We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an airworthiness directive (AD) that would apply to all Boeing Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747-400, 747-400D, 747-400F, and 747SR series airplanes. That NPRM was published in the Federal Register on May 23, 2008 (73 FR 30003) That NPRM proposed to require repetitive inspections for cracks or fractures of the forward end attachment and the forward lower flange of the flap tracks of the trailing edge flaps, and corrective actions if necessary. For certain airplanes, that NPRM would also require modifying the fail-safe links of the main carriage.

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

Boeing has reviewed the NPRM and concurs with the content of the proposed rule.

Northwest Airlines (NWA) asks that the repetitive inspection intervals for the Part 1 inspections, as required by paragraph (f) of the NPRM, be changed to specify intervals not to exceed 750 flight cycles after accomplishing the last inspection or within 750 flight cycles after the flap track overhaul, whichever occurs later. For Part 3 inspections, NWA asks that the repetitive inspection interval be changed to intervals not to exceed 1,500 flight cycles after accomplishing the last inspection or within 1,500 flight cycles after flap track overhaul, whichever occurs later. NWA adds that the reason for the request is that, as part of its procedure for removing the track for overhaul, the attaching fuse pin is removed and inspected and the defined support fitting is inspected for condition; any failure of the track would be detected during the track overhaul.

We do not agree with NWA's request to change the repetitive inspection interval. The structural analysis of the flap attach structural and fail-safe components supports the compliance time specified for the repetitive inspection interval. In developing an appropriate compliance time for this action, we considered the urgency associated with the subject unsafe condition and the practical aspect of accomplishing the required inspections within a period of time that corresponds to the normal scheduled maintenance for most affected operators. These maintenance schedules can vary greatly from operator to operator. In light of these items, we have determined that the repetitive inspection intervals specified in the service bulletin are appropriate. However, according to the provisions of paragraph (j) of this AD, we may approve requests to adjust the compliance time if the request includes data that prove that the new compliance time would provide an acceptable level of safety. We have not changed the AD in this regard.

NWA also asks that the FAA review the 750-flight-cycle repetitive inspection interval requirement, and if supported by new analysis, change it to 1,000 flight cycles. NWA states that a 1,000-flight-cycle interval would permit accomplishing the inspections in conjunction with scheduled airplane maintenance.

We do not agree with the request to change the interval for the repetitive inspections to 1,000 flight cycles. Previous analysis supports the current 750-flight-cycle interval, and no new analysis is currently available. However, as noted in the response to the previous comment, we will consider requests for approval of an AMOC if sufficient data are submitted that the new compliance time would provide an acceptable level of safety. We have not changed the AD in this regard.

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

We estimate that this AD affects 190 airplanes of U.S. registry. 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.

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

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

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

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

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

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

We issued a supplemental notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That supplemental NPRM was published in the Federal Register on June 17, 2008 (73 FR 34228). That supplemental NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

Airbus has issued Mandatory Service Bulletin A330-28-3082, Revision 05, including Appendix 1, dated May 27, 2008. We referred to Revision 04 of that service bulletin, dated August 3, 2007, as the appropriate source of service information for accomplishing certain actions specified in the supplemental NPRM. Revision 05 of the service bulletin was issued to delete information relating to the bonding of a bracket at Stringer 14 between Rib 1 and Rib 2, which is not applicable to the Model A330 airplanes affected by that service bulletin. Revision 05 also includes additional kits and other minor editorial changes. No additional work is required for airplanes modified in accordance with Revision 04.

We have changed Table 1 of this AD to include a reference to Revision 05, in addition to Revision 04, of Airbus Mandatory Service Bulletin A330-28-3082 for defining the applicability of certain paragraphs. We have also changed paragraphs (f)(2)(i) and (f)(2)(iii) of this AD to specify Revision 05 of the service bulletin as the appropriate source of service information for doing the actions in those paragraphs, and we have changed Table 2 of this AD to list Revision 04 of the service bulletin as acceptable for accomplishment of the actions before the effective date of this AD. Finally, we have changed Table 3 of this AD to include Revision 05 of the service bulletin in the list of related service information.

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

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

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

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

We estimate that this AD will affect 28 products of U.S. registry. We also estimate that it will take about 670 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $80 per work-hour. Required parts will cost about $2,718 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $1,576,904, or $56,318 per product.

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

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

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

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 September 23, 2008 (73 FR 54749). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

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

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

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

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

We estimate that this AD will affect about 159 products of U.S. registry. We also estimate that it will take about 38 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $80 per work-hour. Required parts will cost about $2,914 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $946,686, or $5,954 per product.

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

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

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

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an airworthiness directive (AD) that would apply to certain Boeing Model 757 airplanes. That NPRM was published in the Federal Register on November 9, 2007 (72 FR 63512). That NPRM proposed to require changing the wiring of the fuel boost pump and doing other specified actions.

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

Boeing asks that we refer to Boeing Special Attention Service Bulletins 757-28-0095 and 757-28-0096, both Revision 1, both dated June 4, 2008, in the final rule. Boeing Special Attention Service Bulletins 757-28-0095 and 757-28-0096, both dated June 18, 2007, were referred to in the NPRM as the appropriate sources of service information for accomplishing the actions specified.

We have reviewed Revision 1 of these referenced service bulletins and we agree with the commenter since no additional work is necessary on airplanes changed in accordance with the original issue of the referenced service information. Revision 1 of these service bulletins clarifies certain procedures and certain routing and splice locations. We have added Revision 1 of these service bulletins to the applicability specified in paragraphs (c)(1) and (c)(2) of this AD, and to paragraph (f) of this AD, as the appropriate sources of service information for accomplishing the actions specified. In addition, we have added credit to paragraph (f) for previously accomplishing the actions using the original issue of the service bulletins.

Boeing asks that the airplane manufacturer's name specified in the product identification section of the regulatory text of the NPRM be changed from “Airbus” to “Boeing.”

We agree that the airplane manufacturer's name should be changed, as this was an inadvertent error in the NPRM; we have changed the name in that paragraph of the AD accordingly.

Continental Airlines (CAL) refers to Figure 2 of Boeing Special Attention Service Bulletin 757-28-0095, dated June 18, 2007, and states that it would be easier and more appropriate when doing the wire modification to utilize one of the open holes in the panel instead of splicing the wires for this location. CAL adds that the splice locations for the left-hand aft and right-hand aft boost pumps, as shown in Boeing Special Attention Service Bulletins 757-28-0095 and 757-28-0096, both dated June 18, 2007, are incorrect and the splices cannot be accomplished in those areas. CAL recommends that these service bulletins be revised with the proper alternative rework instructions for the subject discrepancies.

We have reviewed the referenced service information and we do not agree that the splices cannot be accomplished in the locations referred to in the comment. In addition, we have determined that clarification of certain routing and splice locations is helpful, and that clarification is provided in Revision 1 of the referenced service bulletins, as noted previously. We infer that CAL is also asking us to allow alternative routing of the wiring to that specified in the referenced service bulletins. Under the provisions of paragraph (g) of this AD, we will consider requests for approval of an AMOC if sufficient data are submitted to substantiate that the alternative routing of the wiring would provide an acceptable level of safety. We have made no change to the AD in this regard.

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

There are 1,697 airplanes of the affected design in the worldwide fleet. This AD affects about 673 airplanes of U.S. registry. The required actions take up to 12 work hours per airplane, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the AD for U.S. operators is up to $646,080, or up to $960 per airplane.

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

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

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

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

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

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

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

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

Discussion

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Emergency Airworthiness Directive 2008-0191-E, dated October 20, 2008 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

Airbus has issued All Operator Telex A320-71A1045, dated October 17, 2008. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

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

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

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

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because of the possible failure of the rear engine mount on airplanes equipped with the incorrect barrel nuts, which could result in separation of the engine from the airplane and a consequent hazard to the airplane and persons and property on the ground. These incorrect rear engine mount barrel nuts may have been installed during maintenance on IAE Model V25xx-A5 series engines due to an error in the illustrated parts catalog. These incorrect barrel nuts cannot withstand the engine loads and must be replaced as soon as possible. Therefore, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in fewer than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2008-1274; Directorate Identifier 2008-NM-197-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

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

The repetitive ultrasonic inspection is intended to detect incipient cracking on the stiffeners of the right-hand and left-hand wing lower panels between ribs 13 and 17 (the inspection area extends to just beyond rib 16). The corrective actions if any cracking is found include contacting Dassault for repair instructions, and doing the repair. You may obtain further information by examining the MCAI in the AD docket.

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

Jim Sparks, a private citizen, requests that a more practical solution to this subject would be to change the interval of inspections for the “valve boxes.” He states that the reliability of the “valve boxes” has not been stellar. The commenter explains that Model Mystere-Falcon 50 airplanes have two independent wing fuel tank “valve boxes” that incorporate over-pressure relief valves coupled with a stand-alone wing tank pressure reducing/overpressure relief valve. The commenter states that because of the commonality in the system, both overpressure relief valves and the regulating valve would have to fail before any overpressure would occur. The commenter also states that the pressure relief valves, along with the entire system, do have manufacturer's recommended intervals for both operational and functional testing and that a more practical solution would be to require a change to the inspection interval for those “valve boxes.”

We disagree with the request to require a change to the repetitive inspection interval of the “valve boxes.” The purpose of this AD is to address the unsafe condition, which is possible damage to the wing structure due to over-pressurization. Therefore, we will be mandating only the inspections of the lower panel stiffeners. We are aware that the manufacturer has made changes to the design of the “valve boxes” and the inspection interval for them. We agree with the recommended changes from the manufacturer in modifying the design and inspection interval of the “valve boxes” and acknowledge that they could result in fewer overpressure occurrences leading to the unsafe condition of damage to the wing structure. However, the intent of this AD is to detect any cracking of the wing structure that might have a root cause in an overpressure event. We have not changed the AD in this regard.

Since we issued the NPRM, Dassault has issued Falcon 50/50EX Maintenance Manual, Maintenance Procedure 57-401, “Non-Destructive Check of the Wing Lower Panels Stiffeners Between Ribs 13 and 17 (ATA 57-00-21),” dated July 2008. (We referred to Temporary Revision 74, dated November 2007, to the Dassault Falcon 50/50EX Maintenance Manual, Maintenance Procedure 57-401, “Non-Destructive Check of the Wing Lower Panels Stiffeners Between Ribs 13 and 16 (ATA 57-00-21),” as the appropriate source of service information in the NPRM.) Maintenance Procedure 57-401, Revision July 2008, refers to “Between Ribs 13 and 17” rather than “Between Ribs 13 and 16.” The change to refer to Rib 17 and the corresponding change in certain sections of the maintenance procedure more accurately reflect the inspection area required by this AD and specified in the MCAI.

We have revised paragraph (f) of this AD to include two separate paragraphs. The new paragraph (f)(1) refers to Dassault Falcon 50/50EX Maintenance Manual, Maintenance Procedure 57-401, “Non-Destructive Check of the Wing Lower Panels Stiffeners Between Ribs 13 and 17 (ATA 57-00-21),” dated July 2008, as the appropriate source of service information for doing the actions required by this AD. The new paragraph (f)(2) gives credit to operators who accomplished the actions before the effective date of this AD in accordance with Dassault Temporary Revision 74, dated November 2007.

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

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

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

We estimate that this AD will affect 247 products of U.S. registry. We also estimate that it will take about 6 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $118,560, or $480 per product.

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

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

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

The Federal Civil Penalties Inflation Adjustment Act of 1990 (Pub. L. 101-410) provided for the regular evaluation of CMPs to ensure that they continued to maintain their deterrent value and that penalty amounts due to the Federal Government were properly accounted for and collected. On April 26, 1996, the Federal Civil Penalties Inflation Adjustment Act of 1990 was amended by the Debt Collection Improvement Act of 1996 (Pub. L. 104-134) to require each agency to issue regulations to adjust its CMPs for inflation at least every four years. The amendment further provided that any resulting increases in a CMP due to the inflation adjustment should apply only to the violations that occur subsequent to the date of the publication in the Federal Register of the increased amount of the CMP. The first inflation adjustment of any penalty shall not exceed ten percent of such penalty.

On October 24, 1996 and November 1, 2000, and again on December 14, 2004, the Department published in the Federal Register a schedule of CMP adjusted for inflation as required by law. By this publication, CMPs are again being adjusted for inflation as prescribed by law.

A civil monetary penalty is defined as any penalty, fine, or other sanction that:

1. Is for a specific monetary amount as provided by Federal law, or has a maximum amount provided for by Federal law; and,

2. Is assessed or enforced by an agency pursuant to Federal law; and,

3. Is assessed or enforced pursuant to an administrative proceeding or a civil action in the Federal courts.

This regulation adjusts the civil penalties that are established by law and assessed or enforced by the Department.

The actual penalty assessed for a particular violation is dependent upon a variety of factors. For example, The National Oceanic and Atmospheric Administration (NOAA) Civil Administrative Penalty Schedule (the Schedule), a compilation of internal guidelines that are used when assessing penalties for violations for most of the statutes NOAA enforces, will be interpreted in a manner consistent with this regulation to maintain the deterrent effect of the penalties recommended therein. The penalty ranges in the Schedule are intended to aid enforcement attorneys in determining the appropriate penalty to assess for a particular violation. Pursuant to the notice published in the Federal Register (59 FR 19160, April 22, 1994), the Schedule is maintained and made available for inspection by the public at specific locations.

The inflation adjustment was determined pursuant to the methodology prescribed by Public Law 101-410, which requires the maximum CMP, or the minimum and maximum CMP, as applicable, to be increased by the cost-of-living adjustment. The term “cost-of-living adjustment” was defined in Public Law 104-134 to mean the percentage for each CMP by which the Consumer Price Index (CPI) for June of the calendar year preceding the adjustment exceeds the CPI for the month of June of the calendar year in which the amount of such CMP was last set or adjusted pursuant to law. For the purpose of computing the inflation adjustments, the CPI for June of the calendar year preceding the adjustment means the CPI for June of 2007.

Public Law 101-410 requires each rounded increase to be added to the minimum or maximum penalty amount being adjusted, and the total is the amount of such penalty, as adjusted, subject to the ten percent limitation provided by Public Law 104-134 for the first adjustment.

It has been determined that this rule is not significant for purposes of Executive Order 12866.

The Department for good cause finds that notice and opportunity for comment is unnecessary for this rulemaking pursuant to 5 U.S.C. 553(b)(B). It is unnecessary to ask for notice and comment because the Debt Collection Improvement Act of 1996 (the Act) required the head of each agency to adjust its civil monetary penalties no later than October 23, 1996, and at least every four years thereafter, and the Federal Civil Monetary Penalty Inflation Adjustment Act of 1990, as amended by the Act, states how to calculate the inflation adjustments, making such adjustments wholly non-discretionary. This rule merely adjusts the Department's CMP according to the statutory requirements. For the same reasons, there exists good cause to waive the thirty day delay in effectiveness of the rule, pursuant to 5 U.S.C. 553(d)(3).

Because notice and opportunity for comment are not required by 5 U.S.C. 553, or any other law, a Regulatory Flexibility Analysis is not required and none was prepared. This rule does not contain information collection requirements for purposes of the Paperwork Reduction Act.

Ivy Laboratories, Division of Ivy Animal Health, Inc., 8857 Bond St., Overland Park, KS 66214, filed a supplement to ANADA 200-424 that provides for use of OPTAFLEXX (ractopamine hydrochloride), HEIFERMAX 500 (melengestrol acetate), and RUMENSIN (monensin), and TYLAN (tylosin phosphate) Type A medicated articles to make dry and liquid four-way combination Type C medicated feeds used for increased rate of weight gain, improved feed efficiency, and increased carcass leanness; for prevention and control of coccidiosis due to Eimeria bovis and E. zuernii ; for suppression of estrus (heat); and for reduction of incidence of liver abscesses caused by Fusobacterium necrophorum and Arcanobacterium (Actinomyces) pyogenes in heifers fed in confinement for slaughter during the last 28 to 42 days on feed. The supplemental NADA provides for an increased level of monensin in four-way combination Type C medicated feeds containing ractopamine, melengestrol, monensin, and tylosin for heifers fed in confinement for slaughter; and a revision to bacterial pathogen nomenclature. The supplemental NADA is approved as of November 13, 2008, and the regulations in 21 CFR 558.500 are amended to reflect the approval.

In accordance with the freedom of information provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.

The agency has determined under 21 CFR 25.33(a)(2) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

The McKinney-Vento Homeless Assistance Act (42 U.S.C. 11381-11389) (McKinney-Vento Act), first enacted in 1987, was the first major, coordinated federal legislative response to homelessness. The McKinney-Vento Act authorizes funds for several federal homeless assistance programs, including four administered by HUD: Emergency Shelter Grants (ESG), Section 8 Moderate Rehabilitation for Single Room Occupancy Dwellings for Homeless Individuals (SRO), Shelter Plus Care (S+C), and the Supportive Housing Program (SHP). Under these programs, HUD awards grants for the purposes of providing housing and services to homeless persons.

For three of the four programs (ESG, S+C, and SHP), the McKinney-Vento Act imposes a requirement to match certain amounts provided through the McKinney-Vento grants with an equal amount of funds. For the ESG and S+C programs, the match requirement addressed by this final rule applies to all grant funds, while under SHP, the match requirement addressed by this final rule applies only to grant funds provided for acquisition, rehabilitation, and construction. Each of these matching requirements mandates that the funds may come from any source other than the statutory source (that is, the subtitle) authorizing each program. The applicable statutory match provisions for each of these programs state that each recipient that is provided a grant under the applicable McKinney-Vento Act subtitle (that authorizes funds for ESG, S+C, or SHP) shall be required to supplement the assistance provided under this subtitle with an amount of funds from sources “other than this subtitle.” The applicable statutory provisions for ESG, SHP, and S+C are codified at 42 U.S.C. 11375(a)(1), 42 U.S.C. 11386(e), and 42 U.S.C. 11403b(a)(1), respectively. This final rule does not apply to resources that a recipient or grantee is required to provide in accordance with other provisions, such as annual appropriations act provisions regarding supportive services, Notice of Funding Availability provisions regarding homeless management information systems, and statutory and regulatory provisions regarding portions of operating costs and other costs not funded by HUD.

Although the statutory language does not explicitly state that funds may come from federal sources, HUD's longstanding interpretation has been that by excluding as an eligible match only those funds authorized for the specific program (that is, an S+C grant cannot be used as a match for another S+C grant), “sources other than this subtitle” has meant any other source, including federal sources, and HUD has accepted other federal funds as a match. HUD's longstanding interpretation was recently confirmed in the Conference Report (House Committee on Appropriations on H.R. 2764, Public Law 110-161, Books 1 and 2) accompanying the Consolidated Appropriations Act, 2008 (Pub. L. 110-161, approved December 26, 2007). The House Committee on Appropriations stated as follows:

The applicable McKinney-Vento provisions require the recipient to assure compliance with the match requirement. The ESG and S+C programs further require the recipients of funds under these programs to certify compliance with the match requirement, which includes describing the amount of the funds and the source of the funds. (See 42 U.S.C. 11375(a)(1) and 42 U.S.C. 11403b(a)(1).)

Because questions about the scope of the matching requirement arise from time to time, HUD has determined to amend the regulations for the three programs to codify the broad scope of sources from which funds may be used to meet the matching requirement. Additionally, HUD is codifying that, in accordance with the applicable McKinney-Vento statutory provisions, it is the recipient's responsibility to ensure that the matching funds are eligible to be used to satisfy HUD's match requirements.

This final rule does not direct, provide for assistance or loan and mortgage insurance for, or otherwise govern or regulate real property acquisition, disposition, leasing, rehabilitation, alteration, demolition, or new construction; or establish, revise, or provide for standards for construction or construction materials, manufactured housing, or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this rule is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ).

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. This rule is issued as a final rule because it is simply conforming program regulations to certain statutory requirements. No discretion or interpretation is being exercised in the codification of these requirements. Therefore, this rule would not have a significant impact on entities. Accordingly, the undersigned certifies that this rule will not have a significant economic impact on a substantial number of small entities.

Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial direct compliance costs on state and local governments and is not required by statute, or the rule preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. This rule would not have federalism implications and would not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive Order.

Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) (UMRA) establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments, and on the private sector. This final rule will not impose any federal mandates on any state, local, or tribal governments, or on the private sector, within the meaning of UMRA.

The Catalog of Federal Domestic Assistance (CFDA) program numbers are 14.231, 14.235, and 14.238.

The final and temporary regulations that are the subject of this document are under section 6050P of the Internal Revenue Code.

As published, final and temporary regulations (TD 9430) contains an error that may prove to be misleading and is in need of clarification.

Accordingly, the publication of the final and temporary regulations (TD 9430), which was the subject of FR Doc. E8-26676, is corrected as follows:

On page 66540, column 1, in the preamble, under the paragraph heading “Reasons for Change”, first paragraph of the column, line 14, the language “Treasury Department and IRS is” is corrected to read “Treasury Department and IRS are”.

The final and temporary regulations that are the subject of this document are under section 6050P of the Internal Revenue Code.

As published, final and temporary regulations (TD 9430) contains an error that may prove to be misleading and is in need of clarification.

Public Law 109-177, the USA PATRIOT Improvement and Reauthorization Act of 2005 (“the Act”), was signed into law on March 9, 2006. Section 507 of that Act amends chapter 154 of title 28 of the United States Code. Chapter 154 offers procedural benefits in federal habeas corpus review to states that go beyond the constitutional requirement of appointing counsel for indigents at trial and on appeal by providing counsel also to capital defendants in state postconviction proceedings. The chapter 154 procedures include special provisions relating to stays of execution (28 U.S.C. 2262), the time for filing federal habeas corpus applications (28 U.S.C. 2263), the scope of federal habeas corpus review (28 U.S.C. 2264), and time limits for federal district courts and courts of appeals to determine habeas corpus applications and related appeals (28 U.S.C. 2266). See 152 Cong. Rec. S1620, 1624-28 (daily ed. Mar. 2, 2006) (remarks of Sen. Kyl) (explanation of procedural benefits to states under chapter 154); 141 Cong. Rec. 9303-06 (Mar. 24, 1995) (remarks of Sen. Specter) (explaining the historical problem of capital habeas delay motivating the enactment of habeas reforms).

Although chapter 154 has been in place since the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. 104-132), the determination that a state was eligible for the procedural benefits of chapter 154 had been left to the federal court of appeals for the circuit in which the state was located. The Act amended sections 2261(b) and 2265 of title 28 to assign responsibility for chapter 154 certification to the Attorney General of the United States, subject to review by the Court of Appeals for the District of Columbia Circuit. Section 2265 as amended makes clear that the only requirements that the Attorney General may impose for a state to receive certification are those expressly stated in chapter 154. See 28 U.S.C. 2265(a)(3) (“There are no requirements for certification or for application of this chapter other than those expressly stated in this chapter.”). It also provides that the date on which a state established the mechanism that qualifies it for certification is the effective date of the certification. See 28 U.S.C. 2265(a)(2).

In addition to the changes affecting certification, the Act amends section 2261(d) to permit the same counsel that has represented a prisoner on direct appeal to represent the prisoner in postconviction proceedings without limitation, and it amends section 2266(b)(1)(A) to extend the time for a district court to rule on a chapter 154 petition from 180 days to 450 days.

Section 2265(b) directs the Attorney General to promulgate regulations to implement the certification procedure. The Department of Justice published a proposed rule in the Federal Register on June 6, 2007, for this purpose, which would add a new subpart entitled “Certification Process for State Capital Counsel Systems” to 28 CFR part 26. See 72 FR 31217 (June 6, 2007). The original comment period ended on August 6, 2007. The Department published a notice reopening the comment period on August 9, 2007, and the reopened comment period ended on September 24, 2007. See 72 FR 44816 (Aug. 9, 2007).

A summary of the comments received on the proposed rule follows, including discussion of changes in the final rule based on the comments received, after which a section-by-section analysis for the final rule is provided.

Comments on the proposed rule were received from members of the public, professional groups of lawyers and judges, lawyers representing capital defendants, and advocacy groups. More than 32,000 separate comments were received, although the vast majority appeared to be a form e-mail message. Nevertheless, each comment was individually reviewed by the Department to ensure that all public input on the proposed rule was considered.

The Department made the following changes to the proposed rule based on the comments: (1) Modifying the definition of “State postconviction proceedings” in § 26.21 to clarify the range of covered proceedings; (2) modifying the initial sentences in § 26.22(b) and (c) to be more explicit about the scope of the chapter 154 requirements; (3) modifying § 26.23(b)(2) to reflect that in some states the highest court with jurisdiction over criminal matters is not the state supreme court; (4) adding an explicit statement in § 26.23(d) that the Attorney General will determine the date on which a qualifying state capital counsel mechanism was established, as required by 28 U.S.C. 2265(a)(1)(B); (5) modifying § 26.23(e), relating to the effect of changes in a state's capital counsel mechanism; and (6) correcting a citation error in the regulatory certification in the rule relating to federalism, which referenced Executive Order 12612 instead of Executive Order 13132. The details of these changes and the reasons they were made are discussed below in connection with the comments that suggested them.

Some of the commenters requested that additional time be provided for comment. This was done by publication of the notice reopening the comment period, appearing at 72 FR 44816 (Aug. 9, 2007).

Most of the critical comments received on the proposed rule reflected misunderstandings of the nature of the functions that chapter 154 requires the Attorney General to perform, and particularly, of the limited legal discretion that the Attorney General possesses under the statutory provisions. Chapter 154 provides expedited federal habeas corpus procedures in capital cases for states that establish a mechanism for providing counsel to indigent capital defendants in state postconviction proceedings that satisfies certain statutory requirements. The 2006 amendments to chapter 154 give the Attorney General the responsibility to determine whether a states satisfies the requirements of chapter 154, subject to de novo review by the Court of Appeals for the District of Columbia Circuit. See 28 U.S.C. 2261(b), 2265. Section 2265 as amended makes clear that the only requirements that may be imposed for a state to receive certification are those expressly stated in chapter 154. See 28 U.S.C. 2265(a)(3) (“There are no requirements for certification or for application of this chapter other than those expressly stated in this chapter.”).

Because of this limitation, there is relatively little that the Attorney General has had to determine—or is free to determine—in the formulation of the rule. Hence, the rule in large measure simply recounts and provides illustration relating to the express statutory requirements for certification, addresses some limited interpretive questions, and outlines a procedure for states' requests for certification. The many ideas proposed in the comments for limiting chapter 154 certification to states that satisfy capital counsel standards that are not expressly stated in chapter 154 cannot be incorporated into the rule, because to do so would conflict with the statutory provision that there are no certification requirements beyond those that chapter 154 expressly states.

With this background, specific comments are discussed under the following headings:

Some commenters argued that the Attorney General would have a conflict of interest in carrying out the certification function for state capital counsel mechanisms required by chapter 154. A comment from three U.S. Senators, for example, stated that the proposed rule would permit the “potential structural bias” of the Attorney General in favor of certification to override the requirements of the law.

In other comments, an argument appeared that the discharge of these functions by the Attorney General would contravene Rule 1.7(a)(2) of the American Bar Association (ABA) Model Rules of Professional Conduct and comparable rules adopted by most state supreme courts. In relevant part, the cited rule provides that “a lawyer shall not represent a client if * * * there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.” (28 U.S.C. 530B provides that federal government attorneys are subject to state laws and rules and local federal court rules governing attorneys in the states where they engage in their duties to the same extent as other attorneys in those states.) For the most part, the commenters who made this argument seemed to be urging that the Attorney General should not carry out the functions required by chapter 154 at all, in order to avoid the alleged conflict of interest.

As to the specific nature of the alleged conflict of interest, the commenters' argument proceeded along the following lines: (1) The Attorney General may be asked to impose exacting requirements on the states—relating to such matters as provision of “competent” counsel and payment of “reasonable litigation expenses” in state postconviction proceedings in capital cases—as conditions for chapter 154 certification; (2) whatever requirements the Attorney General adopts under these headings in the context of chapter 154 may be cited as analogical or persuasive precedent for the judicial interpretation of the concept of constitutionally effective assistance in federal criminal proceedings in which there is a constitutional right to counsel; (3) hence, if the Attorney General adopts expansive requirements relating to state capital counsel under chapter 154, courts may interpret more expansively the requirements for constitutionally effective assistance of counsel in federal criminal proceedings; (4) such expansive interpretations of the requirements for constitutionally effective assistance of counsel in federal criminal proceedings would work against prosecutorial interests for which the Attorney General is responsible, as setting the bar higher for constitutionally effective assistance makes it more likely that the performance of defense counsel will be found to be constitutionally deficient, resulting in the overturning of criminal judgments that federal prosecutors have secured; (5) because of this potential spillover effect, the Attorney General has a conflict of interest in carrying out the chapter 154 functions.

Addressing these comments requires explanation of the purpose of the amendments to chapter 154 that were enacted in 2006. According to their legislative history, the 2006 amendments were enacted by Congress in order to address a perceived existing conflict of interest. As originally enacted in 1996, chapter 154 did not state who would decide whether a state had satisfied its requirements. As a practical matter, this left the question to the various federal district courts and courts of appeals, as the issue arose in the litigation of capital cases. None of these courts found that the chapter 154 procedures were applicable in any case. Congress believed that a conflict of interest contributed to this result, in that the district and appellate courts would be subject to uncongenial requirements under chapter 154 if it were found to apply, including time limits on their review proceedings. See 152 Cong. Rec. S1620,1624-25 (daily ed. Mar. 2, 2006) (remarks of Sen. Kyl, sponsor of the 2006 amendments to chapter 154) (“[T]he 1996 * * * reforms * * * left the decision of whether a State qualified for the incentive to the same courts that were impacted by the time limits. This has proved to be a mistake. Chapter 154 has received an extremely cramped interpretation, denying the benefits of qualification to States that do provide qualified counsel and eliminating the incentive for other States to provide counsel * * * [T]his bill * * * removes the qualification decision to a neutral forum.”); 151 Cong. Rec. E2640 (daily ed. Dec. 22, 2005) (extension of remarks of Rep. Flake) (similar explanation by House sponsor).

The 2006 amendments sought to resolve this problem by assigning the decision concerning a state's satisfaction of the chapter 154 requirements to an official and a court that would have no comparable disincentive to certify compliance with the requirements. The Attorney General now makes this determination, subject to de novo review by the DC Circuit Court of Appeals. 28 U.S.C. 2265. The DC Circuit has no review jurisdiction over state capital cases and thus would not be affected by the application of the chapter 154 procedures in federal habeas corpus review of such cases. See 152 Cong. Rec. S1625 (daily ed. Mar. 2, 2006) (remarks of Sen. Kyl) (“Under new section 2265, the Attorney General of the United States will decide if a State has established a qualifying mechanism, and that decision will be reviewed by the DC Circuit, the only Federal circuit that does not handle State-prisoner habeas cases and therefore is not impacted by the qualification decision.”); 151 Cong. Rec. E2640 (daily ed. Dec. 22, 2005) (extension of remarks of Rep. Flake) (similar explanation).

Against this background, the critical comments noted above essentially are complaining that, in seeking to correct one conflict of interest, Congress has created another. Even if this contention were valid, it could not support the suggestion that the Attorney General abrogate his certification responsibilities under chapter 154. Chapter 154 does not merely authorize or invite the Attorney General to carry out these functions, as some commenters apparently assumed; it requires him to do so. See 28 U.S.C. 2265(a)(1) (“If requested by an appropriate State official, the Attorney General of the United States shall determine” whether the state has established a qualifying capital counsel mechanism); Id . at 2265(b) (“The Attorney General shall promulgate regulations to implement the certification procedure under subsection (a).”).

Alternatively, some commenters suggested that the Attorney General avoid the alleged conflict of interest by eschewing personal involvement in carrying out the chapter 154 functions and delegating them entirely to the Justice Department's Inspector General, who supposedly would be free of the alleged conflict. The rule has not been changed on this point because the underlying claim of a conflict of interest is not well-founded.

As noted, some commenters claimed that the Attorney General's involvement in the chapter 154 certification functions would violate ABA Model Rule 1.7 (and comparable state rules) that bar a lawyer from representing a client if there is a significant risk that the representation will be materially limited by the lawyer's responsibilities to another client, a former client, or a third person, or by a personal interest of the lawyer. In carrying out the chapter 154 certification function with which he is charged by the laws of the United States, the Attorney General's client is the United States. Hence, the question is whether the Attorney General's representation of the United States would be materially limited by the competing interests identified in the rule—responsibility to another client, a former client, or a third person, or a personal interest.

This question must be answered in the negative. The Attorney General has no responsibilities to any other client that would materially limit the discharge of the chapter 154 certification function. The Attorney General's only relevant current client is the United States, which has expressly directed the discharge of that function by law. There is also no reason to believe that the Attorney General has any responsibility to a “former client” or “third person,” or any “personal interest,” that would materially impair his representation of the United States in the discharge of that function. The Attorney General has a professional obligation to abide by the “client's decisions concerning the objectives of representation,” ABA Model Rule 1.2(a), and it is difficult to conceive how the Attorney General could have such a disqualifying conflict in representing the United States when it is the United States that has mandated through its laws that he carry out the chapter 154 certification function.

As noted above, some commenters argued further that there is a conflict between the Attorney General's prosecutorial responsibilities and his responsibilities under chapter 154, such as determining what constitutes “competent counsel” for purposes of the chapter. This argument misunderstands the nature of the Attorney General's functions under chapter 154. Chapter 154 does not involve the Attorney General in assessing or setting standards for the performance of defense counsel in state postconviction proceedings. Rather, the Attorney General's role is limited to determining whether the state has established a mechanism for providing representation to indigent capital defendants in state postconviction proceedings, and whether that mechanism satisfies certain criteria set out in chapter 154. See 28 U.S.C. 2261(b)(1), 2265. Moreover, the Attorney General has no discretion in defining the requirements that states must satisfy to achieve chapter 154 certification. Chapter 154 specifies those requirements and provides that “[t]here are no requirements for certification or for application of this chapter other than those expressly stated in this chapter.” 28 U.S.C. 2265(a)(3).

The suggestion that the Attorney General delegate his functions under chapter 154 to the Department's Inspector General bears further discussion. This suggestion is apparently inspired by the assignment of certain functions to the Inspector General in a different set of capital counsel provisions that Congress enacted in 2004 as part of the Innocence Protection Act, Public Law 108-405, tit. IV, 118 Stat. 2278 (2004). The Innocence Protection Act authorized a grant program, to be administered by the Attorney General, to assist states in implementing certain federally prescribed capital counsel standards. Id . sections 421-26, codified at 42 U.S.C. 14163-63e.

The capital counsel provisions of the Innocence Protection Act differ from chapter 154 in that they provide for an ongoing federal oversight role with respect to state implementation of the capital counsel standards set forth in that Act. In connection with that oversight function, the Innocence Protection Act charges the Inspector General with evaluating whether the federal standards are being met in states that receive funding under the program. 42 U.S.C. 14163d(a). However, even in that context, the role contemplated for the Inspector General is only advisory. The ultimate determination concerning state compliance with the capital counsel standards, and concerning any remedial measures needed to achieve such compliance, is reserved to the Attorney General. Id . at 14163d(b)(2) (“If the Attorney General, after reviewing a[n Inspector General] report * * * determines that a State is not in compliance with the terms and conditions of the grant, the Attorney General shall consult with the appropriate State authorities to enter into a plan for corrective action. If the State does not agree to a plan for corrective action that has been approved by the Attorney General within 90 days * * * the Attorney General shall * * * issue guidance to the State regarding corrective action to bring the State into compliance.”)

Hence, the Innocence Protection Act, like chapter 154, is inconsistent with these commenters' theory that the Attorney General has an inherent conflict of interest in determining whether state capital counsel systems meet federal statutory standards.

Section 2265(a)(1) in chapter 154 requires the Attorney General to determine state compliance with the chapter 154 requirements “[i]f requested by an appropriate State official.” Section 26.21 in the rule says that “ [a]ppropriate State official means the State Attorney General, except that, in a state in which the State Attorney General does not have responsibility for Federal habeas corpus litigation, it means the Chief Executive thereof.”

Some commenters objected that the state attorney general is not an appropriate official to request chapter 154 certification, and that responsibility for doing so should instead be assigned to some “neutral” official, or alternatively that it should be left to “the state” to decide what official may apply for certification. These commenters argued that the state attorney general should be disqualified from seeking chapter 154 certification because of a conflict of interest. The alleged conflict of interest would arise from the potential benefits to the state attorney general in capital cases if the chapter 154 procedures for federal habeas corpus review are made applicable in such cases.

The matter needs to be analyzed in terms of the dual objectives of chapter 154: improving the representation of capital defendants in state postconviction proceedings, and reducing unnecessarily protracted proceedings in federal habeas corpus review of state capital cases. With respect to the latter objective, the state attorney general's responsibility for defending state capital judgments and securing their execution without unnecessary delay may well be a positive incentive to seek chapter 154 certification. Hence, in relation to this legislative objective, the capital litigation responsibilities of state attorneys general are not disqualifying biases or conflicts, but rather a positive characteristic that makes these officials suitable to seek realization of the legislative objective by pursuing chapter 154 certification for their states. In contrast, reassigning responsibility for seeking chapter 154 certification to a “neutral” official could thwart realization of the legislative objective by giving that responsibility to someone who has less motivation or, indeed, no motivation, to do so.

With respect to the other legislative objective—improving capital case representation at the postconviction stage—the commenters argue that the state attorney general's interests may lead him to make unsound judgments whether the state has satisfied the capital counsel requirements of chapter 154. However, the state attorney general under the statutes and the rule is an applicant for certification, not the decisionmaker concerning the state's compliance with the chapter 154 standards. The U.S. Attorney General will make an independent determination of that question after considering the state attorney general's submission, as well as any supporting or contrary information or views that any interested entity chooses to submit through the public comment procedure provided in § 26.23(c)-(d). Hence, the objection concerning bias or conflict of interest on this point is without force as well.

Prior to the 2006 amendments, federal courts determined whether a state had satisfied the chapter 154 requirements in the course of adjudicating habeas corpus petitions brought by capital convicts from that state. Hence, in a state in which the state attorney general has responsibility for federal habeas corpus litigation in capital cases, the state attorney general was able to seek a determination that the state had satisfied the chapter 154 requirements as part of his or her litigation functions. There is no basis for interpreting the 2006 amendments as having divested state attorneys general of this authority. Doing so would thwart the objectives of the 2006 amendments by disabling the officials with the greatest incentive and capacity to seek chapter 154 certification in most states.

A further consideration is that the Attorney General's determination whether a state has satisfied the chapter 154 capital counsel requirements is not necessarily final. A state could seek de novo review of the Attorney General's determination by the DC Circuit Court of Appeals. 28 U.S.C. 2265(c). Seeking such review would commonly be within the litigation authority of the state attorney general, regardless of which official had sought the initial determination from the U.S. Attorney General. It would be odd to deem the state attorney general an “[in]appropriate” official to seek a determination concerning satisfaction of the chapter 154 requirements from the Attorney General in the first instance, where the statutes interpose no obstacle to state attorneys general seeking the same determination from the DC Circuit at a later stage.

Some commenters who sought to disqualify state attorneys general from seeking chapter 154 certification urged in the alternative that “the state” should decide which official may seek such certification. However, how “the state” makes such a decision requires further definition or explanation. Of course, many states deal with the Federal Government concerning satisfaction of federal law requirements through their attorneys general, but these commenters would reject that approach in this context. Alternatively, the suggestion may be that a state should not be permitted to seek chapter 154 certification unless it enacts legislation authorizing a particular official to seek the certification. Chapter 154, however, does not state that a legislative act by the state is a precondition for seeking chapter 154 certification. A further concern is that uncertainty whether “the state” has authorized a particular official to seek chapter 154 certification could lead to challenges to certification requests by such an official, or could deter officials from seeking certification, even if there were no question that the state had established a capital counsel mechanism satisfying chapter 154. Not specifying which state officials may apply for chapter 154 certification would thus create new impediments for the states in seeking such certification. For the foregoing reasons, the relevant definition in § 26.21 has not been changed in the final rule.

Some commenters noted that the first sentence in § 26.22(b) did not expressly limit to capital cases the requirement that a state establish a mechanism for compensation of appointed counsel in state postconviction proceedings. While this limitation is clear from chapter 154 and from numerous statements in the proposed rule (including the examples in § 26.22(b)), these commenters are correct that the limitation was not set forth in the first sentence of § 26.22(b). The omission has been corrected in the final rule. Similarly, commenters noted that the first sentence in § 26.22(c) in the proposed rule did not expressly limit to postconviction proceedings in capital cases the requirement that the state establish a mechanism for the payment of reasonable litigation expenses. That omission has also been corrected in the final rule.

Comments of a more substantive nature on the requirements for certification were as follows:

Some commenters urged that the rule be revised to provide further specification concerning the “standards of competency,” “competent counsel,” “compensation” of appointed counsel, and “reasonable litigation expenses” that a state's postconviction capital counsel system must provide to qualify for chapter 154 certification.

For example, three U.S. Senators submitted comments stating that the proposed rule failed to provide adequate guidance to states about meeting the requirements of chapter 154. These Senators argued that the proposed rule conflicted with a legislative intent to ensure competent counsel for state capital convicts in exchange for expedited federal habeas corpus review. They cited in support certain statements by the sponsors of the 2006 amendments that they viewed as implying that the rule must require states to provide “adequate” or “quality” counsel for such convicts. According to these Senators, the rule should specify what would constitute adequate counsel and ensure that the states provide such counsel.

Similarly, the Judicial Conference of the United States in its comments urged elaboration or supplementation of the statutory requirements, to make clear what states must do for certification and to ensure that capital defendants receive adequate representation in state postconviction proceedings. The comments pointed in this connection to a resolution appearing in the Report of the Proceedings of the Judicial Conference of the United States (Mar. 13, 1990, pp. 8-9). In that resolution, the Judicial Conference endorsed the recommendations in the 1989 Report of the Ad Hoc Committee on Federal Habeas Corpus in Capital Cases (commonly known as the “Powell Committee” report, see 135 Cong. Rec. 24694-98 (Oct. 16, 1989)), with the modification that “[s]pecific mandatory standards similar to those set forth in the Anti-Drug Abuse Act of 1988 [Pub. L. 100-690, tit. VII, subtit. A, 102 Stat. 4181, 4393-94 (Nov. 18, 1988), now codified at 18 U.S.C. 3599] should be required with respect to the appointment and compensation of counsel for capital defendants at all stages of the state and federal capital punishment litigation.” The capital counsel standards set forth in 18 U.S.C. 3599 generally require appointment for indigents of capital counsel having five years of bar admission and three years of felony litigation experience; compensation of such counsel at an hourly rate of not more than $125, but with authority for the Judicial Conference to increase the limit to reflect adjustments in general federal pay rates; and defrayal of reasonably necessary investigative, expert, or other services not exceeding $7,500, but with authority for the court to authorize higher amounts for services of an unusual character or duration with the approval of the chief judge or delegee.

These recommendations have not been adopted in the final rule because they misunderstand the Attorney General's authority under chapter 154. The commenters are correct that the text of chapter 154 needs to be supplemented in defining competency standards for postconviction capital counsel, but mistaken as to who must effect that supplementation. Responsibility to set competency standards for postconviction capital counsel is assigned to the states that seek certification. 28 U.S.C. 2265(a)(1)(C) (Attorney General to determine “whether the State provides standards of competency for the appointment of counsel in proceedings described in subparagraph (A) [ i.e. , capital postconviction proceedings]”).

There is one other reference to counsel competency in 28 U.S.C. 2265(a)(1)(A), which says that the Attorney General is to determine “whether the State has established a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in State postconviction proceedings brought by indigent prisoners who have been sentenced to death.” (Emphasis added.) In context, the phrase “competent counsel” in section 2265(a)(1)(A) must be understood as a reference to the standards of counsel competency that the states are required to adopt by section 2265(a)(1)(C). Section 2265(a)(1)(A) requires the state to establish a mechanism for the appointment of postconviction capital counsel who meet the standards of competency provided by the state. If the reference to “competent counsel” in section 2265(a)(1)(A) were a directive to the Attorney General to set independently the counsel competency standards that states must meet for chapter 154 certification, then the section 2265(a)(1)(C) requirement that the states provide such standards would be superfluous, and section 2265 would be internally inconsistent as to the assignment of responsibility for setting counsel competency standards.

As the Judicial Conference noted in its comments, its March 1990 Report rejected an aspect of the Powell Committee's original proposal by urging that states be required to satisfy federally prescribed standards of counsel competency. But Congress did not accept the Conference's recommendation on this point, instead making the states responsible to provide the standards of competency. See 28 U.S.C. 2265(a)(1)(C). The Attorney General has no authority to overrule Congress and prescribe standards that others unsuccessfully urged Congress to impose.

With respect to compensation of counsel, various commenters urged that the rule be more prescriptive regarding the amount of required compensation, to ensure that state postconviction capital counsel are “reasonably” or “adequately” compensated or receive “fair” compensation. Again, such comments urge the regulatory adoption of measures that Congress declined to include in chapter 154. In contrast to the immediately succeeding phrase concerning litigation expenses in section 2265(a)(1)(A), which requires a mechanism for payment of “reasonable” litigation expenses, the language relating to “compensation” in the same provision comes with no qualifier. The statute requires only that the state have a mechanism for the “compensation” of postconviction capital counsel, leaving determination of the level of compensation to the states. Again, the Attorney General is prohibited from supplanting the states' discretion in this area, because “[t]here are no requirements for certification or for application of this chapter other than those expressly stated in this chapter.” 28 U.S.C. 2265(a)(3).

Finally, with respect to litigation expenses, the statute requires only that the state establish a mechanism for payment of reasonable litigation expenses. 28 U.S.C. 2265(a)(1)(A). There is no basis for prescribing more specific requirements in the rule. For example, if a state statute or rule that applies to capital postconviction proceedings simply directs courts to reimburse counsel for reasonable litigation expenses, it would satisfy the requirement under chapter 154. See § 26.22(c), Ex. 1. Such a state provision would state the requirement in the same terms as chapter 154 itself, and there would be no basis for saying that the state had not satisfied the requirements “expressly stated” in the chapter with respect to payment of litigation expenses. 28 U.S.C. 2265(a)(1)(A), (3).

The foregoing should not be understood as disapproving of the more specific requirements that Congress has adopted for federal court proceedings in 18 U.S.C. 3599. Those requirements represent one approach to ensuring that defendants will be adequately represented, and states may look to them as a possible model for capital counsel standards in their own systems. The rule gives examples of measures that would qualify for chapter 154 certification that are similar to the standards of 18 U.S.C. 3599. See § 26.22(b), Ex. 1; § 26.22(c), Ex. 2; § 26.22(d), Ex.1. But these are not the only standards consistent with the statutory requirements for certification, and chapter 154 does not allow the Attorney General to supplant the states' discretion in further specifying such standards.

The comments that urged further specification of the requirements for certification in the rule pointed to various possible models. As noted above, some cited the capital counsel requirements for federal proceedings that appear in 18 U.S.C. 3599. Others recommended incorporating specifications governing the design and operation of state capital counsel systems based on the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases. Where comments of this type acknowledged the existence of 28 U.S.C. 2265(a)(3) (“[t]here are no requirements for certification or for application of this chapter other than those expressly stated in this chapter”), they argued that it did not make any difference, on the ground that all of the proposed additions to the express statutory requirements can be regarded as mere definitions of terms appearing in the statute, such as those relating to standards of competency or payment of counsel for services or expenses. This theory may be most conveniently discussed in relation to particular key terms: “Competent counsel,” “compensation,” and “reasonable litigation expenses.”

This term has already been discussed. It is correct that there is a need for additional articulation of counsel competency standards, but those standards are to be decided by the states. See 28 U.S.C. 2265(a)(1)(C). It makes no difference for this purpose whether the standards in question are characterized as supplementation or as definition of the term “competent counsel.” Regardless of labeling, the responsibility for further articulation of the counsel competency standards is assigned to the states, not to the Attorney General.

Some comments argued specifically that “competent counsel” must be defined in the rule to include timing requirements for appointment of postconviction capital counsel, citing Spears v. Stewart , 283 F.3d 992, 1019 (9th Cir. 2002). However, the 2006 amendments were enacted to overcome decisions like Spears and ensure that there would be no future impediments to the implementation of chapter 154 through the creation of extra-statutory requirements for certification: “In Spears v. Stewart , 283 F.3d 992 * * * the Ninth Circuit held that even though Arizona had established a qualifying system and even though the State court had appointed counsel under that system, the Federal Court could still deny the State the benefit of qualification because of a delay in appointing counsel * * *. [T]his bill abrogates * * * th[is] holding and removes the qualification decision to a neutral forum * * *. Paragraph (a)(3) of new section 2265 forbids creation of additional requirements not expressly stated in the chapter, as was done in the Spears case.” 152 Cong. Rec. S1625 (daily ed. Mar. 2, 2006) (remarks of Senator Kyl); see 151 Cong. Rec. E2639-40 (daily ed. Dec. 22, 2005) (extension of remarks of Rep. Flake) (critique of Spears ).

As discussed above, Chapter 154 simply requires that states provide “compensation” for postconviction capital counsel. The term “compensation” is not ambiguous and does not need further definition in the rule. Prescribing minimum amounts of compensation to ensure “adequate” or “reasonable” compensation, as some commenters have proposed, would not define any term in the statutes, but rather would add to the statutory requirements for certification, which 28 U.S.C. 2265(a)(3) does not allow.

Likewise, there is no need for further definition in the rule to resolve ambiguity in the meaning of “reasonable litigation expenses,” or in any other term in the statutes that might be seized as a peg on which to hang additional federal prescriptions. As discussed above, a state could, for example, formulate its capital counsel provisions in essentially the same terms as chapter 154 itself. If a state did so, it would have provided for all that chapter 154 requires, and there would be no basis for denying certification.

The capital counsel requirements in chapter 154 reflect Congress's judgment as to the proper balance in realizing the chapter's objectives, neither setting the bar too low to benefit indigent capital defendants in state postconviction proceedings, nor so high as to deter states from attempting to satisfy these requirements and seek certification. Prior to the 2006 amendments, the federal courts upset this balance, as Congress perceived the matter, by adding to the statutory requirements and refusing to find chapter 154 applicable in any case. Congress therefore transferred responsibility for chapter 154 certification to the Attorney General and the DC Circuit Court of Appeals and specified that “[t]here are no requirements for certification or for application of this chapter other than those expressly stated in this chapter.” 28 U.S.C. 2265(a)(3); see 152 Cong. Rec. S1620, 1624-25 (daily ed. Mar. 2, 2006) (remarks of Senator Kyl). This balance would again be upset if requirements were prescribed for chapter 154 certification that do not appear in the statutes, either overtly or in the guise of “defining” statutory terms.

Some comments addressed the eligibility for chapter 154 certification of states in which collateral review and direct review in capital cases take place concurrently. One of these comments noted that the definition of “State postconviction proceedings” in § 26.21 in the proposed rule retained some vestiges of a distinction between “unitary review” systems and other state review systems, which has no place in chapter 154 following the 2006 amendments. The point is well taken and the final rule has been changed to reflect it.

The original version of chapter 154 had separate provisions for (i) states following the common bifurcated approach in which collateral proceedings occur subsequent to the completion of direct review, governed by former section 2261(b)-(d), and (ii) states with “unitary review” procedures (defined as procedures authorizing a capital defendant “to raise, in the course of direct review of the judgment, such claims as could be raised on collateral attack”), governed by former section 2265.

In Ashmush v. Woodford , 202 F.3d 1160 (9th Cir. 2000), the court assessed California's unitary review system for capital cases under former section 2265. The court found that the system did not qualify the state for the chapter 154 procedures, on the view that California's provisions relating to postconviction capital counsel were not a “rule of its court of last resort or * * * statute,” as former section 2265 required.

The 2006 amendments were intended to overturn this decision. See 152 Cong. Rec. S1624-25 (daily ed. Mar. 2, 2006) (remarks of Senator Kyl). They replaced the separate provisions for bifurcated review systems and “unitary review” systems with uniform standards in the current sections 2261(b) and 2265. The amendments eliminated the language in former section 2261(b) that confined its application to states that conduct postconviction review following direct review, and eliminated the language in former section 2265 that confined its application to states that conduct unitary review. The result is that the current versions of these provisions apply to all state systems. See 152 Cong. Rec. S1620 (remarks of Senator Kyl) (2006 amendments “simplif[y] * * * the chapter 154 qualification standard, which obviates the need for separate standards for those States that make direct and collateral review into separate vehicles and those States with unitary procedures”).

Given this history and the current text of chapter 154, it is clear that certification is available to all states that satisfy the chapter's now-uniform requirements in relation to collateral proceedings in capital cases, without distinction between states in which such collateral proceedings occur following direct review and states in which such collateral proceedings occur concurrently with direct review. It is also clear that the rule need not refer to a distinction between states with “unitary review” systems and others. “State postconviction proceedings” have accordingly been defined in § 26.21 in the final rule as “collateral proceedings in state court, regardless of whether the state conducts such proceedings after or concurrently with direct state review.”

Some comments noted that the proposed rule did not refer to the requirement in 28 U.S.C. 2265(a)(1)(B) that the Attorney General determine the date on which a state established its qualifying capital counsel mechanism. Since section 2265(a)(2) makes the certification effective as of this date, the Attorney General's determination of this date affects the applicability of chapter 154 to cases in which state postconviction proceedings occurred before the certification but after the state established a qualifying capital counsel mechanism. Section 26.23(d) has accordingly been modified in the final rule to make clear that the Attorney General's certification will include a determination of the date on which the qualifying capital counsel mechanism was established.

The attorneys general of Texas and Oklahoma requested a change in § 26.23(b)(2), which concerns notice to the chief justice of the state's highest court that the state has requested chapter 154 certification. The highest court with jurisdiction over criminal matters in their states is not the state supreme court, but a separate court of criminal appeals, which would more appropriately receive notice concerning the request for chapter 154 certification. Section 26.23(b)(2) has been modified in the final rule to take account of this fact.

Other comments opined that the procedures in § 26.23 for the Attorney General to receive public input and make certification decisions are inadequate because they do not meet requirements for rulemaking or adjudication under the Administrative Procedure Act (“APA”) or the Constitution. Additional requirements suggested in these comments included (i) further specification of the information a state must submit or the showing a state must make to be eligible for certification; (ii) specification of the amount of time that will be allowed for public comment or input concerning a proposed certification; (iii) personal notice to potentially affected persons concerning a proposed certification; (iv) full disclosure of the information considered in reaching a certification decision and the reasons for the decision; (v) prohibition of ex parte contacts during the consideration of a state application; (vi) conduct of a hearing in the state for which certification has been requested; and (vii) adversarial presentation and testing of evidence or information offered in support of a certification decision.

Commenters making this argument generally assumed that a chapter 154 certification is a “rule” for APA purposes. Even if this assumption were correct, it would provide no support for many of the procedures proposed by these commenters, because the APA requires trial-like proceedings only for rulemaking that is “required by statute to be made on the record after opportunity for an agency hearing.” 5 U.S.C. 553(c), 556-57. Chapter 154 does not require that certifications be made on the record or after a hearing.

A more basic problem with these commenters' argument is that a chapter 154 certification is not a rule as defined in the APA. A certification is not a “statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy.” 5 U.S.C. 551(4); see Attorney General's Manual on the Administrative Procedure Act 13-14 (1947) (Rules “must be of future effect , implementing or prescribing future law * * *. Rule making is agency action which regulates the future conduct of either groups of persons or a single person; it is essentially legislative in nature, not only because it operates in the future but also because it is primarily concerned with policy considerations.”). A chapter 154 certification does not regulate future conduct and it is not based on policy considerations; rather, it is a determination that a state has satisfied certain existing requirements of federal law. See 28 U.S.C. 2265(a)(3). Thus, it is comparable to other determinations that are characterized as “orders” under the APA, such as licensing decisions. See 5 U.S.C. 551(6) (defining “order” to mean “the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing”), 551(8) (defining “license” to include “the whole or a part of an agency permit, certificate, approval, registration, charter, membership, statutory exemption or other form of permission”). There are other contexts in which the Attorney General or other executive officials are called on to make determinations whether state laws and policies satisfy federal statutory standards. See, e.g. , 42 U.S.C. 1973c (Voting Rights Act preclearance by Attorney General upon application by chief legal officer or other appropriate official of state or subdivision). Determinations of this type are not generally deemed to be “rules” under the APA.

Although the rulemaking procedures of 5 U.S.C. 553 are not applicable, they can be useful and can be voluntarily adopted. Section 26.23(c)-(d) in the rule incorporates the principal elements of APA rulemaking procedure: Publishing notice of the state's request for certification in the Federal Register and receipt of public comment. The Federal Register notice will include any statutes, regulations, rules, policies, and other authorities identified by the state in support of the request. The provision for public notice and comment in the rule reflects the view that obtaining such public input may help to ensure a fully informed decision by the Attorney General, but it is not required by the APA.

Because a chapter 154 certification is an “order” rather than a “rule,” the process for making such a certification is an “adjudication.” 5 U.S.C. 551(7) (defining “adjudication” to mean “agency process for the formulation of an order”); see also Attorney General's Manual on the Administrative Procedure Act , supra, at 14-15 (“adjudication * * * may involve the determination of a person's right to benefits under existing law so that the issues relate to whether he is within the established category of persons entitled to such benefits”). The APA prescribes procedures for certain types of formal administrative adjudications, see 5 U.S.C. 554, which some commenters would apply to chapter 154 certification decisions. But these provisions apply only to “adjudication required by statute to be determined on the record after opportunity for an agency hearing.” 5 U.S.C. 554(a). Because chapter 154 does not require that certifications be determined on the record after opportunity for an agency hearing, these APA provisions are inapplicable. Also, these APA provisions do not apply to decisions subject to de novo review by a court, 5 U.S.C. 554(a)(1), such as a chapter 154 certification, see 28 U.S.C. 2265(c)(3).

Some commenters with capital defense responsibilities suggested that their clients would be deprived of life without due process of law if they were executed following habeas corpus review under chapter 154. This argument is not convincing. Cf. Felker v. Turpin , 518 U.S. 651, 663-64 (1996) (upholding legislative reform in habeas corpus procedure and recognizing that “judgments about the proper scope of the writ are normally for Congress to make” [citation and internal quotation marks omitted]). Some commenters appeared to suggest or assume that capital convicts have a constitutionally protected liberty interest in the application of the habeas corpus procedures of chapter 153 of title 28 rather than those of chapter 154, and that the certification procedures in § 26.23 are inadequate to protect this interest, even with de novo judicial review under 28 U.S.C. 2265(c). Again, the argument is not convincing. Chapter 154 certification decisions will not require complex and controvertible factual determinations relating to the practical operation of state postconviction review. Rather, they will be based on examination of state laws and policies to determine whether they provide for the measures the chapter describes. See Part II.A above and Part III.B below. The rule's procedures are adequate to provide the information the Attorney General will need in making chapter 154 certification decisions.

There is also no adequate basis for concluding, as some commenters argued, that capital defendants must have the full panoply of rights in relation to chapter 154 certifications that parties have in litigation. Not all governmental determinations must be made through quasi-litigative procedures, including determinations whether state laws and policies conform to federal statutory requirements. See, e.g. , 42 U.S.C. 16925 (Attorney General to determine whether states and other jurisdictions have substantially implemented the national standards for sex offender registration and notification); 5 U.S.C. 554 (requiring formal administrative adjudication only for matters required by statute to be determined on the record after opportunity for an agency hearing, and excluding matters subject to de novo judicial determination and other specified matters.) Rather, less formal procedures like those provided in § 26.23(c)-(d) are often more conducive to prompt and accurate decision-making. These procedures may include such measures as requesting additional information from the applicant state and advising the applicant concerning remedial measures that would facilitate compliance. See, e.g. , 73 FR 38029, 38047 (July 2, 2008) (procedure for determining state compliance in national guidelines for sex offender registration and notification); 64 FR 572, 586 (Jan. 5, 1999) (similar provisions in guidelines for predecessor sex offender registration and notification law). The commenters give no persuasive reason to depart from this approach in chapter 154 certification decisions.

A few procedural suggestions in the comments merit additional discussion:

One is that the rule further specify the showing a state must make to be eligible for certification. Comments of this type might be taken as proposing that the rule specify in greater detail the type or amount of supporting information that states must submit. But such specifications do not appear in chapter 154 itself and they are not necessary for the Attorney General to carry out his certification functions under the chapter. It is preferable to allow states to submit whatever information they wish in support of a certification request, just as all other persons will be permitted to submit whatever information they wish in support of or in opposition to a certification request. It is obviously in the interest of all concerned entities to submit whatever relevant information they can muster in support of the disposition they favor, and allowing them to do so will help to ensure that the Attorney General has the basis for a fully informed decision.

Alternatively, comments of this type may suggest that states should be required to establish that they have implemented qualifying capital counsel standards in a particular way, such as through statutory provisions or through procedural rules adopted by the state supreme court. But again, “[t]here are no requirements for certification or for application of this chapter other than those expressly stated in this chapter.” 28 U.S.C. 2265(a)(3). There were originally provisions in chapter 154 describing in what form and by what entities qualifying capital counsel mechanisms and standards were to be adopted, but the 2006 amendments to chapter 154 eliminated these provisions. See 28 U.S.C. 2261, 2265; 152 Cong. Rec. S1624-25 (daily ed. Mar. 2, 2006) (remarks of Senator Kyl) (explaining problem under prior statutes illustrated by adverse decision concerning California's qualification and need for reform to afford states flexibility concerning establishment of capital counsel mechanisms). Hence, in making certification decisions under chapter 154, the Attorney General is not limited to examining particular types of rules or enactments, but rather may take into account all articulations of relevant state policy, regardless of form.

Finally, some comments proposed that the rule include a minimum period of time, such as at least 90 days, for comment on a requested chapter 154 certification. It is unnecessary to include such a specification in the rule. Section 26.23(c) provides for notice of a requested certification through Federal Register publication, and the time period for public comment will be included in such notices in the normal manner.

Some commenters maintained that the Attorney General must provide for ongoing monitoring or oversight of the postconviction capital counsel systems of states that have received chapter 154 certification, and must decertify states whose performance in this area is found to be wanting. Some argued that, in the absence of such oversight, states could simply ignore the requirements relating to postconviction capital counsel in their own laws and rules. No changes have been made in the rule based on these comments because they misunderstand chapter 154 and conflate the functions that chapter 154 assigns to the Attorney General with those it leaves to the courts.

Chapter 154 sets two requirements for its applicability. The first requirement is that the Attorney General certify that the state has established a mechanism for providing counsel in postconviction proceedings as provided in section 2265. 28 U.S.C. 2261(b)(1). Section 2265 provides that the state must have “established a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel” for indigents in state capital postconviction proceedings, and that the state must “provide[] standards of competency for the appointment of counsel” in such proceedings. A qualifying capital counsel mechanism also must provide for judicial orders appointing counsel or declining to do so based on waiver or non-indigency (section 2261(c)) and for replacement or continuation of counsel at different stages of a capital case in conformity with certain requirements (section 2261(d)). These provisions do not assign any function to the Attorney General beyond examining state laws and policies to determine whether they provide for these measures.

The second requirement for chapter 154's applicability is that “counsel was appointed pursuant to th[e] mechanism [certified by the Attorney General], petitioner validly waived counsel, petitioner retained counsel, or petitioner was found not to be indigent.” 28 U.S.C. 2261(b)(2). This paragraph differs from section 2261(b)(1) in that it does not assign any function to “the Attorney General of the United States.” Rather, it is addressed to the federal court to which a capital convict presents a habeas corpus petition. Hence, even if the Attorney General has certified a state, chapter 154 will not apply (absent waiver or a finding of non-indigency in the state proceedings) if the federal habeas court determines that counsel was not actually appointed for the convict pursuant to the certified mechanism.

Chapter 154 thus provides a tripartite division of responsibility: The Attorney General makes the general certification determination based on an examination of state laws and policies, but has no oversight role with respect to particular cases. Federal habeas courts verify that counsel was appointed pursuant to the state postconviction capital counsel mechanism in particular cases. Beyond that, administration of the state capital counsel system is left to the state. The legislative history confirms the division of responsibilities set forth in the statutes: “Under new section 2265, the Attorney General of the United States will decide if a State has established a qualifying mechanism * * *. Once a State is certified as having a qualifying mechanism, chapter 154 applies to all cases in which counsel was appointed pursuant to that mechanism, and to cases where counsel was not appointed because the defendant waived counsel, retained his own, or had the means to retain his own. `Pursuant' is intended to mean only that the State's qualifying mechanism was invoked to appoint counsel, not to empower the Federal courts to supervise the State courts' administration of their own appointment systems. Paragraph (a)(3) of new section 2265 forbids creation of additional requirements not expressly stated in the chapter * * *.” 152 Cong. Rec. S1625 (daily ed. Mar. 2, 2006) (remarks of Senator Kyl).

Nothing in chapter 154 supports the view of some commenters that the Attorney General must examine the operation of the state capital counsel mechanism in particular cases, and there is much to the contrary. The statutes require certification by the Attorney General, but say nothing about decertification. If some type of continuing oversight and potential decertification were contemplated, many questions would need to be resolved, including (1) how the Attorney General would receive information concerning the ongoing operation of the certified state capital counsel mechanism; (2) whether departures in particular cases from the prescribed capital counsel mechanism would deprive the states of expedited habeas review in those cases only, or in all cases; (3) what quantum of violations would be necessary to warrant global decertification; (4) whether or how the Attorney General would communicate needed remedial measures to the state; and (5) whether and how certification could be restored if deficiencies in the operation of the capital counsel mechanism were corrected. There is nothing about any of these matters in chapter 154.

The commenters' theory also conflicts with features of chapter 154 that presuppose a one-time certification. For example, section 2265(a)(2) states that “[t]he date the mechanism described in paragraph (1)(A) was established shall be the effective date of the certification under this subsection.” If decertification were also contemplated, one would expect the provision to say as well when a certification terminates. Likewise, section 2265(b) states that “the Attorney General shall promulgate regulations to implement the certification procedure under subsection (a).” Had decertification been contemplated, one would also expect the provision to direct the Attorney General to implement a decertification procedure.

In sum, the rule has not been changed to provide for continuing oversight of the operation of certified state capital counsel mechanisms by the Attorney General, or for potential decertification of state counsel mechanisms, because that would be contrary to the statutes. The legislative history confirms the obvious import of the statutory language on this point: “When section 507 was being finalized, I and others were presented with arguments that some mechanism should be created for `decertifying' a State that has opted in to chapter 154 but that allegedly has fallen out of compliance with its standards. I ultimately concluded that such a mechanism was unnecessary, and that it would likely impose substantial litigation burdens on the opt-in States that would outweigh any justification for the further review * * *. [I]f such a means of post-opt-in review were created, it inevitably would be overused and abused * * *. I thought it best to create a system of one-time certification, with no avenues to challenge or attempt to repeal the State's continuing chapter-154 eligibility. The consequences of opting in to chapter 154 should not be perpetual litigation over the State's continuing eligibility. * * * Therefore, under section 507, once a State is certified for chapter 154, that certification is final. There is no provision for `decertification' or `compliance review' after the State has been made subject to chapter 154.” 152 Cong. Rec. S1625 (daily ed. Mar. 2, 2006) (remarks of Senator Kyl).

Some commenters criticized § 26.23(e) in the proposed rule, which provided in part that a certification would no longer apply if a state changed its capital counsel mechanism “in a manner that may affect satisfaction of the requirements of § 26.22,” but that “the State may request a new certification by the Attorney General that the changed mechanism satisfies the requirements of § 26.22.” Some comments argued that the certification should not cease to apply merely because the change might affect satisfaction of the chapter 154 requirements. Other comments noted potential problems resulting from the absence of any specification of who would determine whether a change in the capital counsel system might affect satisfaction of the requirements of § 26.22.

In response to these comments, § 26.23(e) has been changed in the final rule to delete the statement that certification will not apply to a changed capital counsel mechanism. As noted above, chapter 154 makes no provision for “decertifying” a state after it has received chapter 154 certification. See 152 Cong. Rec. S1625 (daily ed. Mar. 2, 2006) (remarks of Senator Kyl). This might in theory make it superfluous to permit the Attorney General to recertify a state after it has changed its counsel mechanism, on the ground that the original certification remains good no matter what happens subsequently. But capital defendants and their counsel may not accept such an understanding of chapter 154, and they may argue in litigation that the chapter 154 federal habeas corpus review procedures should not be deemed applicable in their cases in light of changes or alleged changes in a state's certified capital counsel mechanism. If a state had no means in such a case to seek re-certification by the Attorney General, then the problem that Congress sought to eliminate through the 2006 amendments could recur—litigation of the adequacy of state capital counsel mechanisms in the very federal courts that are affected by the applicability of the expedited habeas procedures in chapter 154. The final rule, like the proposed rule, accordingly provides that the state may seek recertification by the Attorney General in such circumstances.

Some comments, including some from private lawyers who accept appointments to represent capital defendants in federal habeas corpus review proceedings, took issue with the Regulatory Flexibility Act certification in the proposed rule that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. 5 U.S.C. 605(b). Their main argument on this point was that the applicability of the 180-day time limit for federal habeas filing under 28 U.S.C. 2263 in cases subject to chapter 154 would so burden them as to drive them out of capital federal habeas corpus work. No change has been made with respect to the Regulatory Flexibility Act certification in the final rule because the claim of a significant economic impact on a substantial number of small entities is unconvincing.

Independent of chapter 154, a convict must file a habeas corpus application within a one-year period, normally running from the date the judgment becomes final. 28 U.S.C. 2244(d). The basic 180-day limitation period under 28 U.S.C. 2263(a) is shorter, but it is extendable by 30 days for cause, Id. section 2263(b)(3), and it is tolled during the pendency of a petition for certiorari to the Supreme Court filed at the conclusion of direct review, Id. section 2263(b)(1). So these commenters overstate the practical difference between the habeas filing time limit under chapter 154 and the time limit that otherwise applies.

Chapter 154 also includes incentives for states to upgrade the representation of capital defendants in state postconviction proceedings, which should be of benefit to counsel who subsequently represent them in federal habeas corpus proceedings, by promoting the adequate development and presentation of claims in the state proceedings. In addition, the chapter 154 procedures eliminate a number of burdens that defense counsel would otherwise bear. Where chapter 154 applies, the automatic stay provisions of 28 U.S.C. 2262 are available, reducing the need to engage in litigation over stays of execution. Moreover, 28 U.S.C. 2264 provides clearer and tighter rules concerning the range of cognizable claims in federal habeas corpus review under chapter 154, in comparison with the general federal habeas review standards. This will relieve federal habeas counsel in chapter 154 proceedings of the need to develop and present claims that might be cognizable under the more porous general habeas rules, but are not cognizable under the chapter 154 standards. See 152 Cong. Rec. S1627-28 (daily ed. Mar. 2, 2006) (remarks of Senator Kyl) (explaining differences). Furthermore, under the chapter 154 procedures, federal habeas counsel will be relieved of the need to litigate questions concerning the exhaustion of state remedies, and of other litigative burdens incident to the movement of cases back and forth between the state courts and the federal courts that results from the exhaustion requirement of 28 U.S.C. 2254(b)-(c). This requirement does not apply to review under chapter 154. 28 U.S.C. 2264(b) (“Following review subject to subsections (a), (d), and (e) of section 2254, the court shall rule on the claims properly before it.”); 152 Cong. Rec. S1626-27 (daily ed. Mar. 2, 2006) (remarks of Senator Kyl) (so explaining). In projecting a significant economic impact resulting from the application of certain features of the chapter 154 procedures, these commenters do not take account of offsetting reductions in the work required to prepare and litigate federal habeas petitions that would result from other features of these procedures.

Finally, the lawyers complaining of an adverse economic impact do not claim or show that other litigation or legal work they would engage in instead would be less lucrative, even if it were true that the implementation of chapter 154 would deter them from accepting capital habeas appointments. Considering all of the above, no substantial reason has been given for revisiting the Regulatory Flexibility Act certification and it is unchanged in the final rule.

Some commenters took issue with the certification in the proposed rule that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment, pursuant to Executive Order 13132. (The proposed rule included in this certification a mistaken reference to the predecessor Executive Order 12612, but current Executive Order 13132 was accurately referenced in the caption for the certification, and the certification was premised on the current version of that order.) The specific claim of these commenters is that the proposed rule did not include federalism assessment statements sufficient under section 6(b) and (c) of Executive Order 13132.

The requirements of section 6(b) and (c) of the Executive Order are limited to rules with “federalism implications.” This phrase means “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Exec. Order 13132 at § 1(a). But the certification in the proposed rule properly stated that the rule does not have such effects, noting that the rule only provides a framework for states that wish to qualify for the benefits of the expedited habeas corpus procedures of chapter 154.

Hence, the objection that the proposed rule did not include assessments sufficient to comply with section 6(b) and (c) of the Executive Order is not well founded. The certification accordingly has not been changed in the final rule, except for correcting the mistaken citation to Executive Order 12612.

Some commenters objected to the certification that the proposed regulation met the applicable standards set forth in section 3(a) and (b)(2) of Executive Order 12988, including the requirements that proposed regulations “provide a clear legal standard for affected conduct rather than a general standard,” Id. section 3(a)(3), and that proposed regulations, as appropriate, “define[ ] key terms, either explicitly or by reference to other regulations or statutes that explicitly define those items,” Id. section 3(b)(2)(F).

The comments urging specificity in the rule, as directed by Executive Order 12988, are at odds with objections by the same commenters that the rule should not specify which state officials are appropriate state officials for seeking chapter 154 certification, an issue discussed in Part I.B of this summary above. In relation to other terms and concepts in chapter 154, the objection relating to clear legal standards and definitional specificity is merely a variation of the claim that the Attorney General should usurp definitional functions that chapter 154 reserves to the states (regarding counsel competency standards), or should violate the prohibition of 28 U.S.C. 2265(a)(3) against adding to the chapter's express requirements for certification in the guise of “definition.” These matters are fully discussed in Part II.A-B of this summary above.

Hence, the comments received provided no substantial reason to reconsider the certification relating to Executive Order 12988 and this certification has not been changed in the final rule.

Other comments were received on the proposed rule, which variously expressed support for the rule and did not propose any changes; stated general opposition to the rule or chapter 154; or submitted comments proposing changes in the rule that were similar in character or purpose to the comments discussed above. No additional changes were made in the rule on the basis of these comments because they either proposed no changes or provided no persuasive reasons for the changes they proposed.

Section 26.20 explains the rule's purpose to implement the certification procedure for chapter 154.

Section 26.21 provides definitions for certain terms used in chapter 154 and the regulations. Under 28 U.S.C. 2265(a), a certification request must be made by “an appropriate State official.” Pursuant to the definition of this term in the rule, in most cases, that official will be the state attorney general. In those few states, however, where the state attorney general does not have responsibilities relating to federal habeas corpus litigation, the chief executive of the state will be considered the appropriate state official to make a submission on behalf of the state.

Section 26.21 defines “State postconviction proceedings” as “collateral proceedings in state court, regardless of whether the state conducts such proceedings after or concurrently with direct state review.” Collateral review normally takes place following the completion of direct review of the judgment, but some states have special procedures for capital cases in which collateral proceedings and direct review may take place concurrently. Formerly separate provisions for the application of chapter 154 in states with “unitary review” procedures (involving concurrent collateral and direct review) were replaced by the recent amendments with provisions that are worded broadly enough to permit chapter 154 certification for all states under uniform standards, regardless of their timing of collateral review vis-a-vis direct review. Compare current 28 U.S.C. 2261(b) and 2265, as amended by Public Law 109-177, section 507, 120 Stat. 250-51 (Mar. 9, 2006), with former 28 U.S.C. 2261(b) and 2265 (2000); see 152 Cong. Rec. S1620 (daily ed. Mar. 2, 2006) (remarks of Sen. Kyl) (explaining that the current provisions simplify the chapter 154 qualification standards, “which obviates the need for separate standards for those States that make direct and collateral review into separate vehicles and those States with unitary procedures”).

The definition of “State postconviction proceedings” in the rule reflects the underlying objective of chapter 154 to provide expedited federal habeas corpus review in capital cases arising in states that have gone beyond the constitutional requirement of appointing counsel for indigents at trial and on appeal by extending the appointment of counsel to indigent capital defendants in state collateral proceedings. The provisions of chapter 154, as well as the relevant legislative history, reflect the understanding of “postconviction proceedings” as not encompassing all proceedings that occur after conviction ( e.g. , sentencing proceedings, direct review), but rather as referring to collateral proceedings. See 28 U.S.C. 2261(e) (providing that ineffectiveness or incompetence of counsel during postconviction proceedings in a capital case cannot be a ground for relief in a federal habeas corpus proceeding); 28 U.S.C. 2263(a), (b)(2) (180-day time limit for Federal habeas filing under chapter 154 starts to run “after final State court affirmance of the conviction and sentence on direct review or the expiration of the time for seeking such review” subject to tolling “from the date on which the first petition for post-conviction review or other collateral relief is filed until the final State court disposition of such petition”); 152 Cong. Rec. S1620, 1624-25 (daily ed. Mar. 2, 2006) (remarks of Sen. Kyl) (explaining that chapter 154 provides incentives for States to provide counsel in State postconviction proceedings, equated to collateral proceedings); 151 Cong. Rec. E2639-40 (daily ed. Dec. 14, 2005) (extension of remarks of Rep. Flake) (same understanding); see also, e.g. , Murray v. Giarratano, 492 U.S. 1 (1989) (equating postconviction and collateral proceedings).

Section 26.22 sets out the requirements for certification that a state must meet to qualify for the application of chapter 154. These are the requirements in 28 U.S.C. 2261(c)-(d) and 2265(a)(1). With respect to each of the requirements, examples are provided in the text of mechanisms that would be deemed sufficient or, in some cases, insufficient to comply with the chapter. The examples given of qualifying mechanisms are illustrative and therefore do not preclude states with other mechanisms from meeting the requirements for certification.

Section 26.23 sets out the mechanics of the certification process for states seeking to opt in to chapter 154.

This action has been drafted and reviewed in accordance with Executive Order 12866, Regulatory Planning and Review, section 1(b), Principles of Regulation. The Department of Justice has determined that this rule is a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, and, accordingly, this rule has been reviewed by the Office of Management and Budget.

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. It provides only a framework for those states that wish to qualify for the benefits of the expedited habeas procedures of chapter 154 of title 28 of the U.S. Code. Therefore, in accordance with Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

This regulation meets the applicable standards set forth in section 3(a) and (b)(2) of Executive Order 12988.

The Attorney General, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it certifies that this regulation will not have a significant economic impact on a substantial number of small entities. This rule provides only a framework for those states that wish to qualify for the benefits of the expedited habeas procedures of chapter 154 of title 28 of the United States Code.

This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under section 202 of the Unfunded Mandates Reform Act (2 U.S.C. 1532).

Amendment of part 912 is necessary to clarify the procedure in § 912.5 for amending claims, and to update mailing addresses. This rule is a change in agency rules of procedure that does not substantially affect any rights or obligations of private parties. Therefore, it is appropriate for its adoption by the Postal Service to become effective immediately.

Pursuant to section 4 of the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 2461 note, as amended by the DCIA, 31 U.S.C. 3701 note, each federal agency is required to issue regulations adjusting for inflation the statutory civil monetary penalties  1 (“civil penalties” or “penalties”) that can be imposed under the laws administered by that agency. The purpose of these adjustments is to maintain the deterrent effect of civil penalties and to further the policy goals of the underlying statutes. The DCIA requires adjustments to be made at least once every four years following the initial adjustment. EPA's initial adjustment to each statutory civil penalty amount was published in the Federal Register on December 31, 1996 (61 FR 69360), and became effective on January 30, 1997. EPA's second and most recent adjustment to each civil penalty amount was published in the Federal Register on February 13, 2004 (69 FR 7121) and became effective on March 15, 2004 (“the 2004 Rule”).

This rule, specifically Table 1 in 40 CFR 19.4, adjusts in accordance with the DCIA the maximum and, in some cases, the minimum amount of each statutory civil penalty that may be imposed for violations of EPA-administered statutes and their implementing regulations. Table 1 identifies the applicable EPA-administered statutes and sets out the inflation-adjusted civil penalty amounts that may be imposed pursuant to each statutory provision. This rule also clarifies that the adjusted penalty amounts in 40 CFR 19.4 are applicable to violations that occur after the effective date of this rule.

The formula provided by the DCIA for determining the cost-of-living adjustment to statutory civil penalties consists of a four-step process. The first step entails determining the inflation adjustment factor. This is done by calculating the percentage increase by which the Consumer Price Index  2 for all urban consumers (CPI-U) for the month of June of the calendar year preceding the adjustment exceeds the CPI-U for the month of June of the calendar year in which the amount of such civil monetary penalty was last set or adjusted. 3 Accordingly, the inflation adjustment factor for the present adjustment equals the CPI-U for June 2007 ( i.e. , June of the year preceding this year), divided by the CPI-U for June 2004. Given that the last adjustment was made and published on February 13, 2004, the inflation adjustment for most civil penalties set forth in this rule was calculated by comparing the CPI-U for June 2004 (189.7) with the CPI-U for June 2007 (208.352), resulting in an inflation adjustment factor of 9.83 percent. Certain civil penalties that had not been adjusted since the initial 1996 adjustment were adjusted by an inflation adjustment of 32.96 percent calculated comparing the CPI-U for June 1996 (156.7) with the CPI-U for June 2007 (208.352).

Once the inflation adjustment factor is determined, the second step is to multiply the inflation adjustment factor by the current civil penalty amount to calculate the raw inflation increase. The third step is to round this raw inflation increase according to the section 5(a) of the DCIA. The DCIA's rounding rules require that any increase be rounded to the nearest multiple of: $10 in the case of penalties less than or equal to $100; $100 in the case of penalties greater than $100 but less than or equal to $1,000; $1,000 in the case of penalties greater than $1,000 but less than or equal to $10,000; $5,000 in the case of penalties greater than $10,000 but less than or equal to $100,000; $10,000 in the case of penalties greater than $100,000 but less than or equal to $200,000; and $25,000 in the case of penalties greater than $200,000. ( See section 5(a) of the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 2461 note, as amended by the DCIA, 31 U.S.C. 3701 note.) Once the inflation increase has been rounded pursuant to the DCIA, the fourth step is to add the rounded inflation increase to the current civil penalty amount to obtain the new, inflation-adjusted civil penalty amount.

For most civil penalties, the amount of the last adjusted civil penalty reflected in Table 1 of the 2004 Rule was multiplied by 9.83 percent (the inflation adjustment) and the resulting increase amount was rounded up or down according to the rounding requirements of the statute. In the case of statutory civil penalty amounts that are being adjusted for the first time, such inflation adjustments are capped at a 10 percent increase in accordance with section 31001(s)(2) of the DCIA. For example, because this rule adjusts for the first time the administrative and civil judicial penalty amounts provided pursuant to “Title XIV—Certain Alaskan Cruise Ship Operations” of the Consolidated Appropriations Act of 2001, 33 U.S.C. 1901 note, these civil penalties, once adjusted for inflation, are capped at 110 percent of the original penalty amounts, as enacted. Further, certain civil penalties that had not been adjusted since the initial 1996 adjustment were adjusted by an inflation adjustment of 32.96 percent calculated by comparing the CPI-U for June 1996 (156.7) with the CPI-U for June 2007 (208.352). The last column of Table 1 below reflects the inflation-adjusted civil penalties as of the effective date of this rule. Assuming there are no changes to the mandate imposed by the DCIA, EPA intends to readjust these amounts in the year 2012 and every four years thereafter.

Section 6 of the DCIA provides that “any increase under [the DCIA] in a civil monetary penalty shall apply only to violations which occur after the date the increase takes effect.” ( See section 6 of the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 2461 note, as amended by the DCIA, 31 U.S.C. 3701 note.) Thus, the new inflation-adjusted civil penalty amounts may be applied only to violations that occur after the effective date of this rule.

After publication of the 2004 Rule, EPA identified errors in certain sections of the regulatory language. Many of these errors also occurred in EPA's initial adjustment on December 31, 1996 (61 FR 69360). Because these errors may prove misleading and are in need of clarification, with this rulemaking EPA is correcting the errors described below. The changes made through these corrections are all technical in nature and do not affect the substance of the rule.

EPA is revising Table 1 of section 19.4 to shorten the penalty description to refer only to the title of the statute. In addition, the Agency has added for clarity a column that delineates the statutory penalties, as enacted, before any inflation adjustments were made. Further, EPA is revising Table 1 to clarify that the penalties are effective “after January 30, 1997 through March 15, 2004” rather than using the term “between January 31, 1997 and March 15, 2004.”

In addition, because a few of the statutory civil penalty amounts pursuant to statutes implemented by EPA are framed as the minimum penalty as opposed to the statutory maximum penalty that can be assessed for a particular violation, this rule revises sections 19.1 and 19.4 to remove references to a “maximum” civil monetary penalty. 4 Specifically, with this rule, EPA is revising section 19.1 to make clear that 40 CFR Part 19 applies to “each statutory provision under the laws administered by [EPA] concerning the civil monetary penalties which may be assessed in either civil judicial or administrative proceedings.”  5 Similarly, the rule revises the introductory text to Table 1 of section 19.4 to remove references to “maximum” penalty amounts to read as follows: “[t]he adjusted statutory penalty provisions and their applicable amounts are set out in Table 1. The last column in the table provides the newly effective statutory civil penalty amounts.” Finally, this rule revises the headings under Table 1 of section 19.4 to refer to “penalties effective” rather than “new maximum penalty amount.”

The row of Table 1 of 19.4, which lists the statutory maximum penalty figures for section 14 of FIFRA, 7 U.S.C. 136l.(a)(2), incorrectly reflected a statutory maximum penalty of $1,000 for violations after January 30, 1997 through March 15, 2004, and $1,200 for violations after March 15, 2004 for subsequent offenses or violations. Although EPA should have adjusted the maximum civil penalty in the 1996 rule from $1,000 to $1,100 for violations after January 30, 1997 through March 15, 2004, this rule does not adjust the penalty amount from $1,000 to $1,100 for violations that occurred during that time period because to do so would be to increase penalties retroactively without fair notice to the public. With this rule, EPA is correcting the row of Table 1 related to the maximum statutory penalty amount under FIFRA section 14 from the amount of $1,200 to $1,100 for violations after March 15, 2004 through January 12, 2009 to prevent the assessment of penalties above the correct statutory maximum amount that should have been listed in Table 1 for that time period. The correct penalty amount of $1,100 for violations occurring after the effective date of this rule has also been listed. The Agency is not aware of any case in which EPA assessed a civil penalty in excess of the correct statutory maximum amount of $1,100 pursuant to section 14 of FIFRA.

The row of Table 1 of 19.4, which lists the statutory maximum penalty figures for section 207 of TSCA, 15 U.S.C. 2647(g), incorrectly reflected a statutory maximum penalty of $5,000 for violations after January 30, 1997 through March 15, 2004, and $5,500 for violations after March 15, 2004 for subsequent offenses or violations. EPA should have adjusted TSCA section 207's the maximum civil penalty from $5,000 to $5,500 for violations after January 30, 1997 through March 15, 2004, and from $5,500 to $6,500 for violations after March 15, 2004 through January 12, 2009. In this rule, EPA has not revised Table 1 to increase the section 207 penalties for violations that may have occurred in the past to prevent retroactive application of the higher penalty without the public having received fair notice of the penalty increases. With this rule, EPA is adjusting the civil penalty to reflect the correct penalty amount of $7,500 for violations occurring after the effective date of this rule.

EPA discovered an error in Table 1 of 40 CFR 19.4 (hereinafter 19.4), in which section 311(b)(6)(B)(i) of the CWA, 33 U.S.C. 1321(b)(6)(B)(i), was cited incorrectly as 33 U.S.C. 1321(b)(6)(B)(I). To correct this error, the Agency is revising Table 1 of 19.4 to reflect the correct citation.

The row of Table 1 of 19.4 related to section 104B(d) of the MPRSA, 33 U.S.C. 1414b(d), is being revised to add a footnote that reads “[n]ote that 33 U.S.C. 1414b(d)(1)(B) contains additional penalty escalation provisions that must be applied to the penalty amounts set forth in this Table 1. The amount set forth in this Table reflects an inflation adjustment to the calendar year 1992 penalty amount expressed in section 104B(d)(1)(A), which is used to calculate the applicable penalty amount under MPRSA section 104B(d)(1)(B) for violations that occur in any subsequent calendar year.”

The row of Table 1 of 19.4 related to section 1414(c) of the SDWA, 42 U.S.C. 300g-3(c), is being deleted because the enforcement of the public notice requirements under this subsection is accomplished under section 1414(b) of the SDWA, 42 U.S.C. 300g-3(b), or SDWA section 1414(g)(3)(A), 42 U.S.C. 300g-3(g)(3)(A).

In the 2004 Rule, the row of Table 1 of 19.4, which listed the statutory maximum civil penalty figures for 42 U.S.C. 7524(a), incorrectly reflected a statutory maximum civil penalty of $32,500 for “manufacturers or dealers” for the manufacture or sale of defeat devices in violation of CAA section 203(a)(3)(B), 42 U.S.C. 7522(a)(3)(B). The correct penalty amount of $2,750 for that violation should have been listed as the same for any person, regardless of whether the violator is a manufacturer or dealer. With this rule, EPA is correcting Table 1 to reflect that the statutory maximum penalty for the manufacture or sale of defeat devices, in violation of CAA section 203(a)(3)(B), 42 U.S.C. 7522(a)(3)(B), is $2,750 for violations occurring after January 30, 1997 through March 15, 2004 and after March 15, 2004 through January 12, 2009. The Agency is not aware of any case in which EPA assessed a civil penalty in excess of the correct statutory amount of $2,750.

The DCIA provides that “any increase under [the DCIA] in a civil monetary penalty shall apply only to violations which occur after the date the increase takes effect.” ( See section 6 of the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 2461 note, as amended by the DCIA, 31 U.S.C. 3701 note.) Accordingly, inflation-adjusted civil penalties may be applied only to violations that occur after the effective date of a rule implementing penalty adjustments pursuant to the DCIA. Today's rule clarifies the top of the fifth column of Table 1 of 19.4 to reflect that the maximum penalty amounts apply for violations occurring after March 15, 2004 ( i.e. , after the March 15, 2004 effective date of the 2004 Rule), through January 12, 2009.

EPA is amending 40 CFR 27.3(a)(1)(iv) to refer to the operative maximum civil penalty amount, as provided in 40 CFR 19.4, that may be imposed by EPA pursuant to section 3802(a)(1) of the Program Fraud Civil Remedies Act (Program Fraud Act), 31 U.S.C. 3802(a)(1). Through this technical amendment, 40 CFR 27.3(a)(1)(iv) will hereafter be revised to conform to the maximum civil penalty amount that can be assessed pursuant to the Program Fraud Act, as adjusted for inflation in accordance with the DCIA under 40 CFR 19.4. Because this technical revision affects only a change to conform 40 CFR 27.3(a)(1)(iv) to be consistent with 40 CFR 19.4, this change does not require notice and comment.

EPA is amending 40 CFR 27.3(b)(1)(ii) to refer to the operative maximum civil penalty amount, as provided in 40 CFR 19.4, that may be imposed by EPA pursuant to section 3802(a)(2) of the Program Fraud Act, 31 U.S.C. 3802(a)(1). Through this technical amendment, 40 CFR 27.3(b)(1)(ii) will hereafter be revised to conform to the maximum civil penalty amount that can be assessed pursuant to the Program Fraud Act, as adjusted for inflation in accordance with the DCIA under 40 CFR 19.4. Because this technical revision affects only a change to conform 40 CFR 27.3(b)(1)(ii) to be consistent with 40 CFR 19.4, this change does not require notice and comment.

Under 5 U.S.C. 553(b)(B), EPA finds that there is good cause to promulgate this rule without providing for further public comment. In its proposed rule published in the Federal Register on July 3, 2003 (68 FR 39882), EPA provided an opportunity for public comment on the inflation adjustment calculations and rounding rules that EPA has used in this final rule. The primary purpose of this final rule is merely to implement the statutory directive in the DCIA, as amended, to make periodic increases in civil penalty amounts by applying the adjustment formula established by the statute. Thus, because calculation of the increases is formula-driven, EPA has no discretion in updating the rule to reflect the allowable civil monetary penalties derived from applying the formula. Since there is no discretion under the DCIA in determining the correct figure, and EPA cannot vary the amount of the adjustment to reflect any views or suggestions provided by commenters, it would serve no purpose to provide an opportunity for public comment on this adjustment. Thus, further notice and public comment is unnecessary.

Further, EPA is making the technical revisions discussed above without notice and public comment. With regard to Table 1 of section 19.4, EPA is making technical revisions that do not change the substance of the rule but make Table 1 easier to read and amend in the future. For example, EPA is revising Table 1 to shorten the penalty description to refer only to the name of the statute. We have also added for clarity a column that delineates the statutory penalties, as enacted, before any inflation adjustments were made. In addition, this rule clarifies that that the penalties are effective “after January 30, 1997 through March 15, 2004” rather than using the term “between January 31, 1997 and March 15, 2004.” Finally, in sections 19.1 and 19.4, this rule removes references to “maximum” penalties because, in a few instances, EPA-administered statutes provide for both minimum as well as maximum civil penalty amounts. These are technical revisions that more accurately reflect the statutory provisions and do not constitute substantive revisions to the rule.

Similarly, the technical correction adjusting the penalty amount of section 14 of FIFRA, 7 U.S.C. 136 l .(a)(2), to $1,100, does not require notice and public comment because this is the adjusted penalty amount that is required by the DCIA. The statute prescribes a formula that must be followed to determine the allowable statutory civil penalty amounts. The $1,000 and $1,200 figures included in the 2004 Rule did not comply with the statute. The incorrect penalty amount of $1,000 for violations after January 30, 1997 through March 15, 2004 was not changed to prevent the assessment of penalties above the statutory maximum amount that was in effect during that time period. The incorrect penalty of $1,200 for violations after March 15, 2004 through January 12, 2009 was changed in Table 1 to prevent the assessment of penalties above the correct statutory maximum amount that should have been listed in Table 1 for that time period. The Agency is not aware of any case in which EPA assessed a civil penalty in excess of the correct statutory maximum civil penalty of $1,100 pursuant to section 14 of FIFRA.

With regard to the technical correction adjusting the penalty amount for section 207 of TSCA, 15 U.S.C. 2647(g), to $7,500, that adjustment can be made without notice and public comment because $7,500 is the adjusted penalty amount that is required by the DCIA. The statute prescribes a formula that must be followed to determine the statutory civil penalty amounts. The $5,000 and $5,500 figures included in the 2004 Rule did not comply with the DCIA. The incorrect penalty amounts have not been changed in the revised Table 1 to prevent the assessment of penalties above the statutory maximums that were in effect during those time periods. The correct statutory maximum penalties of $5,500 for violations after January 30, 1997 through March 15, 2004, and $6,500 for violations after March 15, 2004 through January 12, 2009 have not been listed in the revised Table 1 to prevent retroactive application of a higher penalty without the regulated community receiving fair notice of the increases. EPA's correction to the maximum penalties that can be imposed under the CAA section 205, 42 U.S.C. 7524(a), is also technical and not substantive in nature. By revising the penalty amount from $32,500 to $2,750, EPA is correcting the maximum penalty to be consistent with the adjusted penalty amount that is required by the DCIA. Notice and public comment on this technical correction is not necessary given that the DCIA prescribes a formula that must be followed to determine the civil penalty amounts and the $32,500 figure included in the 2004 Rule did not comply with the statute. Furthermore, EPA is not aware of any case in which the Agency assessed a civil penalty in excess of the correct statutory maximum penalty of $2,750 per violation of for violations of CAA section 203(a)(3)(B). In this rule, the correct penalty amount of $2,750 has been listed in Table 1 for violations occurring during both time periods after January 30, 1997 through March 15, 2004 and after March 15, 2004 through January 12, 2009 to prevent the assessment of penalties above the correct statutory maximum amount that should have been listed in Table 1 for those time periods.

EPA's revisions and corrections to Table 1 of section 19.4 related to the CWA, the MPRSA and the SDWA are also technical rather than substantive in nature and, hence, do not require notice and public comment. In the case of the CWA, this rule corrects an erroneous statutory citation. With regard to the MPRSA, this rule adds a footnote directing the public to the fact that section 104B(d) contains a penalty escalation provision that must be applied to the penalty amounts set forth in Table 1. In addition, this rule corrects Table 1 to delete a reference to section 1414(c) of the SDWA, 42 U.S.C. 300g-3(c), because this subsection governs public notice requirements for public water systems rather than civil penalty authorities under the SDWA. These changes either correct errors in prior rules or, in the case of the MPRSA, refer back to the provisions of that statute. Accordingly, these changes do not require notice and comment.

EPA is amending the regulations implementing the Program Fraud Act, 40 CFR 27.3(a)(1)(iv) and 40 CFR 27.3(b)(1)(ii), to refer to 40 CFR 19.4 so that hereafter 40 CFR 27.3(a)(1)(iv) and 40 CFR 27.3(b)(1)(ii) will conform to the civil penalty inflation adjustments made in accordance with the DCIA to the maximum civil penalty amounts that can be assessed by EPA pursuant to the Program Fraud Act, 31 U.S.C. 3802(a). Because these technical revisions affect only changes to conform 40 CFR 27.3(a)(1)(iv) and 40 CFR 27.3(b)(1)(ii) to be consistent with 40 CFR 19.4, these changes do not require notice and comment.

As required by the DCIA, this rule addresses only inflation adjustments to statutory civil penalty amounts under the statutes identified in Table 1 of 40 CFR 19.4. The technical corrections ensure consistency with the language of the statutes administered by EPA and correct errors in certain formula-driven civil penalty amounts, in accordance with the DCIA. This rule does not address the discretion to impose or not to impose a penalty, nor the procedures that must be followed in initiating an administrative or civil judicial enforcement action involving the assessment of civil penalties. Thus, EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(B).

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

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. “Burden” is defined at 5 CFR 1320.3(b). Because this rule does not contain a collection of information, no control number is necessary.

Today's final rule is not subject to the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq. , which generally requires an agency to prepare a regulatory flexibility analysis for any rule that will have a significant economic impact on a substantial number of small entities. The RFA applies only to rules subject to notice and comment rulemaking requirements under the Administrative Procedure Act (APA) or any other statute. Although this rule is subject to the APA, the Agency has made a “good cause” finding that this rule is not subject to the APA's notice and comment requirements ( see Section IV of this notice). Because this rule is not subject to notice and comment rulemaking requirements under the APA or any other statute, this rule is not subject to the regulatory flexibility provisions of the RFA.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538, establishes the requirements for federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments and the private sector. This action contains no federal mandates under the provisions of Title II of UMRA for state, local, or tribal governments or the private sector. By applying the adjustment formula and rounding rules prescribed by the DCIA, this rule adjusts for inflation the statutory maximum and, in some cases, the minimum, amount of civil penalties that can be assessed by EPA, in an administrative enforcement action, or by the U.S Attorney General, in a civil judicial case, for violations of EPA-administered statutes and their implementing regulations. Because the calculation of any increase is formula-driven, EPA has no policy discretion to vary the amount of the adjustment. Given that the Agency has made a “good cause” finding that this rule is not subject to notice and comment requirements under the APA or any other statute ( see Section IV of this notice), it is not subject to sections 202 and 205 of UMRA. EPA has also determined that this action is not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. This rule merely increases the amount of civil penalties that could conceivably be imposed in the context of a federal civil administrative enforcement action or civil judicial case for violations of EPA-administered statutes and their implementing regulations.

Executive Order 13132, entitled Federalism, 64 FR 43255 (August 10, 1999), requires EPA to develop an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” The term “policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Thus, Executive Order 13132 does not apply to this rule.

Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments, 65 FR 67249 (November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” As this final rule will not have substantial direct effects on tribal governments, on the relationship between the federal government and Indian tribes, or on the distribution of power and responsibilities between the federal government and Indian tribes, Executive Order 13175 does not apply to this rule.

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

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

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

Executive Order 12898, 59 FR 7629 (February 16, 1994), establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA lacks the discretionary authority to address environmental justice in this final rulemaking. The primary purpose of this final rule is merely to apply the DCIA's inflation adjustment formula to make periodic increases in the civil penalties that may be imposed for violations of EPA-administered statutes and their implementing regulations. Thus, because calculation of the increases is formula-driven, EPA has no discretion in updating the rule to reflect the allowable statutory civil penalties derived from applying the formula. Since there is no discretion under the DCIA in determining the statutory civil penalty amount, EPA cannot vary the amount of the civil penalty adjustment to address other issues, including environmental justice issues.

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

On November 12, 2001, Congress enacted Public Law 107-69, which provides for law enforcement authority within Reclamation projects and on Reclamation lands. Section 1(a) of this law requires the Secretary of the Interior to “issue regulations necessary to maintain law and order and protect persons and property within Reclamation projects and on Reclamation lands.” The Secretary of the Interior delegated this authority to the Commissioner of Reclamation.

On April 17, 2002, Reclamation published 43 CFR part 423, Public Conduct on Bureau of Reclamation Lands and Projects (67 FR 19092, Apr.17, 2002) as an interim final rule. In the preamble to that rule, Reclamation stated its intent to replace the interim final rule with a more comprehensive public conduct rule and set April 17, 2003, as the interim final rule's expiration date. In order to provide more time to develop the comprehensive public conduct rule, Reclamation later extended the expiration of the interim final rule to April 17, 2005 (68 FR 16214, Apr. 3, 2003), and again to April 17, 2006 (70 FR 15778, Mar. 29, 2005).

On September 13, 2005, Reclamation published a proposed public conduct rule (70 FR 54214, Sep. 13, 2005) and asked the public to comment on that proposed rule. The Final Rule, 43 CFR part 423, was published in the Federal Register on April 17, 2006 (71 FR 19790, Apr. 17, 2006).

On September 24, 2008, Reclamation published an interim final public conduct rule (73 FR 54977, Sep. 24, 2008) that made minor amendments to the existing part 423, and asked the public to comment on that rule. In response to those public comments, this final rule makes minor changes to the interim final rule.

In this publication, we are reprinting 43 CFR part 423 in its entirety with the amendments made in the September 24, 2008, interim final rule, as well as the changes made as a result of comments we received during the public comment period which ended on November 24, 2008, so interested parties can view the rule as a cohesive document.

This section of the preamble provides responses to the comments received on the interim final rule published in the Federal Register on September 24, 2008 (73 FR 54977). Nine parties submitted comments during the 60-day public comment period which ended on November 24, 2008.

Comment: Several commenters were concerned about the changes we made to the effect that a seaplane is not considered a vessel under part 423.

Response: The question of whether seaplanes are considered “vessels” when on the water is essentially not material to whether seaplane activity is allowed or not allowed on any particular reservoir. The applicable rules of other entities such as the United States Coast Guard, the National Park Service, the States, and/or local governments remain in effect and must be observed. This includes other entities' rules concerning the definition of “vessel,” and pilots must be aware of all applicable Federal, State and local laws and regulations when contemplating landings on Reclamation lands or waterbodies.

Due to the fact that the other entities that have varying degrees of jurisdiction over Reclamation waterbodies differ in how they define the term “vessel,” we added the sentence “A seaplane may be considered a vessel” to the definition of “vessel” in section 423.2 of this final rule. We also revised section 438(a) by adding the words “or seaplane” after the word “watercraft,” and we added the words “other watercraft, or seaplane” after the word “vessel” in section 438(b).

Comment: Several commenters expressed concern or disagreement regarding the status of particular Reclamation reservoirs or groups of reservoirs with respect to seaplane activity, difficulties in determining that status, and the allowance of seaplane activity in general.

Response: This rule does not determine the status of any particular reservoir or set of reservoirs with respect to seaplane activity. One of the purposes of the amendments made on September 24, 2008, was to recognize the aircraft-related laws and rules of other Federal, State, and local entities that have jurisdiction over the surface waters of many Reclamation reservoirs. Reclamation believes that in general, decisions to allow, restrict, or prohibit aircraft on Reclamation lands and waterbodies should be made at the local level and/or by the Federal, State, and local entities that have jurisdiction. However, Reclamation reserves the authority to intervene when necessary for reasons including, but not limited to, safety, security, law enforcement, and reservoir operations.

Reclamation will continue to provide the status of the reservoirs we manage, but pilots ultimately bear the responsibility for determining the status of reservoirs under the jurisdiction of our managing partners and/or other entities.

Comment: One commenter expressed concern over the use of the term “local government” in section 423(b)(2). The commenter believed this term might be interpreted to exclude employees of water districts and other political subdivisions, thus making them subject to this rule when carrying out their regular duties on Reclamation projects.

Response: Reclamation agrees with this comment and we added the phrase “or other political subdivision” after the words “local government” in section 423(b)(2).

As discussed in the “Comments and Responses” section above, the changes we are making to the interim final rule published September 24, 2008 are:

1. Adding a sentence “A seaplane may be considered a vessel” to the definition of “vessel” in section 423.2.

2. Adding the words “or other political subdivision” after the words “local government” in section 423(b)(2).

3. Adding the words “or seaplane” after the word “watercraft.” in section 438(a).

4. Adding the words “other watercraft, or seaplane” after the word “vessel” in section 438(b).

This document is not a significant rule and is not subject to review by the Office of Management and Budget under Executive Order 12866. This rule makes only minor changes to 43 CFR part 423.

(1) This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.

(2) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency.

(3) This rule does not alter the budgetary effects or entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients.

(4) This rule does not raise novel legal or policy issues.

The Department of the Interior certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq ). This rule makes only minor changes to 43 CFR part 423.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule makes only minor changes to 43 CFR part 423. The rule:

(1) Does not have an annual effect on the economy of $100 million or more.

(2) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

(3) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. This rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. This rule makes only minor changes to 43 CFR part 423. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. ) is not required.

In accordance with Executive Order 12630, this rule does not have significant takings implications. This rule makes only minor changes to 43 CFR part 423. A takings implication assessment is not required.

In accordance with Executive Order 12612, this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. This rule makes only minor changes to 43 CFR part 423. A Federalism Assessment is not required.

This rule complies with the requirements of E.O. 12988. Specifically, this rule:

(a) Does not unduly burden the judicial system;

(b) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

(c) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

Under the criteria in Executive Order 13175, we have evaluated this rule and determined that it has no potential effects on federally recognized Indian tribes. This rule recognizes tribal authorities, laws, and regulations but does not affect them.

This rule does not require an information collection from 10 or more parties and a submission under the Paperwork Reduction Act is not required.

This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 is not required.

In developing this rule we did not conduct or use a study, experiment, or survey requiring peer review under the Data Quality Act (Pub. L. 106-554).

This rule is not a significant energy action under the definition in the E.O. 13211. A Statement of Energy Effects is not required.

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

(a) Be logically organized;

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

(c) Use clear language rather than jargon;

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

(e) Use lists and tables wherever possible.

Information about the life history of the gray wolf and previous Federal actions can be found in our February 8, 2007 (72 FR 6052), final rule for the Western Great Lakes Distinct Population Segment (WGL DPS) of the gray wolf and our February 27, 2008 (73 FR 10514), final rule for the Northern Rocky Mountains Distinct Population Segment (NRM DPS) of the gray wolf.

On April 16, 2007, three parties filed a lawsuit against the U.S. Department of the Interior (Department) and the Service, challenging the Service's February 8, 2007 (72 FR 6052), for the WGL DPS. On September 29, 2008, the U.S. District Court for the District of Columbia ruled in favor of the plaintiffs ( Humane Society of the United States v. Kempthorne , 1:07-CV-00677 (D. Columbia)). The court granted the plaintiffs' motion for summary judgment and vacated and remanded the Service's application of the February 8, 2007 (72 FR 6052), final rule for the WGL DPS of the gray wolf.

On April 28, 2008, twelve parties filed a lawsuit in the U.S. District Court for the District of Montana challenging the Service's February 27, 2008, final rule (73 FR 10514) for the NRM DPS. On July 18, 2008, the court enjoined the Service's implementation of the February 27, 2008, final rule and ordered the reinstatement of Endangered Species Act protections for the northern Rocky Mountain gray wolf. At the Service's request, the court issued an order on October 14, 2008, that vacated the final delisting rule and remanded it back to the Service for further consideration.

On April 1, 2003, we published a final rule revising the listing status of the gray wolf across most of the conterminous United States (68 FR 15804). Within that rule we established three DPSs for the gray wolf, including a Western DPS. On January 6, 2005, we published a final rule establishing a special regulation at 50 CFR 17.84(n) for the Yellowstone and central Idaho nonessential experimental populations (NEP) (70 FR 1286). At that time, these NEPs were correctly described as existing within the boundaries of a Western DPS. However, on January 31, 2005, and August 19, 2005, U.S. District Courts in Oregon and Vermont, respectively, ruled that our April 1, 2003, final rule violated the Act ( Defenders of Wildlife v. Norton , 1:03-1348-JO, D. OR 2005; National Wildlife Federation v. Norton , 1:03-CV-340, D. VT. 2005). The Courts' rulings invalidated the three DPS designations in the April 2003 rule, including the Western DPS. Therefore, as we reinstate the special regulations at § 17.84(n) for the Yellowstone and central Idaho NEPs, we also remove from the regulation erroneous language referring to the defunct Western DPS. In addition, we are removing archaic provisions from the gray wolf special regulation at 50 CFR 17.84(i) that applied only in the immediate aftermath of the NEP reintroductions.

This rulemaking is necessary to comply with the July 18, 2008, September 29, 2008, and October 14, 2008, court orders. Therefore, under these circumstances, the Director has determined, pursuant to 5 U.S.C. 553(b), that prior notice and opportunity for public comment are impractical and unnecessary. The Director has further determined, pursuant to 5 U.S.C. 553(d), that the agency has good cause to make this rule effective upon publication.

As of the filing of the respective court orders, any and all wolves in the northern Rocky Mountains and western Great Lakes, except in Minnesota, are listed as an endangered species under the ESA. Any and all wolves in Minnesota are listed as a threatened species under the ESA. The reinstated regulations found at 50 CFR 17.95 designate critical habitat for gray wolves in Minnesota and Michigan, and the reinstated special regulations in 50 CFR 17.40(d) govern the regulation of gray wolves in Minnesota. The provisions of these regulations are the same as those in the prior regulations that were removed per our February 8, 2007, final delisting rule (72 FR 6052).

The reinstated special rules found at 50 CFR 17.84(i) and (n) designate part of the wolves in the northern Rocky Mountains as nonessential experimental populations. The provisions of the special rules are the same as those in the prior special rules that were removed per our February 27, 2008, final delisting rule (73 FR 10514).

This means that wolves in Wisconsin, Michigan, North Dakota, South Dakota, Iowa, Illinois, Indiana, Ohio, Washington, Oregon, Utah, the Idaho panhandle, and northern Montana are hereby listed as endangered (50 CFR 17.11(h)). Wolves in Minnesota are listed as threatened (50 CFR 17.11(h)). Wolves in southern Montana, Idaho south of Interstate 90, and all of Wyoming are hereby listed as nonessential experimental populations under section 10(j) of the ESA (50 CFR 17.84(i) and (n)). The maps in the rule portion of this document illustrate the boundaries of the nonessential experimental population areas.

This rule will not affect the status of the gray wolf in the western Great Lakes or northern Rocky Mountains under State laws or suspend any other legal protections provided by State law. This rule will not affect the gray wolf's Appendix II status under the Convention on International Trade of Endangered Species of Wild Fauna and Flora (CITES).

Additionally, pursuant to section 6 of the Act, we are able to grant available funds to the States for management actions promoting the protection of gray wolves in the western Great Lakes and northern Rocky Mountains.