Bureau of Industry and Security, Department of Commerce, P.O. Box 273, Washington, DC 20044.

CBP collects fees to pay for the costs incurred in providing customs services in connection with certain activities under the authority of section 13031 of the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), as amended, codified at section 19 U.S.C. 58c.

On October 22, 2004, the President signed the American Jobs Creation Act of 2004 (Pub. L. 108-357). Section 892 of the American Jobs Creation Act amended 19 U.S.C. 58c to renew the fees provided under COBRA, which would have otherwise expired March 1, 2005, and to allow the Secretary of the Treasury to increase such fees by an amount not to exceed 10 percent in the period beginning fiscal year 2006 through the period for which fees are authorized by law. Regulations concerning user fees, among other customs revenue functions, are promulgated under the authority of the Secretary of the Treasury pursuant to Treasury Department Order No. 100-16. (See Appendix to 19 CFR Part 0).

On April 24, 2006, CBP published a notice of proposed rulemaking in the Federal Register (71 FR 20922) proposing to amend the regulations in accordance with the current statutory provisions by increasing the fees for: (1) Customs services provided in connection with the arrival of certain commercial vessels, commercial trucks, railroad cars, private aircraft and private vessels, passengers aboard commercial aircraft and commercial vessels, and barges or other bulk carrier arrivals, (2) each item of dutiable mail for which a customs officer prepares documentation, and (3) annual customs brokers permits. The comment period ended on May 24, 2006.

A total of six commenters responded to the solicitation of comments on the notice of proposed rulemaking. These comments were received from the recreational boating associations, industry and travel agent products services, carrier/vessel concerns, air transport associations, and other members of the general traveling and importing public. The comments are discussed below.

Comment: One commenter supported the proposed fee increases as appropriate to reflect the costs incurred by the agency for services provided. The commenter also suggested raising the annual maximum fees and each of the annual fee caps by the maximum 10% permitted by law.

CBP response: The COBRA, as amended (Pub. L. 108-357, Section 892), does not authorize an increase in annual fee caps. Therefore, the suggestion to raise the annual maximum fees and each of the annual fee caps involves legislative policy issues. In the absence of further legislative changes, CBP is bound by the current statutory provisions which do not provide the legal basis to support such regulatory changes suggested by the commenter.

Comment: One commenter suggested that CBP establish an on-line ACE (Automated Commercial Environment) carrier account capable of tracking among other things all CBP fees and tonnage taxes as well as penalties issued by CBP and the United States Coast Guard to a vessel. The commenter also suggested that the ACE account record should be capable of displaying accumulated fees charged to each vessel regardless of which SCAC (Standard Carrier Alpha Code) and carrier bond were associated with those charges.

CBP response: This comment relates to issues that are beyond the scope of the proposed rulemaking.

Comment: An association representing private vessel owners stated its opposition to the increase in the annual decal fee for private vessels from $25.00 to $27.50, on the basis that it is inherently unfair. The commenter stated that while the annual decal fee currently applies to vessels 30 feet in length or greater, CBP must expend an equal amount of time and expense on all vessels crossing the border, not just those 30 feet in length or greater. The commenter suggested that if CBP retains the annual decal fee of $25.00, but removes the specific exemption for private pleasure vessels of less than 30 feet in length, that this action would generate far more revenue for CBP than raising the annual decal fee only for vessels 30 feet in length or greater to $27.50.

CBP response: The specific exemption for private pleasure vessels of less than 30 feet in length not carrying goods required to be declared was included in 19 CFR 24.22(e), when it was promulgated because CBP incurs no processing costs in clearing private pleasure vessels of less than 30 feet in length not carrying goods required to be declared. Pursuant to the amended COBRA (Pub. L. 108-357, section 892), and in relevant part, fees may be charged in amounts that are reasonably related to the costs of providing customs services. CBP is not authorized to collect a fee because the agency would like to generate more revenue. Accordingly, we cannot implement the commenter's suggested course of action.

Comment: Two commenters stated that the final rule should specify the effective date of the user fee increase applicable to commercial airline passengers. One commenter suggested the effective date should be no earlier than 60 to 90 days after the final rule is published, and two commenters requested sufficient time to allow the industry to adjust their systems to collect the increased fee. One commenter urged that the regulations be amended to make clear and precise that the proper amount of the user fee to be collected from a passenger shall be the amount of the fee in effect at the time that a ticket is issued. One commenter stated that the increased fee should apply only to tickets issued on and after the effective date, so that carriers do not have to collect an additional fifty cents for tickets already issued.

CBP response: We have specified that the final rule's effective date will be more than 60 days after the date it is published to permit industry to adjust their systems to collect the increased fee amounts.

In response to the commenter's concern about the proper amount of the user fee to be collected, the statute sets forth the general rule that the fee shall be collected from the passenger by the person who issues a transportation document or ticket and that such collection shall take place when the document or ticket is issued. The collection procedures in the regulations at § 24.22(g)(4)(ii), state, in relevant part, that the collection of the fees shall take place when a through ticket or travel document is issued.

Given this statutory and regulatory specificity and clarity, amending the regulations as this commenter suggests is not necessary. The increased fee shall apply prospectively, that is, only to tickets issued on and after the effective date of the fee increase. For example, if a ticket has been issued prior to the effective date of the increased fee rates, and the flight does not take place until after the effective date of the increased fee rates, CBP is not authorized by law to retroactively collect the fifty cents from the carrier. As such, the date that the ticket is issued is the relevant event to which the effective date provision applies.

Comment: One commenter stated that the proposed rule to increase the customs user fee paid by international passengers arriving by commercial aircraft from $5.00 to $5.50 did not suggest that these passengers would actually experience a more efficient and pleasant clearance process upon arrival in the United States. The commenter suggested that the number of CBP officers at U.S. airports must be increased to meet the demands of increasing international traffic and prevent passengers from waiting in long lines in the inspection facilities.

CBP response: In FY 2005 approximately 73% of the total collections in the COBRA user fee account came from international air passengers. These passengers stand to benefit from the additional revenue collected. CBP estimates that the additional revenue will support the following central priorities of increased staffing of no less than 200 new CBP Officer positions, and the funding of overtime pay which will allow for more targeting, enforcement, special operations, and backfilling, where necessary.

More officers on more shifts would allow CBP to fully match staff-to-workload and address any workload movement quickly, thereby meeting CBP's processing goals as well as providing better service to passengers.

Comment: One commenter noted that the Secretary of the Treasury is required by statute to apply the funds generated by the customs user fees to cover specific costs. The commenter stated that the statute allows the funds to be used for the salaries of full-time and part-time CBP officers only after five other costs, such as overtime compensation and premium pay, have been met. The commenter stated nothing in the proposed rule gives any information about how the user fee funds are allocated among the various options and how they interrelate, e.g., could overtime compensation be decreased in order to hire additional full-time or part-time CBP officers at airports.

CBP response: The statute specifically stipulates the order of reimbursements from the user fees collected for costs incurred. First, the Secretary of the Treasury shall directly reimburse from the fees collected the amount paid for the costs incurred by the Secretary in: Paying overtime compensation, premium pay, and agency contributions to the Civil Service Retirement and Disability Fund; providing all preclearance services for which the recipients of such services are not required to reimburse the Secretary of the Treasury; and paying foreign language proficiency awards. To the extent funds remain available, reimbursements for costs incurred in providing salaries for full-time and part-time inspectional personnel and equipment that enhance customs services for those persons or entities that are required to pay fees under paragraphs (1) through (8) of subsection (a) of 19 U.S.C. 58c are distributed on a basis proportionate to the fees collected under subsection (a)(1) through (a)(8) of 19 U.S.C. 58c. To the extent funds remain available, reimbursements are made for costs incurred in providing salaries for up to 50 full-time equivalent inspectional positions to provide preclearance services. See 19 U.S.C. 58c(f)(3)(A)(i)-(iii). This is the allocation authorized by the statute.

Fees collected under subsection (a) of 19 U.S.C. 58c, with two exceptions, shall be deposited as offsetting receipts into the Customs User Fee Account. Section 13031(f) of the Consolidated Omnibus Budget Reconciliation Act of 1985 (19 U.S.C. 58c(f)) was amended by section 892 of Pub. L. 108-357 to specify that, except as otherwise provided in the subsection, all funds in the Customs User Fee Account shall be available to pay the costs incurred by CBP in conducting customs revenue functions as defined in section 415 of the Homeland Security Act of 2002 (other than functions performed by the Office of International Affairs referred to in section 415(8) of that Act), and for automation (including the Automation Commercial Environment computer system), and for no other purpose. Paragraph (f)(2) of 19 U.S.C. 58c also states that so long as there is a surplus of funds in the Customs User Fee Account, the Secretary of the Treasury may not reduce personnel staffing levels for providing commercial clearance and preclearance services.

Comment: One commenter stated it was difficult to determine whether air passengers paying the proposed increases in customs user fees will derive any benefits or whether the proposed increases were justified because the proposed rule does not provide the types of costs included in the chart showing the fiscal year 2004 obligations, and does not account for savings from the consolidation of certain agricultural, customs, and immigration inspection functions into CBP.

CBP response: The customs user fees are authorized by statute. In Public Law 108-357, the Congress authorized the Secretary of the Treasury to charge fees in amounts that are reasonably related to the costs of providing customs services in connection with the activity or item for which the fee is charged, except that in no case may the fee charged exceed by more than 10 percent the amount otherwise prescribed. The amounts of the proposed fees are reasonably related to the costs of providing customs services.

The types of costs associated with providing customs services include salaries and benefits, overtime, rent, supplies and equipment, training, travel, utilities, and overhead. The increased fees will support more CBP officer positions at airports and new technology and equipment. As a result, air passengers will benefit from enhanced and timely passenger facilitation.

Regarding the question of whether the proposed increases account for savings from the consolidation of the immigration, customs and agricultural functions in aircraft passenger processing, a CBP officer accounts for time and costs spent performing these services separately according to work activity and function. The inspectional services provided and the associated costs are identified as legacy Customs, legacy Immigration, and legacy Agriculture functions, depending on which legacy organization performed each function.

While certain components of the legacy agencies have been combined to form CBP, the statutory and regulatory authorities for those agencies and associated functions have not been consolidated. Therefore, all user fees are collected in distinct accounts (Customs User Fee Account, Immigration User Fee Account, Land Border Inspection Fee Account, etc.) and are only used to cover costs based on function and authorized by their respective legislation. User fee program costs are also segregated from all other costs.

Comment: Two commenters stated that the immigration, customs, and agriculture user fees should be consolidated into a single user fee for CBP inspection services provided to air passengers. The commenters stated that consolidation of the three inspectional fees would provide for greater efficiency. One commenter stated that consolidation of the user fees would result in more streamlined and transparent accounting, and would enable the agency to look at the cost of an air passenger inspection in relation to what an air passenger pays in user fees.

CBP response: While certain components of the legacy agencies have been combined to form CBP, the statutory and regulatory authorities for these agencies and their associated functions remain unchanged. The legacy Customs user fee authority resides with the Secretary of the Treasury. The legacy INS user fee authority resides with the Attorney General. The legacy APHIS user fee authority resides with the Secretary of Agriculture. Presently, CBP has no authority to consolidate user fees. In the administration and collection of user fees, CBP is bound by current statutory law and must capture user fee costs based on function, that is, agriculture, customs, and immigration. CBP receives only a portion of the total user fees from the immigration and agriculture user fee accounts. Since CBP lacks the necessary authority to modify the immigration and agriculture user fees, a consolidated average cost of an inspection is neither appropriate nor possible at this time. However, CBP recognizes the benefits of consolidation, including streamlining the collection process and improving the management of the user fees. CBP is looking at options to improve the structuring of fees.

Comment: One commenter stated that aviation security is a matter of national security, a Federal Government responsibility that should be funded accordingly, and not by increasing user fees.

CBP response: The user fees are for the customs inspection and processing of passengers as authorized by the COBRA statute and the authority to increase the fees is specifically provided in law. Moreover, most aviation security inspection is performed outside of the context of these user fees.

Comment: One commenter stated that the airline industry faces a disproportionate and ever increasing tax burden. The commenter stated that implementation of this proposal would clearly worsen this inequitable situation and further stultify an airline's ability to serve the traveling and shipping public.

CBP response: While CBP understands the concerns of the airline industry, the authority to increase inspection fees was specifically provided in law two years ago, and this increase is consistent with that statute.

Comment: One commenter stated that the statement in the notice of proposed rulemaking regarding the minimal impact on business from the increase in user fees since user fees come from individual travelers, demonstrates a basic misunderstanding of the realities of contemporary airline economics. The commenter stated that the intense competition in the airline industry forces carriers to absorb these taxes and fees. The commenter stated that it is the airline, and ultimately its employees and shareholders, that principally bear the burden of increased fees.

CBP response: CBP notes that under the statute, entities issuing a document or ticket are authorized to collect the customs fee from an individual at the time the document or ticket is issued. This regulation does not change the method for collecting that fee, nor does this rule establish a new class of fees; it is only increasing the current fee collected by a maximum of 10 percent.

Comment: One commenter stated that it has repeatedly requested an analysis of the actual average cost of an inspection for airline passengers since the consolidation of the three border inspection agencies, Immigration and Naturalization Service (INS), U.S. Customs Service (Customs), and the Animal and Plant Health Inspection Service (APHIS) into CBP. The commenter stated that among the justifications for the consolidation were greater efficiency, enhanced cost savings, and a more coordinated approach to the way in which inspection user fees were levied. The commenter stated that the proposed rule provides no analytical information on the cost of an inspection. The commenter concluded that no fee increase should be implemented absent the cost information and an opportunity to comment in response.

CBP response: The current fees charged and collected for the provision of customs services in connection with the arrival of passengers aboard a commercial vessel or commercial aircraft are set by statute at 19 U.S.C. 58c. Public Law 108-357 authorizes the Secretary of the Treasury to charge fees in amounts that are reasonably related to the costs of providing customs services in connection with the activity or item for which the fee is charged, except that in no case may the fee charged exceed by more than 10 percent the amount otherwise authorized. CBP has proposed to raise the customs user fees for related customs inspectional services based on costs and as authorized by the statute. CBP has analyzed the costs of providing customs services and the fee collections for these corresponding customs services, and has published the collections received and obligations incurred in Fiscal Year 2004, in the Federal Register (71 FR 20922) on April 24, 2006.

Comment: One commenter stated that the collection of a $1.75 fee from commercial vessel passengers (to be raised by 10 percent in the proposed rule to $1.93) for the exact same inspection that airline passengers experience, results in fee collections from airline passengers that subsidize the inspections of cruise ship passengers. The commenter stated that this inequity needed to be rectified.

CBP response: The current fees charged and collected for the provision of customs services in connection with the arrival of passengers aboard a commercial vessel or commercial aircraft are set by statute at 19 U.S.C. 58c. In fiscal year 2006, and in each succeeding fiscal year for which fees are authorized, Public Law 108-357 authorizes the Secretary of the Treasury to charge fees in amounts that are reasonably related to the costs of providing customs services in connection with the activity or item for which the fee is charged, except that in no case may the fee charged exceed by more than 10 percent the amount otherwise authorized. As the respective fees are established by statute, this comment is beyond the scope of this rulemaking.

Based upon the analysis of the comments as discussed above, CBP has decided to adopt the proposed rule published on April 24, 2006, without change.

In addition to the changes of the fee amounts in the regulatory text of Parts 24 and 111, as proposed in the proposed rulemaking published on April 24, 2006, the final regulations incorporate two technical corrections to the fee chart at 19 CFR 24.22(g)(2). The fee chart was intended as a tool to help readers understand the application of the fee structure explained in the regulatory text at 19 CFR 24.22(g)(1). However, in two locations, the fee chart did not accurately reflect the regulatory text.

The fee chart is being corrected to reflect the regulatory text at 19 CFR 24.22(g)(1)(i)(A) and (B). Paragraph (g)(1)(i)(A) provides for the collection of a fee for services provided in connection with the arrival of passengers aboard commercial aircraft from Canada, Mexico, any territories and possessions of the United States, and any adjacent islands (“Specified Location” (SL)), when the journey of the arriving passenger originates in a place outside the United States other than an SL. The chart is accordingly amended to state that a fee is assessed in such a situation. The chart is also amended to reflect the language of paragraph (g)(1)(i)(B) that a fee is assessed when the journey of the arriving passenger from an SL originates in the United States and includes travel to a country other than to an SL.

This rule generally affects individuals and large commercial carriers. The increase in fees is 10 percent over the amounts currently paid by users of the customs services for which each fee is charged. Accordingly, CBP certifies that this final rule will not have a significant impact on a substantial number of small entities because the majority of fees will come from individual travelers into the United States. Therefore, it is not subject to the analysis provisions of the Regulatory Flexibility Act, as amended (5 U.S.C. 601 et seq. ). The American Jobs Creation Act specifically provides that the Secretary of the Treasury shall charge fees that are reasonably related to these activities.

This rule does not meet the criteria for a “significant regulatory action” as specified in E.O. 12866. Accordingly, a regulatory impact analysis is not required.

This document is being issued in accordance with § 0.1(a) of Chapter I of Title 19, Code of Federal Regulations (19 CFR 0.1) pertaining to the exercise of authority to approve regulations in 19 CFR chapter I.

The final regulations that are the subject of this correction are under sections 3401 and 3402 of the Internal Revenue Code.

As published, final regulations (TD 9276) contain an error that may prove to be misleading and is in need of clarification.

Congress enacted the LMRDA after an extensive investigation of “the labor and management fields * * * [found] that there ha[d] been a number of instances of breach of trust, corruption, disregard of the rights of individual employees, and other failures to observe high standards of responsibility and ethical conduct.” 29 U.S.C. 401(b). Congress intended the Act to “eliminate or prevent improper practices” in labor organizations, to protect the rights and interests of employees, and to prevent union corruption. 29 U.S.C. 401(b), (c). As part of the statutory scheme designed to accomplish these goals, Congress required labor organizations to file annual financial reports with the Secretary of Labor. 29 U.S.C. 431(b). Congress sought full and public disclosure of a labor organization's financial condition and operations in order to curb embezzlement and other improper financial activities by union officers and employees. See S. Rep. No. 86-187 (1959), reprinted in I NLRB, Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, at 398-99. Under the Act, labor organizations must file reports containing information such as assets, liabilities, receipts, salaries, loans to officers, employees, members or businesses and other disbursements “in such detail as may be necessary accurately to disclose [their] financial condition and operations for [the] preceding fiscal year.” 29 U.S.C. 431(b).

“Labor organizations” subject to the financial reporting requirements of the LMRDA are defined in the Act. Section 3(i) of the LMRDA , 29 U.S.C. 402(i), defines a “labor organization” as (1) any organization “engaged in an industry affecting commerce * * * in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment,” or (2) “any conference, general committee, joint or system board, or joint council so engaged which is subordinate to a national or international labor organization other than a State or local central body.” The first clause of Section 3(i) applies to entities that exist, at least in part, to deal with employers concerning terms and conditions of employment. The second clause of the definition applies to conferences, general committees, joint or system boards or joint councils—entities that are known as “intermediate” labor organizations. See 29 CFR 451.4(f).

Section 3(j) of the LMRDA, 29 U.S.C. 402(j), sets forth the circumstances under which labor organizations will be “deemed to be engaged in an industry affecting commerce” under the Act. In particular, Section 3(j)(5) of the Act provides that an intermediate labor organization is deemed “engaged in an industry affecting commerce” if it is “a conference, general committee, joint or system board, or joint council, subordinate to a national or international labor organization, which includes a labor organization engaged in an industry affecting commerce within the meaning of any of the preceding paragraphs of this subsection, other than a State or local central body.” 29 U.S.C. 402(j)(5).

Although “employer” is defined broadly in the Act, the United States, States and local governments are expressly excluded from this definition. 29 U.S.C. 402(e). Thus, an organization is not covered under the first clause of Section 3(i), which requires that the organization deal with a statutory “employer,” if it deals only with federal, state or local governments. However, an “organization” covered by the second clause of the definition (a “conference, general committee, [etc.] subordinate to a national or international”) need not deal with employers at all. 29 U.S.C. 402(i). Instead, such an intermediate labor body is covered by the Act so long as it is subordinate to a national or international labor organization and is “engaged in an industry affecting commerce.” Id.

The LMRDA authorizes the Department to promulgate rules and regulations to enforce the Act's financial reporting requirements. Under the Act, Congress broadly delegated authority to the Secretary “to issue, amend, and rescind rules and regulations prescribing the form and publication of reports required to be filed under this subchapter and such other reasonable rules and regulations * * * as [s]he may find necessary to prevent the circumvention or evasion of such reporting requirements.” 29 U.S.C. 438; American Fed'n of Labor and Congress Of Indus. Orgs. v. Chao, 409 F.3d 377, 386 (D.C. Cir. 2005) (“[t]here is no serious dispute” that Congress “delegated authority to the Secretary to promulgate rules to enforce Section 208 [29 U.S.C. 438]”). The Secretary also has express authority to enforce the Act's reporting requirements by initiating a civil action. 29 U.S.C. 440. The Department's interpretation of Section 3(j)(5), which “clarifies the meaning of ‘labor organization * * * engaged in an industry affecting commerce[,] * * * comes within its express authority in § 208 to promulgate rules” under the LMRDA. Alabama Education, 455 F.3d at 393.

The Department issued a Notice of Proposed Rulemaking on December 27, 2002, that proposed revisions to the forms labor organizations use to file annual financial reports required by the LMRDA. Labor Organization Annual Financial Reports, 67 FR 79,280 (Dec. 21, 2002) (NPRM). As part of this rulemaking, the Department stated its intent to modify its interpretation of Section 3(j)(5). As noted, the Section provides that an intermediate labor organization is deemed “engaged in an industry affecting commerce” if it is:

Before the December 2002 NPRM, the Department interpreted the clause, “which includes a labor organization engaged in an industry affecting commerce within the meaning of any of the preceding paragraphs of this subsection, “ in Section 3(j)(5) as modifying “conference” and other listed intermediate bodies. Under that interpretation, Section 3(j)(5) applied only to intermediate bodies that were subordinate to a national or international labor organization and were themselves composed, in whole or in part, of private sector local labor organizations.

In contrast, in the NPRM's proposed interpretation, the “which includes” clause, modifies “national or international labor organization.” Under this interpretation, intermediate labor bodies need not themselves include private sector members to be covered under the LMRDA; rather, they need only be subordinate to a national or international labor organization that includes a union that represents private sector workers.

The Department's prior interpretation of Section 3(j)(5) came into question following the decision in Chao v. Bremerton Metal Trades Council, 294 F.3d 1114 (9th Cir. 2002). In Bremerton, the Ninth Circuit held that the Bremerton Metal Trades Council (“BMTC”), a joint council, met the LMRDA definition of “labor organization” because it was subordinate to the Metal Trades Department, an international labor organization engaged in an industry affecting commerce. Bremerton, 294 F.3d at 1118. In so holding, the court relied on the fact that the BMTC was subordinate to a parent organization that met the LMRDA definition of “labor organization.” Id . The court reasoned that “[w]e must decide not whether the Bremerton Council bargains directly with any private employers but, instead, whether the Metal Trades Department, the organization to which the Bremerton Council is subordinate, is engaged in an industry affecting commerce.” Id. at 1117. Thus, in contrast to the Secretary's interpretation at the time, Bremerton adopted an analysis under Section 3(j)(5) that looked not to the composition of the intermediate body itself, but rather to whether the national or international to which it is subordinate is engaged in an industry affecting commerce.

The Bremerton case brought to the Department's attention an alternate view of the meaning of the “which includes” clause in Section 3(j)(5). In the 2002 NPRM, the Department proposed to revise its instructions on financial reports for labor organizations to include this interpretation of Section 3(j)(5), reflecting Bremerton's analysis. See NPRM, 67 FR 79,284 (proposing to adopt a rule that “an intermediate labor organization that has no dealings itself with private employers and no members who are employed in the private sector may nevertheless be a labor organization engaged in commerce * * * if [it] is ‘subordinate to a national or international labor organization which includes a labor organization engaged in commerce.’”)

Following a 90-day comment period, the Department on October 9, 2003, issued its final rule dealing with labor organization reporting requirements, in which it adopted the revised interpretation of Section 3(j)(5). Labor Organization Annual Financial Reports, 68 FR 58374 (Oct. 9, 2003) (Final Rule). In the preamble to the Final Rule, the Department addressed comments from three labor organizations—the National Education Association (NEA), the American Federation of Teachers (AFT) and the AFL-CIO—each of which opposed the Department's interpretation of Section 3(j)(5). The Department concluded that the comments opposing the Department's interpretation failed to provide a persuasive argument supporting the Department's return to its pre-2002 view of the “which includes” clause of Section 3(j)(5).

After being notified by OLMS of the Department's revised interpretation of Section 3(j)(5), and the corresponding need to file reports, 38 intermediate labor organizations representing public sector employees, primarily public school teachers, challenged the new interpretation in federal district court. The court granted summary judgment in favor of the plaintiff labor organizations. Alabama Education Ass'n v. Chao , 2005 WL 736535 (D.D.C. Mar. 31, 2005). The Department appealed that decision, and the U.S. Court of Appeals for the D.C. Circuit, reversed the lower court's ruling. Alabama Education Ass'n v. Chao , 455 F.3d 386 (2006). The court of appeals held that the Department has statutory authority “to clarif[y] the meaning of ‘labor organization * * * engaged in an industry affecting commerce’ ” and thus the Secretary's interpretation of Section 3(j)(5) is “reviewable under Chevron ” principles of deference. 455 F.3d at 393. The court further ruled that Section 3(j)(5)'s “which includes” clause contains a “patent ambiguity” and that the Secretary's interpretation was a permissible interpretation of the provision's terms. 455 F.3d at 395, 396; see also id. at n. * (LMRDA legislative history confirms “inherent ambiguity of the statute”).

The court, however, further concluded that the Department had failed to provide a “reasoned analysis” for its change of position “sufficient to command [the court's] deference under Chevron .” 455 F.3d at 396. The court noted that the Department failed to link specifically the general policy concerns underlying the financial reporting revisions in the final rule, (i.e., changes in union size, financing and structure, and resulting financial irregularities, 67 FR 79,280), with an assessment of the Department's new and prior interpretations of Section 3(j)(5). 455 F.3d at 396-397. The court also noted that the Department had unduly relied on the Bremerton decision, without acknowledging that because the intermediate body in that case contained private sector members, the decision's holding did not contribute to the required reasoned analysis. Id. at 397. Accordingly, the court remanded the rule to the Department to provide a reasoned explanation for its change in interpretation.

That analysis is set forth below.

The Department's revised interpretation of the statute broadens the coverage of intermediate labor organizations subject to the reporting requirements of the LMRDA.

The result of this interpretation is that intermediate bodies that are subordinate to a national or international labor organization that includes a covered labor organization will be covered by the LMRDA, even if the intermediate body is composed of solely public sector local labor unions not covered by the Act. The rulemaking record as a whole suggested several reasons in support of the Department's adoption of this policy, and those reasons will be further explained and analyzed here.

The Department's 2002 NPRM supported its regulatory revisions to labor organizations' financial reporting requirements with the following analysis:

In addition, regarding the Department's view of Section 3(j)(5), the NPRM stated:

The Department's 2003 Final Rule provided the following support for its policy revision:

These excerpts from the rule-making record establish a foundation for the Department's explanation of its policy choice, and point to three interdependent rationales for the adoption of the revised interpretation. First, the Department has selected a policy alternative that is consistent with the terms of the statute and promotes Congress's purposes in enacting the LMRDA. The Department's interpretation of Section 3(j)(5) advances the twin Congressional goals that labor organizations' financial conditions and operations should be subject to public disclosure to benefit employees that participate in those organizations, and that the definition of “labor organizations” covered by the LMRDA should be interpreted broadly to advance union democracy, financial transparency, and integrity. Second, the expanded coverage permitted by the new interpretation promotes disclosure of financial disbursements and receipts to and from structurally related labor organizations, thus enhancing employees' ability to understand the overall operation of labor organizations in general, as well as identify any potential financial irregularities in particular. The structure and financial aspects of labor organizations have become increasingly complex in the nearly fifty years since the passage of the LMRDA. Unlike several decades ago, when small, independent unions predominated, there are now large, multi-level, multi-faceted labor organizations, most of which are affiliated with large and complex national or international labor organizations. In addition, many labor organizations have restructured and reorganized their affiliate relationships, rendering a single labor organization report insufficient to provide transparency to increasingly complex structures and relationships.

Third, and most importantly, the revised interpretation gives full meaning to clause two of Section 3(i), 29 U.S.C. 402(i), which has at its core a focus on covering those intermediate bodies precisely because they are subordinate to a covered national or international labor organization even though they may consist only of unions not covered under the first clause of 3(i). The interpretation advances public disclosure of financial transactions by intermediate bodies that receive money from covered national and international labor organizations, the source of which is, in part, fees and assessments originating from employees in the private sector. Thus, the so-called “wholly public sector” intermediate body loses that attribute to a great extent (despite its composition) when it is subordinate to, and accepting contributions from, covered national and international labor organizations whose funds are derived, in part, from employees in the private sector.

As the court of appeals noted, these bases for the revised interpretation were not fully explained in the prior rulemaking, and we now elaborate upon them in greater detail. 1

Pursuant to 5 U.S.C. 553, a notice of proposed rulemaking (NPRM) has not been published for this regulation and good cause exists for making it effective without publication of an NPRM in the Federal Register . Publishing a NPRM would be contrary to public interest since immediate action is necessary to ensure the safety of vessels and persons that transit in the vicinity of the Tacoma Narrows Bridge. If normal notice and comment procedures were followed, this rule would not become effective until after construction activities were already taking place.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Making the rule effective after 30 days of publication in the Federal Register would be contrary to public interest since immediate action is necessary to ensure the safety of vessels and persons that transit in the vicinity of the Tacoma Narrows Bridge. If normal notice and comment procedures were followed, this rule would not become effective until after construction activities were already taking place.

The Coast Guard is adopting a temporary safety zone regulation on the waters of Tacoma Narrows, Washington, for the New Tacoma Narrows Bridge construction project. The Coast Guard has determined it is necessary to restrict access to the waters within 500 feet of the construction barge “MARMACK”, in order to safeguard people and property from hazards associated with navigating in the vicinity of moving construction equipment. These safety hazards include, but are not limited to, hazards to navigation, collisions with the barge or its cargo, and disturbance of the load on the barge, which could fall or shift, injuring anyone in the vicinity. The Coast Guard, through this action, intends to promote the safety of personnel, vessels, and facilities in the area. Entry into this zone will be prohibited unless authorized by the Captain of the Port or his representative. This safety zone will be enforced by Coast Guard personnel. The Captain of the Port may be assisted by other federal, state, or local agencies.

This temporary rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Homeland Security (DHS).

We expect the economic impact of this temporary rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DHS is unnecessary. This expectation is based on the fact that the regulated area established by this regulation would encompass a small area that should not impact commercial or recreational traffic. For the above reasons, the Coast Guard does not anticipate any significant economic impact.

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

This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit this portion of the Tacoma Narrows during the time this regulation is in effect. The zone will not have a significant economic impact on a substantial number of small entities due to its small area, and the limited duration of the impacts to navigation caused by the zone. Because the impacts of this rule are expected to be so minimal, the Coast Guard certifies under 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601-612) that this temporary rule will not have a significant economic impact on a substantial number of small entities.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by State, local, or tribal government, in the aggregate, or the private sector of $100,000,000 or more in any one year. Though this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This temporary rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This temporary rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.

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

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Commandant Instruction M16475.1D and Department of Homeland Security Management Directive 5100.1, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. A final “Environmental Analysis Checklist” and a final “Categorical Exclusion Determination” will be available in the docket where indicated under ADDRESSES .

Pursuant to 5 U.S.C. 553, a notice of proposed rulemaking (NPRM) has not been published for this regulation and good cause exists for making it effective without publication of an NPRM in the Federal Register . Publishing a NPRM would be contrary to public interest since immediate action is necessary to ensure the safety of vessels and persons that transit in the vicinity of the Tacoma Narrows Bridge. If normal notice and comment procedures were followed, this rule would not become effective until after construction activities were already taking place. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Making the rule effective after 30 days of publication in the Federal Register would be contrary to public interest since immediate action is necessary to ensure the safety of vessels and persons that transit in the vicinity of the Tacoma Narrows Bridge. If normal notice and comment procedures were followed, this rule would not become effective until after construction activities were already taking place.

The Coast Guard is adopting a temporary safety zone regulation on the waters of Tacoma Narrows, Washington, for the New Tacoma Narrows Bridge construction project. The Coast Guard has determined it is necessary to restrict access to the waters under the West Span, in a box bounded by the points: 47°16.44′N, 122°33.35′W; 47°16.34′N, 122°33.04′W; 47°16.1′N, 122°33.33′W; 47°16.21′N, 122°33.63′W, in order to safeguard people and property from hazards associated with the presence of construction vessels and equipment in that area. These safety hazards include, but are not limited to, hazards to navigation, collisions with mooring cables, and collisions with work vessels and barges. The Coast Guard, through this action, intends to promote the safety of personnel, vessels, and facilities in the area. Entry into this zone will be prohibited unless authorized by the Captain of the Port or his representative. This safety zone will be enforced by Coast Guard personnel. The Captain of the Port may be assisted by other federal, state, or local agencies.

This temporary rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Homeland Security (DHS).

We expect the economic impact of this temporary rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DHS is unnecessary. This expectation is based on the fact that the regulated area established by this regulation would encompass a small area that should not impact commercial or recreational traffic. For the above reasons, the Coast Guard does not anticipate any significant economic impact.

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

This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit this portion of the Tacoma Narrows during the time this regulation is in effect. The zone will not have a significant economic impact on a substantial number of small entities due to its small area. Because the impacts of this rule are expected to be so minimal, the Coast Guard certifies under 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601-612) that this temporary rule will not have a significant economic impact on a substantial number of small entities.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by State, local, or tribal government, in the aggregate, or the private sector of $100,000,000 or more in any one year. Though this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This temporary rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This temporary rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.

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

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Commandant Instruction M16475.1D and Department of Homeland Security Management Directive 5100.1, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. A final “Environmental Analysis Checklist” and a final “Categorical Exclusion Determination” will be available in the docket where indicated under ADDRESSES .

Pursuant to 5 U.S.C. 553, a notice of proposed rulemaking (NPRM) has not been published for this regulation and good cause exists for making it effective without publication of an NPRM in the Federal Register . Publishing a NPRM would be contrary to public interest since immediate action is necessary to ensure the safety of vessels and persons that transit in the vicinity of the Tacoma Narrows Bridge. If normal notice and comment procedures were followed, this rule would not become effective until after construction activities were already taking place. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Making the rule effective after 30 days of publication in the Federal Register would be contrary to public interest since immediate action is necessary to ensure the safety of vessels and persons that transit in the vicinity of the Tacoma Narrows Bridge. If normal notice and comment procedures were followed, this rule would not become effective until after construction activities were already taking place.

The Coast Guard is adopting a temporary safety zone regulation on the waters of Tacoma Narrows, Washington, for the New Tacoma Narrows Bridge construction project. The Coast Guard has determined it is necessary to restrict access to the waters within 500 feet of the lifting beams being used to raise deck sections into place, in order to safeguard people and property from hazards associated with navigating in the vicinity of moving construction equipment. These safety hazards include, but are not limited to, hazards to navigation, collisions with the beams, and equipment failures resulting in falling loads. The Coast Guard, through this action, intends to promote the safety of personnel and vessels in the area. Entry into this zone will be prohibited unless authorized by the Captain of the Port or his representative. This safety zone will be enforced by Coast Guard personnel. The Captain of the Port may be assisted by other federal, state, or local agencies.

This temporary rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Homeland Security (DHS).

We expect the economic impact of this temporary rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DHS is unnecessary. This expectation is based on the fact that the regulated area established by this regulation would encompass a small area that should not impact commercial or recreational traffic. For the above reasons, the Coast Guard does not anticipate any significant economic impact.

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

This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit this portion of the Tacoma Narrows during the time this regulation is in effect. The zone will not have a significant economic impact on a substantial number of small entities due to its small area. Because the impacts of this rule are expected to be so minimal, the Coast Guard certifies under 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601-612) that this temporary rule will not have a significant economic impact on a substantial number of small entities.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by State, local, or tribal government, in the aggregate, or the private sector of $100,000,000 or more in any one year. Though this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This temporary rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This temporary rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.

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

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Commandant Instruction M16475.1D and Department of Homeland Security Management Directive 5100.1, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. A final “Environmental Analysis Checklist” and a final “Categorical Exclusion Determination” will be available in the docket where indicated under ADDRESSES .

In FR Doc. E6-20131 of November 27, 2006 (71 FR 68708), there were technical errors that we identify in the “Summary of Errors” section and correct in the “Correction of Errors” section below.

In the November 27, 2006 final rule, on page 68719, we included a table that contained an incorrect entry in one row, also resulting in an incorrect aggregate burden amount. This notice will correct those errors.

Make the following corrections to the November 27, 2006 final rule (71 FR 68708):

1. On page 68719, in the table—

A. In the fifth column, in the third entry, change the annual burden hours from “140,834” to “130,000.”

B. In the fifth column, in the fourth entry, change the annual burden hours from “2,914,168” to “2,903,334.”

The revised table should read as follows:

2. On page 68719, in the first column, in line 3, change the annual burden hours from 2,914,618 to 2,903,334.

We ordinarily publish a notice of proposed rulemaking in the Federal Register to provide a period for public comment before the provisions of a rule take effect in accordance with section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). However, we can waive this procedure if the Secretary finds, for good cause, that the notice and comment process is impracticable, unnecessary, or contrary to the public interest, and incorporates a statement of finding and the reasons therefore in the notice.

The revisions in this document merely correct inadvertent technical errors. The revisions help ensure that the rules governing the Medicare administrative appeals process are more understandable and less ambiguous and protect the rights of all parties to pursue Medicare claims appeals under these procedures. For this reason, and because these technical corrections are not substantive in nature, we find that undertaking notice and comment rulemaking to incorporate these corrections into the final rule is unnecessary and contrary to the public interest.

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

The A season allowance of 2007 Pacific cod sideboard limits apportioned to non-AFA crab vessels catching Pacific cod for processing by the inshore component in the Central Regulatory Area of the GOA is 422 metric tons (mt) for the GOA, as established by the 2006 and 2007 harvest specifications for groundfish of the GOA (71 FR 10870, March 3, 2006).

In accordance with § 680.22(e)(2)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the A season allowance of the 2007 Pacific cod sideboard limits apportioned to non-AFA crab vessels catching Pacific cod for processing by the inshore component in the Central Regulatory Area of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a sideboard directed fishing allowance for Pacific cod as 412 mt in the Gulf of Alaska. The remaining 10 mt in the Gulf of Alaska will be set aside as bycatch to support other anticipated groundfish fisheries. In accordance with § 680.22(e)(3), the Regional Administrator finds that this sideboard directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by non-AFA crab vessels catching Pacific cod for processing by the inshore component in the Central Regulatory Area of the GOA.

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

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the sideboard directed fishing closure of Pacific cod apportioned to non-AFA crab vessels catching Pacific cod for processing by the inshore component in the Central Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of January 22, 2007.

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

This action is required by § 680.22 and is exempt from review under Executive Order 12866.