1–27–09 Vol. 74 No. 16 Tuesday Jan. 27, 2009 Pages 4687–4902

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1–27–09 Tuesday Vol. 74 No. 16 Jan. 27, 2009

Pages 4687–4902

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Contents Federal Register Vol. 74, No. 16

Tuesday, January 27, 2009

African Development Foundation Engineers Corps NOTICES NOTICES Meetings: Environmental Impact Statements; Intent, etc.: Board of Directors Meeting, 4731 West Sacramento Levee Improvements Program, West Sacramento, CA, 4741–4743 Agency for Healthcare Research and Quality Environmental Protection Agency NOTICES Agency Information Collection Activities; Proposals, RULES National Oil and Hazardous Substance Pollution Submissions, and Approvals, 4748–4751 Contingency Plan; National Priorities List, 4687–4691 PROPOSED RULES Agency for Toxic Substances and Disease Registry National Oil and Hazardous Substance Pollution NOTICES Contingency Plan; National Priorities List, 4729–4730 Availability of the Report ′ATSDR Studies on Chemical NOTICES Releases in the Great Lakes Region′, 4751 Meetings: Board of Scientific Counselors, Science and Technology Agriculture Department for Sustainability Mid–Cycle Subcommittee Meetings See Food Safety and Inspection Service – Winter 2009, 4744–4745 EPA Office of Children′s Health Protection and Army Department Environmental Education Staff Office; National See Engineers Corps Environmental Education Advisory Council, 4745– 4746 Centers for Disease Control and Prevention Executive Office of the President NOTICES See Presidential Documents Meetings: Disease, Disability, and Injury Prevention and Control Federal Aviation Administration Special Emphasis Panel (SEP); Autism Therapy, etc., NOTICES 4752 Noise Exposure Map: Request for Public to Submit Comments; Extension of Receipt of Noise Compatability Program and Request for Comment Period, 4752 Review; Destin–Ft. Walton Beach Airport, Destin, FL, 4827–4828 Centers for Medicare & Medicaid Services Federal Communications Commission RULES Medicaid Program: RULES Premiums and Cost Sharing, 4888–4889 Implementation of Short–term Analog Flash and Emergency Readiness Act: Establishment of DTV Transition ′Analog Nightlight′ Commerce Department Program, 4691–4714 See Industry and Security Bureau See International Trade Administration Federal Deposit Insurance Corporation See National Oceanic and Atmospheric Administration NOTICES See Patent and Trademark Office Meetings; Sunshine Act, 4746 NOTICES Estimates of the Voting Age Population for 2008, 4732– Federal Election Commission 4733 NOTICES Meetings; Sunshine Act, 4746 Defense Department See Engineers Corps Federal Highway Administration NOTICES NOTICES Revised Non–Foreign Overseas Per Diem Rates, 4738–4741 Environmental Impact Statement: Los Angeles County CA, 4828–4829 Education Department Federal Maritime Commission NOTICES NOTICES Agency Information Collection Activities; Proposals, Meetings; Sunshine Act, 4746 Submissions, and Approvals, 4743 Federal Reserve System Energy Department NOTICES NOTICES Change in Bank Control Notices; Acquisition of Shares of Ultra–Deepwater and Unconventional Natural Gas and Bank or Bank Holding Companies, 4746–4747 Other Petroleum Resources Research and Development Federal Open Market Committee; Domestic Policy Directive Program 2009 Annual Plan, 4743–4744 (of December 15 and 16, 2008), 4747

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Formations of, Acquisitions by, and Mergers of Bank Intent to Prepare an Amendment to the Mimbres Resource Holding Companies, 4747 Management Plan, etc.; Correction, 4758

Food Safety and Inspection Service Legal Services Corporation NOTICES NOTICES Meetings: Meetings; Sunshine Act, 4762–4763 Codex Alimentarius Commission; Codex Committee on Food Additives, 4731–4732 National Aeronautics and Space Administration NOTICES Health and Human Services Department Agency Information Collection Activities; Proposals, See Agency for Healthcare Research and Quality Submissions, and Approvals, 4763–4764 See Agency for Toxic Substances and Disease Registry See Centers for Disease Control and Prevention National Institutes of Health See Centers for Medicare & Medicaid Services NOTICES See National Institutes of Health Meetings: See Substance Abuse and Mental Health Services Eunice Kennedy Shriver National Institute of Child Administration Health & Human Development, 4752–4753 NOTICES National Institute of Allergy and Infectious Diseases, Agency Information Collection Activities; Proposals, 4753 Submissions, and Approvals, 4747–4748 National Institute of Biomedical Imaging and Solicitation of Written Comments on Draft Centers for ′ Bioengineering, 4754 Disease Control and Prevention s Immunization Safety National Institute of Dental & Craniofacial Research, Office Scientific Agenda, 4748 4754–4755 National Institute of Diabetes and Digestive and Kidney Homeland Security Department Diseases, 4753–4754 See Transportation Security Administration National Institute of General Medical Sciences, 4754 National Institute of Mental Health, 4753, 4755 Housing and Urban Development Department National Institute of Neurological Disorders and Stroke, RULES 4755 Refinement of Income and Rent Determination National Institute on Deafness and Other Communication Requirements in Public and Assisted Housing Disorders, 4755–4756 Programs, 4832–4842 Prospective Grant of Exclusive License: Industry and Security Bureau Multi–Domain Amphipathic Helical Peptides for the Treatment of Cardiovascular Diseases, 4756–4757 NOTICES Agency Information Collection Activities; Proposals, National Oceanic and Atmospheric Administration Submissions, and Approvals, 4733 RULES Taking and Importing Marine Mammals: Interior Department ′ See Land Management Bureau U.S. Navy s Atlantic Fleet Active Sonar Training See National Park Service (AFAST), 4844–4885

International Trade Administration National Park Service NOTICES NOTICES Antidumping: National Register of Historic Places; Notification of Pending Activated Carbon from the People′s Republic of China, Nominations and Related Actions, 4758–4759 4736–4737 National Register of Historic Places; Weekly Listing of Orange Juice from Brazil, 4733–4734 Historic Properties, 4759–4760 Countervailing Duty: Pasta from Italy, 4734–4736 National Science Foundation NOTICES International Trade Commission Meetings: NOTICES Physics Proposal Review Panel, 4764 Investigations: Laminated Floor Panels, 4760–4761 National Transportation Safety Board NOTICES Justice Department Meetings; Sunshine Act, 4764 NOTICES Consent Decree: Nuclear Regulatory Commission United States et al. v. East Bay Municipal Utility District, NOTICES 4761–4762 Applications and Amendments to Facility Operating United States v. Citation Oil & Gas Corp. and Citation Licenses: 1994 Investment Limited Partnership, 4761 Biweekly Notice, 4764–4781 Demand For Information: Land Management Bureau Certain General Material Licensees, 4781–4782 NOTICES Meetings: Alaska Native Claims Selection: Advisory Committee on Reactor Safeguards, 4782–4783 Decision Approving Lands for Conveyance, 4758 Meetings; Sunshine Act, 4784

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Patent and Trademark Office Social Security Administration NOTICES NOTICES Agency Information Collection Activities; Proposals, Meetings: Submissions, and Approvals, 4737–4738 Occupational Information Development Advisory Panel, 4823–4824 Peace Corps NOTICES Substance Abuse and Mental Health Services Agency Information Collection Activities; Proposals, Administration Submissions, and Approvals, 4784–4785 NOTICES Pension Benefit Guaranty Corporation Meetings: Center for Substance Abuse Prevention, 4757 NOTICES Agency Information Collection Activities; Proposals, Surface Transportation Board Submissions, and Approvals, 4785–4787 RULES Solid Waste Rail Transfer Facilities, 4714–4726 Postal Service PROPOSED RULES Susquehanna River Basin Commission Insurance Claims Process Changes, 4727–4729 NOTICES Actions Taken at December 4, 2008, Meeting, 4824–4825 Presidential Documents Actions Taken at September 11, 2008, Meeting; Correction, EXECUTIVE ORDERS 4825–4827 Defense and National Security: Guantanamo Bay Naval Base; Closure of Detention Toxic Substances and Disease Registry Agency Faciltiies and Review of Detentions (EO 13492), See Agency for Toxic Substances and Disease Registry 4897–4900 Interrogation of Individuals in U.S. Custory or Control in Transportation Department Armed Conflicts; Standards and Practices (EO See Federal Aviation Administration 13491), 4891–4896 See Federal Highway Administration Special Interagency Task Force on Detainee Disposition, See Surface Transportation Board Establishment (EO 13493), 4901–4902 See Transportation Security Administration

Public Health Service Transportation Security Administration See Agency for Healthcare Research and Quality NOTICES See Agency for Toxic Substances and Disease Registry Agency Information Collection Activities; Proposals, See Centers for Disease Control and Prevention Submissions, and Approvals, 4757–4758 See National Institutes of Health See Substance Abuse and Mental Health Services Treasury Department Administration See United States Mint NOTICES Agency Information Collection Activities; Proposals, Railroad Retirement Board Submissions, and Approvals, 4829–4830 NOTICES Agency Information Collection Activities; Proposals, United States Mint Submissions, and Approvals, 4787–4788 NOTICES United States Mint Silver Eagle Bullion Coin Premium Securities and Exchange Commission Increase, 4830 See Securities and Exchange Commission NOTICES United States Sentencing Commission Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 4788 Sentencing Guidelines for United States Courts, 4802–4823 Self–Regulatory Organizations; Proposed Rule Changes: BATS Exchange, Inc., 4788–4790 Boston Stock Exchange, Inc., 4790–4792 Separate Parts In This Issue Financial Industry Regulatory Authority, Inc., 4792–4796 NASDAQ OMX BX, Inc., 4796–4799 Part II NASDAQ Stock Market LLC, 4799–4800 Housing and Urban Development Department, 4832–4842 NYSE Arca, Inc., 4800–4802 Part III Sentencing Commission, United States Commerce Department, National Oceanic and Atmospheric See United States Sentencing Commission Administration, 4844–4885

Small Business Administration Part IV NOTICES Health and Human Services Department, Centers for Disaster Declarations: Medicare & Medicaid Services, 4888–4889 Ohio; Disaster Number OH–00019 Declaration of Economic Injury, 4823 Part V Vermont (Disaster Number VT–00012), 4823 Presidential Documents, 4891–4902

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To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http:// Reader Aids listserv.access.gpo.gov and select Online mailing list Consult the Reader Aids section at the end of this page for archives, FEDREGTOC-L, Join or leave the list (or change phone numbers, online resources, finding aids, reminders, settings); then follow the instructions. and notice of recently enacted public laws.

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CFR PARTS AFFECTED IN THIS ISSUE

A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.

3 CFR Executive Orders: 13440 (revoked by 13491) ...... 4893 13491...... 4893 13492...... 4897 13493...... 4901 24 CFR 5...... 4832 92...... 4832 908...... 4832 39 CFR Proposed Rules: 111...... 4727 40 CFR 300...... 4687 Proposed Rules: 300...... 4729 42 CFR 447...... 4888 457...... 4888 47 CFR 73...... 4691 49 CFR 1002...... 4714 1011...... 4714 1155...... 4714 50 CFR 216...... 4844

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Rules and Regulations Federal Register Vol. 74, No. 16

Tuesday, January 27, 2009

This section of the FEDERAL REGISTER on the NPL and are not being and included as part of the comment contains regulatory documents having general considered for deletion as part of this that is placed in the public docket and applicability and legal effect, most of which action. made available on the Internet. If you are keyed to and codified in the Code of DATES: This direct final partial deletion submit an electronic comment, EPA Federal Regulations, which is published under recommends that you include your 50 titles pursuant to 44 U.S.C. 1510. is effective March 30, 2009 unless EPA receives adverse comments by February name and other contact information in The Code of Federal Regulations is sold by 26, 2009. If adverse comments are the body of your comment and with any the Superintendent of Documents. Prices of received, EPA will publish a timely disk or CD–ROM you submit. If EPA new books are listed in the first FEDERAL withdrawal of the direct final partial cannot read your comment due to REGISTER issue of each week. deletion in the Federal Register technical difficulties and cannot contact informing the public that the partial you for clarification, EPA may not be deletion will not take effect. able to consider your comment. ENVIRONMENTAL PROTECTION Electronic files should avoid the use of ADDRESSES: AGENCY Submit your comments, special characters, any form of identified by Docket ID no. EPA–HQ– encryption, and be free of any defects or 40 CFR Part 300 SFUND–1989–0008, by one of the viruses. following methods: [EPA–HQ–SFUND–1989–0008; FRL–8761–2] • Docket: All documents in the docket http://www.regulations.gov. Follow are listed in the http:// National Oil and Hazardous Substance on-line instructions for submitting www.regulations.gov index. Although Pollution Contingency Plan; National comments. listed in the index, some information is • E-mail: Larry C. Johnson, Priorities List not publicly available, e.g., CBI or other Community Involvement Coordinator at information whose disclosure is AGENCY: Environmental Protection [email protected] or Andy restricted by statute. Certain other Agency. Palestini, Remedial Project Manager at material, such as copyrighted material, ACTION: Direct final Notice of Partial [email protected]. will be publicly available only in hard • Fax: 1–215–814–3002. Deletion of the Rentokil, Inc. (Virginia copy. Publicly available docket • Mail: Larry C. Johnson, Community Wood Preserving Division) Superfund materials are available either Involvement Coordinator, U.S. EPA Site from the National Priorities List. electronically in http:// Region 3, Mailcode 3HS52, www.regulations.gov or in hard copy at: SUMMARY: The Environmental Protection Philadelphia, Pennsylvania 19103. U.S. EPA Region 3 Library, U.S. EPA Agency (EPA) Region 3 is publishing a • Hand delivery: Larry C. Johnson, Region 3, 1650 Arch Street, direct final Notice of Partial Deletion of Community Involvement Coordinator, Philadelphia, Pennsylvania 19103– former Wetland Areas B and C of the U.S. EPA Region 3, Mailcode 3HS52, 2029, (215) 814–5000, Monday through Rentokil, Inc. (Virginia Wood Preserving Philadelphia, Pennsylvania 19103. Such Friday 8 a.m. to 12 p.m.; Henrico Division) Superfund Site (Site), located deliveries are only accepted during the County Municipal Reference and Law in Henrico County, near the city of Docket’s normal hours of operation, and Library, Parham Road at Hungary Spring Richmond, Virginia, from the National special arrangements should be made Road, Richmond, Virginia 23273. Priorities List (NPL). The NPL, for deliveries of boxed information. promulgated pursuant to section 105 of Instructions: Direct your comments to FOR FURTHER INFORMATION CONTACT: the Comprehensive Environmental Docket ID no. EPA–HQ–SFUND–1989– Andy Palestini, Remedial Project Response, Compensation, and Liability 0008. EPA’s policy is that all comments Manager, U.S. Environmental Protection Act (CERCLA) of 1980, as amended, is received will be included in the public Agency, Region 3, 3HS23, 1650 Arch Appendix B of 40 CFR part 300, which docket without change and may be Street, Philadelphia, Pennsylvania is the National Oil and Hazardous made available online at http:// 19103, 215–814–3233. Substances Pollution Contingency Plan www.regulations.gov, including any SUPPLEMENTARY INFORMATION: (NCP). This direct final partial deletion personal information provided, unless Table of Contents is being published by EPA with the the comment includes information concurrence of the Commonwealth of claimed to be Confidential Business I. Introduction Information (CBI) or other information II. NPL Deletion Criteria Virginia, through the Virginia III. Partial Deletion Procedures Department of Environmental Quality whose disclosure is restricted by statute. IV. Basis for Partial Site Deletion (VDEQ) because EPA has determined Do not submit information that you V. Deletion Action that all appropriate response actions at consider to be CBI or otherwise these identified parcels under CERCLA, protected through http:// I. Introduction other than operation and maintenance www.regulations.gov or e-mail. The EPA Region 3 is publishing this direct and five-year reviews, have been http://www.regulations.gov Web site is final Notice of Partial Deletion for the completed. However, this partial an ‘‘anonymous access’’ system, which Rentokil, Inc. (Virginia Wood Preserving deletion does not preclude future means EPA will not know your identity Division) Superfund Site (Site), from the actions under Superfund. or contact information unless you National Priorities List (NPL). This This partial deletion pertains to the provide it in the body of your comment. partial deletion pertains to the soil and soil and sediment of former Wetland If you send an e-mail comment directly sediment of former Wetland Areas B Areas B and C and the ground water at to EPA without going through http:// and C and the ground water at former former Wetland Area C. The remaining www.regulations.gov, your e-mail Wetland Area C. The NPL constitutes areas and media of the Site will remain address will be automatically captured Appendix B of 40 CFR part 300, which

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is the National Oil and Hazardous sites may be deleted from the NPL announces the 30-day public comment Substances Pollution Contingency Plan where no further response is period concerning the Notice of Intent (NCP), that EPA promulgated pursuant appropriate. In making such a for Partial Deletion of the Site from the to Section 105 of the Comprehensive determination pursuant to 40 CFR NPL. Environmental Response, Compensation 300.425(e), EPA will consider, in (4) The EPA has placed copies of and Liability Act (CERCLA) of 1980, as consultation with the State, whether any documents supporting the partial amended, 42 U.S.C. 9605. EPA of the following criteria have been met: deletion in the deletion docket and identifies sites that appear to present a i. Responsible parties or other persons made these items available for public significant risk to public health, welfare, have implemented all appropriate inspection and copying at the Site or the environment and maintains the response actions required; information repositories identified NPL as the list of these sites. Sites on ii. All appropriate Fund-financed above. the NPL may be the subject of remedial response under CERCLA has been (5) If adverse comments are received actions financed by the Hazardous implemented, and no further response within the 30-day public comment Substance Superfund (Fund). This action by responsible parties is period on this partial deletion action, partial deletion of the Rentokil, Inc. appropriate; or EPA will publish a timely notice of (Virginia Wood Preserving Division) iii. The remedial investigation has withdrawal of this direct final Notice of Superfund Site is proposed in shown that the release poses no Partial Deletion before its effective date accordance with 40 CFR 300.425(e) and significant threat to public health or the and will prepare a response to is consistent with the Notice of Policy environment and, therefore, the taking comments and continue with the Change: Partial Deletion of Sites Listed of remedial measures is not appropriate. deletion process on the basis of the on the National Priorities List. 60 FR Pursuant to CERCLA Section 121(c) Notice of Intent for Partial Deletion and 55,466 (Nov. 1, 1995). As described in and the NCP, EPA conducts five-year the comments already received. 300.425(e)(3) of the NCP, a portion of a reviews to ensure the continued Deletion of a portion of a site from the site deleted from the NPL remains protectiveness of remedial actions NPL does not itself create, alter, or eligible for Fund-financed remedial where hazardous substances, pollutants, revoke any individual’s rights or action if future conditions warrant such or contaminants remain at a site above obligations. Deletion of a portion of a actions. Whenever there is a significant levels that allow for unlimited use and site from the NPL does not in any way release from a site deleted or partially unrestricted exposure. EPA conducts alter EPA’s right to take enforcement deleted from the NPL, the site shall be such five-year reviews even if a site is actions, as appropriate. The NPL is restored to the NPL. deleted from the NPL. EPA may initiate designed primarily for informational Because EPA considers this action to further action to ensure continued purposes and to assist EPA be noncontroversial and routine, this protectiveness at a deleted site if new management. Section 300.425(e)(3) of action will be effective March 30, 2009 information becomes available that the NCP states that the deletion of a unless EPA receives adverse comments indicates it is appropriate. Whenever portion of a site from the NPL does not by February 26, 2009. Along with this there is a significant release from a site preclude eligibility for further response direct final Notice of Partial Deletion, deleted from the NPL, the deleted site actions, should future conditions EPA is co-publishing a Notice of Intent may be restored to the NPL without warrant such actions. for Partial Deletion in the ‘‘Proposed application of the hazard ranking IV. Basis for Partial Site Deletion Rules’’ section of the Federal Register. system. If adverse comments are received within The following information provides the 30-day public comment period on III. Partial Deletion Procedures EPA’s rationale for deleting the soil and this partial deletion action, EPA will The following procedures apply to the sediment at former Wetland Areas B and publish a timely withdrawal of this deletion of the soil and sediment of C and the ground water at former direct final Notice of Partial Deletion former Wetland Areas B and C and the Wetland Area C of the Rentokil, Inc. before the effective date of the partial ground water at former Wetland Area C Superfund Site from the NPL: deletion and the partial deletion will of the Site: Site Background and History not take effect. EPA will, as appropriate, (1) EPA has consulted with the prepare a response to comments and Commonwealth of Virginia prior to The Rentokil, Inc. Superfund Site continue with the deletion process on developing this direct final Notice of (Site) is a former wood treating facility the basis of the Notice of Intent for Partial Deletion and the Notice of Intent that operated under the name of Partial Deletion and the comments for Partial Deletion co-published in the Virginia Wood Preservers and that already received. There will be no ‘‘Proposed Rules’’ section of the Federal ceased operating in January 1990. The additional opportunity to comment. Register. Site is located at 3000 Peyton Street at Section II of this document explains (2) EPA has provided the the intersection of Peyton Street and the criteria for deleting sites from the Commonwealth 30 working days for Ackley Avenue in Henrico County, near NPL. Section III discusses procedures review of this notice and the parallel Richmond, Virginia. The Site includes that EPA is using for this action. Section Notice of Intent for Partial Deletion the former wood treatment process area, IV discusses former Wetland Areas B prior to their publication today, and the the wood drying areas, Wetland Area A, and C of the Site and demonstrates how Commonwealth, through the Virginia and the two former wetland areas the deletion criteria are met. Section V Department of Environmental Quality (Wetland Areas B and C). None of the discusses EPA’s action to partially (VDEQ), has concurred on the partial wetland areas were used in the wood delete the Site parcels from the NPL deletion of the Site from the NPL. treating process; these areas became unless adverse comments are received (3) Concurrently with the publication contaminated by runoff from the Site. during the public comment period. of this direct final Notice of Partial Wetland Area A, the area immediately Deletion, a notice of the availability of north of the former process area, is II. NPL Deletion Criteria the parallel Notice of Intent for Partial located within the flood plain of an The NCP establishes the criteria that Deletion is being published in a major unnamed tributary to North Run. EPA uses to delete sites from the NPL. local newspaper, the Richmond Times Wetland Area A was remediated and re- In accordance with 40 CFR 300.425(e), Dispatch. The newspaper notice vegetated to remain a wetland. Former

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Wetland Area B, the area at the additional migration of contaminated minimize the migration of contaminants southeast corner of the Site, and former sediment from the Site into North Run from site soil and wetland sediments Wetland Area C, the area immediately Creek. These structures were completed that could result in surface water south of the Site which is across Peyton by June 22, 1992. concentrations in excess of Ambient Street, were connected by two culverts EPA issued a Record of Decision Water Quality Criteria; eliminate or under Peyton Avenue. Surface runoff (ROD) for the Site on June 22, 1993. The minimize the threat posed to human discharged from the Site through a ditch ROD addressed all aspects of Site health and the environment by to former Wetland B, where it was cleanup: Existing structures, ‘‘hot preventing exposure to the retained and discharged to former spots’’, ground water, surface water, contaminants in the ground water; and Wetland C when flow was high. A ditch soil, sediment, mitigation for the loss of contain contaminated ground water to along the north side of Peyton Avenue wetlands, and institutional controls, as protect human health and the also collected runoff from the Site. This described more completely below. A environment. runoff flowed through the west culvert Consent Decree, whereby VPI agreed to EPA amended the ROD on August 27, to former Wetland Area C. A ditch implement the requirements of the ROD, 1996, with the concurrence of VDEQ to parallel to the south side of Peyton was signed by VPI in 1994. delete the requirement for treatment of the ‘‘hot spots’’ at the Site because Avenue carried runoff from former Remedial Investigation and Feasibility ground water modeling indicated that Wetland Area C to the east and Study (RI/FS) ultimately to a 24-inch culvert under treating the ‘‘hot spots’’ had no effect on Ackley Avenue. Because the invert of Analytical results of the sampling the levels of contaminants in the ground the 24-inch culvert was about two feet performed for the RI indicate that the water. surface soil, subsurface soil, ground above the flow line of the south ditch Response Actions and the normal elevation of former water, and sediments posed Wetland Area C, Site-related runoff unacceptable risks to human health and Remedial construction of former waters were retained within former the environment, mainly through Wetland Area B started in June 1998 Wetland Area C. exposure to the following Site-related with the clearing and grubbing of the Wood treating operations at the Site contaminants: Arsenic, chromium, existing vegetation. All of the clearing were initiated in 1957 and continued copper, pentachlorophenol, and and grubbing materials were chipped in under several different owners/ polynuclear aromatic hydrocarbons a tub grinder and were disposed of at operators. In 1974, Rentokil, Inc. (from using creosote). the Old Dominion (BFI) landfill in Richmond, Virginia. Excavation of the purchased the stock of TaCo, one of the Record of Decision Findings previous owners. Both TaCo and the top 24 inches of contaminated soil Virginia Wood Preserving Corporation The major components of the remedy occurred in July 1998, immediately (the owner prior to 1974) were selected in the ROD include: followed by backfilling the excavated subsequently merged into Rentokil. Demolition, decontamination, and off- area with clean soil. The remedial Rentokil later changed its name to site disposal of the existing structures; construction was completed in August Rentokil SupaTimber, Inc. and, in excavation, treatment (if necessary) and 1998 when the area was seeded with an September 1989, changed its name to off-site disposal of the on-site pond approved seed mix. A total of 3,339 Virginia Properties, Inc. (VPI), a wholly sediments; excavation and on-site cubic yards of contaminated soil was owned subsidiary of Rentokil, Inc. disposal of the contaminated soil and excavated and placed under the cap The land immediately surrounding sediment in Wetland Areas A, B, and C; constructed in the area of the former rail the Site is mostly open space/ construction of an impermeable cap; spur. woodlands. Nearby development is excavation, low temperature thermal Remedial construction of former comprised of light industrial, desorption treatment, and on-site Wetland Area C also started in June commercial, and low density disposal of the ‘‘hot spots’’, the soil in 1998 with the clearing and grubbing of residential. A private developer has the CCA Disposal Area, the Fill Area, the existing vegetation. All of the purchased former Wetland Area B in and the source material within 25 feet clearing and grubbing materials were preparation of placing new commercial/ of the concrete drip pad, the on-site chipped in a tub grinder and were office buildings in this area. The pond, and the former blowdown sump; disposed of at the Old Dominion (BFI) surrounding area is served by public construction of a slurry wall; landfill in Richmond, Virginia. water supply. construction of a dewatering system Excavation of the top 24 inches of EPA proposed that the Site be listed within the cap/slurry wall containment contaminated soil occurred in August on the NPL in January 1987. The Site system; institutional controls; mitigation 1998, immediately followed by was placed on the NPL in March 1989. for the loss or damage to the wetland backfilling the excavated area with Pursuant to CERCLA, Rentokil, Inc. and areas; and, long-term ground water clean soil. The remedial construction EPA signed an Administrative Order by monitoring. was completed in October 1998 when Consent in December 1987 to conduct a Although Remedial Action Objectives the area was seeded with an approved Remedial Investigation/Feasibility were not specifically identified in the seed mix. A total of 5,380 cubic yards Study (RI/FS) to identify the types, ROD, the following objectives can be of contaminated soil was excavated and quantities, and locations of inferred from the major components of placed under the cap constructed in the contaminants and to develop ways of the remedy: Reduce risks to human area of the former rail spur. addressing Site contamination. The two health by preventing direct contact In the ROD, EPA, with the advice of phases of field work for the RI were with, and ingestion of, contaminants in the U.S. Fish and Wildlife Service, conducted from May to August 1989 the site soil, wetland sediments, and selected wetlands mitigation because of and from June to July 1991. In March pond sediments, and by preventing the damage caused to former Wetland 1992, VPI and EPA entered into an potential ingestion of contaminated Areas B and C. The mitigation consisted Administrative Order by Consent for ground water; reduce risks to the of purchasing approximately 6.81 acres Removal Action (Order). The purpose of environment by preventing direct of prior converted cropland and the Order was to design and construct contact with, and ingestion of, reconstructing the land to simulate sediment control structures to prevent contaminants in the wetland sediments; natural wetland conditions. Mitigation

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occurred in the Virginia Wood Five-Year Review solicited the general sentiment from the Preserving portion of the Chickahominy EPA issued the first five-year review local community on how Site operations LLC mitigation area located in Charles report for the Site on September 17, affected them and whether anyone had City County, Virginia, approximately 25 2003. In the report, EPA stated that a any comments, suggestions, or miles east of Richmond, in the protectiveness determination of the recommendations regarding the Chickahominy River floodplain. remedy could not be made until a management or operation of the Site. No Cleanup Standards determination is made as to whether the feedback was received from the contaminant levels at monitoring well community. Arsenic was the primary contaminant Concurrently with the publication of of concern in the wetland areas. As number 2 is due to leakage from the cap/slurry wall containment system. No this direct final Notice of Partial such, all soil exceeding the site-specific Deletion, a notice of the availability of cleanup level for arsenic of 33 mg/kg issues were identified for the implementation of the remedy or the the parallel Notice of Intent for Partial was excavated to a depth of 24 inches. Deletion will be published in the Confirmatory sampling was performed protectiveness at either former Wetland Area B or C. Richmond Times Dispatch. The during the remedial action to confirm newspaper notice will announce the 30- that the soil cleanup level was achieved. The second five-year review report was issued on September 22, 2008. In day public comment period concerning Operation and Maintenance the second five-year review report, EPA the Notice of Intent for Partial Deletion The cap at the Site is routinely determined that the remedy is of the Site from the NPL. monitored to make sure the fence is in protective of human health and the Determination That the Criteria for good condition, to determine when to environment. All threats at the Site Deletion Have Been Met mow the grass, to check if there are any associated with ingestion or dermal problems with erosion of the cap surface contact with contaminated soil and The soil and sediments in former that needs repair, and to locate any trees sediments have been addressed through Wetland Areas B and C and the ground which require cutting down. capping of the Site and excavation and water at former Wetland Area C are Rentokil, Inc. takes ground water consolidation of those areas of being proposed for deletion because the samples semi-annually to monitor the contaminated soil and sediments Responsible Party completed all levels of contaminants. The selected previously located beyond the extent of appropriate response actions required remedy includes withdrawing ground the cap (including the soil and sediment by the ROD. The remedy selected in the water from within the area enclosed by at former Wetland Areas B and C). The ROD for these two areas included the cap/slurry wall. However, EPA, with ground water clean-up goals selected for excavating the contaminated soil and the concurrence of the VDEQ, has the Site are protective of human health disposing the material under the cap. agreed to a request by Rentokil, Inc. to and the environment. In the interim, All soil exceeding the site-specific place a moratorium on the withdrawal exposure pathways that could result in cleanup level of 33 mg/kg of arsenic was of ground water to determine whether unacceptable risks are being controlled. excavated to a depth of 24 inches, with this practice has any effect on the levels Even though no one currently uses the the extent of excavation determined by or dispersion of the contaminants in the contaminated ground water, confirmatory sampling. The excavated ground water outside of this enclosed institutional controls have been areas were then backfilled with clean area. implemented to prevent exposure to, or soil and seeded. This work was Institutional controls in the form of a ingestion of, contaminated ground water completed during the remedial action, Deed Notice and Declaration of (an institutional control has also been as documented in the Preliminary Close Restrictive Covenants for Certain placed on the ground water at former Out Report dated September 2, 1999. property at the Rentokil Superfund Site Wetland Area B to prevent drawing the Mitigation for the damage to the was recorded in the Clerk’s Office of contaminated ground water to that area). wetland areas occurred in the Virginia Henrico County on December 1, 2005. Long-term protectiveness of the Wood Preserving portion of the Included in the Restrictive Covenant are remedial action will be verified by Chickahominy LLC mitigation area provisions precluding residential obtaining ground water samples to fully located in Charles City County, Virginia. development and ground water use in evaluate migration of the contaminant EPA is deleting former Wetland Areas former Wetland Area B. Even though the plume downgradient of the slurry wall. B and C from the NPL as requested by ground water at former Wetland Area B Current data indicated that the plume Parham Forest Partners, LLC, the is not contaminated, EPA required the remains in the area of VPMW–02 and is purchaser of the former Wetland Area B restriction on ground water use to not expanding. parcel of the Site, and VDEQ. EPA prevent the possibility of drawing EPA will need to conduct the next Region 3 submitted the direct final contamination in that direction. There five-year review of the Site by Notice of Partial Deletion and the Notice are no use restrictions for former September 2013. Former Wetland Area of Intent of Partial Deletion to EPA Wetland Area C. C will not be subject to future five-year Headquarters and to the VDEQ for their EPA and the U.S. Fish and Wildlife reviews because all response actions are concurrence. Service continue to monitor progress at complete and conditions allow for V. Deletion Action the mitigation site in Charles City unlimited use and unrestricted County. Two issues were brought up as exposure. The EPA, with concurrence of the a result of the latest site visit in Commonwealth of Virginia through the September 2007. First, Japanese Community Involvement Virginia Department of Environmental honeysuckle, should be treated with an The most recent community Quality, has determined that all herbicide to allow other desirable involvement activity for this Site was appropriate response actions under vegetation to grow. Secondly, the tree placing the newspaper ad informing the CERCLA, other than operation and tubes used during the initial planting public that EPA was conducting a five- maintenance and five-year reviews, effort should be removed because they year review of the Site. The ad was have been completed. Therefore, EPA is are restricting the growth of the tree placed in the Richmond Times Dispatch deleting the soil and sediments in trunks. on August 21, 2008. In the ad, EPA former Wetland Areas B and C and the

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ground water at former Wetland Area C already received. There will be no PART 300—[AMENDED] of the Rentokil, Inc. Site from the NPL. additional opportunity to comment. Because EPA considers this action to ■ 1. The authority citation for part 300 List of Subjects in 40 CFR Part 300 be noncontroversial and routine, EPA is continues to read as follows: taking it without prior publication. This Environmental protection, Air Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. action will be effective March 30, 2009, pollution control, Chemicals, Hazardous 9601–9657; E.O. 12777, 56 FR 54757, 3 CFR unless EPA receives adverse comments substances, Hazardous waste, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, by February 26, 2009. If adverse Intergovernmental relations, Penalties, 3 CFR 1987 Comp., p. 193. comments are received within the 30- Reporting and recordkeeping Appendix B—[Amended] day public comment period, EPA will requirements, Superfund, Water publish a timely withdrawal of this pollution control, Water supply. ■ 2. Table 1 of Appendix B to part 300 direct final notice of partial deletion Dated: December 16, 2008. is amended under ‘‘VA’’ by revising the before the effective date of the partial William T. Wisniewski, entry for ‘‘Rentokil, Inc.’’, (Virginia deletion and it will not take effect. EPA Wood Preserving Division) to read as will prepare a response to comments Acting Regional Administrator, Region 3. follows: and continue with the deletion process ■ For the reasons set out in this on the basis of the notice of intent to document, 40 CFR part 300 is amended Appendix B to Part 300—National partially delete and the comments as follows: Priorities List

TABLE 1—GENERAL SUPERFUND SECTION

State Site name City/county Note (a)

Virginia ...... Rentokil, Inc. (Virginia Wood Preserving Division) ...... Richmond ...... P

(a) * * * implement this Act and the analog Summary of the Notice of Proposed P = Sites with partial deletion(s). nightlight program. Rulemaking [FR Doc. E9–1704 Filed 1–26–09; 8:45 am] DATES: Effective January 27, 2009. I. Introduction and Background BILLING CODE 6560–50–P FOR FURTHER INFORMATION CONTACT: For 1. The Short-term Analog Flash and additional information on this Emergency Readiness Act (‘‘Analog proceeding, contact Kim Matthews, Nightlight Act’’ or ‘‘Act’’), Pub. L. 110– FEDERAL COMMUNICATIONS 459, 122 Stat. 5121 (2008), requires the COMMISSION [email protected], or Evan Baranoff, [email protected] of the Commission to develop and implement 47 CFR Part 73 Media Bureau, Policy Division, (202) a program by January 15, 2009, to 418–2120; or John Gabrysch, ‘‘encourage and permit’’ continued [MB Docket No. 08–255; FCC 09–2] [email protected], of the Media analog TV service for a period of 30 days after the February 17, 2009 DTV Implementation of Short-Term Analog Bureau, Engineering Division, (202) 418–7000. transition date, to the extent technically Flash and Emergency Readiness Act; feasible, for the purpose of providing Establishment of DTV Transition SUPPLEMENTARY INFORMATION: This is a ‘‘public safety information’’ and ‘‘DTV ‘‘Analog Nightlight’’ Program summary of the Commission’s Report transition information’’ to viewers who AGENCY: Federal Communications and Order (Order), FCC 09–2, adopted may not obtain the necessary equipment Commission. and released on January 15, 2009. The to receive digital broadcasts by the ACTION: Final rule. full text of this document is available for transition deadline. This Report and public inspection and copying during Order (‘‘Order’’) adopts the SUMMARY: With this document, the regular business hours in the FCC requirements to implement the Act. Commission implements the Short-term Reference Center, Federal 2. Congress has mandated that after Analog Flash and Emergency Readiness Communications Commission, 445 12th February 17, 2009, full-power television Act, Public Law 110–459, 122 Stat. 5121 Street, SW., CY–A257, Washington, DC broadcast stations must transmit only (2008). The Analog Nightlight Act 20554. These documents will also be digital signals, and may no longer requires the Commission to develop and available via ECFS (http://www.fcc.gov/ transmit analog signals. (See Digital implement a program by January 15, cgb/ecfs/). (Documents will be available Television and Public Safety Act of 2009, to ‘‘encourage and permit’’ electronically in ASCII, Word 97, and/ 2005 (‘‘DTV Act’’), which is Title III of continued analog TV service for a or Adobe Acrobat.) The complete text the Deficit Reduction Act of 2005, period of 30 days after the February 17, may be purchased from the Public Law 109–171, 120 Stat. 4 (2006) 2009 DTV transition date, to the extent Commission’s copy contractor, 445 12th (codified at 47 U.S.C. 309(j)(14) and technically feasible, for the purpose of Street, SW., Room CY–B402, 337(e)).) The Analog Nightlight Act is providing emergency and DTV Washington, DC 20554. To request this designed to ensure that those consumers transition information to viewers who document in accessible formats who are not able to receive digital may not obtain the necessary equipment (computer diskettes, large print, audio signals after the DTV transition on to receive digital broadcasts by the recording, and Braille), send an e-mail February 17, 2009 will not be left transition deadline. The Act intends to to [email protected] or call the without access to emergency provide short-term assistance to viewers Commission’s Consumer and information. The Act is also intended to as the nation transitions from analog to Governmental Affairs Bureau at (202) help consumers understand the steps digital television service. This 418–0530 (voice), (202) 418–0432 they need to take in order to restore document adopts the policies to (TTY). their television service. (The analog

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nightlight concept was first used by the maximum flexibility for participating that are unable to provide nightlight broadcasters in Wilmington, North broadcasters, consistent with the intent service on their own analog channel to Carolina, who volunteered to transition of the statute to permit and encourage coordinate with other broadcasters in their market on September 8, 2008. participation. (A list of the comments their service area to share the costs of They ceased analog broadcasting on that and reply comments filed in response to analog nightlight operation to reach date but continued to broadcast their the NPRM is attached hereto at their viewers. We strongly encourage all analog signals for roughly one month, Appendix B.) Specifically, we expand stations to work together to ensure that displaying a ‘‘slate’’ describing the herein the list of stations pre-approved at least one station serving each transition and where people could to provide nightlight service, adopt community provides a nightlight service obtain information about it.) In enacting streamlined procedures for stations to to assist that community. As proposed the Analog Nightlight Act, Congress follow to notify the Commission of in the NPRM, the station whose channel acknowledged that the FCC and others participation in the nightlight program, is being used to provide the nightlight ‘‘have been working furiously’’ to and permit the provision of limited service will remain responsible for the inform viewers about the transition, but sponsorship information as part of content of the programming. also recognized that there will nightlight programming to help stations 5. The Commission, in conjunction inevitably be some consumers left defray the cost of providing critical with industry stakeholders, state and behind. Congress also recognized that nightlight service. The decisions made local officials, community grassroots when viewers are cut off from their in this Order are guided solely by the organizations, and consumer groups, televisions, it is not just a matter of goal of the Analog Nightlight Act to has worked hard to increase consumer convenience but also one of public provide short-term assistance to viewers awareness of the digital transition, and safety. The concern about readiness is as we transition from analog to digital these efforts have made a significant especially acute with regard to the television service. Accordingly, we impact. (Many industry members have nation’s more vulnerable citizens—such emphasize that these decisions are not been working hard to educate as the poor, the elderly, the disabled, intended to stand as precedent for consumers about the upcoming and those with language barriers—who future proceedings involving different transition, including broadcasters, may be less prepared to ensure they will circumstances. Nevertheless, we find multichannel video programming have continued access to television these decisions are appropriate for the distributors, telecommunications service. unique circumstances involved here. companies, satellite providers, manufacturers, and retailers. According 3. The Analog Nightlight Act was 4. We strongly encourage all eligible to the latest Nielsen DTV report, more signed into law on December 23, 2008. stations to participate in the provision than 92 percent of U.S. households are (The Analog Nightlight legislation of a nightlight service to assist aware of and prepared, at least to some (S. 3663) was adopted by Congress on consumers during the 30-day period extent, for the transition.) All of our December 10, 2008 and sent to the following the digital transition. The efforts will continue and intensify up to President for signature on December 12, revised, expanded list of eligible and beyond the transition deadline. 2008.) On December 24, 2008, the nightlight stations is attached as However, it is inevitable that on Commission adopted and released a Appendix A hereto. In addition, we urge February 17, 2009, some consumers will Notice of Proposed Rule Making any station not listed on the attached be unaware of the transition, some will (‘‘NPRM’’) in this proceeding. (See Appendix A to consider and determine be unprepared to receive digital signals, Implementation of Short-term Analog whether it can participate in providing and others will experience unexpected Flash and Emergency Readiness Act; analog nightlight service by technical difficulties. For those Establishment of DTV Transition demonstrating that it will not cause consumers, the analog nightlight ‘‘Analog Nightlight’’ Program, MB harmful interference to any digital program adopted by Congress and Docket No. 08–255, Notice of Proposed station. (We note that the Community implemented herein will help to ensure Rule Making, 73 FR 80332 (December Broadcasters Association (‘‘CBA’’), that there is no interruption in the 31, 2008). In light of the extremely short which is concerned that continued provision of critical emergency period of time in which the Commission occupancy of analog channels will delay information and will provide useful was directed to implement the Act (i.e., the initiation of digital service by some information regarding the transition to the January 15, 2009 statutory deadline), Class A and Low Power Television help consumers establish digital service. the Commission acted quickly to adopt (‘‘LPTV’’) stations, prefers that the and release the NPRM in order to give Commission not pressure full power II. Discussion interested parties a short period of time stations that prefer not to participate in A. Duration of the Analog Nightlight in which to participate. Although the the nightlight program to change their Program Commission found that there was good mind and participate, as long as there is cause to dispense with notice and at least one full power station in each 6. We find that the Act authorizes comment requirements under the Designated Market Area (‘‘DMA’’) that is full-power television stations to provide Administrative Procedure Act (‘‘APA’’) willing and able to participate. While analog nightlight service for up to 30 because of this time frame, the we recognize that some Class A and days after the February 17, 2009 Commission nonetheless sought LPTV stations are waiting for analog transition date. Section 2(a) of the comment from interested parties in spectrum to become available so they Analog Nightlight Act states: order to assist in the development of the can commence digital service, we Notwithstanding any other provision of analog nightlight program. The believe that our primary goal in law, the Federal Communications Commission noted the ‘‘urgent necessity implementing the Analog Nightlight Act Commission shall, not later than January 15, for rapid administrative action under is to ensure widespread participation to 2009, develop and implement a program to the circumstances.’’) Based on assist viewers that are unprepared for encourage and permit, to the extent technically feasible and subject to such consideration of the comments and the transition. The nightlight period is limitations as the Commission finds to be replies we received, this Report and short—limited to 30 days—so any delay consistent with the public interest and Order adopts an analog nightlight caused to a Class A or LPTV station requirements of this Act, the broadcasting in program with practical procedures and would be brief.) We also urge stations the analog television service of only the

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public safety information and digital nightlight service reaches viewers who eligible stations, attached as Appendix transition information specified in subsection were unprepared for the transition. In A, to include 826 stations that cover 47 (b) during the 30-day period beginning on the addition, we believe that it is important states, the District of Columbia and day after the date established by law under for emergency information to remain Puerto Rico, and 202 designated market section 3002(b) of the [DTV Act] for termination of all licenses for full-power available to all viewers during the 30- areas (‘‘DMAs’’). (The eight DMAs television stations in the analog television day nightlight period wherever possible. without a station pre-approved for service and cessation of broadcasting by full- We require stations that elect to nightlight service are: Harrisburg- power stations in the analog television participate in the nightlight program to Lancaster-Lebanon-York, PA; service. inform us in their notification, as Hattiesburg-Laurel, MS; Lafayette, IN; 7. Thus, as required by this Act, our described below, if they are planning to Palm Springs, CA; Presque Isle, ME; analog nightlight program will permit cease nightlight service before Providence, RI-New Bedford, MA; eligible full-power television stations, as March 19, 2009. Springfield-Holyoke, MA; and Toledo, defined below, to continue their analog B. Eligibility for the Analog Nightlight OH. In six of these eight DMAs, we have broadcasting for a period of up to 30 Program identified at least one station that might be able to provide analog nightlight days beginning on February 18, 2009, 9. Based on Section 3 of the Act, we service at reduced power (four stations for the limited purpose of providing conclude, as we proposed in the NPRM, in the Harrisburg-Lancaster-Lebanon- public safety and digital transition that only stations operating on channels York DMA; one in the Hattiesburg- information, as further described below. 2 through 51 are eligible to broadcast in Laurel DMA, the Lafayette, IN DMA, (One commenter proposed that we analog pursuant to the Act. Section 3 of authorize Class A, LPTV, TV translator, the Act requires, among other things, and the Palm Springs DMA; two stations and other secondary television stations that the Commission consider ‘‘market- in the Providence (RI)-New Bedford to participate in making public service by-market needs, based on factors such (MA) DMA and three in the Toledo announcements regarding the DTV as channel and transmitter availability’’ DMA. There are no eligible stations in transition, and make an exception in developing the nightlight program, the Springfield-Holyoke DMA because where necessary to any rules that might and requires the Commission to ensure all of them either have an out-of-core prohibit these stations from making that the broadcasting of analog analog channel, are using their analog such announcements (e.g., some nightlight information will not cause channel for digital service, or would secondary television stations are either ‘‘harmful interference’’ to digital interfere with a co-channel station, but prohibited from originating television signals. In addition, Section 3 we believe portions of this market may programming or restricted in the prohibits the broadcasting of analog be served by nightlight stations in amount of programming they may nightlight signals on spectrum adjacent markets. In the Presque Isle originate.) Class A and LPTV stations ‘‘approved or pending approval by the DMA, both stations in the market are are not prohibited from making such Commission to be used for public safety using their analog channel for digital public service announcements and we radio services’’ and on channels 52–69. service, preventing them from providing encourage these stations to consider 10. We also conclude, as we proposed nightlight service. We will continue to doing so, particularly if they serve rural in the NPRM, that channels cannot be explore potential solutions for these areas that are served by few full-power used for analog nightlight service if they markets.) We agree with those stations.) The 30-day period ends at cause harmful interference to digital commenters, including the National 11:59:59 p.m. local time on March 19, television signals. (Section 3 also Association of Broadcasters (‘‘NAB’’) 2009. Cohen, Dippell and Everist, P.C. mandates that the Commission ‘‘not and the Association for Maximum (‘‘CDE’’) request in their comments that require’’ that analog nightlight signals Service Television (‘‘MSTV’’), who the Commission permit continuation of be subject to mandatory cable carriage advocate that we expand as much as analog service for more than 30 days and retransmission requirements. possible the list of stations that are pre- following the transition deadline in Analog Nightlight Act, Section 3(3).) approved for nightlight service and thus special cases. We decline CDE’s request Therefore, a station that is can participate in the nightlight program as it is contrary to the explicit language ‘‘flashcutting’’ on its analog channel to through a simple notification procedure. of the Act. post-transition digital operation will not In developing the list of pre-approved 8. Although we encourage stations be eligible to use its analog channel for eligible stations that we proposed in the that elect to participate in the analog the analog nightlight service because to NPRM (‘‘NPRM Appendix A’’), our nightlight program to provide nightlight do so would unavoidably interfere with intention was to be conservative in service for the entire 30-day period its digital service. (As discussed below, order to fully protect digital signals provided by the Act, they are not a station that is approved for a phased rather than risk interference. (With required to do so. The Analog Nightlight transition to remain on its pre-transition respect to Section 3(2), in considering Act limits the duration of the nightlight digital channel may be permitted to use interference protection for digital TV service but does not specify that the its analog channel for the analog stations, we developed minimum co- service must be provided for the entire nightlight program if doing so does not channel and adjacent channel spacing 30-day period. Consistent with the Act, delay its transition to digital service. measures and presumed that analog we find that participating stations have These circumstances will be evaluated stations that are located the specified the flexibility to provide nightlight on a case-by case basis.) distance or greater from any operating service for a shorter period of time and DTV stations would not cause terminate service before March 19, 2009. 1. Stations Initially Determined To Be interference to signals in the digital However, we urge stations that Eligible television service.) We find that volunteer to provide nightlight service 11. After reviewing the comments adopting a less conservative approach to commit to airing the nightlight received on this issue, we have decided will make it easier for stations to programming for at least two weeks, as that we can increase the number of participate and thereby further the goal we believe that a minimum period of stations initially determined to be of encouraging widespread nightlight two weeks is necessary to ensure that eligible for the analog nightlight service. We also find that the approach the information provided by the program. We will expand the list of set forth below, which relies on stations

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to address interference issues in the first individual interference analyses, an of this brief 30-day extension of analog instance based on market-by-market approach necessitated by the short time operation we assume that all stations are needs, is consistent with the available to develop the list. In operating at power levels no higher than Commission’s discretion under the Act developing the spacing criteria used by the maximum levels in the rules. The to provide for nightlight service that the Commission, we assumed that both minimum technical criteria (D/U ratios) furthers the public interest. The list in the analog station being studied and for protection of digital television NPRM Appendix A was not intended to DTV stations in the same vicinity are signals from interference from analog be an exhaustive list of the stations that operating at maximum power and signals are set forth in 47 CFR may be eligible to participate in the antenna height allowed under the rules. 73.623(c)(2). In developing these analog nightlight program, and we noted (The maximum transmit antenna height spacing measures we also used (1) the that it underestimated the stations that above average terrain (antenna HAAT) F(50,90) curves as derived from the could qualify. and power limits for low-VHF (channels F(50,50) and F(50,10) curves in 47 CFR 12. Accordingly, we will use the alternative list of pre-approved stations 2–6), high-VHF (channels 7–13), and 73.699, and the DTV service thresholds provided by NAB/MSTV in their UHF (channels 14–51) stations are set in 47 CFR 73.622(e), to calculate DTV comments, which contains more forth in 47 CFR 73.622(f). The maximum service areas and (2) the analog stations than our list in NPRM antenna HAAT allowed for DTV stations maximum power and antenna height Appendix A, with some changes as on channels 2–13 is 305 meters and on standards in 47 CFR 73.614, and the discussed below. The NAB/MSTV list channels 14–51 is 365 meters (power F(50,10) curves in Section 73.699 to was developed by assuming that most reductions are required if higher calculate analog interference potential.) analog stations now operating on low antennas are used), the maximum power One difference between the lists is VHF channels 2–6 should be eligible for limits are (1) for low-VHF, 10 kW in NAB/MSTV’s application of a uniform nightlight operations as there will be Zone I and 45 kW in Zones II and III (2) 170 kilometer (km) co-channel spacing relatively few digital stations occupying for high-VHF, 30 kW in Zone I and 160 standard to expand the list of pre- these channels and therefore few kW in Zone II and (3) for UHF, 1,000 approved stations, which is a shorter chances for either co-channel or kW. Certain stations were allowed to distance than we used for the NPRM adjacent channel interference. Like the use somewhat higher power on their Appendix A list. (The minimum spacing NPRM Appendix A list, the NAB/MSTV DTV channels in order to replicate their measures used in developing the NPRM list relies on spacing criteria rather than analog stations; however, for purposes Appendix A list were:

Co-channel minimum Adjacent channel minimum Channel band Zone (see 47 CFR 73.609) spacing spacing

2–6 (Low-VHF) ...... 1 ...... 302 km (188 miles) ...... 131 km (81 miles). 2–6 (Low-VHF) ...... 2 and 3 ...... 344 km (214 miles) ...... 156 km (97 miles). 7–13 (High-VHF) ...... 1 ...... 264 km (164 miles) ...... 118 km (73 miles). 7–13 (High-VHF) ...... 2 and 3 ...... 308 km (191 miles) ...... 149 km (93 miles). 14–51 (UHF) ...... 1, 2 and 3 ...... 283 km (176 miles) ...... 134 km (83 miles).

We presumed that meeting geographic minimum spacing of 90 km to stations stations. Thus, mobile stations may be spacing measures, which vary by not located within 20 km.) With respect operated at up to 128 kilometers (80 channel band and Zone, would ensure to the Act’s requirement regarding the miles) from the city center, see 47 CFR that analog stations that are located the protection of public safety land mobile 90.305.) specified distance or greater from any operations on channels 14–20, both our 13. While NAB/MSTV acknowledges operating DTV stations would not cause list and that of NAB/MSTV used the that its list may be more likely to result interference to signals in the digital Commission’s existing geographic in interference at the outer edges of a television service. We also assumed that spacing criteria to ensure that pre- DTV station’s service area during the viewers would orient their antennas approved eligible analog nightlight temporary 30-day nightlight period, it toward the desired DTV station and stations will not cause interference to argues this result should be balanced away from an analog station in a land mobile operations in the TV bands. neighboring or distant market so that the (Public safety services operate in the TV against the need for DTV and emergency front-to-back reception ratio of a user’s bands in 13 metropolitan areas on information throughout a station’s antenna would be 10 dB at low-VHF, 12 channels in the range of 14–20 (470–412 market. NAB/MSTV notes that, while its dB at high VHF and 14 dB at UHF as MHz) that have previously been priority generally is to protect digital indicated in the DTV planning factors identified in each area. See 47 CFR stations from interference, in this set forth in our OET Bulletin No. 69 73.623(e) for the list of land mobile proceeding, ensuring that as many (OET–69).) We further assumed that an communities and channels. Public stations as possible have the analog station would not cause safety services operate on specified opportunity to provide nightlight interference to a co-located adjacent channels in the TV bands as part of the service is vitally important. As stated channel digital station, i.e., a digital Private Land Mobile Radio Service above, we agree that a less conservative, station within 5 km (3 miles), while (PLMRS), see 47 CFR 90.303(a). PLMRS more balanced approach than that NAB/MSTV allows for co-location base stations on these channels must be proposed in the NPRM is warranted and within 20 km. (We also did not apply located within 80 kilometers (50 miles) would be consistent with the adjacent channel protection between of the center of the cities where they are requirements of the Act, and we channels 4 and 5, channels 6 and 7 and permitted to operate on channels 14–20 conclude that use of NAB/MSTV’s list channels 13 and 14 as those channels (470–512 MHz), and mobile units may of pre-approved stations, with the are not adjacent in the frequency be operated within 48 kilometers (30 modifications described below, will spectrum. NAB/MSTV also used a miles) of their associated base station or serve the public interest.

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14. The revised list of stations pre- nightlight service. This revised list was reduce power after commencing approved for nightlight service in compared with the list of stations provision of the nightlight service, Appendix A includes most of the submitted by NAB/MSTV, and all but likewise, must notify us of their power stations listed on Appendix A to the 12 of the stations on our revised list also reduction via the notification process NPRM, plus most of the stations on the appeared on the NAB/MSTV list. Those described below. NAB/MSTV list. (Consistent with the 12 stations were added to the NAB/ 17. The Commission ultimately statute, the NPRM Appendix A and MSTV list to produce the list shown in reserves the right to rescind any Appendix A adopted herein include Appendix A herein; those stations are station’s authority to provide analog only those stations that operate on indicated on that list by an asterisk.) nightlight service, including the analog channels 2–51. The NAB/MSTV Appendix A identifies those stations authority of any station listed on list also includes only these stations.) that have already indicated to the Appendix A. Among other things, we We are excluding four stations that are Commission that they are interested in will weigh the benefits of the 30-day not presently broadcasting. (The four providing nightlight service (see column nightlight service against the stations are KYUK–TV, Bethel AK; K). interference caused to post-transition 960703KK, Price UT; New34, Senatobia 15. We have also identified in digital service in making any such MS; and 960920LX, Tupelo MS. Bethel Appendix A hereto the stations that, determination. We will rescind the Broadcasting, Inc. filed comments on while they are pre-approved to provide authority of any station’s analog behalf of KYUK noting that the station nightlight service, may pose a greater nightlight transmission that results in a was erroneously listed in the NPRM risk of interference to digital stations valid complaint of harmful interference. under the less-conservative spacing (Although we urge stations to work Attachment A.) NAB/MSTV did not methodology used to derive the together to resolve any concerns include in their list stations that have Appendix A. These stations are regarding interference, complaints that requested and received permission from identified by an asterisk in the column cannot be resolved may be sent by e- the Commission to remain on their pre- J headed ‘‘short spaced.’’ We note that mail to [email protected].) transition DTV channel after the NAB/MSTV state that, if interference February 17, 2009 transition date 2. Other Stations That May Meet were to occur, it can be easily identified pursuant to the ‘‘phased-transition’’ Eligibility Requirements and corrected by having the Nightlight relief provisions adopted in the Third stations reduce power. In this regard, we 18. As we proposed in the NPRM, we DTV Periodic Report and Order and that are continuing to perform analyses to will permit broadcasters whose stations were listed on the NPRM Appendix A. identify any potential significant are not listed in Appendix A and who These stations’ analog channels will be interference problems and will work are interested in providing nightlight available for nightlight service and, with broadcasters to mitigate any such service to submit engineering and other accordingly, we have retained them in interference. In the meantime we urge information to demonstrate why they Appendix A, as adopted here. In these stations to consider providing believe they meet the criteria identified addition, we have added to the NAB/ nightlight service, but we also ask that in the Act and the requirements we MSTV list 12 stations (indicated in they consider whether reducing their adopt here. We recognize that there are Appendix A in column I with an analog signal strength to mitigate many analog stations that are currently asterisk (*)) that our analysis indicates possible interference to DTV stations operating close to digital stations may operate with contour protection can be done without significantly without causing interference. In such equivalent to that described in the affecting the population receiving cases, interference is avoided by stations NPRM. (In order to improve the nightlight service. For example, if there operating at less than the maximum accuracy of the initial analysis upon are already several stations in the allowed technical facilities, terrain which the Appendix A list in the NPRM market providing nightlight service, it features, or other conditions affecting was based, we generated a revised list may be preferable for a station whose propagation. These stations may notify of eligible stations that were determined nightlight operation is short-spaced to us through the Engineering STA process using spacing criteria for the individual support the service provided by other described below and explain how they station power levels and heights above stations in the market rather than itself could operate without causing harmful average terrain using the appropriate broadcasting an analog signal. If, interference to nearby digital station(s). propagation curves. As with the initial however, a station listed in Appendix A Such explanations may consist of list, the spacing distances were that is short-spaced is the sole station analyses using the methods in OET–69 calculated such that the interfering that can provide nightlight service in a or other recognized methodologies for contour of the candidate analog station community, we urge that station to evaluating TV station interference. We did not overlap the protected noise- consider providing the service with anticipate that we will be able to rely on limited contour of any potentially- reduced power so as to avoid harmful the submissions we receive and public affected DTV station. This improved interference to digital stations. review to identify stations that may pose analysis removed some stations that 16. Consistent with the Act and the a problem. As we stated in the NPRM, were on the Appendix A list in the public interest, we encourage stations to we delegate to the Media Bureau NPRM, namely stations having facilities make these initial determinations on authority to address expeditiously in excess of the maximum power and their own after considering issues that may arise associated with height specified in our rules for either circumstances in their local market area this process and to authorize additional the candidate analog station or the and in consultation with other stations. stations to participate. protected DTV station. This improved (This approach is consistent with the 19. In the NPRM we proposed to analysis also added to the list some Act’s directive that the Commission take permit a station not listed in Appendix stations that have facilities less than the into account market-by-market needs in A to provide nightlight service if the maximum power and height specified in developing the nightlight program.) station would cause no more than 0.1 our rules. The resulting revised list Stations that decide to participate in the percent new interference to a digital contained about 360 stations, but did analog nightlight program using reduced station in addition to that reflected in not significantly increase the number of analog power should so indicate in their the DTV Table Appendix B. (After DMAs that would have access to notification to us. Stations that decide to February 17, 2009, any interference

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from a full power analog station to a the nightlight service can be provided for many stations. Second, as described post-transition digital signal will be without causing harmful interference. below, we will permit pre-approved treated as new interference. The details We ask stations to make these initial eligible stations identified in Appendix of each station’s DTV (post-transition) efforts to reach an agreement on their A to notify us of their participation in channel assignment, including technical own after considering circumstances in the analog nightlight program by either facilities and predicted service and their local market area and in filing a Legal STA or by simply sending interference information, are set forth in consultation with other stations. As us an e-mail. The option of using an e- the Appendix B to the final order in the noted above, we reserve the right to mail will make notification easier for DTV Table proceeding, MB Docket No. rescind, at any time, any station’s stations that choose to use this method 87–268 (‘‘DTV Table Appendix B’’).) We authority to provide analog nightlight to announce their intention to also proposed that, in areas where there service. participate. Stations that are not listed in Appendix A must file an Engineering is no station listed as eligible in C. Notifications to the Commission of STA if they wish to participate. Third, Appendix A or that would meet the 0.1 Program Participation percent interference standard, we will we will not require stations that elect to 20. We adopt a streamlined process permit a station to cause up to, but no participate in the nightlight program to for stations to notify us of their intent more than, 0.5 percent new interference file an update to their Transition Status to participate in the analog nightlight to a digital station in addition to the Report (FCC Form 387). Several program. In addition, we take the other interference included in DTV Table commenters advocated eliminating this steps discussed below to facilitate Appendix B. (For purposes of this proposed requirement, and we agree. participation in the analog nightlight discussion, an ‘‘area’’ means a viewing program. Notification by stations of 1. Notifications by Pre-Approved area, which may be a city, county, participation is critical for three reasons. Eligible Stations community, market, DMA, or other First, the Commission and the public 22. We will permit pre-approved geographic area in which people receive need to know which stations are eligible stations identified on Appendix over-the-air television service. Stations participating to help ensure the widest A to notify us of their participation in seeking to participate under this possible coverage of the nightlight the analog nightlight program by either standard should make their argument service. By identifying the areas that filing a Legal STA electronically and basis for inclusion clear in their will be covered, we can determine through the Commission’s Consolidated STA submission.) Because we have which areas will rely more heavily on Database System (‘‘CDBS’’) using the adopted a more expansive list of pre- other sources of continuing transition Informal Application filing form or by approved nightlight eligible stations information, including radio broadcasts sending an e-mail to [email protected]. herein, we find that it is appropriate to and local newspapers. Second, in the Stations must inform us about their also be more flexible with respect to event of interference, the list of decision to participate in the program stations that are not listed in Appendix participants will help the Commission no later than February 10, 2009. This A but that wish to provide nightlight and local stations to determine whether deadline will allow us to determine service. Accordingly, we will not a nightlight participant is the source of where the analog nightlight service will require stations that wish to provide the interfering signal. Third, as be available, which may influence our nightlight service but are not listed in described below, stations participating determination of whether to make Appendix A to demonstrate that they in the analog nightlight program will be additional stations eligible. We will not meet the proposed 0.1 percent new granted an extension of their analog require an engineering or other showing interference standard. Instead, these broadcast license for the limited from these stations and, as indicated in stations should demonstrate in their purpose of providing this service. the NPRM, we will waive the fee for Engineering STA how they plan to Stations must notify us of their these notifications. provide nightlight service and how they participation in order to be included on 23. While we encourage stations to plan to minimize interference to the list and be eligible for this blanket file a Legal STA through CDBS so that affected stations by, among other things, extension. information about their participation in reducing analog power. We urge 21. In response to the concerns the analog nightlight program is readily broadcasters not listed in Appendix A expressed by a number of commenters available both to the Commission and who desire to participate in the regarding the notification procedures we the public, we realize that this filing nightlight program to contact affected proposed in the NPRM, we adopt procedure may be burdensome to some stations to try to reach an agreement on revised procedures to make stations, especially small broadcasters, how nightlight service can be provided participation easier and to reduce the and could deter these stations from without causing harmful interference to time and costs potentially associated participating in the analog nightlight digital stations. If there are already with notification. (NAB/MSTV program. Accordingly, stations may several stations in the market providing supported expanding the list of pre- simply provide notification by sending nightlight service, it may be prudent approved nightlight eligible stations in an e-mail message to the Commission at that a station not listed in Appendix A, part to reduce the number of stations [email protected]. The e-mail should and whose nightlight operation would that would be required to submit include the following information: (1) cause interference to a digital station, to additional engineering documentation Name, title, phone number, and, if elect not to provide nightlight service in order to provide nightlight service.) available, e-mail address and mobile but instead cooperate with the service First, we note that, by expanding the list telephone number of sender; (2) licensee provided by other stations in the of stations pre-approved as eligible to name; (3) FCC Registration Number market. If, however, a station not in participate in the analog nightlight (FRN); (4) Facility Identification Appendix A that desires to provide program, we have increased the number Number; (5) call sign; (6) city and state; nightlight service would be the sole of stations that may simply notify the (7) analog and digital channel numbers; participant in its service area, we urge Commission of their intent to and (8) name, title, phone number and, that station to try to come to an participate without providing any if available, e-mail address and mobile agreement with stations that could be additional engineering information. telephone number of a contact person (if affected by nightlight service on how This will simplify program participation different from sender) who can provide

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more information about the station’s pending objection will be considered regarding the digital television participation in the analog nightlight eligible to participate in the program transition, and the related sponsorship program. The e-mail should also and will qualify for the blanket license information set forth below. Section 2(b) provide information about the station’s extension discussed below. As noted of the Act describes the programming planned analog nightlight service, above, the Commission reserves the that stations will be permitted to including whether the station plans to right to require stations to cease or broadcast during the nightlight period. participate at reduced analog power, as reduce analog nightlight service, in the That section states that the nightlight well as the period of time analog event there are valid complaints of program shall provide for the broadcast nightlight service will be provided (if interference to DTV stations or other of: service will be discontinued before statutorily protected operations. (1) Emergency information, including March 19, 2009). Stations that reduce critical details regarding the emergency, power during their period of nightlight D. Analog License Extension for as broadcast or required to be broadcast service should also notify the Participating Stations by full-power stations in the digital Commission of this change, either by 26. As we proposed in the NPRM, we television service (Section 4 of the Act filing another Legal STA or by sending hereby grant a blanket extension of states that the term ‘‘emergency an e-mail to [email protected]. The license to broadcasters who are eligible information’’ has the same meaning as information provided in the e-mails will to participate in the analog nightlight that term has under Part 79 of the FCC’s be entered into CDBS so that it will be program and notify the Commission as rules); available to the public. required of their intent to operate analog (2) Information, in both English and 24. The Media Bureau will announce nightlight service for a period of up to Spanish, and accessible to persons with publicly (by issuing a public notice and/ 30 days after February 17, 2009, i.e., disabilities, concerning— or by posting a list on the Commission’s until and including March 19, 2009. (A) The digital television transition, Web site) those stations that have Television broadcast licenses currently including the fact that a transition has indicated their participation in the contain the following language taken place and that additional action is analog nightlight program via an e-mail concerning analog service: required to continue receiving television notification. (We note that filings via service, including emergency This is to notify you that your application CDBS are available to the public and notifications; and for license is subject to the condition that on (B) The steps required to enable interested parties, but e-mail February 17, 2009, or by such other date as notifications are not otherwise publicly the Commission may establish in the future viewers to receive such emergency available.) We note that NAB/MSTV has under Section 309(j)(14)(a) and (b) of the information via the digital television offered to coordinate with the Communications Act, the licensee shall service and to convert to receiving Commission to assemble a complete list surrender either its analog or digital digital television service, including a of the participating stations in Microsoft television channel for reallocation or phone number and Internet address by Excel or other searchable format, and we reassignment pursuant to Commission which help with such transition may be will post the list on the DTV.gov Web regulations. The Channel retained by the obtained in both English and Spanish; site. licensee will be used to broadcast digital and television only after this date. (3) Such other information related to 2. Requests for Program Participation 27. After stations have notified the consumer education about the digital With Eligibility Showings Commission of their intention to television transition or public health 25. As proposed in the NPRM and provide nightlight service, and after and safety or emergencies as the discussed above, we will permit stations stations and the public have had an Commission may find to be consistent that are not listed in Appendix A to opportunity to object to any with the public interest. request participation in the analog notifications filed by stations not listed 29. Consistent with the explicit nightlight program by filing an in Appendix A, the Media Bureau will language of the Act, with the exception Engineering STA notification issue a public notice prior to the of the limited sponsorship information electronically through CDBS using the transition date announcing those that we will permit (as set forth below) Informal Application filing form. (We stations that are participating in the we conclude that nightlight will not accept this type of notification analog nightlight program. The Media programming may convey only via e-mail.) Stations must file these Bureau will update that public notice emergency information and information Engineering STA notifications no later later, if necessary. The Media Bureau’s regarding the digital transition. As we than February 3, 2009. This deadline public notice will establish the right of stated in the NPRM, the Act does not will allow the Commission, the public, those licensees whose stations are contemplate the provision of other and interested parties an opportunity to identified in the public notice to programming that is unrelated to these review and evaluate these requests. The continue to operate their stations in two categories. Thus, we deny the Media Bureau will announce by public analog on their analog channels solely request made by CDE that the notice those stations that have filed a for the purpose of providing the analog Commission permit, under unique request to participate in the program. nightlight service as described in this circumstances, analog service to (The public notice will set forth a brief Report and Order. Notification of continue after the transition with period of time within which an participation pursuant to the regular programming aired during the objection based on interference may be requirements adopted in this Report and majority of the broadcast period in filed and will describe the expedited Order is necessary for a participating addition to public safety and DTV process for filing such objections.) In station to qualify for the blanket license transition information. (Other their Engineering STAs, stations should extension. commenters that addressed this issue demonstrate how they plan to provide agreed that nightlight programming nightlight service while avoiding E. Permissible Analog Nightlight should be limited to transition-related harmful interference to affected stations Programming and emergency programming.) DTV (e.g., due to intervening terrain or by 28. We find that the Analog Nightlight transition information should be reducing analog power). Stations with Act authorizes the broadcast of only available in both English and Spanish, requests that are not subject to any emergency information, information and all nightlight information should be

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accessible to persons with disabilities. 32. For implementation of the analog below, we conclude that limited We encourage participating stations to nightlight, ‘‘emergency information’’ is sponsorship announcements are provide the information in additional as defined in part 79 of our rules. (47 permitted as part of nightlight languages where appropriate and CFR 79.2(a)(2) defines emergency programming.) Thus, while nightlight beneficial for their viewers. One information as follows: stations must provide only DTV commenter asked whether station Information about a current emergency, transition-related and emergency identification will be required for that is intended to further the protection of information pursuant to the Act, if a nightlight stations. We conclude that life, health, safety, and property, i.e., critical circumstance arises that requires other nightlight stations should comply with details regarding the emergency and how to programming to be transmitted for a station identification requirements to respond to the emergency. Examples of the limited period of time in order that the ensure that the source of the types of emergencies covered include emergency information can be provided programming is readily identifiable. In tornadoes, hurricanes, floods, tidal waves, in a timely manner, we will not be addition, we expect stations that earthquakes, icing conditions, heavy snows, inclined to sanction the broadcaster for widespread fires, discharge of toxic gases, provide nightlight service to maintain violation of the Act. We limit this the same hours of operation that were in widespread power failures, industrial explosions, civil disorders, school closings flexibility to those circumstances where, effect on their analog channel prior to and changes in school bus schedules for technical reasons, other the transition deadline. resulting from such conditions, and warning programming must be transmitted in 30. We also tentatively concluded in and watches of impending changes in order to transmit emergency the NPRM that the Act does not weather. information, and only for the period of contemplate the provision of The note to paragraph (a)(2) reads: time necessary to adequately convey the advertisements as part of nightlight ‘‘Critical details include, but are not emergency information to viewers. (Our programming. After further limited to, specific details regarding the flexibility in this regard only applies to consideration of this issue, we conclude areas that will be affected by the those programming segments containing that the provision of limited the emergency information. For sponsorship information as part of emergency, evacuation orders, detailed descriptions of areas to be evacuated, instance, if emergency information were nightlight programming is consistent being provided solely during a specific with the Act and will be permitted to specific evacuation routes, approved shelters or the way to take shelter in portion of a newscast, other portions of help stations defray the cost of the newscast should not be transmitted.) providing nightlight service. one’s home, instructions on how to secure personal property, road closures, 2. Transition Information 1. Emergency Information and how to obtain relief assistance.’’ In 31. In the event of an emergency addition, we include Amber Alerts as 35. With respect to the digital situation during the 30-day analog emergency events pursuant to the television transition, as proposed in the nightlight service period, stations may Commission’s EAS rules. NPRM we conclude that stations airing broadcast video and audio programming 33. In its reply comments, NAB/ a nightlight signal may broadcast any with emergency information, including MSTV state that, while they are in full information that is relevant to informing but not limited to a crawl or text agreement that nightlight stations viewers about the transition and how describing the emergency and live or should provide emergency information, they can continue to obtain television taped action regarding the emergency. stations may face some practical service. (Commenters that addressed Licensees providing emergency implementation problems, particularly this issue generally supported giving information must make that information with respect to communicating late- stations flexibility regarding the DTV accessible to persons with disabilities breaking emergency information. NAB/ transition-related information they can under 47 CFR 79.2. We also conclude MSTV note that, if there is late breaking display.) Examples of the kind of that the Emergency Alert System emergency information, the only information a station may want to air (‘‘EAS’’) applies to the analog nightlight effective means of communicating the include, but are not limited to: General service if an emergency arises during emergency information from the studio information about the transition; the 30-day time frame. EAS ‘‘provides to the nightlight station may necessitate information about how viewers can the President with the capability to using the station’s digital transmission, receive digital signals; information provide immediate communications and which could result in broadcasting the about the circumstances related to the information to the general public at the station’s standard news and emergency DTV transition in the station’s market; National, State and Local Area levels programming may be broadcast over the answers to commonly asked questions during periods of national emergency,’’ nightlight station, including traditional and other useful information (e.g., how and, in addition, ‘‘may be used to programming and commercials. to re-position an antenna, install a provide the heads of State and local 34. In establishing rules providing for converter box, or rescan for new government, or their designated the analog nightlight emergency service, channels); where viewers can obtain representatives, with a means of we seek to support broadcasters’ efforts more information about the transition, emergency communication with the to provide EAS and other emergency including national or local call centers, public in their State or Local Area.’’ information to their viewers during the converter box manufacturer help lines, (Part 11 of the Commission’s rules limited 30-day nightlight service a telephone number and Web site describes the required technical window. While the Act permits address for local stations in the standards and operational procedures of nightlight stations to broadcast only community, and any other local sources the EAS for TV broadcast and other emergency and DTV transition-related of transition information and assistance; stations. As noted, in addition to information, and does not permit the information about the DTV converter compliance with EAS standards the broadcast of standard programming and box coupon program; and information Commission requires TV broadcast commercials, we recognize that or links to other Web sites containing stations that provide emergency flexibility may be required during this DTV information, including the Federal information to make the critical details limited 30-day window to ensure that Communications Commission (‘‘FCC’’), of that information accessible to people nightlight stations provide critical National Association of Broadcasters with hearing and visual disabilities.) emergency information. (As discussed (‘‘NAB’’) and National

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Telecommunications and Information 3. Sponsorship Information addresses programming. Section 2(a) of Administration (‘‘NTIA’’). 38. In the NPRM we tentatively the Act permits ‘‘the broadcasting in the 36. Section 2(b)(2) of the Act provides concluded that advertisements would analog television service of only the for the broadcast of information, ‘‘in not be permitted to be included in the public safety information and digital English and Spanish and accessible to analog nightlight program. However, transition information specified in persons with disabilities,’’ concerning after further consideration, we conclude subsection (b) * * *.’’ Sections 2(b)(1) the digital transition and certain other that permitting limited mention of and (2) require the Commission to information. We conclude that such sponsors to encourage stations to provide for the broadcast of specified information must be captioned to assist provide nightlight service and to defray information (i.e., emergency information persons with hearing disabilities, and the cost is appropriate and consistent and information relating to the digital may be made available in either open or with the Analog Nightlight Act. television transition) and Section 2(b)(3) closed captioning. In addition, such Accordingly, we will permit stations allows the broadcast of ‘‘such other information must not only be accessible providing nightlight service to include information related to the digital to individuals who are deaf and hard of brief announcements identifying transition * * * as the Commission may hearing, but also to individuals who are sponsors that have made financial or find to be consistent with the public blind or have low vision. This may be other contributions to the nightlight interest.’’ achieved through open aural description 40. We find that the mention of the service, including commercial entities of the critical aspects of the transition sponsor or source of the information such as retailers and manufacturers. information that is appearing on the related to consumer education about the According to NAB/MSTV, these screen. In addition, as the Act provides, digital transition is ‘‘related’’ contributors might include other the analog nightlight information should information within the meaning of include a telephone number and stations in the market that are not Section 2(b)(3). We also believe that Internet address by which help with the themselves providing nightlight service, permitting the broadcast of limited transition may be obtained in both multichannel video programming sponsorship information will increase English and Spanish. This information distributors (‘‘MVPDs’’), local the number of stations that volunteer to must also be made accessible. We urge municipalities, retailers, or other provide critical nightlight service and stations to consider broadcasting entities. Consistent with the Analog thus would further the public interest in information in additional languages, Nightlight Act provisions discussed facilitating the transition to digital consistent with the needs of their below, the sponsorship announcements television. In this regard, NAB/MSTV particular viewing audience. should be very brief and should not states that maintaining analog service 37. The analog nightlight information interfere with or obscure the DTV or during the nightlight period could cost may be aired using a ‘‘slate’’ with text emergency-related information being stations between $3,500 to over $15,000 and audio of the text or other DTV provided. For example, a brief statement per station, while the state broadcasters information, as well as information, if at the bottom of the screen that: ‘‘this associations estimate the cost, including necessary describing the steps viewers programming is paid for, sponsored, or electricity, production and other costs, must take to obtain emergency furnished by X’’ would be appropriate will range from $10,000 to $20,000 per information. Participants in the analog under the Analog Nightlight Act and station for the 30-day nightlight period. nightlight program may also air a video would fulfill any applicable APTS states that the Public loop with audio, or broadcast live action sponsorship identification Broadcasting Service has estimated that with audio format, or any combination requirements. The sponsorship public television stations spend $3 thereof. (Stations choosing a video loop information may be visual or aural. If million per month just in electricity format may use the FCC’s educational stations use a visual identification, costs to provide analog service, a cost video showing how to install a however, the visual identification they had planned to shed after the converter box. See http://www.dtv.gov/ should only remain on the screen for as transition deadline. (In addition, APTS video_audio.html.) Additional formats long as necessary to provide a urges the Commission to examine ways of the video are available upon request. reasonable identification. Keeping a to provide funding for stations, We note that during the early transition visual identification, such as a corporate including public television stations, in Wilmington, NC, stations used a slate logo or ‘‘bug,’’ on the screen throughout who would like to participate in the to provide nightlight service. The text of the sponsored programming might nightlight program but lack the financial the ‘‘slate’’ consisted of the following: violate the Act’s limitation of means to do so.) For many stations, the ‘‘At 12 noon on September 8, 2008, programming to only public safety, issue of the cost associated with commercial television stations in digital transition and information nightlight service could be Wilmington, North Carolina began to related to consumer education about the determinative of their ability to broadcast programming exclusively in a digital transition that is consistent with participate in the nightlight program. digital format. If you are viewing this the public interest. For these reasons, we interpret the message, this television set has not yet 39. We agree with those commenters Analog Nightlight Act to allow licensees been upgraded to digital. To receive who argued that the Analog Nightlight to include in their nightlight your television signals, upgrade to Act can be interpreted to permit stations programming a brief aural or visual digital now with a converter box, a new to provide sponsorship information in announcement identifying the sponsor TV set with a digital (ATSC) tuner or by order to help defray the cost of of the program. subscribing to a pay service like cable or providing nightlight service. Section 41. Finally, we note that, if a station satellite. For more information call: 1– 2(a) of the Act directs the Commission broadcasts programming during the 877–DTV–0908 or TTY: 1–866–644– to implement a nightlight program nightlight period for which it receives or 0908 or visit ‘‘subject to such limitations as the is promised money, service, or other www.DTVWilmington.com.’’) NAB has Commission finds to be consistent with valuable consideration from any third also recently announced that it will the public interest and the requirements party, it must comply with the produce and distribute a brief DTV of this Act * * *.’’ Section 3 of the Act sponsorship identification requirements educational video that stations can air lists the explicit ‘‘limitations’’ of the in Section 317 of the Act and our rules. as part of the analog nightlight program. nightlight program, none of which In addition to the restrictions discussed

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above, non-commercial educational mandate for the FCC to develop and Report and Order to be effective upon broadcast stations must also comply implement a program by January 15, publication of the summary of the with Section 399B of the 2009, to encourage and permit TV Report and Order in the Federal Communications Act. broadcast stations to use this Register because of the January 15, 2009 opportunity to provide public safety statutory deadline for implementing the III. Procedural Matters information and DTV transition Analog Nightlight Act, which was A. Regulatory Flexibility Act Analysis information.) For additional information enacted by Congress only last month, as Not Required concerning the information collection well as the brief 30-day period during 42. We find that no Final Regulatory requirement contained in this Report which the Act’s provisions will be in Flexibility Analysis (FRFA) is required and Order, contact Cathy Williams at force. (See 5 U.S.C. 553(d)(3) (‘‘The for this Report and Order. In the NPRM, 202–418–2918, or via the Internet to required publication or service of a the Commission determined that no [email protected]. substantive rule shall be made not less than 30 days before its effective date, Regulatory Flexibility Analysis was C. Congressional Review Act required. The Commission found that, except * * * as otherwise provided by in light of the extraordinarily short time 44. The Commission will send a copy the agency for good cause found and period for it to meet the analog of this Report and Order in a report to published with the rule.’’).) In addition, nightlight statutory deadline of January be sent to Congress and the Government any delay in implementing this 15, 2009, there was good cause to Accountability Office, pursuant to the program, which was mandated by dispense with notice and comment Congressional Review Act. (See 5 U.S.C. Congress, can result in harm to TV requirements under the Administrative 801(a)(1)(A). The Congressional Review stations, and, in turn, to their viewers. Procedure Act (‘‘APA’’). For this reason, Act is contained in Title II, sec. 251, of 47. It is further ordered that, pursuant we find that a FRFA is not required. the CWAAA; see Pub. L. 104–121, Title to Section 5(c) of the Communications II, sec. 251, 110 Stat. 868.) B. Final Paperwork Reduction Act of Act of 1934, 47 U.S.C. 155(c), the Chief, 1995 Analysis D. Additional Information Media Bureau, is granted delegated authority to implement the analog 43. This Report and Order was 45. For more information on this nightlight program described in this analyzed with respect to the Paperwork Report and Order, please contact Kim document. Reduction Act of 1995 (‘‘PRA’’) and Matthews, [email protected], or contains a modified information Evan Baranoff, [email protected], 48. It is further ordered that, pursuant collection requirement. (The Paperwork in the Policy Division, Media Bureau at to the Congressional Review Act, 5 Reduction Act of 1995 (‘‘PRA’’), Pub. L. (202) 418–2120. U.S.C. 801(a)(1)(A), the Commission 104–13, 109 Stat 163 (1995) (codified in shall send a copy of this Report and IV. Ordering Clauses Chapter 35 of Title 44 U.S.C.).) On Order in a report to Congress and the December 29, 2008, after release of the 46. Accordingly, it is ordered that, General Accounting Office. NPRM in this proceeding, the pursuant to Sections 1, 4(i), 303(r), 316, 49. It is further ordered that the Commission received OMB approval for and 336 of the Communications Act of Reference Information Center, the modified information collection 1934, 47 U.S.C. 151, 154(i), 303(r), 316, Consumer Information Bureau, shall requirement contained in this Report and 336, and the Short-term Analog send a copy of this Report and Order to and Order. (See Notice of Office of Flash and Emergency Readiness Act of the Chief Counsel for Advocacy of the Management and Budget Action, OMB 2008, Pub. L. No. 110–459, this Report Small Business Administration. Control No. 3060–0386 (approved Dec. and Order is adopted and shall be Federal Communications Commission. 29, 2008). The Commission sought and effective upon the date of publication of Marlene H. Dortch, obtained approval under OMB’s the summary of the Report and Order in Secretary. emergency processing rules (see 5 CFR the Federal Register. We find good 1320.13) for this modified collection in cause under the APA for the analog Appendix A: List of Stations Eligible for order to implement the Congressional nightlight program adopted in this Analog Nightlight Program

Post-transi- Pre-transi- May be Indicated DMA name Call sign City State Analog Network tion DTV tion DTV Not on short- interest in channel affiliation channel channel MSTV list spaced participating

Abilene-Sweetwater KRBC ..... ABILENE ...... TX ...... 9 NBC ...... 29 29 ...... ** Abilene-Sweetwater KTXS ..... SWEETWATER ..... TX ...... 12 ...... 20 20 ...... ** Abilene-Sweetwater KTAB ..... ABILENE ...... TX ...... 32 CBS ...... 24 24 ...... ** Albany, GA ...... WABW ... PELHAM ...... GA ...... 14 PBS ...... 20 6 ...... ** Albany, GA ...... WACS .... DAWSON ...... GA ...... 25 PBS ...... 26 8 ...... ** Albany, GA ...... WFXL ..... ALBANY ...... GA ...... 31 Fox ...... 30 12 ...... ** Albany-Schenec- WXXA .... ALBANY ...... NY ...... 23 Fox ...... 4 7 ...... ** tady-Troy. Albuquerque-Santa KASA ..... SANTA FE ...... NM ...... 2 Fox ...... 27 27 Fe. Albuquerque-Santa KOFT ..... FARMINGTON ...... NM ...... 3 ...... 8 8 ...... ** Fe. Albuquerque-Santa KOB ...... ALBUQUERQUE ... NM ...... 4 NBC ...... 26 26 Fe. Albuquerque-Santa KNME .... ALBUQUERQUE ... NM ...... 5 PBS ...... 25 35 Fe. Albuquerque-Santa KCHF ..... SANTA FE ...... NM ...... 11 ...... 10 10 Fe. Albuquerque-Santa KVIH ...... Clovis ...... NM ...... 12 ABC ...... 20 20 * Fe. Albuquerque-Santa KTFQ ..... ALBUQUERQUE ... NM ...... 14 ...... 22 Fe.

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Post-transi- Pre-transi- May be Indicated DMA name Call sign City State Analog Network tion DTV tion DTV Not on short- interest in channel affiliation channel channel MSTV list spaced participating

Albuquerque-Santa KWBQ .... SANTA FE ...... NM ...... 19 ...... 29 29 ...... ** Fe. Albuquerque-Santa KAZQ ..... ALBUQUERQUE ... NM ...... 32 ...... 17 17 ...... ** Fe. Albuquerque-Santa KLUZ ...... ALBUQUERQUE ... NM ...... 41 ...... 42 42 Fe. Albuquerque-Santa KASY ..... ALBUQUERQUE ... NM ...... 50 ...... 51 45 Fe. Alexandria, LA ...... KALB ...... ALEXANDRIA ...... LA ...... 5 NBC ...... 35 35 Alexandria, LA ...... KLPA ...... ALEXANDRIA ...... LA ...... 25 PBS ...... 26 26 ...... ** Alpena ...... WTOM ... CHEBOYGAN ...... MI ...... 4 NBC ...... 14 35 Alpena ...... WCML .... ALPENA ...... MI ...... 6 PBS ...... 57 24 Amarillo ...... KACV ..... AMARILLO ...... TX ...... 2 PBS ...... 21 8 Amarillo ...... KSWK .... LAKIN ...... KS ...... 3 PBS ...... 23 8 Amarillo ...... KAMR .... AMARILLO ...... TX ...... 4 NBC ...... 19 19 Amarillo ...... KCIT ...... AMARILLO ...... TX ...... 14 Fox ...... 15 15 Anchorage ...... KTUU ..... ANCHORAGE ...... AK ...... 2 NBC ...... 18 10 Anchorage ...... KTBY ..... ANCHORAGE ...... AK ...... 4 Fox ...... 20 20 Anchorage ...... KAKM ..... ANCHORAGE ...... AK ...... 7 PBS ...... 24 8 Anchorage ...... KIMO ...... ANCHORAGE ...... AK ...... 13 ABC ...... 30 12 Atlanta ...... WSB ...... ATLANTA ...... GA ...... 2 ABC ...... 39 39 Atlanta ...... WAGA .... ATLANTA ...... GA ...... 5 Fox ...... 27 27 ...... ** Atlanta ...... WPXA .... ROME ...... GA ...... 14 ...... 51 51 ...... ** Atlanta ...... WPCH .... ATLANTA ...... GA ...... 17 ...... 20 20 ...... ** Atlanta ...... WPBA .... ATLANTA ...... GA ...... 30 PBS ...... 21 21 ...... ** Atlanta ...... WUVG .... ATHENS ...... GA ...... 34 ...... 48 48 ...... ** Atlanta ...... WATL ..... ATLANTA ...... GA ...... 36 ...... 25 25 ...... ** Atlanta ...... WGCL .... ATLANTA ...... GA ...... 46 CBS ...... 19 19 ...... ** Augusta ...... WEBA .... ALLENDALE ...... SC ...... 14 PBS ...... 33 33 ...... ** Augusta ...... WCES .... WRENS ...... GA ...... 20 PBS ...... 36 6 ...... ** Augusta ...... WAGT .... AUGUSTA ...... GA ...... 26 NBC ...... 30 30 Austin ...... KXAM ..... LLANO ...... TX ...... 14 NBC ...... 27 27 ...... ** Austin ...... KVUE ..... AUSTIN ...... TX ...... 24 ABC ...... 33 33 ...... ** Austin ...... KXAN ..... AUSTIN ...... TX ...... 36 NBC ...... 21 21 ...... ** Austin ...... KEYE ..... AUSTIN ...... TX ...... 42 CBS ...... 43 43 ...... ** Bakersfield ...... KGET ..... BAKERSFIELD ...... CA ...... 17 NBC ...... 25 25 ...... ** Baltimore ...... WMAR ... BALTIMORE ...... MD ...... 2 ABC ...... 52 38 Baltimore ...... WMPT .... ANNAPOLIS ...... MD ...... 22 PBS ...... 42 42 ...... ** Baltimore ...... WBFF ..... BALTIMORE ...... MD ...... 45 Fox ...... 46 46 ...... ** Bangor ...... WABI ...... BANGOR ...... ME ...... 5 CBS ...... 19 19 Bangor ...... WMEB .... Orono ...... ME ...... 12 PBS ...... 22 9 * Bangor ...... WMED ... CALAIS ...... ME ...... 13 PBS ...... 15 10 Baton Rouge ...... WBRZ .... BATON ROUGE .... LA ...... 2 ABC ...... 42 13 Baton Rouge ...... WMAU ... BUDE ...... MS ...... 17 PBS ...... 18 18 ...... ** Baton Rouge ...... WLPB ..... BATON ROUGE .... LA ...... 27 PBS ...... 25 25 ...... ** Baton Rouge ...... WVLA ..... BATON ROUGE .... LA ...... 33 NBC ...... 34 34 ...... ** Baton Rouge ...... WGMB ... BATON ROUGE .... LA ...... 44 Fox ...... 45 45 ...... ** Beaumont-Port Ar- KBTV ..... PORT ARTHUR ..... TX ...... 4 NBC ...... 40 40 thur. Beaumont-Port Ar- KFDM ..... BEAUMONT ...... TX ...... 6 CBS ...... 21 21 thur. Beaumont-Port Ar- KITU ...... BEAUMONT ...... TX ...... 34 ...... 33 33 ...... ** thur. Bend, OR ...... KOAB ..... BEND ...... OR ...... 3 PBS ...... 11 11 Billings ...... KTVQ ..... BILLINGS ...... MT ...... 2 CBS ...... 17 10 ...... ** Billings ...... KHMT ..... HARDIN ...... MT ...... 4 Fox ...... 22 22 Billings ...... KSVI ...... BILLINGS ...... MT ...... 6 ABC ...... 18 18 ...... ** Billings ...... KULR ..... BILLINGS ...... MT ...... 8 NBC ...... 11 11 ...... ** Billings ...... KSGW .... SHERIDAN ...... WY ...... 12 ...... 21 13 ...... ** Biloxi-Gulfport ...... WMAH ... BILOXI ...... MS ...... 19 PBS ...... 16 16 ...... ** Binghamton ...... WBNG .... BINGHAMTON ...... NY ...... 12 CBS ...... 7 7 ...... ** Binghamton ...... WICZ ...... BINGHAMTON ...... NY ...... 40 Fox ...... 8 8 ...... ** Binghamton ...... WSKG .... BINGHAMTON ...... NY ...... 46 PBS ...... 42 42 ...... ** Birmingham (Ann WDBB .... BESSEMER ...... AL ...... 17 ...... 18 18 ...... ** and Tusc). Birmingham (Ann WTTO .... HOMEWOOD ...... AL ...... 21 ...... 28 28 ...... ** and Tusc). Birmingham (Ann WUOA .... TUSCALOOSA ...... AL ...... 23 ...... 23 ...... ** and Tusc). Birmingham (Ann WJSU ..... ANNISTON ...... AL ...... 40 ABC ...... 58 9 ...... ** and Tusc). Birmingham (Ann WPXH .... GADSDEN ...... AL ...... 44 ...... 45 45 ...... ** and Tusc). Bluefield-Beckley- WVVA .... BLUEFIELD ...... WV ...... 6 NBC ...... 46 46 ...... ** Oak Hill. Boise ...... KBCI ...... BOISE ...... ID ...... 2 CBS ...... 28 28 Boise ...... KAID ...... BOISE ...... ID ...... 4 PBS ...... 21 21 Boise ...... KIVI ...... NAMPA ...... ID ...... 6 ABC ...... 24 24 ...... ** Boise ...... KNIN ...... CALDWELL ...... ID ...... 9 ...... 10 10 Boise ...... KTRV ..... NAMPA ...... ID ...... 12 Fox ...... 44 12 ...... ** Boston (Man- WGBH .... BOSTON ...... MA ...... 2 PBS ...... 19 19 chester).

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Post-transi- Pre-transi- May be Indicated DMA name Call sign City State Analog Network tion DTV tion DTV Not on short- interest in channel affiliation channel channel MSTV list spaced participating

Boston (Man- WBZ ...... BOSTON ...... MA ...... 4 CBS ...... 30 30 chester). Boston (Man- WCVB .... BOSTON ...... MA ...... 5 ABC ...... 20 20 ...... *** chester). Boston (Man- WSBK .... BOSTON ...... MA ...... 38 ...... 39 39 ...... ** chester). Boston (Man- WGBX .... BOSTON ...... MA ...... 44 PBS ...... 43 43 ...... ** chester). Bowling Green ...... WKYU .... BOWLING GREEN KY ...... 24 PBS ...... 18 18 ...... ** Bowling Green ...... WNKY .... BOWLING GREEN KY ...... 40 NBC ...... 16 16 ...... ** Buffalo ...... WGRZ .... BUFFALO ...... NY ...... 2 NBC ...... 33 33 Buffalo ...... WIVB ...... BUFFALO ...... NY ...... 4 CBS ...... 39 39 ...... ** Buffalo ...... WNED .... BUFFALO ...... NY ...... 17 PBS ...... 43 43 ...... ** Buffalo ...... WNYO .... BUFFALO ...... NY ...... 49 ...... 34 34 ...... ** Burlington-Platts- WCAX .... BURLINGTON ...... VT ...... 3 CBS ...... 53 22 burgh. Burlington-Platts- WPTZ ..... NORTH POLE ...... NY ...... 5 NBC ...... 14 14 ...... *** burgh. Burlington-Platts- WVTB .... ST. JOHNSBURY .. VT ...... 20 PBS ...... 18 18 ...... ** burgh. Burlington-Platts- WVER .... RUTLAND ...... VT ...... 28 PBS ...... 56 9 burgh. Burlington-Platts- WETK .... BURLINGTON ...... VT ...... 33 PBS ...... 32 32 ...... ** burgh. Burlington-Platts- WFFF ..... BURLINGTON ...... VT ...... 44 ...... 43 43 ...... ** burgh. Butte ...... KXLF ...... BUTTE ...... MT ...... 4 CBS ...... 15 5 Butte ...... KBZK ..... BOZEMAN ...... MT ...... 7 CBS ...... 16 13 ...... ** Butte ...... KUSM .... BOZEMAN ...... MT ...... 9 PBS ...... 20 8 Butte ...... KWYB .... BUTTE ...... MT ...... 18 ABC ...... 19 19 ...... ** Casper-Riverton ..... KTWO .... CASPER ...... WY ...... 2 ABC ...... 17 17 ...... ** Casper-Riverton ..... KCWC .... LANDER ...... WY ...... 4 PBS ...... 8 8 Casper-Riverton ..... KGWL .... LANDER ...... WY ...... 5 CBS ...... 7 7 Casper-Riverton ..... KFNR ..... RAWLINS ...... WY ...... 11 Fox ...... 9 9 Casper-Riverton ..... KCWY .... CASPER ...... WY ...... 13 NBC ...... 12 ...... ** Cedar Rapids-Wtrlo- KGAN ..... CEDAR RAPIDS .... IA ...... 2 CBS ...... 51 51 IWC&Dub. Cedar Rapids-Wtrlo- KWKB .... IOWA CITY ...... IA ...... 20 ...... 25 25 ...... ** IWC&Dub. Cedar Rapids-Wtrlo- KFXA ..... CEDAR RAPIDS .... IA ...... 28 Fox ...... 27 27 ...... ** IWC&Dub. Cedar Rapids-Wtrlo- KRIN ...... WATERLOO ...... IA ...... 32 PBS ...... 35 35 ...... ** IWC&Dub. Cedar Rapids-Wtrlo- KFXB ..... DUBUQUE ...... IA ...... 40 ...... 43 43 ...... ** IWC&Dub. Cedar Rapids-Wtrlo- KPXR ..... CEDAR RAPIDS .... IA ...... 48 ...... 47 47 IWC&Dub. Cham- WCIA ..... CHAMPAIGN ...... IL ...... 3 CBS ...... 48 48 paign&Sprngfld- Decatur. Cham- WICD ..... CHAMPAIGN ...... IL ...... 15 ABC ...... 41 41 ...... ** paign&Sprngfld- Decatur. Cham- WAND .... DECATUR ...... IL ...... 17 NBC ...... 18 18 ...... ** paign&Sprngfld- Decatur. Cham- WBUI ..... DECATUR ...... IL ...... 23 ...... 22 22 ...... ** paign&Sprngfld- Decatur. Cham- WCCU .... URBANA ...... IL ...... 27 Fox ...... 26 26 ...... ** paign&Sprngfld- Decatur. Charleston, SC ...... WCBD .... CHARLESTON ...... SC ...... 2 NBC ...... 59 50 Charleston, SC ...... WCIV ..... CHARLESTON ...... SC ...... 4 ABC ...... 53 34 Charleston, SC ...... WCSC .... CHARLESTON ...... SC ...... 5 CBS ...... 52 47 Charleston, SC ...... WJWJ .... BEAUFORT ...... SC ...... 16 PBS ...... 44 44 ...... ** Charleston-Hun- WSAZ .... HUNTINGTON ...... WV ...... 3 NBC ...... 23 23 ...... ** tington. Charleston-Hun- WOAY .... OAK HILL ...... WV ...... 4 ABC ...... 50 50 ...... ** tington. Charleston-Hun- WVAH .... CHARLESTON ...... WV ...... 11 Fox ...... 19 19 ...... ** tington. Charleston-Hun- WKAS .... ASHLAND ...... KY ...... 25 PBS ...... 26 26 tington. Charleston-Hun- WLPX ..... CHARLESTON ...... WV ...... 29 ...... 39 39 ...... ** tington. Charleston-Hun- WPBY .... HUNTINGTON ...... WV ...... 33 PBS ...... 34 34 ...... ** tington. Charlotte ...... WBTV .... CHARLOTTE ...... NC ...... 3 CBS ...... 23 23 ...... ** Charlotte ...... WNSC .... ROCK HILL ...... SC ...... 30 PBS ...... 15 15 ...... ** Charlotte ...... WTVI ...... CHARLOTTE ...... NC ...... 42 PBS ...... 24 11 ...... ** Charlotte ...... WJZY ..... BELMONT ...... NC ...... 46 ...... 47 47 ...... **

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Post-transi- Pre-transi- May be Indicated DMA name Call sign City State Analog Network tion DTV tion DTV Not on short- interest in channel affiliation channel channel MSTV list spaced participating

Charlottesville ...... WVIR ..... CHARLOTTES- VA ...... 29 NBC ...... 32 32 ...... ** VILLE. Charlottesville ...... WHTJ ..... CHARLOTTES- VA ...... 41 PBS ...... 14 46 ...... ** VILLE. Chattanooga ...... WRCB .... CHATTANOOGA ... TN ...... 3 NBC ...... 55 13 Chattanooga ...... WNGH ... CHATSWORTH ..... GA ...... 18 PBS ...... 33 33 ...... ** Chattanooga ...... WELF ..... DALTON ...... GA ...... 23 ...... 16 16 ...... ** Chattanooga ...... WTCI ...... CHATTANOOGA ... TN ...... 45 PBS ...... 29 29 ...... ** Cheyenne, WY- KCDO .... STERLING ...... CO ...... 3 ...... 23 23 Scottsbluff. Cheyenne, WY- KDUH ..... SCOTTSBLUFF ..... NE ...... 4 ABC ...... 20 7 Scottsbluff. Cheyenne, WY- KGWN .... CHEYENNE ...... WY ...... 5 CBS ...... 30 30 Scottsbluff. Cheyenne, WY- KSTF ...... SCOTTSBLUFF ..... NE ...... 10 CBS ...... 29 29 ...... ** Scottsbluff. Cheyenne, WY- KFCT ..... FORT COLLINS ..... CO ...... 22 Fox ...... 21 21 ...... ** Scottsbluff. Cheyenne, WY- KQCK ..... CHEYENNE ...... WY ...... 33 ...... 11 11 Scottsbluff. Chicago ...... WBBM .... CHICAGO ...... IL ...... 2 CBS ...... 3 12 Chicago ...... WGN ...... CHICAGO ...... IL ...... 9 ...... 19 19 ...... ** Chicago ...... WTTW .... CHICAGO ...... IL ...... 11 PBS ...... 47 47 ...... ** Chicago ...... WYCC .... CHICAGO ...... IL ...... 20 PBS ...... 21 21 ...... ** Chicago ...... WCIU ..... CHICAGO ...... IL ...... 26 ...... 27 27 ...... ** Chicago ...... WFLD ..... CHICAGO ...... IL ...... 32 Fox ...... 31 31 ...... ** Chicago ...... WSNS .... CHICAGO ...... IL ...... 44 ...... 45 45 ...... ** Chico-Redding ...... KHSL ..... CHICO ...... CA ...... 12 CBS ...... 43 43 ...... ** Chico-Redding ...... KCVU ..... PARADISE ...... CA ...... 30 Fox ...... 20 20 ...... ** Cincinnati ...... WLWT .... CINCINNATI ...... OH ...... 5 NBC ...... 35 35 ...... ** Cincinnati ...... WXIX ...... NEWPORT ...... KY ...... 19 Fox ...... 29 29 ...... ** Clarksburg-Weston WVFX .... CLARKSBURG ...... WV ...... 46 Fox ...... 28 10 ...... ** Cleveland-Akron WKYC .... CLEVELAND ...... OH ...... 3 NBC ...... 2 17 (Canton). Cleveland-Akron WEWS ... CLEVELAND ...... OH ...... 5 ABC ...... 15 15 ...... ** (Canton). Cleveland-Akron WOIO ..... SHAKER HEIGHTS OH ...... 19 CBS ...... 10 10 ...... ** (Canton). Cleveland-Akron WVIZ ...... CLEVELAND ...... OH ...... 25 PBS ...... 26 26 ...... ** (Canton). Colorado Springs- KOAA ..... PUEBLO ...... CO ...... 5 NBC ...... 42 42 Pueblo. Colorado Springs- KKTV ..... COLORADO CO ...... 11 CBS ...... 10 10 ...... ** Pueblo. SPRINGS. Colorado Springs- KXRM .... COLORADO CO ...... 21 Fox ...... 22 22 ...... ** Pueblo. SPRINGS. Columbia, SC ...... WLTX ..... COLUMBIA ...... SC ...... 19 CBS ...... 17 17 ...... ** Columbia, SC ...... WOLO .... COLUMBIA ...... SC ...... 25 ABC ...... 8 8 ...... ** Columbia, SC ...... WRLK .... COLUMBIA ...... SC ...... 35 PBS ...... 32 32 ...... ** Columbia-Jefferson KMOS .... SEDALIA ...... MO ...... 6 PBS ...... 15 15 City. Columbia-Jefferson KRCG .... JEFFERSON CITY MO ...... 13 CBS ...... 12 12 ...... ** City. Columbia-Jefferson KNLJ ...... JEFFERSON CITY MO ...... 25 ...... 20 20 ...... ** City. Columbus ...... WCMH ... COLUMBUS ...... OH ...... 4 NBC ...... 14 14 ...... ** Columbus ...... WSYX .... COLUMBUS ...... OH ...... 6 ABC ...... 13 13 Columbus ...... WOSU .... COLUMBUS ...... OH ...... 34 PBS ...... 38 38 ...... ** Columbus, GA ...... WRBL .... COLUMBUS ...... GA ...... 3 CBS ...... 15 15 Columbus, GA ...... WJSP ..... COLUMBUS ...... GA ...... 28 PBS ...... 23 23 ...... ** Columbus, GA ...... WLTZ ..... COLUMBUS ...... GA ...... 38 NBC ...... 35 35 ...... ** Columbus-Tupelo- WMAB .... MISSISSIPPI MS ...... 2 PBS ...... 10 10 West Point. STATE. Columbus-Tupelo- WCBI ..... COLUMBUS ...... MS ...... 4 CBS ...... 35 35 West Point. Columbus-Tupelo- WLOV .... WEST POINT ...... MS ...... 27 Fox ...... 16 16 ...... ** West Point. Corpus Christi ...... KIII ...... CORPUS CHRISTI TX ...... 3 ABC ...... 47 8 Corpus Christi ...... KRIS ...... CORPUS CHRISTI TX ...... 6 NBC ...... 50 13 Corpus Christi ...... KEDT ..... CORPUS CHRISTI TX ...... 16 PBS ...... 23 23 ...... ** Corpus Christi ...... KORO .... CORPUS CHRISTI TX ...... 28 ...... 27 27 Dallas-Ft. Worth ..... KDTN ..... DENTON ...... TX ...... 2 ...... 43 43 Dallas-Ft. Worth ..... KDFW .... DALLAS ...... TX ...... 4 Fox ...... 35 35 ...... *** Dallas-Ft. Worth ..... KXAS ..... FORT WORTH ...... TX ...... 5 NBC ...... 41 41 ...... ** Dallas-Ft. Worth ..... KERA ..... DALLAS ...... TX ...... 13 PBS ...... 14 14 ...... ** Dallas-Ft. Worth ..... KTXA ..... FORT WORTH ...... TX ...... 21 ...... 18 18 ...... ** Dallas-Ft. Worth ..... KDFI ...... DALLAS ...... TX ...... 27 ...... 36 36 ...... ** Dallas-Ft. Worth ..... KMPX ..... DECATUR ...... TX ...... 29 ...... 30 30 ...... ** Dallas-Ft. Worth ..... KDAF ..... DALLAS ...... TX ...... 33 ...... 32 32 ...... ** Dallas-Ft. Worth ..... KSTR ..... IRVING ...... TX ...... 49 ...... 48 48 ...... ** Davenport-R.Island- KWQC .... DAVENPORT ...... IA ...... 6 NBC ...... 56 36 Moline.

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Post-transi- Pre-transi- May be Indicated DMA name Call sign City State Analog Network tion DTV tion DTV Not on short- interest in channel affiliation channel channel MSTV list spaced participating

Davenport-R.Island- KLJB ...... DAVENPORT ...... IA ...... 18 Fox ...... 49 49 ...... ** Moline. Davenport-R.Island- WQPT .... MOLINE ...... IL ...... 24 PBS ...... 23 23 ...... ** Moline. Davenport-R.Island- KGCW .... BURLINGTON ...... IA ...... 26 ...... 41 41 ...... ** Moline. Dayton ...... WDTN .... DAYTON ...... OH ...... 2 NBC ...... 50 50 Dayton ...... WHIO ..... DAYTON ...... OH ...... 7 CBS ...... 41 41 ...... ** Dayton ...... WKEF .... DAYTON ...... OH ...... 22 ABC ...... 51 51 ...... ** Denver ...... KWGN .... DENVER ...... CO ...... 2 ...... 34 34 ...... ** Denver ...... KCNC ..... DENVER ...... CO ...... 4 CBS ...... 35 35 Denver ...... KRMA .... DENVER ...... CO ...... 6 PBS ...... 18 18 ...... *** Denver ...... KBDI ...... BROOMFIELD ...... CO ...... 12 PBS ...... 38 13 ...... ** Denver ...... KTFD ..... BOULDER ...... CO ...... 14 ...... 15 15 Denver ...... KTVD ..... DENVER ...... CO ...... 20 ...... 19 19 ...... ** Denver ...... KRMZ ..... STEAMBOAT CO ...... 24 PBS ...... 10 10 SPRINGS. Denver ...... KDEN ..... LONGMONT ...... CO ...... 25 ...... 29 29 ...... ** Denver ...... KDVR ..... DENVER ...... CO ...... 31 Fox ...... 32 32 Denver ...... KRMT ..... DENVER ...... CO ...... 41 ...... 40 40 ...... ** Denver ...... KCEC ..... DENVER ...... CO ...... 50 ...... 51 51 Des Moines-Ames .. KDSM .... DES MOINES ...... IA ...... 17 Fox ...... 16 16 ...... ** Des Moines-Ames .. KTIN ...... FORT DODGE ...... IA ...... 21 PBS ...... 25 25 Detroit ...... WJBK ..... DETROIT ...... MI ...... 2 Fox ...... 58 7 ...... *** Detroit ...... WDIV ..... DETROIT ...... MI ...... 4 NBC ...... 45 45 Detroit ...... WMYD ... DETROIT ...... MI ...... 20 ...... 21 21 ...... ** Detroit ...... WKBD .... DETROIT ...... MI ...... 50 ...... 14 14 ...... ** Dothan ...... WTVY .... DOTHAN ...... AL ...... 4 CBS ...... 36 36 Dothan ...... WDHN .... DOTHAN ...... AL ...... 18 ABC ...... 21 21 ...... ** Dothan ...... WDFX .... OZARK ...... AL ...... 34 Fox ...... 33 33 ...... ** Dothan ...... WGIQ ..... LOUISVILLE ...... AL ...... 43 PBS ...... 44 44 ...... ** Duluth-Superior ...... KDLH ..... DULUTH ...... MN ...... 3 CBS ...... 33 33 Duluth-Superior ...... KBJR ...... SUPERIOR ...... WI ...... 6 NBC ...... 19 19 Duluth-Superior ...... KQDS ..... DULUTH ...... MN ...... 21 Fox ...... 17 17 Duluth-Superior ...... KAWB .... BRAINERD ...... MN ...... 22 PBS ...... 28 28 ...... ** Eau Claire ...... WEUX .... CHIPPEWA FALLS WI ...... 48 Fox ...... 49 49 * El Paso (Las KDBC ..... EL PASO ...... TX ...... 4 CBS ...... 18 18 Cruces). El Paso (Las KOBG .... SILVER CITY ...... NM ...... 6 NBC ...... 12 Cruces). El Paso (Las KFOX ..... EL PASO ...... TX ...... 14 Fox ...... 15 15 Cruces). El Paso (Las KINT ...... EL PASO ...... TX ...... 26 ...... 25 25 Cruces). El Paso (Las KSCE ..... EL PASO ...... TX ...... 38 ...... 39 39 Cruces). El Paso (Las KTDO ..... LAS CRUCES ...... NM ...... 48 ...... 36 47 Cruces). Erie ...... WSEE .... ERIE ...... PA ...... 35 CBS ...... 16 16 ...... ** Eugene ...... KPIC ...... ROSEBURG ...... OR ...... 4 CBS ...... 19 19 Eugene ...... KMTR ..... EUGENE ...... OR ...... 16 NBC ...... 17 17 ...... ** Eugene ...... KMCB .... COOS BAY ...... OR ...... 23 NBC ...... 22 22 Eugene ...... KEPB ..... EUGENE ...... OR ...... 28 PBS ...... 29 29 Eugene ...... KLSR ..... EUGENE ...... OR ...... 34 Fox ...... 31 31 Eugene ...... KTVC ..... ROSEBURG ...... OR ...... 36 ...... 18 18 Eugene ...... KTCW .... ROSEBURG ...... OR ...... 46 NBC ...... 45 45 Eureka ...... KVIQ ...... EUREKA ...... CA ...... 6 CBS ...... 17 17 Eureka ...... KEET ..... EUREKA ...... CA ...... 13 PBS ...... 11 11 ...... ** Eureka ...... KAEF ..... ARCATA ...... CA ...... 23 ABC ...... 22 22 ...... ** Eureka ...... KBVU ..... EUREKA ...... CA ...... 29 Fox ...... 28 28 ...... ** Evansville ...... WEHT .... EVANSVILLE ...... IN ...... 25 ABC ...... 59 25 ...... ** Evansville ...... WKOH .... OWENSBORO ...... KY ...... 31 PBS ...... 30 30 ...... ** Evansville ...... WKMA .... MADISONVILLE .... KY ...... 35 PBS ...... 42 42 ...... ** Evansville ...... WEVV .... EVANSVILLE ...... IN ...... 44 CBS ...... 45 45 ...... ** Fairbanks ...... KATN ..... FAIRBANKS ...... AK ...... 2 ABC ...... 18 18 Fairbanks ...... KJNP ...... NORTH POLE ...... AK ...... 4 ...... 20 20 Fairbanks ...... KTVF ...... FAIRBANKS ...... AK ...... 11 NBC ...... 26 11 Fargo-Valley City .... KGFE ..... GRAND FORKS .... ND ...... 2 PBS ...... 56 15 Fargo-Valley City .... KXJB ...... VALLEY CITY ...... ND ...... 4 CBS ...... 38 38 Fargo-Valley City .... WDAY .... FARGO ...... ND ...... 6 ABC ...... 21 21 Fargo-Valley City .... KVLY ...... FARGO ...... ND ...... 11 NBC ...... 58 44 ...... ** Fargo-Valley City .... KVRR ..... FARGO ...... ND ...... 15 Fox ...... 19 19 ...... ** Fargo-Valley City .... KDSD ..... ABERDEEN ...... SD ...... 16 PBS ...... 17 17 Fargo-Valley City .... KJRE ...... ELLENDALE ...... ND ...... 19 PBS ...... 20 20 ...... ** Flint-Saginaw-Bay WNEM ... BAY CITY ...... MI ...... 5 CBS ...... 22 22 ...... ** City. Flint-Saginaw-Bay WEYI ...... SAGINAW ...... MI ...... 25 NBC ...... 30 30 ...... ** City. Flint-Saginaw-Bay WDCQ ... BAD AXE ...... MI ...... 35 PBS ...... 15 15 City. Flint-Saginaw-Bay WAQP .... SAGINAW ...... MI ...... 49 ...... 48 48 ...... ** City.

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Post-transi- Pre-transi- May be Indicated DMA name Call sign City State Analog Network tion DTV tion DTV Not on short- interest in channel affiliation channel channel MSTV list spaced participating

Fresno-Visalia ...... KEGS ..... GOLDFIELD ...... NV ...... 7 ...... 50 ...... ** Fresno-Visalia ...... KVPT ..... FRESNO ...... CA ...... 18 PBS ...... 40 40 ...... ** Fresno-Visalia ...... KFTV ...... HANFORD ...... CA ...... 21 ...... 20 20 ...... ** Fresno-Visalia ...... KSEE ..... FRESNO ...... CA ...... 24 NBC ...... 16 38 ...... ** Fresno-Visalia ...... KMPH .... VISALIA ...... CA ...... 26 Fox ...... 28 28 ...... ** Fresno-Visalia ...... KGPE ..... FRESNO ...... CA ...... 47 CBS ...... 14 34 ...... ** Fresno-Visalia ...... KNXT ..... VISALIA ...... CA ...... 49 ...... 50 50 ...... ** Fresno-Visalia ...... KNSO ..... MERCED ...... CA ...... 51 ...... 38 11 ...... ** Ft. Myers-Naples .... WINK ..... FORT MYERS ...... FL ...... 11 CBS ...... 53 9 ...... ** Ft. Myers-Naples .... WBBH .... FORT MYERS ...... FL ...... 20 NBC ...... 15 15 ...... ** Ft. Myers-Naples .... WZVN .... NAPLES ...... FL ...... 26 ABC ...... 41 41 ...... ** Ft. Myers-Naples .... WGCU ... FORT MYERS ...... FL ...... 30 PBS ...... 31 31 ...... ** Ft. Myers-Naples .... WXCW ... NAPLES ...... FL ...... 46 ...... 45 45 ...... ** Ft. Smith-Fay- KOET ..... EUFAULA ...... OK ...... 3 PBS ...... 31 31 Sprngdl-Rgrs. Ft. Smith-Fay- KFSM ..... FORT SMITH ...... AR ...... 5 CBS ...... 18 18 Sprngdl-Rgrs. Ft. Smith-Fay- KFTA ...... FORT SMITH ...... AR ...... 24 Fox ...... 27 27 ...... ** Sprngdl-Rgrs. Ft. Smith-Fay- KHOG .... FAYETTEVILLE ..... AR ...... 29 ABC ...... 15 15 ...... ** *** Sprngdl-Rgrs. Ft. Smith-Fay- KHBS ..... FORT SMITH ...... AR ...... 40 ABC ...... 21 21 ...... ** Sprngdl-Rgrs. Ft. Wayne ...... WANE .... FORT WAYNE ...... IN ...... 15 CBS ...... 4 31 ...... ** Ft. Wayne ...... WISE ...... FORT WAYNE ...... IN ...... 33 NBC ...... 19 19 ...... ** Ft. Wayne ...... WFWA ... FORT WAYNE ...... IN ...... 39 PBS ...... 40 40 ...... ** Gainesville ...... WUFT .... GAINESVILLE ...... FL ...... 5 PBS ...... 36 36 Gainesville ...... WCJB ..... GAINESVILLE ...... FL ...... 20 ABC ...... 16 16 ...... ** Gainesville ...... WNBW ... GAINESVILLE ...... FL ...... 29 ...... 9 9 ...... ** Glendive ...... KXMA ..... DICKINSON ...... ND ...... 2 CBS ...... 19 19 ...... ** Glendive ...... KWSE .... WILLISTON ...... ND ...... 4 PBS ...... 51 51 Glendive ...... KXGN ..... Glendive ...... MT ...... 5 CBS ...... 15 10 * Grand Junction- KREG ..... GLENWOOD CO ...... 3 CBS ...... 23 23 Montrose. SPRINGS. Grand Junction- KFQX ..... GRAND JUNCTION CO ...... 4 Fox ...... 15 15 Montrose. Grand Junction- KREX ..... GRAND JUNCTION CO ...... 5 CBS ...... 2 2 Montrose. Grand Junction- KREZ ..... DURANGO ...... CO ...... 6 CBS ...... 15 15 Montrose. Grand Junction- KBCJ ...... VERNAL ...... UT ...... 6 ...... 16 ...... ** Montrose. Grand Junction- KJCT ...... GRAND JUNCTION CO ...... 8 ABC ...... 7 7 ...... ** Montrose. Grand Junction- KREY ..... MONTROSE ...... CO ...... 10 CBS ...... 13 13 Montrose. Grand Junction- KKCO ..... GRAND JUNCTION CO ...... 11 NBC ...... 12 12 ...... ** Montrose. Grand Rapids- WWMT ... KALAMAZOO ...... MI ...... 3 CBS ...... 2 8 Kalmzoo-B.Crk. Grand Rapids- WXMI ..... GRAND RAPIDS ... MI ...... 17 Fox ...... 19 19 ...... ** Kalmzoo-B.Crk. Great Falls ...... KRTV ..... GREAT FALLS ...... MT ...... 3 CBS ...... 44 7 Great Falls ...... KFBB ..... GREAT FALLS ...... MT ...... 5 ABC ...... 39 8 ...... ** Great Falls ...... KTGF ..... GREAT FALLS ...... MT ...... 16 ...... 45 45 Green Bay-Appleton WBAY .... GREEN BAY ...... WI ...... 2 ABC ...... 23 23 Green Bay-Appleton WIWB ..... SURING ...... WI ...... 14 ...... 21 21 ...... ** Green Bay-Appleton WGBA .... GREEN BAY ...... WI ...... 26 NBC ...... 41 41 ...... ** Green Bay-Appleton WACY .... APPLETON ...... WI ...... 32 ...... 59 27 ...... ** Green Bay-Appleton WPNE .... GREEN BAY ...... WI ...... 38 PBS ...... 42 42 ...... ** Greensboro- WFMY .... GREENSBORO ..... NC ...... 2 CBS ...... 51 51 ...... ** H.Point-W.Salem. Greensboro- WXII ...... WINSTON-SALEM NC ...... 12 NBC ...... 31 31 ...... ** H.Point-W.Salem. Greensboro- WGPX .... BURLINGTON ...... NC ...... 16 ...... 14 14 ...... ** H.Point-W.Salem. Greensboro- WXLV ..... WINSTON-SALEM NC ...... 45 ABC ...... 29 29 ...... ** H.Point-W.Salem. Greenville-N.Bern- WUND .... EDENTON ...... NC ...... 2 PBS ...... 20 20 ...... *** Washngtn. Greenville-N.Bern- WITN ...... WASHINGTON ...... NC ...... 7 NBC ...... 32 32 ...... ** Washngtn. Greenville-N.Bern- WNCT .... GREENVILLE ...... NC ...... 9 CBS ...... 10 10 ...... ** Washngtn. Greenvll-Spart- WYFF ..... GREENVILLE ...... SC ...... 4 NBC ...... 59 36 ...... ** Ashevll-And. Greenvll-Spart- WNTV .... GREENVILLE ...... SC ...... 29 PBS ...... 9 9 ...... ** Ashevll-And. Greenvll-Spart- WNEG .... TOCCOA ...... GA ...... 32 CBS ...... 24 24 ...... ** Ashevll-And. Greenvll-Spart- WUNF .... ASHEVILLE ...... NC ...... 33 PBS ...... 25 25 ...... ** Ashevll-And.

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Post-transi- Pre-transi- May be Indicated DMA name Call sign City State Analog Network tion DTV tion DTV Not on short- interest in channel affiliation channel channel MSTV list spaced participating

Greenvll-Spart- WNEH .... GREENWOOD ...... SC ...... 38 PBS ...... 18 18 ...... ** Ashevll-And. Greenvll-Spart- WRET .... SPARTANBURG .... SC ...... 49 PBS ...... 43 43 ...... ** Ashevll-And. Greenwood-Green- WABG .... GREENWOOD ...... MS ...... 6 ABC ...... 54 32 ...... ** ville. Greenwood-Green- WMAV .... OXFORD ...... MS ...... 18 PBS ...... 36 36 ...... ** ville. Greenwood-Green- WMAO ... GREENWOOD ...... MS ...... 23 PBS ...... 25 25 ...... ** ville. Harlingen-Wslco- KGBT ..... HARLINGEN ...... TX ...... 4 CBS ...... 31 31 Brnsvl-McA. Harlingen-Wslco- KRGV ..... WESLACO ...... TX ...... 5 ABC ...... 13 13 Brnsvl-McA. Harlingen-Wslco- KVEO ..... BROWNSVILLE ..... TX ...... 23 NBC ...... 24 24 ...... ** Brnsvl-McA. Harlingen-Wslco- KTLM ..... Rio Grande City ..... TX ...... 40 ...... 20 20 * ...... *** Brnsvl-McA. Harlingen-Wslco- KLUJ ...... HARLINGEN ...... TX ...... 44 ...... 34 34 Brnsvl-McA. Harlingen-Wslco- KNVO ..... MCALLEN ...... TX ...... 48 ...... 46 49 Brnsvl-McA. Harrisonburg ...... WHSV .... HARRISONBURG .. VA ...... 3 ABC ...... 49 49 ...... ** Hartford & New WFSB .... HARTFORD ...... CT ...... 3 CBS ...... 33 33 Haven. Helena ...... KMTF ..... HELENA ...... MT ...... 10 ...... 29 29 ...... ** Honolulu ...... KHBC ..... HILO ...... HI ...... 2 NBC ...... 22 22 Honolulu ...... KHON .... HONOLULU ...... HI ...... 2 Fox ...... 22 8 Honolulu ...... KGMV .... WAILUKU ...... HI ...... 3 CBS ...... 24 24 Honolulu ...... KITV ...... HONOLULU ...... HI ...... 4 ABC ...... 40 40 ...... *** Honolulu ...... KFVE ..... HONOLULU ...... HI ...... 5 ...... 23 23 Honolulu ...... KLEI ...... KAILUA KONA ...... HI ...... 6 ...... 25 25 Honolulu ...... KHNL ..... HONOLULU ...... HI ...... 13 NBC ...... 35 35 Honolulu ...... KWHE .... HONOLULU ...... HI ...... 14 ...... 31 31 Honolulu ...... KWHH .... HILO ...... HI ...... 14 ...... 23 23 Honolulu ...... KOGG .... Wailuku ...... HI ...... 15 NBC ...... 16 16 * Honolulu ...... KIKU ...... HONOLULU ...... HI ...... 20 ...... 19 19 Honolulu ...... KAAH ..... HONOLULU ...... HI ...... 26 ...... 27 27 Honolulu ...... KBFD ..... Honolulu ...... HI ...... 32 ...... 33 33 * ** Honolulu ...... KALO ..... Honolulu ...... HI ...... 38 ...... 39 10 * Honolulu ...... KWBN .... HONOLULU ...... HI ...... 44 ...... 43 43 Houston ...... KPRC ..... HOUSTON ...... TX ...... 2 NBC ...... 35 35 Houston ...... KBTX ..... BRYAN ...... TX ...... 3 CBS ...... 59 50 Houston ...... KETH ..... HOUSTON ...... TX ...... 14 ...... 24 24 Houston ...... KTXH ..... HOUSTON ...... TX ...... 20 ...... 19 19 ...... ** Houston ...... KLTJ ...... GALVESTON ...... TX ...... 22 ...... 23 23 ...... ** Houston ...... KIAH ...... HOUSTON ...... TX ...... 39 ...... 38 38 ...... ** Houston ...... KPXB ..... CONROE ...... TX ...... 49 ...... 5 32 ...... ** Houston ...... KNWS .... KATY ...... TX ...... 51 ...... 52 47 ...... ** Huntsville-Decatur WHIQ ..... HUNTSVILLE ...... AL ...... 25 PBS ...... 24 24 ...... ** (Flor). Huntsville-Decatur WAAY .... HUNTSVILLE ...... AL ...... 31 ABC ...... 32 32 ...... ** (Flor). Idaho Falls-Poca- KIDK ...... IDAHO FALLS ...... ID ...... 3 CBS ...... 36 36 tello. Idaho Falls-Poca- KPVI ...... POCATELLO ...... ID ...... 6 NBC ...... 23 23 ...... ** tello. Idaho Falls-Poca- KISU ...... POCATELLO ...... ID ...... 10 PBS ...... 17 17 ...... ** tello. Indianapolis ...... WTTV ..... BLOOMINGTON .... IN ...... 4 ...... 53 48 ...... ** Indianapolis ...... WRTV .... INDIANAPOLIS ...... IN ...... 6 ABC ...... 25 25 Indianapolis ...... WISH ..... INDIANAPOLIS ...... IN ...... 8 CBS ...... 9 9 ...... ** Indianapolis ...... WIPB ...... MUNCIE ...... IN ...... 49 PBS ...... 52 23 ...... ** Jackson, MS ...... WLBT ..... JACKSON ...... MS ...... 3 NBC ...... 51 7 Jackson, MS ...... WAPT .... JACKSON ...... MS ...... 16 ABC ...... 21 21 ...... ** Jackson, MS ...... WMPN ... JACKSON ...... MS ...... 29 PBS ...... 20 20 ...... ** Jackson, MS ...... WUFX .... VICKSBURG ...... MS ...... 35 ...... 41 35 ...... ** Jackson, TN ...... WBBJ ..... JACKSON ...... TN ...... 7 ABC ...... 43 43 ...... ** Jackson, TN ...... WLJT ..... LEXINGTON ...... TN ...... 11 PBS ...... 47 47 ...... ** Jackson, TN ...... WJKT ..... JACKSON ...... TN ...... 16 Fox ...... 39 39 ...... ** Jacksonville, Bruns- WJXT ..... JACKSONVILLE .... FL ...... 4 ...... 42 42 ...... *** wick. Jacksonville, Bruns- WTLV ..... JACKSONVILLE .... FL ...... 12 NBC ...... 13 13 ...... ** wick. Jacksonville, Bruns- WCWJ .... JACKSONVILLE .... FL ...... 17 ...... 34 34 ...... ** wick. Jacksonville, Bruns- WPXC .... BRUNSWICK ...... GA ...... 21 ...... 24 24 ...... ** wick. Jacksonville, Bruns- WAWS ... JACKSONVILLE .... FL ...... 30 Fox ...... 32 32 ...... ** wick. Jacksonville, Bruns- WTEV .... JACKSONVILLE .... FL ...... 47 CBS ...... 19 19 ...... ** wick.

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Post-transi- Pre-transi- May be Indicated DMA name Call sign City State Analog Network tion DTV tion DTV Not on short- interest in channel affiliation channel channel MSTV list spaced participating

Johnstown-Altoona WPSU .... CLEARFIELD ...... PA ...... 3 PBS ...... 15 15 Johnstown-Altoona WJAC ..... JOHNSTOWN ...... PA ...... 6 NBC ...... 34 34 ...... ** Johnstown-Altoona WPCW ... JEANNETTE ...... PA ...... 19 ...... 49 49 ...... ** Johnstown-Altoona WATM .... ALTOONA ...... PA ...... 23 ABC ...... 24 24 ...... ** Johnstown-Altoona WHAG .... HAGERSTOWN ..... MD ...... 25 NBC ...... 55 26 ...... ** Johnstown-Altoona WWPB ... HAGERSTOWN ..... MD ...... 31 PBS ...... 44 44 ...... ** Jonesboro ...... KTEJ ...... JONESBORO ...... AR ...... 19 PBS ...... 20 20 ...... ** Joplin-Pittsburg ...... KFJX ...... PITTSBURG ...... KS ...... 14 Fox ...... — 13 Joplin-Pittsburg ...... KSNF ..... JOPLIN ...... MO ...... 16 NBC ...... 46 46 Joplin-Pittsburg ...... KOZJ ...... JOPLIN ...... MO ...... 26 PBS ...... 25 25 Joplin-Pittsburg ...... KNWA .... ROGERS ...... AR ...... 51 NBC ...... 50 50 ...... ** Juneau, AK ...... KTOO ..... JUNEAU ...... AK ...... 3 PBS ...... 6 10 Juneau, AK ...... KUBD ..... KETCHIKAN ...... AK ...... 4 CBS ...... 13 13 Juneau, AK ...... KJUD ..... JUNEAU ...... AK ...... 8 ABC ...... 11 11 Juneau, AK ...... KTNL ...... SITKA ...... AK ...... 13 CBS ...... 2 7 Kansas City ...... WDAF .... KANSAS CITY ...... MO ...... 4 Fox ...... 34 34 Kansas City ...... KCTV ..... KANSAS CITY ...... MO ...... 5 CBS ...... 24 24 ...... ** Kansas City ...... KCPT ..... KANSAS CITY ...... MO ...... 19 PBS ...... 18 18 ...... ** Kansas City ...... KCWE .... KANSAS CITY ...... MO ...... 29 ...... 31 31 * Kansas City ...... KMCI ...... LAWRENCE ...... KS ...... 38 ...... 36 41 Kansas City ...... KPXE ..... KANSAS CITY ...... MO ...... 50 ...... 51 51 ...... ** Kansas City ...... KMBC .... KANSAS CITY ...... MO ...... 9 ...... 9 7 * ...... *** Knoxville ...... WETP .... SNEEDVILLE ...... TN ...... 2 PBS ...... 41 41 Knoxville ...... WATE .... KNOXVILLE ...... TN ...... 6 ABC ...... 26 26 ...... ** Knoxville ...... WVLT ..... KNOXVILLE ...... TN ...... 8 CBS ...... 30 30 ...... ** Knoxville ...... WKOP .... KNOXVILLE ...... TN ...... 15 PBS ...... 17 17 ...... ** Knoxville ...... WTNZ .... KNOXVILLE ...... TN ...... 43 Fox ...... 34 34 ...... ** Knoxville ...... WAGV .... HARLAN ...... KY ...... 44 ...... 51 51 ...... ** La Crosse-Eau WQOW .. EAU CLAIRE ...... WI ...... 18 ABC ...... 15 15 ...... ** Claire. La Crosse-Eau WXOW ... LACROSSE ...... WI ...... 19 ABC ...... 14 14 ...... ** Claire. La Crosse-Eau WLAX ..... LA CROSSE ...... WI ...... 25 Fox ...... 17 17 ...... ** Claire. La Crosse-Eau WHLA .... LA CROSSE ...... WI ...... 31 PBS ...... 30 30 ...... ** Claire. Lafayette, LA ...... KATC ..... LAFAYETTE ...... LA ...... 3 ABC ...... 28 28 Lafayette, LA ...... KADN ..... LAFAYETTE ...... LA ...... 15 Fox ...... 16 16 ...... ** Lake Charles ...... KLTL ...... LAKE CHARLES .... LA ...... 18 PBS ...... 20 20 ...... ** Lake Charles ...... KVHP ..... LAKE CHARLES .... LA ...... 29 Fox ...... 30 30 ...... ** Lansing ...... WLNS .... LANSING ...... MI ...... 6 CBS ...... 59 36 ...... ** Lansing ...... WKAR .... EAST LANSING ..... MI ...... 23 PBS ...... 55 40 ...... ** Lansing ...... WSYM .... LANSING ...... MI ...... 47 Fox ...... 38 38 ...... ** Laredo ...... KVAW .... EAGLE PASS ...... TX ...... 16 ...... 18 18 Laredo ...... KLDO ..... LAREDO ...... TX ...... 27 ...... 19 19 ...... ** Las Vegas ...... KVBC ..... LAS VEGAS ...... NV ...... 3 NBC ...... 2 2 Las Vegas ...... KCSG ..... CEDAR CITY ...... UT ...... 4 ...... 14 14 Las Vegas ...... KVVU ..... HENDERSON ...... NV ...... 5 Fox ...... 24 9 Las Vegas ...... KMOH .... KINGMAN ...... AZ ...... 6 ...... 19 19 Las Vegas ...... KLAS ...... LAS VEGAS ...... NV ...... 8 CBS ...... 7 7 ...... ** Las Vegas ...... KLVX ...... LAS VEGAS ...... NV ...... 10 PBS ...... 11 11 ...... ** Las Vegas ...... KUSG ..... ST. GEORGE ...... UT ...... 12 ...... 9 9 Las Vegas ...... KINC ...... LAS VEGAS ...... NV ...... 15 ...... 16 16 Las Vegas ...... KVMY ..... LAS VEGAS ...... NV ...... 21 ...... 22 22 Las Vegas ...... KMCC .... LAUGHLIN ...... NV ...... 34 ...... 32 32 Las Vegas ...... KBLR ..... PARADISE ...... NV ...... 39 ...... 40 40 Lexington ...... WLEX ..... LEXINGTON ...... KY ...... 18 NBC ...... 22 39 ...... ** Lexington ...... WKYT .... LEXINGTON ...... KY ...... 27 CBS ...... 59 13 ...... ** Lexington ...... WKSO .... SOMERSET ...... KY ...... 29 PBS ...... 14 14 ...... ** Lexington ...... WTVQ .... LEXINGTON ...... KY ...... 36 ABC ...... 40 40 ...... ** Lexington ...... WKLE ..... LEXINGTON ...... KY ...... 46 PBS ...... 42 42 ...... ** Lima ...... WLIO ...... LIMA ...... OH ...... 35 NBC ...... 20 8 ...... ** Lincoln & Hstngs- KSNB ..... SUPERIOR ...... NE ...... 4 Fox ...... 34 34 * Krny Plus. Lincoln & Hstngs- KTVG ..... GRAND ISLAND .... NE ...... 17 Fox ...... 19 19 ...... ** Krny Plus. Lincoln & Hstngs- KHNE ..... HASTINGS ...... NE ...... 29 PBS ...... 14 28 Krny Plus. Little Rock-Pine KETS ..... LITTLE ROCK ...... AR ...... 2 PBS ...... 47 7 Bluff. Little Rock-Pine KARK ..... LITTLE ROCK ...... AR ...... 4 NBC ...... 32 32 Bluff. Little Rock-Pine KEMV ..... MOUNTAIN VIEW AR ...... 6 PBS ...... 35 13 Bluff. Little Rock-Pine KETG ..... ARKADELPHIA ...... AR ...... 9 PBS ...... 46 13 ...... ** Bluff. Little Rock-Pine KTHV ..... LITTLE ROCK ...... AR ...... 11 CBS ...... 12 12 ...... ** Bluff. Little Rock-Pine KLRT ...... LITTLE ROCK ...... AR ...... 16 Fox ...... 30 30 ...... ** Bluff. Little Rock-Pine KVTN ..... PINE BLUFF ...... AR ...... 25 ...... 24 24 ...... ** Bluff.

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Post-transi- Pre-transi- May be Indicated DMA name Call sign City State Analog Network tion DTV tion DTV Not on short- interest in channel affiliation channel channel MSTV list spaced participating

Little Rock-Pine KASN ..... PINE BLUFF ...... AR ...... 38 ...... 39 39 ...... ** Bluff. Little Rock-Pine KWBF .... LITTLE ROCK ...... AR ...... 42 ...... 43 44 ...... ** Bluff. Los Angeles ...... KCBS ..... LOS ANGELES ...... CA ...... 2 CBS ...... 60 43 ...... ** Los Angeles ...... KNBC ..... LOS ANGELES ...... CA ...... 4 NBC ...... 36 36 ...... *** Los Angeles ...... KTLA ...... LOS ANGELES ...... CA ...... 5 ...... 31 31 ...... ** Los Angeles ...... KWHY .... LOS ANGELES ...... CA ...... 22 ...... 42 42 ...... ** *** Los Angeles ...... KTBN ..... SANTA ANA ...... CA ...... 40 ...... 23 23 ...... ** Louisville ...... WAVE .... LOUISVILLE ...... KY ...... 3 NBC ...... 47 47 ...... ** Louisville ...... WKPC .... LOUISVILLE ...... KY ...... 15 PBS ...... 17 17 ...... ** Louisville ...... WBNA .... LOUISVILLE ...... KY ...... 21 ...... 8 8 ...... ** Louisville ...... WKZT ..... ELIZABETHTOWN KY ...... 23 PBS...... 43 43 ...... ** Louisville ...... WLKY ..... LOUISVILLE ...... KY ...... 32 CBS ...... 26 26 ...... ** Louisville ...... WBKI ...... CAMPBELLSVILLE KY ...... 34 ...... 19 19 ...... ** Louisville ...... WDRB .... LOUISVILLE ...... KY ...... 41 Fox ...... 49 49 ...... ** Lubbock ...... KENW .... PORTALES ...... NM ...... 3 PBS ...... 32 32 Lubbock ...... KTXT ...... LUBBOCK ...... TX ...... 5 PBS ...... 39 39 Lubbock ...... KLBK ...... LUBBOCK ...... TX ...... 13 CBS ...... 38 40 Lubbock ...... KLCW .... WOLFFORTH ...... TX ...... 22 ...... 43 Lubbock ...... KAMC .... LUBBOCK ...... TX ...... 28 ABC ...... 27 27 ...... ** Lubbock ...... KJTV ...... LUBBOCK ...... TX ...... 34 Fox ...... 35 35 Macon ...... WGXA .... MACON ...... GA ...... 24 Fox ...... 16 16 ...... ** Macon ...... WMUM ... COCHRAN ...... GA ...... 29 PBS ...... 7 7 ...... ** Madison ...... WISC ..... MADISON ...... WI ...... 3 CBS ...... 50 50 Madison ...... WHA ...... MADISON ...... WI ...... 21 PBS ...... 20 20 ...... ** Madison ...... WKOW ... MADISON ...... WI ...... 27 ABC ...... 26 26 ...... ** Madison ...... WMSN ... MADISON ...... WI ...... 47 Fox ...... 11 11 ...... ** Mankato ...... KRWF .... REDWOOD FALLS MN ...... 43 ABC ...... 27 27 Marquette ...... WJMN .... ESCANABA ...... MI ...... 3 CBS ...... 48 48 Marquette ...... WLUC .... MARQUETTE ...... MI ...... 6 NBC ...... 35 35 ...... ** Medford-Klamath KOTI ...... KLAMATH FALLS .. OR ...... 2 NBC ...... 40 13 Falls. Medford-Klamath KFTS ...... KLAMATH FALLS .. OR ...... 22 PBS ...... 33 33 Falls. Medford-Klamath KDKF ..... KLAMATH FALLS .. OR ...... 31 ABC ...... 29 29 Falls. Memphis ...... WREG .... MEMPHIS ...... TN ...... 3 CBS ...... 28 28 Memphis ...... WLMT .... MEMPHIS ...... TN ...... 30 ...... 31 31 ...... ** Memphis ...... WBUY .... HOLLY SPRINGS .. MS ...... 40 ...... 41 41 ...... ** Memphis ...... WPXX .... MEMPHIS ...... TN ...... 50 ...... 51 51 Meridian ...... WMAW ... MERIDIAN ...... MS ...... 14 PBS ...... 44 44 Meridian ...... WGBC .... MERIDIAN ...... MS ...... 30 NBC ...... 31 31 ...... ** Meridian ...... WIIQ ...... DEMOPOLIS ...... AL ...... 41 PBS ...... 19 19 ...... ** Miami-Ft. Lauder- WKAQ .... SAN JUAN ...... PR ...... 2 ...... 28 28 dale. Miami-Ft. Lauder- WPBT .... MIAMI ...... FL ...... 2 PBS ...... 18 18 dale. Miami-Ft. Lauder- WIPM ..... MAYAGUEZ ...... PR ...... 3 PBS ...... 35 35 dale. Miami-Ft. Lauder- WAPA .... SAN JUAN ...... PR ...... 4 ...... 27 27 dale. Miami-Ft. Lauder- WFOR .... MIAMI ...... FL ...... 4 CBS ...... 22 22 dale. Miami-Ft. Lauder- WORA .... MAYAGUEZ ...... PR ...... 5 ...... 29 29 ...... *** dale. Miami-Ft. Lauder- WIPR ..... SAN JUAN ...... PR ...... 6 PBS ...... 55 43 dale. Miami-Ft. Lauder- WTVJ ..... MIAMI ...... FL ...... 6 NBC ...... 30 31 dale. Miami-Ft. Lauder- WSVI ...... CHRISTIANSTED, VI ...... 8 ABC ...... 20 20 dale. ST. C. Miami-Ft. Lauder- WLRN .... MIAMI ...... FL ...... 17 PBS ...... 20 20 ...... ** dale. Miami-Ft. Lauder- WKPV .... PONCE ...... PR ...... 20 ...... 19 19 ...... ** dale. Miami-Ft. Lauder- WSBS .... KEY WEST ...... FL ...... 22 ...... 3 3 dale. Miami-Ft. Lauder- WJPX ..... SAN JUAN ...... PR ...... 24 ...... 21 21 ...... ** dale. Miami-Ft. Lauder- WBFS .... MIAMI ...... FL ...... 33 ...... 32 32 ...... ** dale. Miami-Ft. Lauder- WDWL ... BAYAMON ...... PR ...... 36 ...... 59 30 ...... ** dale. Miami-Ft. Lauder- WCVI ..... CHRISTIANSTED .. VI ...... 39 ...... 23 23 dale. Miami-Ft. Lauder- WSFL ..... MIAMI ...... FL ...... 39 ...... 19 19 ...... ** dale. Miami-Ft. Lauder- WVEO .... AGUADILLA ...... PR ...... 44 ...... 17 17 ...... ** dale. Miami-Ft. Lauder- WSCV .... FORT LAUDER- FL ...... 51 ...... 52 30 ...... ** dale. DALE.

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Post-transi- Pre-transi- May be Indicated DMA name Call sign City State Analog Network tion DTV tion DTV Not on short- interest in channel affiliation channel channel MSTV list spaced participating

Milwaukee ...... WTMJ .... MILWAUKEE ...... WI ...... 4 NBC ...... 28 28 ...... ** Milwaukee ...... WITI ...... MILWAUKEE ...... WI ...... 6 ...... 33 33 Milwaukee ...... WMVS .... MILWAUKEE ...... WI ...... 10 PBS ...... 8 8 ...... ** Milwaukee ...... WVCY .... MILWAUKEE ...... WI ...... 30 ...... 22 22 ...... ** Minneapolis-St. KTCA ..... ST. PAUL ...... MN ...... 2 PBS ...... 34 34 Paul. Minneapolis-St. WCCO ... MINNEAPOLIS ...... MN ...... 4 CBS ...... 32 32 Paul. Minneapolis-St. KSTC ..... MINNEAPOLIS ...... MN ...... 45 ...... 45 44 * ...... *** Paul. Minneapolis-St. KSTP ..... ST. PAUL ...... MN ...... 5 ABC ...... 50 35 ...... *** Paul. Minneapolis-St. KTCI ...... ST. PAUL ...... MN ...... 17 PBS ...... 16 26 ...... ** Paul. Minneapolis-St. WUCW ... MINNEAPOLIS ...... MN ...... 23 ...... 22 22 Paul. Minneapolis-St. WHWC ... MENOMONIE ...... WI ...... 28 PBS ...... 27 27 ...... ** Paul. Minneapolis-St. KPXM ..... ST. CLOUD ...... MN ...... 41 ...... 40 40 ...... ** Paul. Minot-Bismarck- KBME ..... BISMARCK ...... ND ...... 3 PBS ...... 22 22 ...... ** Dickinson. Minot-Bismarck- KFYR ..... BISMARCK ...... ND ...... 5 NBC ...... 31 31 Dickinson. Minot-Bismarck- KSRE ..... MINOT ...... ND ...... 6 PBS ...... 57 40 Dickinson. Minot-Bismarck- KXMD .... WILLISTON ...... ND ...... 11 CBS ...... 14 14 * Dickinson. Missoula ...... KPAX ..... MISSOULA ...... MT ...... 8 CBS ...... 35 7 ...... ** Mobile-Pensacola WEAR .... PENSACOLA ...... FL ...... 3 ABC ...... 17 17 (Ft Walt). Mobile-Pensacola WKRG .... MOBILE ...... AL ...... 5 CBS ...... 27 27 ...... ** (Ft Walt). Mobile-Pensacola WMPV .... MOBILE ...... AL ...... 21 ...... 20 20 ...... ** (Ft Walt). Mobile-Pensacola WHBR .... PENSACOLA ...... FL ...... 33 ...... 34 34 ...... ** (Ft Walt). Mobile-Pensacola WEIQ ..... MOBILE ...... AL ...... 42 PBS ...... 41 41 ...... ** (Ft Walt). Mobile-Pensacola WJTC ..... PENSACOLA ...... FL ...... 44 ...... 45 45 ...... ** (Ft Walt). Monroe-El Dorado .. KARD ..... WEST MONROE ... LA ...... 14 Fox ...... 36 36 Monroe-El Dorado .. KMCT ..... WEST MONROE ... LA ...... 39 ...... 38 38 ...... ** Monterey-Salinas ... KION ...... MONTEREY ...... CA ...... 46 CBS ...... 32 32 ...... ** Montgomery-Selma WDIQ ..... DOZIER ...... AL ...... 2 PBS...... 59 10 Montgomery-Selma WAKA .... SELMA ...... AL ...... 8 CBS ...... 55 42 ...... ** Myrtle Beach-Flor- WHMC ... CONWAY ...... SC ...... 23 PBS ...... 58 9 ...... ** ence. Nashville ...... WKRN .... NASHVILLE ...... TN ...... 2 ABC ...... 27 27 Nashville ...... WSMV .... NASHVILLE ...... TN ...... 4 NBC ...... 10 10 ...... ** Nashville ...... WZTV ..... NASHVILLE ...... TN ...... 17 Fox ...... 15 15 ...... ** Nashville ...... WUXP .... NASHVILLE ...... TN ...... 30 ...... 21 21 ...... ** Nashville ...... WHTN .... MURFREESBORO TN ...... 39 ...... 38 38 ...... ** New Orleans ...... WWL ...... NEW ORLEANS .... LA ...... 4 ...... 30 36 New Orleans ...... WDSU .... NEW ORLEANS .... LA ...... 6 NBC ...... 43 43 ...... *** New Orleans ...... WYES .... NEW ORLEANS .... LA ...... 12 PBS ...... 11 11 ...... ** New Orleans ...... WHNO ... NEW ORLEANS .... LA ...... 20 ...... 14 21 ...... ** New Orleans ...... WLAE ..... NEW ORLEANS .... LA ...... 32 PBS ...... 31 31 New Orleans ...... WNOL .... NEW ORLEANS .... LA ...... 38 ...... 40 15 New Orleans ...... WPXL ..... NEW ORLEANS .... LA ...... 49 ...... 50 50 ...... ** New York ...... WCBS .... NEW YORK ...... NY ...... 2 CBS ...... 56 33 New York ...... WNBC .... NEW YORK ...... NY ...... 4 NBC ...... 28 28 ...... ** New York ...... WNYW ... NEW YORK ...... NY ...... 5 Fox ...... 44 44 ...... ** Norfolk-Portsmth- WTKR .... NORFOLK ...... VA ...... 3 CBS ...... 58 40 ...... ** Newpt Nws. Norfolk-Portsmth- WSKY .... MANTEO ...... NC ...... 4 ...... 4 9 ...... ** Newpt Nws. Norfolk-Portsmth- WHRO ... HAMPTON-NOR- VA ...... 15 PBS ...... 16 16 ...... ** Newpt Nws. FOLK. Norfolk-Portsmth- WHRE .... VIRGINIA BEACH .. VA ...... 21 ...... 7 ...... ** Newpt Nws. Norfolk-Portsmth- WGNT .... PORTSMOUTH ..... VA ...... 27 ...... 19 50 ...... ** Newpt Nws. Norfolk-Portsmth- WVBT .... VIRGINIA BEACH .. VA ...... 43 Fox ...... 29 29 ...... ** Newpt Nws. Norfolk-Portsmth- WPXV .... NORFOLK ...... VA ...... 49 ...... 46 46 ...... ** Newpt Nws. North Platte ...... KLNE ..... LEXINGTON ...... NE ...... 3 PBS ...... 26 26 North Platte ...... KLBY ...... COLBY ...... KS ...... 4 ABC ...... 17 17 North Platte ...... KSNK ..... MCCOOK ...... NE ...... 8 NBC ...... 12 12 ...... ** Odessa-Midland ..... KMID ...... MIDLAND ...... TX ...... 2 ABC ...... 26 26 Odessa-Midland ..... KWAB .... BIG SPRING ...... TX ...... 4 NBC ...... 33 33

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Post-transi- Pre-transi- May be Indicated DMA name Call sign City State Analog Network tion DTV tion DTV Not on short- interest in channel affiliation channel channel MSTV list spaced participating

Odessa-Midland ..... KOCT ..... CARLSBAD ...... NM ...... 6 ABC ...... 19 19 ...... *** Odessa-Midland ..... KPEJ ...... ODESSA ...... TX ...... 24 Fox ...... 23 23 ...... ** Odessa-Midland ..... KPBT ..... ODESSA ...... TX ...... 36 PBS ...... 22 38 Oklahoma City ...... KFOR ..... OKLAHOMA CITY OK ...... 4 NBC ...... 27 27 Oklahoma City ...... KOCO .... OKLAHOMA CITY OK ...... 5 ABC ...... 16 7 ...... *** Oklahoma City ...... KWET .... CHEYENNE ...... OK ...... 12 PBS ...... 8 8 ...... ** Oklahoma City ...... KOKH ..... OKLAHOMA CITY OK ...... 25 Fox ...... 24 24 ...... ** Oklahoma City ...... KTUZ ..... SHAWNEE ...... OK ...... 30 ...... 29 29 ...... ** Oklahoma City ...... KOCB ..... OKLAHOMA CITY OK ...... 34 ...... 33 33 Oklahoma City ...... KAUT ..... OKLAHOMA CITY OK ...... 43 ...... 42 40 ...... ** Omaha ...... KMTV ..... OMAHA ...... NE ...... 3 CBS ...... 45 45 Omaha ...... WOWT ... OMAHA ...... NE ...... 6 NBC ...... 22 22 Omaha ...... KETV ..... OMAHA ...... NE ...... 7 ABC ...... 20 20 ...... ** Omaha ...... KYNE ..... OMAHA ...... NE ...... 26 PBS ...... 17 17 Omaha ...... KBIN ...... COUNCIL BLUFFS IA ...... 32 PBS ...... 33 33 Omaha ...... KHIN ...... RED OAK ...... IA ...... 36 PBS ...... 35 35 ...... ** Omaha ...... KPTM ..... OMAHA ...... NE ...... 42 Fox ...... 43 43 ...... ** Orlando-Daytona WESH .... DAYTONA BEACH FL ...... 2 NBC ...... 11 11 ...... *** Bch-Melbrn. Orlando-Daytona WKMG ... ORLANDO ...... FL ...... 6 CBS ...... 58 26 Bch-Melbrn. Orlando-Daytona WFTV ..... ORLANDO ...... FL ...... 9 ABC ...... 39 39 ...... ** Bch-Melbrn. Orlando-Daytona WDSC .... NEW SMYRNA FL ...... 15 ...... 33 ...... ** Bch-Melbrn. BEACH. Orlando-Daytona WKCF .... CLERMONT ...... FL ...... 18 ...... 17 17 ...... ** *** Bch-Melbrn. Orlando-Daytona WMFE .... ORLANDO ...... FL ...... 24 PBS ...... 23 23 ...... ** Bch-Melbrn. Orlando-Daytona WOFL .... ORLANDO ...... FL ...... 35 Fox ...... 22 22 ...... ** Bch-Melbrn. Orlando-Daytona WTGL .... LEESBURG ...... FL ...... 45 ...... 46 46 ...... ** Bch-Melbrn. Ottumwa-Kirksville .. KTVO ..... KIRKSVILLE ...... MO ...... 3 ABC ...... 33 33 Paducah-Cape Gi- WSIL ...... HARRISBURG ...... IL ...... 3 ABC ...... 34 34 ...... *** rard-Harsbg. Paducah-Cape Gi- WPSD .... PADUCAH ...... KY ...... 6 NBC ...... 32 32 rard-Harsbg. Paducah-Cape Gi- KBSI ...... CAPE GIRARDEAU MO ...... 23 Fox ...... 22 22 ...... ** rard-Harsbg. Paducah-Cape Gi- WTCT .... MARION ...... IL ...... 27 ...... 17 17 ...... ** rard-Harsbg. Paducah-Cape Gi- WKPD .... PADUCAH ...... KY ...... 29 PBS ...... 41 41 ...... ** rard-Harsbg. Panama City ...... WPGX .... PANAMA CITY ...... FL ...... 28 Fox ...... 29 9 Panama City ...... WFGX .... FORT WALTON FL ...... 35 ...... 50 50 ...... ** BEACH. Panama City ...... WPCT .... PANAMA CITY FL ...... 46 ...... 47 47 ...... ** BEACH. Parkersburg ...... WTAP .... PARKERSBURG ... WV ...... 15 NBC ...... 49 49 ...... ** Parkersburg ...... WOUB .... ATHENS ...... OH ...... 20 PBS ...... 27 27 ...... ** Peoria-Bloomington WICS ..... SPRINGFIELD ...... IL ...... 20 ABC ...... 42 42 ...... ** Peoria-Bloomington WMBD ... PEORIA ...... IL ...... 31 CBS ...... 30 30 ...... ** Peoria-Bloomington WWTO ... LA SALLE...... IL ...... 35 ...... 10 10 ...... ** Peoria-Bloomington WYZZ ..... BLOOMINGTON .... IL ...... 43 Fox...... 28 28 ...... ** Peoria-Bloomington WTVP .... PEORIA ...... IL ...... 47 PBS...... 46 46 ...... ** Peoria-Bloomington WCFN .... SPRINGFIELD ...... IL ...... 49 ...... 53 13 ...... ** Philadelphia ...... KYW ...... PHILADELPHIA ..... PA ...... 3 CBS ...... 26 26 Phoenix (Prescott) .. KTVK ..... PHOENIX ...... AZ ...... 3 ...... 24 24 Phoenix (Prescott) .. KPHO ..... PHOENIX ...... AZ ...... 5 CBS ...... 17 17 Phoenix (Prescott) .. KPAZ ..... PHOENIX ...... AZ ...... 21 ...... 20 20 Phoenix (Prescott) .. KUTP ..... PHOENIX ...... AZ ...... 45 ...... 26 26 Pittsburgh ...... KDKA ..... PITTSBURGH ...... PA ...... 2 CBS ...... 25 25 Pittsburgh ...... WTAE .... PITTSBURGH ...... PA ...... 4 ABC ...... 51 51 Pittsburgh ...... WQEX .... PITTSBURGH ...... PA ...... 16 ...... 26 38 ...... ** Pittsburgh ...... WPMY .... PITTSBURGH ...... PA ...... 22 ...... 42 42 ...... ** Pittsburgh ...... WPCB .... GREENSBURG ..... PA ...... 40 ...... 50 50 ...... ** Portland ...... KATU ..... PORTLAND ...... OR ...... 2 ABC ...... 43 43 Portland ...... KOIN ...... PORTLAND ...... OR ...... 6 CBS ...... 40 40 ...... *** Portland ...... KCKA ..... CENTRALIA ...... WA ...... 15 PBS ...... 19 19 ...... ** Portland ...... KNMT ..... PORTLAND ...... OR ...... 24 ...... 45 45 Portland ...... KPDX ..... VANCOUVER ...... WA ...... 49 ...... 48 30 Portland-Auburn ..... WCSH .... PORTLAND ...... ME ...... 6 NBC ...... 44 44 ...... ** Portland-Auburn ..... WGME ... PORTLAND ...... ME ...... 13 CBS ...... 38 38 ...... ** Portland-Auburn ..... WMEA .... BIDDEFORD ...... ME ...... 26 PBS ...... 45 45 Portland-Auburn ..... WPXT .... PORTLAND ...... ME ...... 51 ...... 4 43 ...... ** Quincy-Hannibal- WTJR ..... QUINCY ...... IL ...... 16 ...... 32 32 ...... ** Keokuk. Quincy-Hannibal- WQEC .... QUINCY ...... IL ...... 27 PBS ...... 34 34 Keokuk. Raleigh-Durham WUNC .... CHAPEL HILL ...... NC ...... 4 PBS ...... 59 25 ...... ** (Fayetvlle).

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Post-transi- Pre-transi- May be Indicated DMA name Call sign City State Analog Network tion DTV tion DTV Not on short- interest in channel affiliation channel channel MSTV list spaced participating

Raleigh-Durham WRAL .... RALEIGH ...... NC ...... 5 CBS ...... 53 48 ...... ** (Fayetvlle). Raleigh-Durham WLFL ..... RALEIGH ...... NC ...... 22 ...... 57 27 ...... ** (Fayetvlle). Raleigh-Durham WRAY .... WILSON ...... NC ...... 30 ...... 42 42 ...... ** (Fayetvlle). Raleigh-Durham WUVC .... FAYETTEVILLE ..... NC ...... 40 ...... 38 38 ...... ** (Fayetvlle). Raleigh-Durham WRAZ .... RALEIGH ...... NC ...... 50 Fox ...... 49 49 ...... ** (Fayetvlle). Rapid City ...... KOTA ..... RAPID CITY ...... SD ...... 3 ABC ...... 22 2 Rapid City ...... KPRY ..... PIERRE ...... SD ...... 4 ABC ...... 19 19 Rapid City ...... KHSD ..... LEAD ...... SD ...... 11 ABC ...... 30 10 ...... ** Rapid City ...... KCLO ..... RAPID CITY ...... SD ...... 15 CBS ...... 16 16 Reno ...... KTVN ..... RENO ...... NV ...... 2 CBS ...... 32 13 Reno ...... KRNV ..... RENO ...... NV ...... 4 NBC ...... 34 7 Reno ...... KNPB ..... RENO ...... NV ...... 5 PBS ...... 15 15 Reno ...... KRXI ...... RENO ...... NV ...... 11 Fox ...... 44 44 ...... ** Reno ...... KAME ..... RENO ...... NV ...... 21 ...... 22 20 ...... ** Reno ...... KREN ..... RENO ...... NV ...... 27 ...... 26 26 ...... ** Richmond-Peters- WTVR .... RICHMOND ...... VA ...... 6 CBS ...... 25 25 ...... ** burg. Richmond-Peters- WRIC ..... PETERSBURG ...... VA ...... 8 ABC ...... 22 22 ...... ** burg. Richmond-Peters- WCVE .... RICHMOND ...... VA ...... 23 PBS ...... 24 42 ...... ** burg. Roanoke-Lynchburg WBRA .... ROANOKE ...... VA ...... 15 PBS ...... 3 3 ...... ** Roanoke-Lynchburg WWCW .. LYNCHBURG ...... VA ...... 21 Fox ...... 20 20 ...... ** Roanoke-Lynchburg WFXR .... ROANOKE ...... VA ...... 27 Fox ...... 17 17 ...... ** Roanoke-Lynchburg WPXR .... ROANOKE ...... VA ...... 38 ...... 36 36 ...... ** Rochester, NY ...... WROC ... ROCHESTER ...... NY ...... 8 CBS ...... 45 45 ...... ** Rochester, NY ...... WXXI ...... ROCHESTER ...... NY ...... 21 PBS ...... 16 16 ...... ** *** Rochester, NY ...... WUHF .... ROCHESTER ...... NY ...... 31 Fox ...... 28 28 ...... ** Rochester, NY ...... WPXJ ..... BATAVIA ...... NY ...... 51 ...... 53 23 ...... ** Rochestr-Mason KIMT ...... MASON CITY ...... IA ...... 3 CBS ...... 42 42 City-Austin. Rochestr-Mason KAAL ...... AUSTIN ...... MN ...... 6 ABC ...... 33 36 City-Austin. Rochestr-Mason KSMQ .... AUSTIN ...... MN ...... 15 PBS ...... 20 20 ...... ** City-Austin. Rochestr-Mason KYIN ...... MASON CITY ...... IA ...... 24 PBS ...... 18 18 ...... ** City-Austin. Rockford ...... WTVO .... ROCKFORD ...... IL ...... 17 ABC ...... 16 16 ...... ** Rockford ...... WQRF .... ROCKFORD ...... IL ...... 39 Fox ...... 42 42 ...... ** Sacramento-Stktn- KCRA ..... SACRAMENTO ...... CA ...... 3 NBC ...... 35 35 ...... *** Modesto. Sacramento-Stktn- KVIE ...... SACRAMENTO ...... CA ...... 6 PBS ...... 53 9 Modesto. Salisbury ...... WBOC .... SALISBURY ...... MD ...... 16 CBS ...... 21 21 ...... ** Salt Lake City ...... KUTV ..... SALT LAKE CITY .. UT ...... 2 CBS ...... 35 34 ...... ** Salt Lake City ...... KCBU ..... PRICE ...... UT ...... 3 ...... 3 11 ...... ** Salt Lake City ...... KTVX ..... SALT LAKE CITY .. UT ...... 4 ABC ...... 40 40 Salt Lake City ...... KSL ...... SALT LAKE CITY .. UT ...... 5 NBC ...... 38 38 ...... *** Salt Lake City ...... KBNY ..... ELY ...... NV ...... 6 ...... 27 ...... ** Salt Lake City ...... KUED ..... SALT LAKE CITY .. UT ...... 7 PBS ...... 42 42 Salt Lake City ...... KUEN ..... OGDEN ...... UT ...... 9 ...... 34 36 Salt Lake City ...... KJZZ ...... SALT LAKE CITY .. UT ...... 14 ...... 27 46 Salt Lake City ...... KUPX ..... PROVO ...... UT ...... 16 ...... 17 29 ...... ** Salt Lake City ...... KUCW .... OGDEN ...... UT ...... 30 ...... 29 48 San Angelo ...... KSAN ..... SAN ANGELO ...... TX ...... 3 NBC ...... 16 16 San Angelo ...... KIDY ...... SAN ANGELO ...... TX ...... 6 ...... 19 19 San Angelo ...... KLST ...... SAN ANGELO ...... TX ...... 8 CBS ...... 11 11 ...... ** San Antonio ...... KCWX .... FREDERICKS- TX ...... 2 ...... 5 BURG. San Antonio ...... WOAI ..... SAN ANTONIO ...... TX ...... 4 NBC ...... 58 48 San Antonio ...... KTRG ..... DEL RIO ...... TX ...... 10 ...... 28 28 San Antonio ...... KHCE ..... SAN ANTONIO ...... TX ...... 23 ...... 16 16 ...... ** San Antonio ...... KABB ..... SAN ANTONIO ...... TX ...... 29 Fox ...... 30 30 San Antonio ...... KMYS ..... KERRVILLE ...... TX ...... 35 ...... 32 32 ...... ** San Diego ...... KPBS ..... SAN DIEGO ...... CA ...... 15 PBS ...... 30 30 San Diego ...... KNSD ..... SAN DIEGO ...... CA ...... 39 NBC ...... 40 40 ...... ** San Diego ...... KUSI ...... SAN DIEGO ...... CA ...... 51 ...... 18 18 ...... ** San Francisco-Oak- KTVU ..... OAKLAND ...... CA ...... 2 Fox ...... 56 44 San Jose. San Francisco-Oak- KRON .... SAN FRANCISCO CA ...... 4 ...... 57 38 San Jose. San Francisco-Oak- KPIX ...... SAN FRANCISCO CA ...... 5 CBS ...... 29 29 ...... ** San Jose. San Francisco-Oak- KNTV ..... SAN JOSE ...... CA ...... 11 NBC ...... 12 12 ...... ** San Jose. San Francisco-Oak- KOFY ..... SAN FRANCISCO CA ...... 20 ...... 19 19 ...... ** San Jose.

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Post-transi- Pre-transi- May be Indicated DMA name Call sign City State Analog Network tion DTV tion DTV Not on short- interest in channel affiliation channel channel MSTV list spaced participating

San Francisco-Oak- KRCB ..... COTATI ...... CA ...... 22 PBS ...... 23 23 ...... ** San Jose. SantaBarbra- KEYT ..... SANTA BARBARA CA ...... 3 ABC ...... 27 27 SanMar-SanLuOb. SantaBarbra- KSBY ..... SAN LUIS OBISPO CA ...... 6 NBC ...... 15 15 SanMar-SanLuOb. SantaBarbra- KCOY ..... SANTA MARIA ...... CA ...... 12 CBS ...... 19 19 SanMar-SanLuOb. SantaBarbra- KTAS ..... SAN LUIS OBISPO CA ...... 33 ...... 34 34 ...... ** SanMar-SanLuOb. SantaBarbra- KPMR .... SANTA BARBARA CA ...... 38 ...... 21 21 ...... ** SanMar-SanLuOb. Savannah ...... WSAV .... SAVANNAH ...... GA ...... 3 NBC ...... 39 39 Seattle-Tacoma ...... KOMO .... SEATTLE ...... WA ...... 4 ABC ...... 38 38 Seattle-Tacoma ...... KING ...... SEATTLE ...... WA ...... 5 NBC ...... 48 48 Seattle-Tacoma ...... KIRO ...... SEATTLE ...... WA ...... 7 CBS ...... 39 39 Seattle-Tacoma ...... KVOS ..... BELLINGHAM ...... WA ...... 12 ...... 35 35 ...... ** Seattle-Tacoma ...... KONG .... EVERETT ...... WA ...... 16 ...... 31 31 ...... ** Seattle-Tacoma ...... KTBW .... TACOMA ...... WA ...... 20 ...... 14 14 ...... ** Seattle-Tacoma ...... KMYQ .... SEATTLE ...... WA ...... 22 ...... 25 25 ...... ** Seattle-Tacoma ...... KBCB ..... BELLINGHAM ...... WA ...... 24 ...... 19 19 ...... ** Seattle-Tacoma ...... KBTC ..... TACOMA ...... WA ...... 28 PBS ...... 27 27 Seattle-Tacoma ...... KHCV ..... SEATTLE ...... WA ...... 45 ...... 44 44 ...... ** Seattle-Tacoma ...... KUNS ..... BELLEVUE ...... WA ...... 51 ...... 50 50 Sherman, TX-Ada, KTEN ..... ADA ...... OK ...... 10 NBC ...... 26 26 ...... ** OK. Sherman, TX-Ada, KTAQ ..... GREENVILLE ...... TX ...... 47 ...... 46 46 ...... ** OK. Shreveport ...... KTBS ..... SHREVEPORT ...... LA ...... 3 ABC ...... 28 28 ...... *** Shreveport ...... KTAL ...... TEXARKANA ...... TX ...... 6 NBC ...... 15 15 Shreveport ...... KSLA ...... SHREVEPORT ...... LA ...... 12 ...... 17 17 ...... ** Shreveport ...... KMSS ..... SHREVEPORT ...... LA ...... 33 Fox ...... 34 34 ...... ** Shreveport ...... KSHV ..... SHREVEPORT ...... LA ...... 45 ...... 44 44 ...... ** Sioux City ...... KTIV ...... SIOUX CITY ...... IA ...... 4 NBC ...... 41 41 Sioux City ...... KMEG .... SIOUX CITY ...... IA ...... 14 CBS ...... 39 39 Sioux City ...... KSIN ...... SIOUX CITY ...... IA ...... 27 PBS ...... 28 28 ...... ** Sioux Falls(Mitchell) KUSD ..... VERMILLION ...... SD ...... 2 PBS ...... 34 34 Sioux Falls(Mitchell) KDLV ..... MITCHELL ...... SD ...... 5 NBC ...... 26 26 Sioux Falls(Mitchell) KPLO ..... RELIANCE ...... SD ...... 6 CBS ...... 14 13 Sioux Falls(Mitchell) KTTW ..... SIOUX FALLS ...... SD ...... 17 Fox ...... 7 7 Sioux Falls(Mitchell) KSMN .... WORTHINGTON ... MN ...... 20 PBS ...... 15 15 ...... ** Sioux Falls(Mitchell) KCSD ..... SIOUX FALLS ...... SD ...... 23 PBS ...... 24 24 Sioux Falls(Mitchell) KDLT ...... SIOUX FALLS ...... SD ...... 46 NBC ...... 47 47 ...... ** South Bend-Elkhart WNDU .... SOUTH BEND ...... IN ...... 16 NBC ...... 42 42 ...... ** Spokane ...... KREM .... SPOKANE ...... WA ...... 2 CBS ...... 20 20 Spokane ...... KLEW ..... LEWISTON ...... ID ...... 3 CBS ...... 32 32 Spokane ...... KXLY ...... SPOKANE ...... WA ...... 4 ABC ...... 13 13 Spokane ...... KHQ ...... SPOKANE ...... WA ...... 6 NBC ...... 15 7 Spokane ...... KSKN ..... SPOKANE ...... WA ...... 22 ...... 36 36 Spokane ...... KCDT ..... COEUR D’ALENE .. ID ...... 26 PBS ...... 45 45 Spokane ...... KSPS ..... SPOKANE ...... WA ...... 7 PBS ...... 8 8 * ...... *** Springfield, MO ...... KYTV ..... SPRINGFIELD ...... MO ...... 3 NBC ...... 44 44 Springfield, MO ...... KOZK ..... SPRINGFIELD ...... MO ...... 21 PBS ...... 23 23 ...... ** Springfield, MO ...... KSFX ..... SPRINGFIELD ...... MO ...... 27 Fox ...... 28 28 ...... ** Springfield, MO ...... KSPR ..... SPRINGFIELD ...... MO ...... 33 ABC ...... 19 19 St. Joseph ...... KQTV ..... ST. JOSEPH ...... MO ...... 2 ABC ...... 53 7 St. Joseph ...... KTAJ ...... ST. JOSEPH ...... MO ...... 16 ...... 21 21 ...... ** St. Louis ...... KTVI ...... ST. LOUIS ...... MO ...... 2 Fox ...... 43 43 St. Louis ...... KMOV .... ST. LOUIS ...... MO ...... 4 CBS ...... 56 24 ...... ** St. Louis ...... KSDK ..... ST LOUIS ...... MO ...... 5 NBC ...... 35 35 St. Louis ...... KETC ..... ST. LOUIS ...... MO ...... 9 PBS ...... 39 39 ...... ** St. Louis ...... KPLR ..... ST. LOUIS ...... MO ...... 11 ...... 26 26 ...... ** St. Louis ...... KDNL ..... ST. LOUIS ...... MO ...... 30 ABC ...... 31 31 ...... ** St. Louis ...... WRBU .... EAST ST. LOUIS ... IL ...... 46 ...... 47 47 ...... ** Syracuse ...... WSTM .... SYRACUSE ...... NY ...... 3 NBC ...... 54 24 ...... ** Syracuse ...... WTVH .... SYRACUSE ...... NY ...... 5 CBS ...... 47 47 Syracuse ...... WSYR .... SYRACUSE ...... NY ...... 9 ABC ...... 17 17 ...... ** Syracuse ...... WNYS .... SYRACUSE ...... NY ...... 43 ...... 44 44 ...... ** Tallahassee-Thom- WFSU .... TALLAHASSEE ..... FL ...... 11 PBS ...... 32 32 ...... ** asville. Tampa-St. Pete WEDU .... TAMPA ...... FL ...... 3 PBS ...... 54 13 (Sarasota). Tampa-St. Pete WFLA ..... TAMPA ...... FL ...... 8 NBC ...... 7 7 ...... ** (Sarasota). Tampa-St. Pete WUSF .... TAMPA ...... FL ...... 16 PBS ...... 34 34 ...... ** *** (Sarasota). Tampa-St. Pete WFTS ..... TAMPA ...... FL ...... 28 ABC ...... 29 29 ...... ** (Sarasota). Tampa-St. Pete WMOR ... LAKELAND ...... FL ...... 32 ...... 19 19 ...... ** (Sarasota). Tampa-St. Pete WFTT ..... TAMPA ...... FL ...... 50 ...... 47 47 (Sarasota).

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Post-transi- Pre-transi- May be Indicated DMA name Call sign City State Analog Network tion DTV tion DTV Not on short- interest in channel affiliation channel channel MSTV list spaced participating

Terre Haute ...... WTWO ... TERRE HAUTE ..... IN ...... 2 NBC ...... 36 36 Terre Haute ...... WUSI ..... OLNEY ...... IL ...... 16 PBS ...... 19 19 ...... ** Terre Haute ...... WEIU ..... CHARLESTON ...... IL ...... 51 PBS ...... 50 50 ...... ** Topeka ...... KAAS ..... SALINA ...... KS ...... 18 Fox ...... 17 17 ...... ** Topeka ...... KSQA ..... TOPEKA ...... KS ...... 22 ...... 12 ...... ** Traverse City-Cad- WFQX .... CADILLAC ...... MI ...... 33 Fox ...... 47 47 ...... ** illac. Tri-Cities, TN-VA .... WKPT .... KINGSPORT ...... TN ...... 19 ABC ...... 27 19 ...... ** Tri-Cities, TN-VA .... WKPI ...... PIKEVILLE ...... KY ...... 22 PBS ...... 24 24 ...... ** Tri-Cities, TN-VA .... WKHA .... HAZARD ...... KY ...... 35 PBS ...... 16 16 ...... ** Tri-Cities, TN-VA .... WSBN .... NORTON ...... VA ...... 47 PBS ...... 32 32 ...... ** Tucson (Sierra KFTU ..... DOUGLAS ...... AZ ...... 3 ...... 36 Vista). Tucson (Sierra KVOA ..... TUCSON ...... AZ ...... 4 NBC ...... 23 23 Vista). Tucson (Sierra KUAT ..... TUCSON ...... AZ ...... 6 PBS ...... 30 30 Vista). Tucson (Sierra KMSB ..... TUCSON ...... AZ ...... 11 Fox ...... 25 25 Vista). Tucson (Sierra KOLD ..... TUCSON ...... AZ ...... 13 CBS ...... 32 32 ...... ** Vista). Tucson (Sierra KUAS ..... TUCSON ...... AZ ...... 27 PBS ...... 28 28 Vista). Tulsa ...... KJRH ..... TULSA ...... OK ...... 2 NBC ...... 56 8 Tulsa ...... KOTV ..... TULSA ...... OK ...... 6 CBS ...... 55 45 Tulsa ...... KQCW .... MUSKOGEE ...... OK ...... 19 ...... 20 ...... ** Tulsa ...... KOKI ...... TULSA ...... OK ...... 23 Fox ...... 22 22 ...... ** Tulsa ...... KRSC ..... CLAREMORE ...... OK ...... 35 ...... 36 36 ...... ** Tulsa ...... KMYT ..... TULSA ...... OK ...... 41 ...... 42 42 Twin Falls ...... KIPT ...... TWIN FALLS ...... ID ...... 13 PBS ...... 22 22 ...... ** Twin Falls ...... KBGH ..... FILER ...... ID ...... 19 ...... 18 18 Twin Falls ...... KXTF ...... TWIN FALLS ...... ID ...... 35 Fox ...... 34 34 Tyler-Longview KYTX ..... NACOGDOCHES .. TX ...... 19 CBS ...... 18 18 ...... ** (Lfkn&Ncgd). Tyler-Longview KCEB ..... LONGVIEW ...... TX ...... 38 ...... 38 ...... ** (Lfkn&Ncgd). Tyler-Longview KFXK ..... LONGVIEW ...... TX ...... 51 Fox ...... 52 31 * (Lfkn&Ncgd). Utica ...... WKTV .... UTICA ...... NY ...... 2 NBC ...... 29 29 Utica ...... WFXV .... UTICA ...... NY ...... 33 Fox ...... 27 27 ...... ** Victoria ...... KVCT ..... VICTORIA ...... TX ...... 19 Fox ...... 34 11 ...... ** Victoria ...... KAVU ..... VICTORIA ...... TX ...... 25 ABC ...... 15 15 Waco-Temple-Bryan KCEN ..... TEMPLE ...... TX ...... 6 NBC ...... 50 9 Waco-Temple-Bryan KAMU .... COLLEGE STA- TX ...... 15 PBS ...... 12 12 TION. Waco-Temple-Bryan KXXV ..... WACO ...... TX ...... 25 ABC ...... 26 26 * Waco-Temple-Bryan KWBU .... WACO ...... TX ...... 34 PBS ...... 20 20 ...... ** Washington, DC ..... WRC ...... WASHINGTON ...... DC ...... 4 NBC ...... 48 48 ...... ** Washington, DC ..... WTTG .... WASHINGTON ...... DC ...... 5 Fox ...... 36 36 ...... ** Washington, DC ..... WFDC .... ARLINGTON ...... VA ...... 14 ...... 15 15 Washington, DC ..... WDCA .... WASHINGTON ...... DC ...... 20 ...... 35 35 ...... ** Watertown ...... WNPI ..... NORWOOD ...... NY ...... 18 PBS ...... 23 23 ...... ** Wausau- WBIJ ...... CRANDON ...... WI ...... 4 ...... 12 Rhinelander. Wausau- WHRM ... WAUSAU ...... WI ...... 20 PBS ...... 24 24 ...... ** Rhinelander. Wausau- WYOW ... EAGLE RIVER ...... WI ...... 34 ABC ...... 28 28 ...... ** Rhinelander. West Palm Beach- WPTV .... WEST PALM FL ...... 5 NBC ...... 55 12 Ft. Pierce. BEACH. West Palm Beach- WTCE .... FORT PIERCE ...... FL ...... 21 ...... 38 38 ...... ** Ft. Pierce. West Palm Beach- WPBF .... TEQUESTA ...... FL ...... 25 ABC ...... 16 16 ...... ** Ft. Pierce. Wheeling-Steuben- WOUC ... CAMBRIDGE ...... OH ...... 44 PBS ...... 35 35 ...... ** ville. Wichita Falls & KFDX ..... WICHITA FALLS .... TX ...... 3 NBC ...... 28 28 Lawton. Wichita Falls & KAUZ ..... WICHITA FALLS .... TX ...... 6 CBS ...... 22 22 Lawton. Wichita Falls & KSWO .... LAWTON ...... OK ...... 7 ABC ...... 23 11 ...... ** Lawton. Wichita Falls & KJTL ...... WICHITA FALLS .... TX ...... 18 Fox ...... 15 15 ...... ** Lawton. Wichita-Hutchinson KSNC ..... GREAT BEND ...... KS ...... 2 NBC ...... 22 22 Plus. Wichita-Hutchinson KSNW .... WICHITA ...... KS ...... 3 NBC ...... 45 45 Plus. Wichita-Hutchinson KOOD .... HAYS ...... KS ...... 9 PBS ...... 16 16 ...... ** Plus. Wichita-Hutchinson KSAS ..... WICHITA ...... KS ...... 24 Fox ...... 26 26 ...... ** Plus.

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Post-transi- Pre-transi- May be Indicated DMA name Call sign City State Analog Network tion DTV tion DTV Not on short- interest in channel affiliation channel channel MSTV list spaced participating

Wichita-Hutchinson KSCW .... WICHITA ...... KS ...... 33 ...... 31 31 ...... ** Plus. Wichita-Hutchinson KMTW .... HUTCHINSON ...... KS ...... 36 ...... 35 35 ...... ** Plus. Wilkes Barre-Scran- WNEP .... SCRANTON ...... PA ...... 16 ABC ...... 49 49 ...... ** ton. Wilkes Barre-Scran- WYOU .... SCRANTON ...... PA ...... 22 CBS ...... 13 13 ...... ** ton. Wilmington ...... WWAY ... WILMINGTON ...... NC ...... 3 ABC ...... 46 46 Wilmington ...... WECT .... WILMINGTON ...... NC ...... 6 NBC ...... 54 44 Wilmington ...... WSFX .... WILMINGTON ...... NC ...... 26 Fox ...... 30 30 Wilmington ...... WPXU .... JACKSONVILLE .... NC ...... 35 ...... 34 34 Yakima-Pasco- KEPR ..... PASCO ...... WA ...... 19 CBS ...... 18 18 Rchlnd-Knnwck. Yakima-Pasco- KNDO .... YAKIMA ...... WA ...... 23 NBC ...... 16 16 Rchlnd-Knnwck. Yakima-Pasco- KNDU ..... RICHLAND ...... WA ...... 25 NBC ...... 26 26 ...... ** Rchlnd-Knnwck. Yakima-Pasco- KIMA ...... YAKIMA ...... WA ...... 29 CBS ...... 33 33 ...... ** Rchlnd-Knnwck. Yakima-Pasco- KTNW .... RICHLAND ...... WA ...... 31 PBS ...... 38 38 Rchlnd-Knnwck. Yakima-Pasco- KAPP ..... YAKIMA ...... WA ...... 35 ABC ...... 14 14 ...... ** Rchlnd-Knnwck. Yakima-Pasco- KVEW .... KENNEWICK ...... WA ...... 42 ABC ...... 44 44 ...... ** Rchlnd-Knnwck. Yakima-Pasco- KYVE ..... YAKIMA ...... WA ...... 47 PBS ...... 21 21 Rchlnd-Knnwck. Youngstown ...... WFMJ .... YOUNGSTOWN .... OH ...... 21 NBC ...... 20 20 ...... ** Youngstown ...... WKBN .... YOUNGSTOWN .... OH ...... 27 CBS ...... 41 41 ...... ** Yuma-El Centro ...... KVYE ..... EL CENTRO ...... CA ...... 7 ...... 22 22 ...... ** Zanesville ...... WHIZ ...... ZANESVILLE ...... OH ...... 18 NBC ...... 40 40

Appendix B: List of Commenters 23. WSIL–TV, Inc. (filed 1/5/09). enacted to remove from the jurisdiction Comments Reply Comments of the Surface Transportation Board (Board or STB) the regulation of solid 1. Association of Public Safety 1. Bonneville International Corporation waste rail transfer facilities, except as Communications Officials International, Inc. (filed 1/8/09). (‘‘APCO’’) (filed 12/29/08). 2. CDE (filed 1/8/09). provided for in that act. The Clean 2. Association of Public Television Stations 3. Hank Bovis (filed 1/9/09). Railroads Act adds new sections to title (filed 1/5/09). 4. KTBS, Inc (filed 1/8/09). 49 of the United States Code which 3. Bethel Broadcasting, Inc. (filed 1/2/09). 5. NAB and MSTV (Joint Reply filed 1/8/ limit the Board’s authority with regard 4. Coalition of Organizations for Accessible 09). to solid waste rail transfer facilities to Technology (filed 1/8/09). 6. National Cable and Telecommunications the issuance of land-use-exemption 5. Cohen, Dippell, Everist, P.C. (‘‘CDE’’) Association (‘‘NCTA’’) (filed 1/8/09). permits. Upon receiving a land-use- (filed 1/5/09). 7. Ohio Association of Broadcasters, exemption permit, a solid waste rail 6. Community Broadcasters Association Virginia Association of Broadcasters and transfer facility need not comply with (‘‘CBA’’) (filed 1/2/09). North Carolina Association of Broadcasters 7. Fox Television Stations, Inc, WJBK (Joint Reply filed 1/8/09). state laws, regulations, orders, and other License Inc., KDFW License, Inc. (filed 1/5/ 8. University of South Florida (filed 1/8/ requirements affecting the siting of the 09). 09). facility, as those state laws, regulations, 8. Free State Communications, LLC (filed 9. WXXI Public Broadcasting Council (filed orders and requirements would be 1/5/09). 1/8/09). preempted under these circumstances. 9. Hearst-Argyle Television Incorporated The Clean Railroads Act also requires (filed 1/8/09). [FR Doc. E9–1543 Filed 1–26–09; 8:45 am] that the Board issue procedures 10. James Bellaire (filed 1/5/09). BILLING CODE 6712–01–P 11. James Edwin Whedbee (filed 12/31/08). governing the submission and review of 12. KSPS–TV/Robert J. Wyatt (filed 1/5/ applications for land-use-exemption 09). permits and related filings. DEPARTMENT OF TRANSPORTATION 13. Mark J. Colombo (filed 1/7/09). DATES: The interim rules are effective on 14. Named State Broadcasters Associations Surface Transportation Board January 27, 2009, and are applicable (filed 1/5/09). beginning January 14, 2009. Comments 15. National Association of Broadcasters (‘‘NAB’’) and Association for Maximum 49 CFR Parts 1002, 1011, and 1155 on the interim rules are due by February Service Television, Inc. (‘‘MSTV’’) (Joint 23, 2009. Reply comments are due by Comments filed 1/5/09). [STB Ex Parte No. 684] March 23, 2009. 16. Rocky Mountain Public Broadcasting ADDRESSES: Solid Waste Rail Transfer Facilities Comments may be Network, Inc. (filed 1/5/09). submitted either via the Board’s e-filing 17. Sunbelt Multimedia Co. (filed 1/5/09). AGENCY: Surface Transportation Board. format or in the traditional paper 18. Telecinco, Inc. (filed 1/5/09). format. Any person using e-filing should 19. The University of North Carolina (filed ACTION: Interim Rules with Request for 1/5/09). Comments. attach a document and otherwise 20. Thomas C. Smith (filed 1/5/09). comply with the instructions at the E- 21. William M. Sanford (1/6/09). SUMMARY: The Clean Railroads Act of FILING link on the Board’s Web site, at 22. WJXT–TV (filed 1/12/09). 2008 (Clean Railroads Act or CRA), http://www.stb.dot.gov. Any person

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submitting a filing in the traditional and regulatory authority with regard to authority of the Board regarding solid paper format should send an original the siting of solid waste rail transfer waste rail transfer facilities. The Board’s and 10 copies to: Surface Transportation facilities. It is not meant to affect a rail interpretation of section 10909(a) is Board, Attn: STB Ex Parte No. 684, 395 carrier’s transportation-related activities discussed below. The Board may only E Street, SW., Washington, DC 20423– involving other commodities. See 49 grant a land-use-exemption permit if it 0001. U.S.C. 10908(d). determines that the facility does not Copies of written comments will be More specifically, section 602 of the pose an unreasonable risk to public available for viewing and self-copying at Clean Railroads Act amends 49 U.S.C. health, safety or the environment at that the Board’s Public Docket Room, Room 10501(c)(2)(B) to remove the Board’s location, after weighing, inter alia, the 131, and will be posted to the Board’s jurisdiction over solid waste rail transfer facility’s potential benefits to and Web site. facilities, except for the authority to adverse impacts on public health and FOR FURTHER INFORMATION CONTACT: preempt state and local laws and safety, the environment, interstate Joseph H. Dettmar at (202) 245–0395. regulations through the issuance of commerce, and the transportation of [Assistance for the hearing impaired is land-use-exemption permits as set forth solid waste by rail. See section 10909(c). available through the Federal in sections 603–04 of that act, which are Congress also listed a number of factors Information Relay Service (FIRS) at 1– codified at 49 U.S.C. 10908–09. The for the Board to consider in a land-use- 800–877–8339.] Clean Railroads Act leaves all other exemption proceeding. See section SUPPLEMENTARY INFORMATION: Section regulation of solid waste rail transfer 10909(d). When the Board issues a land- 10501(b) of the Interstate Commerce facilities to the states. use-exemption permit, all state laws, Act, 49 U.S.C. 10501(b), specifically New section 10908, ‘‘Regulation of regulations, orders, or other provides that both ‘‘the jurisdiction of solid waste rail transfer facilities,’’ sets requirements affecting the siting of the the Board over transportation by rail forth the general rule, in subsection (a), facility are preempted with respect to carriers’’ and the ‘‘remedies provided that a solid waste rail transfer facility that facility. See section 10909(f). under [49 U.S.C. 10101–11908] are must comply with federal and state laws However, the Board may require exclusive and preempt the remedies regarding pollution, protection and compliance with some or all of those under Federal or State law.’’ Prior to restoration of the environment, and laws and regulations as a condition of enactment of the Clean Railroads Act, a protection of public health and safety to its approval of an application for a land- solid waste rail transfer facility owned the same extent that those laws would use-exemption permit. Id. by a rail carrier, in general, came within apply to any similar solid waste The Clean Railroads Act also adds the Board’s jurisdiction as part of management facility that is not owned section 10910, ‘‘Effect on other statutes transportation by rail carrier. or operated by or on behalf of a rail and authorities,’’ which preserves the state’s traditional police powers to Accordingly, any form of state or local carrier, except as provided in new require railroads to comply with permitting or preclearance (including section 10909, ‘‘Solid waste rail transfer environmental, public health, and zoning) that, by its nature, could have facility land-use exemption authority.’’ public safety regulations so long as the been used to deny a railroad its ability Section 10908(b) sets forth transition regulations are not unreasonably to construct and conduct activities rules for existing solid waste transfer burdensome to interstate commerce and involving rail transportation at a solid facilities. An existing facility has 90 days to comply with all applicable do not discriminate against rail carriers. waste rail transfer facility was Pursuant to new section 10909(b), the preempted, as were other state laws that federal and state requirements except for those requiring permits, see section Board must ‘‘publish procedures had the effect of managing or governing governing the submission and review of rail transportation. See 49 U.S.C. 10908(b)(1), and 180 days to apply for all required federal and state non-siting applications for solid waste rail transfer 10501(b); N.Y. Susquehanna & W. Ry. facility land-use exemptions,’’ not later permits, see section 10908(b)(2)(A). The Corp. v. Jackson, 500 F.3d 238, 252–55 than 90 days after the Clean Railroads facility can continue to operate during (3d Cir. 2007); Green Mountain R.R. v. Act became law. 49 U.S.C. 10909(b).2 Vermont, 404 F.3d 638, 641–43 (2d Cir. the pendency of the non-siting permitting process. See id. Existing 2005) (Green Mountain). 2 Specifically, the Clean Railroads Act requires The purpose of the Clean Railroads facilities are not required to obtain state that the regulations, which we are adopting today, Act is to establish that solid waste rail siting permits or a land-use-exemption include the following: transfer facilities, as defined in section permit from the Board. See section (1) The information that must be provided in the 10908(b)(2)(B). However, the governor application for a land-use exemption that explains 10908(e)(1)(H), must now comply with how the facility will not pose an unreasonable risk all applicable federal and state of the state in which an existing facility to public health, safety, or the environment, see requirements respecting pollution is located may file a petition with the Rule 1155.22, ‘‘Contents of application.’’ prevention and abatement, Board under section 10908(b)(2)(B) to (2) The information necessary to give notice to require the facility to apply for a federal the public and give the public time to comment, environmental protection and including specific notice to the municipality where restoration, and protection of public land-use-exemption permit. The Board the facility is located, the state where it is located, health and safety, including laws must accept a complete petition filed by and any Federal or State regional planning entity 1 governing solid waste, to the same the Governor or his or her designee. where it is located, see Rules 1155.20, ‘‘Notice of New section 10909, ‘‘Solid waste rail intent to apply for land-use-exemption permit,’’ extent as any similar solid waste 1155.21, ‘‘Form of notice,’’ 1155.24, ‘‘Filings and management facility. The CRA gives the transfer facility land-use exemption,’’ service of application,’’ and 1155.25, ‘‘Participation Board the power, if petitioned, to prescribes the land-use-exemption in application proceedings.’’ determine the placement of solid waste (3) The Board’s review timeline, with the 1 New section 10908 also includes a number of understanding that a final decision must be issued rail transfer facilities that are part of the definitions, clarifies that the Clean Railroads Act 90 days from the close of the record, see Rule national rail system through the does not affect railroad operations with respect to 1155.27, ‘‘Board determination under 49 U.S.C. issuance of land-use-exemption permits, non-waste commodities, and also establishes that a 10909.’’ which preempt state and local laws and railroad’s common carrier obligation does not apply (4) The Board’s expedited timelines for petitions to a solid waste rail transfer facility that does not to modify, amend, or revoke land-use exemptions, regulations ‘‘affecting the siting’’ of such have the required federal and state permits, see Rule 1155.25, ‘‘Participation in application facilities. See 49 U.S.C. 10909(f). The including a land-use-exemption permit, if proceedings.’’ CRA focuses on the Board’s jurisdiction necessary. See sections 10908(c)–(e). Continued

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The purpose of this decision is to adopt treated as a commodity transported for also requires in Rule 1155.22, ‘‘Contents interim rules, which will be codified as a charge; (3) where the solid waste is of application,’’ that a solid waste rail Part 1155 of Title 49 of the Code of collected, stored, separated, processed, transfer facility’s application contain a Federal Regulations, as set forth below. treated, managed, disposed of, or technical drawing of the facility with The Board is seeking comment on these transferred; and (4) to the extent that specific demarcations detailing what rules. solid-waste activity is conducted activities will be occurring in what We recognize, however, that central to outside of the original shipping portions of the facility. We will also understanding these interim rules is an container. See section 10908(e)(1)(H)(i).4 require that a facility detail in its understanding of how we interpret the The CRA does not apply to any facility application those areas of the property Clean Railroads Act itself. Therefore, we or portion of a facility that does not that it has set aside for future growth, so discuss the definitions of a solid waste meet all of these factors. Whether a that the land-use-exemption permit may rail transfer facility and a land-use- facility would fall within the state’s or include those areas where expansion exemption permit; describe what the the Board’s jurisdiction appears to may occur, without the need for Clean Railroads Act requires of depend upon which of those criteria the modifying or amending the original existing 3 and proposed solid waste rail facility does not meet. For example, if permit. These requirements should help transfer facilities; discuss the role of the a facility meets all other criteria but is to clarify for states and the public at Board; and describe the effects of the not owned or operated by or on behalf large the extent of a facility’s activities CRA and a land-use-exemption permit. of a rail carrier, then the Board has no and use of its land. We invite public comments on the jurisdiction. If, on the other hand, a 2. What Is a Land-Use-Exemption interim rules and any other aspect of facility meets all other criteria but the Permit? our interpretation of the Clean Railroads activity conducted at the facility is Act. limited to transferring solid waste in the A land-use-exemption permit is the original shipping container, then the license that the Board will issue under The Board’s Interpretation of the Clean the Clean Railroads Act to a qualifying Railroads Act facility falls under the Board’s general jurisdiction, not the Board’s jurisdiction solid waste rail transfer facility. To have The Board recognizes that the intent under the Clean Railroads Act. federal preemption under the CRA, a of the Clean Railroads Act is to regulate The Clean Railroads Act excludes new solid waste rail transfer facility solid waste rail transfer facilities at the from the definition of solid waste rail must possess a land-use-exemption federal and state levels in the same transfer facility those facilities where permit. Below we clarify two issues manner as non-railroad solid waste the solid-waste activity is the direct with regard to land-use-exemption management facilities. The CRA transfer or transload of solid waste from permits to aid in understanding what a preserves an important role for the a tank truck to a rail tank car. See 49 land-use-exemption permit is and what Board by establishing a permitting U.S.C. 10908(e)(1)(H)(ii)(II). The Clean it does. process regarding siting. The following Railroads Act also excludes from the discussion is organized as follows: (1) A. ‘‘Land-Use Exemption’’ and ‘‘Siting definition the portion of a facility where Permit’’ What is a solid waste rail transfer the only activity is railroad facility; (2) what is a land-use- transportation of solid waste after the The Clean Railroads Act uses two exemption permit; (3) what must waste has been loaded for shipment in terms to describe the license that the existing and proposed solid waste rail or on a rail car, including interchanging Board may issue to a solid waste rail transfer facilities do to comply with the rail cars of solid waste. See 49 U.S.C. transfer facility. It uses the term ‘‘land- Clean Railroads Act; (4) what is the 10908(e)(1)(H)(ii)(I). In such cases, use exemption’’ when the carrier or Board’s role under the Clean Railroads assuming the facility, or portion thereof, facility involved seeks the license (see, Act; and (5) what are the effects of the meets the other necessary qualifications, e.g., new section 10909(a)(1), (b)(6)), and Clean Railroads Act and a land-use- it would be subject to the Board’s the term ‘‘siting permit’’ when the exemption permit. general jurisdiction over rail Governor of the state initiates the Board transportation and entitled to proceeding with respect to an existing 1. What Is a Solid Waste Rail Transfer facility (see new section 10909(a)(2), Facility? preemption from most state and local laws, including siting laws, under (b)(5)). The two instances in which the The Clean Railroads Act applies only section 10501(b). See Green Mountain, phrase ‘‘siting permit’’ is used to to solid waste rail transfer facilities. See 404 F.3d at 641–43. describe action of the Board are in section 10908(d). A solid waste rail Due to Congress’ intent to limit the section 10909(b)(5) and (e). Reading transfer facility is defined as including definition of a solid waste rail transfer those references in context, we believe the portion of a facility: (1) That is facility in this matter, we provide in that Congress intended ‘‘siting permit’’ owned or operated by or on behalf of a Rule 1155.10, ‘‘Contents of petition,’’ to be synonymous with ‘‘land-use rail carrier; (2) where solid waste is 5 that when a state petitions the Board to exemption.’’ For simplicity, we will require an existing facility to apply for (5) The process for a State, under section 5 Section 10909(b)(5) references the process to be 10908(b)(2)(B), to petition the Board to require an a land-use exemption, the Governor or employed by the Board when a state petitions the existing facility to apply for a land-use exemption, his or her designee must submit a good- Board ‘‘to require a solid waste transfer facility or see subpart B. faith certification that the subject a rail carrier that owns or operates such a facility (6) The process for a facility or rail carrier to facility meets the CRA’s definition of a to apply for a siting permit.’’ This language refers petition the Board for a land-use exemption, see to the state petition process in section subpart C. solid waste rail transfer facility. 10908(b)(2)(B), which does not use ‘‘siting permit’’ See 49 U.S.C. 10909(b). We have set forth interim A property could host different to describe what the Board issues. Instead, it rules below, and invite comment on them from the activities subject to varying levels of explains that the state ‘‘may petition the Board to public, recognizing that changes to the interim rules Board jurisdiction, or host activities not require the facility to apply for a land-use may have an effect on the Board’s narrative within the Board’s jurisdiction at all. exemption.’’ That section further states that the interpretation set forth in this notice, and vice ‘‘facility shall be required to have a Board-issued versa. Because of this possibility, the Board land-use exemption’’ to operate. 3 A solid waste rail transfer facility in existence Section 10909(e) states that a solid waste rail on October 16, 2008, is considered an existing 4 See section 10908(e) for definitions of ‘‘solid transfer facility ‘‘shall submit a complete facility. waste’’ and related terms. application for a siting permit to the Board pursuant

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use the single term ‘‘land-use-exemption are not prepared to determine what burdens the interstate transportation of permit’’ to refer to any license the Board types of laws could ‘‘affect siting’’ for solid waste by railroad, discriminates may issue to a solid waste rail transfer purposes of the Clean Railroads Act. As against the railroad transportation of facility. discussed below, applicants will be solid waste and a solid waste rail required to identify those laws that they transfer facility.’’ We believe that this B. The Scope of the Phrase ‘‘Affecting believe affect the siting of a particular clause contemplates a separate route for the Siting’’ solid waste rail transfer facility, as will solid waste rail transfer facilities to Central to an understanding of the any public participant in the come before the Board. It provides an extent of the Board’s authority under the proceeding. opportunity to a facility that has first Clean Railroads Act and the scope of a applied to the appropriate state agency 3. What Actions Must Facilities Take To land-use-exemption permit is the for those state permits affecting the Comply With the Clean Railroads Act? interpretation of the phrase ‘‘affecting siting of a facility and that has received the siting.’’ Section 10909(f) preempts a If a facility, or portion thereof, may be an unsatisfactory result to apply to the solid waste rail transfer facility from categorized as a solid waste rail transfer Board for a land-use-exemption permit. compliance with ‘‘all State laws, facility, it must comply with all federal After receiving an unsatisfactory result regulations, orders, or other and state laws 8 regarding pollution, from the state, a solid waste rail transfer requirements affecting the siting’’ of a protection and restoration of the facility could apply to the Board for a facility if the solid waste rail transfer environment, and the protection of land-use-exemption permit. It must, facility is granted a land-use-exemption public health and safety, to the same however, make at least one of two permit by the Board.6 extent as any similar solid waste showings with regard to the state’s We believe that the term ‘‘affecting management facility. See 49 U.S.C. action or the state law: (1) The state has the siting’’ was purposefully chosen to 10908(a). Compliance with state and placed an unreasonable burden on provide facilities an opportunity to local laws that affect the siting of a railroad transportation of solid waste, or invoke the land-use-exemption-permit facility will not be necessary if the (2) a state law discriminates against process regardless of the traditional Board issues a land-use-exemption railroad transportation of solid waste characterization of a particular law.7 But permit. See 49 U.S.C. 10909(f). and a solid waste rail transfer facility. we also recognize that Congress did not However, pursuant to that section, the The Board, prior to considering want to shield solid waste rail transfer Board may require compliance with whether the solid waste rail transfer facilities from complying with the same such state laws, regulations, orders, or facility is an unreasonable risk to the types of pollution, public health and other requirements as a condition of a public health, safety, or the safety, and environmental laws with land-use-exemption permit. Section environment under 10909(c)(1), would which other similar solid waste 10909(a) sets forth the circumstances in have to make an initial determination management facilities must comply. which an existing or proposed facility about the unreasonableness or Until the Board gains experience may obtain a Board-issued land-use- discriminatory nature of the state action applying the Clean Railroads Act, we exemption permit. or law in question. Such an initial In general, any facility may come to determination would be a predicate to to the procedures issued pursuant to subsection the Board under section 10909(a)(1). any Board consideration of whether to (b).’’ Section 10909(b) is titled ‘‘Land-Use Indeed, the last clause of the Exemption Procedures’’ and requires the Board to grant or deny the application for a land- issue procedures for submission and review of subparagraph—permitting ‘‘a rail carrier use-exemption permit. Rule 1155.23, ‘‘land-use exemptions.’’ Section 10909(e) also states that owns or operates such a facility [to] ‘‘Additional requirements when filing that a state may not enforce certain laws affecting petition[ ] the Board for such an after an unsatisfactory result from a the siting of an existing facility until ‘‘the Board has exemption’’—allows a rail carrier to approved or denied a permit pursuant to subsection state, local, or municipal authority (c).’’ Section 10909(c)(1) sets out the Board’s petition the Board for a land-use- affecting the siting of the facility,’’ standard of review, stating ‘‘the Board may only exemption permit without first provides additional requirements for a issue a land-use exemption * * *’’ in certain receiving an unsatisfactory result from a facility to satisfy were it to apply to the instances; while section 10909(c)(2) states ‘‘the state agency, regardless of the facility’s Board may not grant a land-use exemption * * *’’ Board in this manner. We believe one of in other circumstances. Though section 10909(e) characterization as existing or proposed. the purposes of section 10909(a)(1) is to uses ‘‘siting permit,’’ neither of the other statutory The rail carrier would not need to make provide a facility with an opportunity to sections referenced therein uses that phrase. Rather, any showing to the Board of seek a land-use-exemption permit after each employs ‘‘land-use exemption.’’ unreasonable burden or discrimination receiving an unsatisfactory result from 6 The term ‘‘affecting the siting’’ also is used in prior to applying for a land-use- section 10909(a)(1), ‘‘Authority,’’ which authorizes the state if the facility believes that the the Board to issue a land-use-exemption permit to exemption permit. Rather, the rail state is unreasonably burdening the a facility if, among other things, the Board ‘‘finds carrier could come in under Subpart C interstate transportation of solid waste that a State, local, or municipal law, regulation, of our interim rules to obtain a land-use- by railroad or is discriminating against order, or other requirement affecting the siting of exemption permit.9 such facility’’ is either unreasonably burdensome to the railroad transportation of solid interstate commerce or discriminates against solid The first part of section 10909(a)(1) waste and a solid waste rail transfer waste rail transfer facilities or rail carriers; and in states, ‘‘the Board finds that a State, facility. section 10909(e), ‘‘Existing Facilities,’’ which bars local, or municipal law, regulation, It is important to note that a proposed a state from enforcing any ‘‘law, regulation, order, order, or other requirement affecting the or other requirement affecting the siting of ’’ an facility might never come before the existing solid waste rail transfer facility during the siting of such facility unreasonably Board. If a proposed facility applies to pendency of a facility’s land-use-exemption permit the requisite state agency for all state application with the Board. 8 We note that, under the CRA, the laws, permits affecting the siting and those 7 We understand that ‘‘siting’’ laws or regulations, regulations, ordinances, orders, and other in general, may be read to refer to laws or requirements of a political subdivision of a state, permits are granted, the Board might regulations that traditionally are labeled as zoning such as a locality or municipality, are not never become involved in the process. or land-use laws. We recognize, however, that there applicable to solid waste rail transfer facilities Similarly, the Board would not become also may be a variety of other laws, such as unless the state has specifically delegated such involved with state permits that do not environmental laws, that are particular to solid power to the political subdivision. See 49 U.S.C. waste rail transfer facilities and, when applied to 10908(e)(3). affect the siting of the proposed facility, a solid waste rail transfer facility, may affect the 9 Subpart C contains the rules for applying for a because the Board’s jurisdiction under siting of the facility on a specific piece of property. land-use-exemption permit. the Clean Railroads Act only extends to

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land-use-exemption permits. Regardless to continue to operate. See 49 U.S.C. state, including inordinate delay, and of whether a proposed facility comes 10909(a)(2), 10908(b)(2)(B). The that facility attempts to demonstrate, as before the Board or not, we note that, in contents of the petition that the state noted above, that the state is placing an order to lawfully operate, a proposed must file with the Board is set forth in unreasonable burden on rail solid waste rail transfer facility will Rule 1155.10, ‘‘Contents of petition.’’ transportation of solid waste, or that the need to comply with all state laws, as This includes the identifying state is discriminating against railroad described in section 10908(a), that do information for the facility and a transportation of solid waste and the not affect the siting of a facility. certification by the state that the facility facility; (2) a rail carrier that owns or As noted, existing solid waste rail meets the definition of solid waste rail operates an existing facility or plans to transfer facilities have separate transfer facility set forth in the Clean own or operate a new facility petitions requirements they must meet under the Railroads Act. the Board for a land-use-exemption Clean Railroads Act. To remain in When a state petitions the Board, Rule permit without first receiving an operation, the CRA requires an existing 1155.12, ‘‘Participation in petition unsatisfactory result from the state; or facility to comply with all federal and proceedings,’’ allows 20 days for the (3) a state petitions the Board to require state laws regarding pollution, subject facility to reply regarding the an existing facility to apply for a land- protection and restoration of the classification by the state of that facility use-exemption permit. See 49 U.S.C. environment, and the protection of as an existing facility under section 10909(a). public health and safety, except for 10908(b). If the state’s classification is Once the matter is before the Board, permits, within 90 days, i.e., by January not challenged, or if the state prevails in the Board may issue a land-use- 14, 2009. See 49 U.S.C. 10908(b)(1). For showing that the facility is a solid waste exemption permit if it finds the facility those state laws requiring permits, an rail transfer facility, the Board will grant does not pose an unreasonable risk to existing facility need not possess any the petition, and the facility will be public health, safety, or the state (non-siting) permit to remain in required to obtain a Board-issued land- environment. See 49 U.S.C. 10909(c)(1). operation if it has, in good faith, use-exemption permit pursuant to To make this finding, the Board must submitted an application to the proper section 10909 to continue to operate. weigh the facility’s potential benefits to state agency (or agencies) for each See 49 U.S.C. 10908(b)(2)(B). and adverse impacts on public health, permit within 180 days of enactment, Upon the Board’s acceptance of a state public safety, the environment, i.e., by April 14, 2009. See 49 U.S.C. petition, the existing facility will be interstate commerce, and transportation 10908(b)(2)(A)(i). After submitting a required to submit a complete of solid waste by rail. See 49 U.S.C. good-faith application, the existing application for a Board-issued land-use- 10909(c)(1). The Clean Railroads Act facility may remain in operation until a exemption permit. See 49 U.S.C. lists six factors the Board must consider final decision either approving or 10909(e). The process for submitting an in carrying out this balancing test, as denying each one of those permits has application and the information to be follows: been made.10 See 49 U.S.C. contained therein are set forth in (1) The land-use, zoning, and siting 10908(b)(2)(A)(ii). Subpart C of the interim rules. See 49 regulations or solid waste planning If an existing facility already has a U.S.C. 10909(b). During the time that an requirements of the State or State state siting permit, it need not take any existing facility’s application is pending subdivision in which the facility is or further steps to remain in operation, before the Board, the state would be will be located that are applicable to aside from those described above preempted from enforcing any laws, solid waste transfer facilities, including regarding federal and state non-siting regulations, orders, or other those that are not owned or operated by laws. See section 10908(b)(2)(B). If the requirements affecting the siting of a or on behalf of a rail carrier; existing facility does not have a state facility. See 49 U.S.C. 10909(e). We read (2) The land-use, zoning, and siting siting permit, it need not obtain any section 10909(e) in conjunction with regulations or solid waste planning siting permits from the state or the section 10908(b)(2)(B) to allow an requirements applicable to the property Board to continue operations or to be existing facility that is the subject of a where the solid waste rail transfer considered in compliance with state state petition to continue its operations facility is proposed to be located; land-use requirements, see 49 U.S.C. until a final decision on the land-use- (3) Regional transportation planning 10908(b)(2)(B), unless the state, acting exemption-permit petition is made by requirements developed pursuant to through the governor or his/her the Board. See 49 U.S.C. 10908(b)(2)(B), Federal and State law; designee, petitions the Board to require 10909(e). (4) Regional solid waste disposal that the solid waste rail transfer facility plans developed pursuant to State or 4. What Is the Board’s Role Under the Federal law; apply for a land-use-exemption permit Clean Railroads Act? from the Board. Once the state, acting (5) Any Federal and State through the governor or his/her The primary role of the Board under environmental protection laws or designee submits a perfected petition, the Clean Railroads Act is to issue land- regulations applicable to the site; and then the solid waste rail transfer facility use-exemption permits for solid waste (6) Any unreasonable burdens must file an application with the Board rail transfer facilities that meet the imposed on the interstate transportation and obtain a land-use-exemption permit CRA’s standards. The Board may issue of solid waste by railroad, or the land-use-exemption permits only for potential for discrimination against the 10 For example, if an existing facility must receive solid waste rail transfer facilities that railroad transportation of solid waste, a state (non-siting) permits from five agencies, the are or are proposed to be operated by or solid waste rail transfer facility, or a rail existing facility may remain in operation until all on behalf of a rail carrier. See 49 U.S.C. carrier that owns or operates such a five agencies have made their respective final facility. decisions. If the state (non-siting) permits are all 10909(a). A petition for such a land-use- granted, the existing facility may continue to exemption permit could reach the Board 49 U.S.C. 10909(d)(1)–(6). The Board operate subject to the siting permit requirements in one of three ways: (1) A proposed also can consider any other factors it discussed below. If any of those state (non-siting) facility has been denied its state deems relevant. See 49 U.S.C. permits are denied, the consequences set forth under the governing law(s) with regard to that application for a permit that affects the 10909(d)(7). permit would determine whether operations could siting of a facility, or received an To assist us in weighing all of these continue. otherwise unsatisfactory result from the considerations, we require, in Rule

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1155.22, ‘‘Contents of application,’’ that the record, so that the time for issuance protection and restoration of the the applicant organize its request in of a final decision will vary depending environment, and the protection of terms of (1) the Board’s standards for upon the type of environmental review public safety. review of an application and (2) all of conducted, if at all. See 49 U.S.C. We note that a land-use-exemption the factors the Board is required to 10909(b)(3). permit would not preempt a state’s consider under the CRA, including an The Clean Railroads Act also traditional police powers to require explanation of how those factors relate specifically authorizes the Board to set compliance with state and local to the subject facility. The applicant reasonable fees for permit applicants. environmental, public health, and should also address any additional See 49 U.S.C. 10909(h). Those fees may public safety standards that are not factors that it believes the Board should include the costs associated with unreasonably burdensome to interstate consider. retaining third-party consultants (which commerce and do not discriminate The Clean Railroads Act precludes the are not included in the filing fee). See against rail carriers. See 49 U.S.C. Board from issuing a land-use- id. We anticipate that the amount of 10910. Moreover, the Board may exempt exemption permit if the proposed Board resources that will be necessary a facility from compliance with state facility, or any part of the facility, is to for processing such applications, laws, regulations, orders, or other be located on land affiliated with the including legal and environmental requirements affecting the siting of the National Park System, the National analysis, will be similar to the amount facility only if it determines that a Wildlife Refuge System, the National of resources required in abandonment facility does not pose an unreasonable Wilderness Preservation System, the proceedings. Thus, we mirror the filing risk to public health, safety, or the National Trails System, the National fees charged in abandonment environment. Wild and Scenic Rivers System, a proceedings as follows: (1) An If the Board denies a land-use- National Reserve, or a National application for a land-use-exemption exemption permit application, the solid Monument. See 49 U.S.C. 10909(c)(2). permit for a facility not in existence as waste rail transfer facility would not Moreover, if the facility would be of October 16, 2008, will require a filing come within the Board’s preemptive located on lands referenced in the fee of $22,200 (the amount set for an jurisdiction and the state’s laws, Highlands Conservation Act for which a abandonment application); and (2) an regulations, orders, or other state has implemented a conservation application for a land-use-exemption requirements affecting the siting of a management plan, the Board may issue permit for a facility existing as of facility would govern that solid waste a land-use-exemption permit for the October 16, 2008, will require a filing rail transfer facility. The facility would proposed facility only if operation of the fee of $6,300 (the amount set for an not be permitted to operate as a solid facility would be consistent with abandonment petition for exemption). waste rail transfer facility at that restrictions placed on those lands. See We amend 49 CFR 1002.2(f), ‘‘Schedule location unless and until it obtained the id. Because of these restrictions, the of filing fees,’’ to reflect the new fees. necessary siting permits from the Board requires in Rule 1155.22, The fees set forth here reflect only an applicable state authority. ‘‘Contents of application,’’ that an estimate of the amount of resources that applicant state whether the proposed the Board will use to process land-use- The Clean Railroads Act contemplates solid waste rail transfer facility or any exemption permit applications. We will the possible need for changes to a portion thereof is located on any of update these fees periodically based on Board-issued land-use-exemption these lands of national interest.11 We the cost study formula set forth at 49 permit. Under section 10909(b)(4), a also require in Rule 1155.20, ‘‘Notice of CFR 1002.3(d) and other factors relevant Board-issued land-use-exemption intent to apply for a land-use-exemption to Board fee policy. See, e.g., permit is subject to petitions to modify, permit,’’ that an applicant notify the Regulations Governing Fees for Services amend, or revoke, which must be managing agency of each land group Performed in Connection with Licensing considered by the Board in an expedited noted above of the facility’s proposed and Related Services—2008 Update, process. The Board establishes location so that those entities may STB Ex Parte No. 542 (Sub-No. 15) (STB procedures in Rule 1155.28, ‘‘Appellate verify, if they so chose, that the facility served June 18, 2008). Procedures.’’ For petitions to modify, amend, or revoke a land-use-exemption is not located on such lands. 5. What Are the Effects of a Board- Though not specifically mentioned in permit, the interim rules apply the Issued Land-Use-Exemption Permit and the Clean Railroads Act, the Board Board’s normal standard of review for a the Clean Railroads Act? recognizes that the issuance of a land- petition to reopen an administratively use-exemption permit is a major federal The Clean Railroads Act only affects final Board action. See 49 CFR 1115.4. action under the National solid waste rail transfer facilities and The petition must demonstrate material Environmental Policy Act (NEPA), 42 not rail carriers’ transportation-related error, new evidence, or substantially U.S.C. 4321 et seq. The Board plans to activities regarding other, non-waste changed circumstances that warrant the conduct the appropriate level of commodities. See 49 U.S.C. 10908(d). requisite action sought. A Board environmental review for each land-use- When the Board grants a land-use- decision will be due within 90 days exemption permit proceeding, pursuant exemption permit, a solid waste rail after the record is complete. to the Council on Environmental transfer facility is expressly preempted Finally, the Clean Railroads Act Quality’s regulations, 40 CFR 1500– from complying with any and all State specifically provides that if a facility 1508, and the Board’s own laws, regulations, orders, or other does not have the requisite state permits environmental regulations, 49 CFR requirements affecting the siting of a or a Board-issued land-use-exemption 1105. We also note that the Clean facility except to the extent that the permit (if required), it is not a violation Railroads Act requires us to issue a final Board imposes as a condition of the of the rail carrier’s common-carrier decision within 90 days of the close of exemption that the facility comply with obligation for the carrier to deny service particular state requirements. See 49 to a customer seeking solid waste rail 11 While location on these lands of national U.S.C. 10909(f). A solid waste rail transfer service at that facility. See 49 interest is not a bar to the Board’s issuance of a transfer facility must comply, however, U.S.C. 10908(c). We clarify here that, if land-use-exemption permit for an existing facility, it would still be a relevant factor under 49 U.S.C. with all federal laws and with all other a facility does have the requisite state 10909(d)(7). state laws regarding pollution, permits and (if required) a Board-issued

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land-use-exemption permit, then the By the Board, Chairman Nottingham, Vice ■ For the reasons set forth in the common-carrier obligation would apply. Chairman Mulvey, and Commissioner preamble, the Surface Transportation Pursuant to 5 U.S.C. 605(b), the Board Buttrey. Board amends title 49, chapter X, of the certifies that the proposed action will Jeffrey Herzig, Code of Federal Regulations as follows: not have a significant economic effect Clearance Clerk. PART 1002—FEES on a substantial number of small entities List of Subjects within the meaning of the Regulatory ■ Flexibility Act. 49 CFR Part 1001 1. The authority citation for part 1002 This action will not significantly Administrative practice and continues to read as follows: affect either the quality of the human procedure. Authority: 5 U.S.C. 552(a)(4)(A) and 553; 31 U.S.C. 9701; and 49 U.S.C. 721. Section environment or the conservation of 49 CFR Part 1011 energy resources. 1002.1(g)(11) also issued under 5 U.S.C. 5514 and 31 U.S.C. 3717. It is ordered: Administrative practice and procedure, Authority delegations 1. The interim rules are adopted. ■ 2. Amend § 1002.2 by adding 2. Comments on the interim rules are (Government agencies), Organization and functions (Government agencies). paragraphs (f)(16), (17), and (18) to read due by February 23, 2009, and reply as follows: comments are due by March 23, 2009. 49 CFR Part 1155 § 1002.2 Filing fees. 3. This decision is effective on Administrative practices and January 14, 2009. procedure, Railroad, Solid waste rail * * * * * Decided: January 14, 2009. transfer facility. (f) * * *

Type of proceeding Fee

******* (16) An application for a land-use-exemption permit for a facility existing as of October 16, 2008 under 49 U.S.C. 10909 ...... 6,300 (17) An application for a land-use-exemption permit for a facility not existing as of October 16, 2008 under 49 U.S.C. 10909 ...... 22,200

*******

PART 1011—BOARD ORGANIZATION; 1155.12 Participation in petition contains regulations concerning land- DELEGATIONS OF AUTHORITY procedures. use-exemption permits and the Board’s 1155.13 Board determination with respect standard for review. ■ 3. The authority citation for part 1011 to a Governor’s petition. § 1155.2 Definitions. continues to read as follows: Subpart C—Procedures Governing (a) Unless otherwise provided in the Authority: 5 U.S.C. 553; 31 U.S.C. 9701; 49 Applications for a Land-Use-Exemption U.S.C. 701, 721, 11123, 11124, 11144, 14122, Permit and Petitions for Modifications, text of these regulations, the following and 15722. Amendments, or Revocations definitions apply in this part: 1155.20 Notice of intent to apply for a land- (1) Commercial and retail waste ■ 4. Amend § 1011.7 by adding use-exemption permit. means material discarded by stores, paragraph (b)(17) to read as follows: 1155.21 Form of notice. offices, restaurants, warehouses, 1155.22 Contents of application. nonmanufacturing activities at § 1011.7 Delegation of authority by the 1155.23 Additional requirements when Board to specific offices of the Board. industrial facilities, and other similar filing after an unsatisfactory result from establishments or facilities. * * * * * a state, local, or municipal authority (2) Construction and demolition (b) * * * affecting the siting of the facility. debris means waste building materials, (17) In land-use-exemption-permit 1155.24 Filings and service of application. packaging, and rubble resulting from application proceedings, whether to 1155.25 Participation in application construction, remodeling, repair, and grant petitions for waiver of specific proceedings. 1155.26 Transfer and termination of the demolition operations on pavements, regulations listed in subpart C of 49 CFR houses, commercial buildings, and other part 1155. land-use-exemption permit. 1155.27 Board determinations under 49 structures. * * * * * U.S.C. 10909. (3) Household waste means material ■ 5. Part 1155 is added to read as 1155.28 Appellate procedures. discarded by residential dwellings, follows: Authority: 49 U.S.C. 10908, 49 U.S.C. hotels, motels, and other similar 10909, 49 U.S.C. 10910. permanent or temporary housing PART 1155—SOLID WASTE RAIL establishments or facilities. TRANSFER FACILITIES Subpart A—General (4) Industrial waste means the solid waste generated by manufacturing and Subpart A—General § 1155.1 Purpose and scope. industrial and research and Sec. 49 U.S.C. 10501(c)(2)(B) excludes development processes and operations, 1155.1 Purpose and scope. solid waste rail transfer facilities from including contaminated soil, 1155.2 Definitions. the Board’s jurisdiction except as nonhazardous oil spill cleanup waste Subpart B—Procedures Governing provided under 49 U.S.C. 10908 and and dry nonhazardous pesticides and Petitions To Require a Facility in Existence 10909. Sections 10908 and 10909 chemical waste, but does not include on October 16, 2008, To Apply for a Land- provide the Board authority to issue hazardous waste regulated under Use-Exemption Permit land-use-exemption permits for solid subtitle C of the Solid Waste Disposal 1155.10 Contents of petition. waste rail transfer facilities when Act (42 U.S.C. 6921 et seq.), mining or 1155.11 Filing and service of petition. certain conditions are met. 49 CFR 1155 oil and gas waste.

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(5) Institutional waste means material U.S.C. 10909(a) and includes the term (b) Upon the filing of a petition, the discarded by schools, nonmedical waste ‘‘siting permit’’ in 49 U.S.C. 10909(e). Board will review the petition and discarded by hospitals, material (d) ‘‘State laws, regulations, orders, or determine whether it conforms to all discarded by nonmanufacturing other requirements affecting the siting of applicable regulations. If the petition is activities at prisons and government a facility,’’ as used in 49 U.S.C. 10909(f) substantially incomplete or its filing facilities, and material discarded by and 49 CFR 1155.27(d), include the otherwise defective, the Board will other similar establishments or requirements of a state or a political reject the petition for stated reasons by facilities. subdivision of a state, including a order (which order will be (6) Municipal solid waste means locality or municipality, affecting the administratively final) within 15 days household waste; commercial and retail siting of a facility. from the date of filing of the petition. waste; and institutional waste. (e) ‘‘State requirements’’ as used in 49 U.S.C. 10908 does not include the laws, § 1155.12 Participation in petition (7) With the exception of waste proceedings. generated by a rail carrier during track, regulations, ordinances, orders, or other track structure, or right-of-way requirements of a political subdivision (a) An interested person may file a construction, maintenance, or repair of a state, including a locality or reply to the petition challenging the (including railroad ties and line-side municipality, unless a state expressly Governor’s classification of the facility poles) or waste generated as a result of delegates such authority to such as a solid waste rail transfer facility and a railroad accident, incident, or political subdivision. may offer evidence to support its contention. The petitioner will have an derailment, the term solid waste means Subpart B—Procedures Governing opportunity to file a rebuttal. construction and demolition debris; Petitions To Require a Facility in municipal solid waste; household Existence on October 16, 2008, To (b) Filing and service of replies. waste; commercial and retail waste; Apply for a Land-Use-Exemption (1) Any reply shall be filed with the institutional waste; sludge; industrial Permit Board (the Secretary, Surface waste; and other solid waste, as Transportation Board, 395 E Street, SW., determined appropriate by the Board. § 1155.10 Contents of petition. Washington, DC 20423) within 20 days (8) Solid waste rail transfer facility— A petition to require a solid waste rail of the filing with the Board of a petition (i) Means the portion of a facility owned transfer facility in existence on October to require a solid waste rail transfer or operated by or on behalf of a rail 16, 2008, to apply for a land-use- facility in existence on October 16, carrier (as defined in 49 U.S.C. 10102) exemption permit, submitted by the 2008, to apply for a land-use-exemption where solid waste, as a commodity to be Governor of the state or that Governor’s permit. transported for a charge, is collected, designee, shall contain the following (2) A copy of the reply shall be served stored, separated, processed, treated, information and shall be attested to by on petitioner or its representative at the managed, disposed of, or transferred, a person having personal knowledge of time of filing with the Board. Each filing when the activity takes place outside of the matters contained therein: shall contain a certificate of service. original shipping containers; but (ii) (a) The Governor’s name. Does not include— (b) The state’s name and the name of (3) Any rebuttal to a reply shall be filed and served by petitioner no later (A) The portion of a facility to the any agency filing on behalf of the than 30 days after the filing of the extent that activities taking place at Governor. petition. such portion are comprised solely of the (c) The full address of the solid waste railroad transportation of solid waste rail transfer facility, or, if not available, § 1155.13 Board determination with after the solid waste is loaded for the city, state, and United States Postal respect to a Governor’s petition. shipment on or in a rail car, including Service ZIP code. (d) The name of the rail carrier that (a) The following schedule shall railroad transportation for the purpose govern the process for Board of interchanging railroad cars containing owns or operates the facility. (e) A good-faith certification that the consideration of and decisions regarding solid waste shipments; or facility qualifies as a solid waste rail a petition to require a solid waste rail (B) A facility where solid waste is transfer facility pursuant to the transfer facility in existence on October transferred or transloaded solely from a definition in 49 U.S.C. 10908(e)(1)(H) 16, 2008, to apply for a land-use- tank truck directly to a rail tank car. and 49 CFR 1155.2 both as of the filing exemption permit, from the time the (9) Sludge means any solid, semi- date of the petition and on October 16, petition is filed until the time of the solid or liquid waste generated from a 2008. Board’s decision on the merits: municipal, commercial, or industrial (f) Relief sought (that the rail carrier Day 0—Petition filed. wastewater treatment plant, water that owns or operates the facility be supply treatment plant, or air pollution Day 20—Due date for reply. required to apply for a land-use- Day 30—Due date for response to reply. control facility exclusive of the treated exemption permit). effluent from a wastewater treatment (g) Name, title, and address of (b) The Board shall accept the plant. representative of petitioner to whom Governor’s complete petition on a (b) Exceptions. Notwithstanding correspondence should be sent. finding that the facility qualifies as a paragraph (a) of this section, the terms solid waste rail transfer facility pursuant household waste, commercial and retail § 1155.11 Filing and service of petition. to the definition in 49 U.S.C. waste, and institutional waste do not (a) When the petition is filed with the 10908(e)(1)(H) and 49 CFR 1155.2 both include yard waste and refuse-derived Board, the petitioner shall serve, by first on the filing date of the petition and on fuel; used oil; wood pallets; clean wood; class mail, a copy of the petition on the October 16, 2008. In the decision medical or infectious waste; or motor rail carrier that owns or operates the accepting the Governor’s petition, the vehicles (including motor vehicle parts solid waste rail transfer facility and on Board shall require that the rail carrier or vehicle fluff). the facility if the address is different that owns or operates the facility file a (c) ‘‘Land-use-exemption permit’’ than the rail carrier’s address. A copy of land-use-exemption-permit application means the authorization issued by the the certificate of service shall be filed within 120 days of the service date of Board pursuant to the authority of 49 with the Board at the same time. the decision.

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Subpart C—Procedures Governing The environmental and historic implemented a conservation management Applications for a Land-Use- reporting requirements that would plan (or, The facility is consistent with the Exemption Permit otherwise apply are waived, however, if restrictions implemented by (state) under the applicant hires a third-party The Highlands Conservation Act, Pub. L. No. 108–421, placed at its proposed location). § 1155.20 Notice of intent to apply for a consultant, the Board’s Section of land-use-exemption permit. Any relevant documentation in the railroad’s Environmental Analysis (SEA) approves possession on these issues will be made (a) Filing and publication the scope of the consultant’s work, and available promptly to those requesting it. requirements. An applicant (i.e., a solid the consultant works under SEA’s (For facilities already in existence on waste rail transfer facility, or the rail supervision to prepare any October 16, 2008, address the extent to which carrier that owns or operates the facility) environmental documentation that the facility is or is not located in any of these shall give Notice of Intent to file a land- might be warranted. In such a case, the types of lands, and to the extent that it is so use-exemption permit application by consultant acts on behalf of the Board, located address any relevant criteria, and so complying with the following certify.) working under SEA’s direction to The application containing the information procedures: collect the needed environmental (1) Filing. Applicant must serve its set forth at 49 CFR 1155.22 will include the information and compile it into a draft applicant’s entire case for the granting of the Notice of Intent on the Board in the of the appropriate environmental land-use-exemption permit (case in chief). format prescribed in 49 CFR 1155.21. documentation (an Environmental Any interested person, after the application The Notice of Intent shall be filed in Impact Statement or a more limited is filed on (insert date), may file with the accordance with the time requirements Environmental Assessment). See 49 CFR Surface Transportation Board written of paragraph (b) of this section. 1105.10(d). comments concerning the application within (2) Service. Applicant must serve, by 45 days after the application is filed. first-class mail (unless otherwise § 1155.21 Form of notice. Comments should contain that party’s specified), its Notice of Intent upon: The Notice of Intent to petition for a entire case in support or opposition including the following, as appropriate: (i) The Governor of the state where land-use-exemption permit shall be in the facility is located; (1) Name, address, and organizational the following form: affiliation. (ii) The state agency/ies and/or STB Finance Docket No. ll(Sub-No. (2) A statement describing commenter’s municipal agency/ies that would have ll) interest in the proceeding, including permitting or review authority over the Notice of Intent to petition for a land-use- information concerning the organization or solid waste rail transfer facility absent exemption permit for a solid waste rail public interest the commenter represents. 49 U.S.C. 10908 and 10909, these transfer facility. (3) Specific reasons why commenter regulations, and federal preemption (Name of Applicant) gives notice that on or supports or opposes the application, taking under 49 U.S.C. 10501(b); and about (insert date application will be filed into account the standards for the Board’s (iii) The appropriate managing with the Board) it intends to file with the review and consideration provided in 49 government agencies responsible for the Surface Transportation Board, 395 E Street, U.S.C. 10909(c), (d) and these regulations. groups of land listed in 49 U.S.C. SW., Washington, DC 20423, an application (4) If the applicant files under 49 CFR for a land-use-exemption permit for a solid 1155.23, specific reasons why commenter 10909(c)(2). waste rail transfer facility as defined in 49 supports or opposes the Board’s accepting (3) Newspaper publication. Applicant U.S.C. 10908(e)(1)(H) and 49 CFR 1155.2. the application. must publish its Notice of Intent at least The solid waste rail transfer facility is located (5) Any rebuttal of material submitted by once during each of 3 consecutive at (full address, or, if not available, provide applicant. weeks in a newspaper of general city, state, and United States Postal Service Written comments will be considered by circulation in each county in which any ZIP code). The solid waste rail transfer the Board in determining what disposition to part of the proposed or existing facility facility is located on a line of railroad known make of the application. Parties seeking is located. as ll at milepost ll between (station information concerning the filing of (b) Time limits. (1) The Notice of name) at milepost ll and (station name) at comments should refer to 49 CFR 1155.25. ll Intent must be served on the parties milepost . Written comments should indicate the The reason(s) for the proposed permit proceeding designation STB Finance Docket discussed above at least 15 days, but not application is (are) ll (explain briefly and No.ll (Sub-No. ll) and must be filed more than 30 days, prior to the filing of clearly the activities undertaken, or proposed with the Secretary, Surface Transportation the land-use-exemption permit to be undertaken, by the applicant at the Board, 395 E Street, SW., Washington, DC application; solid waste rail transfer facility. Also 20423, no later than (insert the date 45 days (2) The three required newspaper describe the specific state and local laws, after the date applicant intends to file its Notices must be published within the regulations, orders or other requirements application). A copy of each written 30-day period prior to the filing of the affecting siting from which the applicant comment shall be served upon the application; and requests entire or partial exemption that representative of the applicant (insert name, (3) The Notice of Intent must be filed would otherwise apply and any action that address, and phone number). Except as with the Board either concurrently with the state, local, or municipal authority has otherwise set forth in 49 CFR 1155, each taken affecting the siting of the facility.) document filed with the Board must be service on the required parties or when (Include this paragraph for facilities not in served on all parties to the land-use- the Notice is first published (whichever existence on October 16, 2008). Applicant exemption-permit proceeding. 49 CFR occurs first). certifies that, based on information in its 1104.12(a). (c) Environmental and Historic possession, the facility is not proposed to be Persons seeking further information Reports. Applicant for a solid waste rail located on land within any unit of or land concerning land-use-exemption-permit transfer facility, other than those in affiliated with the National Park System, the procedures may contact the Surface existence on October 16, 2008, must National Wildlife Refuge System, the Transportation Board or refer to 49 U.S.C. also submit an Environmental Report National Wilderness Preservation System, the 10908, 10909, and the full land-use- containing the information described at National Trails System, the National Wild exemption-permit regulations at 49 CFR and Scenic Rivers System, a National 1155. 49 CFR 1105.7 at least 20 days prior to Reserve, or a National Monument. Applicant A copy of the application will be available filing an application. Applicants shall further certifies that the facility is not for public inspection on or after (insert date concurrently file an historic report proposed to be located on lands referenced the land-use-exemption-permit application is containing the information at 49 CFR in The Highlands Conservation Act, Public to be filed with Board). The applicant shall 1105.8 if that regulation is applicable. Law No. 108–421, for which a state has furnish a copy of the application to any

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interested person proposing to file a municipal laws, regulations, orders, or the solid waste entering and leaving the comment, upon request. other requirements affecting the siting of facility, reasonable future expansion Questions concerning potential the facility except those for which it that the applicant requests to be environmental issues may be directed to the seeks exemption. included in the land-use-exemption Board’s Section of Environmental Analysis. (11) Citation to the regulations listed Where the preparation of environmental permit, any geographic features that documentation under the National in 49 CFR 1155.27(c)(1) through (5). should be considered in determining Environmental Policy Act is warranted, a (12) Certification that the applicant whether the facility would pose an Draft Environmental Impact Statement (EIS) has applied or will apply for the unreasonable risk to public health, (or more limited Environmental Assessment appropriate state permits not affecting safety, or the environment, pursuant to (EA), if appropriate) prepared by the Section siting. 49 U.S.C. 10909(c)(1), and any other of Environmental Analysis will be issued for (13) For facilities not in existence as information that the applicant would public review and comment and served upon of October 16, 2008, certification that like to show. all parties of record and upon any agencies the facility is not proposed to be located (b) A statement that sets forth in or other persons who commented during its on land within any unit of or land detail the reasons why the Board should preparation. The comments received will be affiliated with the National Park System, addressed in the Final EIS or Post EA. The grant a land-use-exemption permit to the National Wildlife Refuge System, the applicant. The applicant shall Board will take into account the results of the the National Wilderness Preservation environmental review and any final organize its request in terms of the recommended environmental mitigation in System, the National Trails System, the standards for the Board’s review and deciding what action to take on the National Wild and Scenic Rivers consideration provided in 49 U.S.C. application. System, a National Reserve, or a 10909(c), (d) and these regulations. National Monument. For facilities in (c) Environmental impact. The § 1155.22 Contents of application. existence as of October 16, 2008, state applicant shall certify that it has Applications for land-use-exemption whether the facility is located in any of submitted an environmental and/or permits shall contain the following these types of lands. historical report containing the information, including supporting (14) For facilities not in existence as information in 49 CFR 1105.7 and of October 16, 2008, certification that documentation: 1105.8, if one is required, to allow the (a) General. (1) Exact name of the facility is not proposed to be located Board’s Section of Environmental applicant. on lands referenced in The Highlands Analysis to determine whether (2) Whether applicant is a common Conservation Act, Public Law No. 108– preparation of environmental carrier by railroad subject to 49 U.S.C. 421, for which a state has implemented documentation is warranted, and, if so, Subtitle IV, chapter 105. a conservation management plan, or, whether a full Environmental Impact (3) Summary of why a land-use- that the facility is consistent with the Statement or a more limited exemption permit is being sought. restrictions implemented by the Environmental Assessment should be (4) The full address of the solid waste applicable state under The Highlands prepared. rail transfer facility, or, if not available, Conservation Act, Public Law No. 108– (d) Additional information. The the city, state, and United States Postal 421, placed on its proposed location. applicant shall submit such additional Service ZIP code. For facilities in existence as of October information to support its application as (5) The line of railroad serving the 16, 2008, state whether the facility is the Board may require. facility, the milepost location of the located in any of these lands, and, if so, (e) Draft Federal Register Notice. The facility, and the milepost and names of address whether the facility is applicant shall submit a draft notice of the stations that the facility is located consistent with the restrictions placed its application to be published by the between. on the location by the applicable state Board. In addition to the regular number (6) Name, title, and address of under that law. of copies that must be filed with the representative of applicant to whom (15) A detailed description of the Board, the applicant must submit a copy comments should be sent. operations and activities that will occur/ of the draft notice as data contained on (7) Citation to all state, local, or are occurring at the facility. a computer diskette compatible with the municipal laws, regulations, orders, or (16) Detailed map showing the subject Board’s current word processing other requirements affecting the siting of facility on a sheet not larger than 8 x 1 capabilities. The Board will publish the the solid waste rail transfer facility. 10 ⁄2 inches, drawn to scale, and with notice in the Federal Register within 20 (8) Copies of the specific state, local, the scale shown thereon. The map must days of the application’s filing with the or municipal laws, regulations, orders, show, in clear relief, the exact location Board. The draft notice shall be in the or other requirements affecting the of the facility on the rail line and its following form: siting of the solid waste rail transfer relation to other rail lines in the area, facility from which the applicant highways, water routes, population STB Finance Docket No.ll (Sub-No. ll centers and any geographic features that ) requests entire or partial exemption that Notice of Application for a land-use- would otherwise apply, any publicly should be considered in determining exemption permit for a solid waste rail available material providing the criteria whether the facility would pose an transfer facility. in the application of the regulations, unreasonable risk to public health, On (insert date application was filed with and a description of any action that the safety, or the environment, pursuant to the Board) (name of applicant) filed with the state, local, or municipal authority has 49 U.S.C. 10909(c)(1). Surface Transportation Board, 395 E Street, taken affecting the siting of the facility. (17) Detailed drawing of the subject SW., Washington, DC 20423, an application (9) Certification that the laws, facility on a sheet not larger than 8 x for a land-use-exemption permit for a solid 1 waste rail transfer facility. The solid waste regulations, orders or other 10 ⁄2 inches, drawn to scale, and with requirements from which the applicant the scale shown thereon. The drawing rail transfer station is located at (full address, or, if not available, provide city, state, and requests exemption are not based on must show, in clear relief, the exact United States Postal Service ZIP code). The Federal laws, regulations, orders, or boundaries of the facility, structures at solid waste rail transfer facility is located on other requirements. the facility, the location and type of the a line of railroad known as llat milepost (10) Certification that the facility operations taking place at the facility, llbetween (station name) at milepost complies with all state, local, or the proposed traffic configuration for lland (station name) at milepost ll. The

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application explains why applicant believes all parties of record and upon any agencies (1) Unreasonably burden the interstate its request for a land-use-exemption permit or other persons who commented during its transportation of solid waste by railroad, should be granted. preparation. The comments received will be or (Include this paragraph for facilities not in addressed in the Final EIS or Post EA. The existence on October 16, 2008). The facility Board will take into account the results of the (2) Discriminate against the railroad is not proposed to be located on land within environmental review and any final transportation of solid waste and a solid any unit of or land affiliated with the recommended environmental mitigation in waste rail transfer facility. National Park System, the National Wildlife deciding what action to take on the Refuge System, the National Wilderness application. § 1155.24 Filings and service of Preservation System, the National Trails application. System, the National Wild and Scenic Rivers System, a National Reserve, or a National (f) Verification. The original (a) The applicant shall tender with its Monument. The facility is not proposed to be application shall be executed and application an affidavit attesting to its located on lands referenced in The Highlands verified in the form set forth below by compliance with the notice Conservation Act, Public Law No. 108–421, an officer of the applicant having requirements of 49 CFR 1155.20. The for which a state has implemented a knowledge of the facts and matters affidavit shall include the dates of conservation management plan (or, The relied upon. facility is consistent with the restrictions service, posting, and newspaper implemented by (state) under The Highlands Verification publication of the Notice of Intent. ll Conservation Act, Pub. L. No. 108–421, State of ss. (b) When the application is filed with County of ll placed on its proposed location). Any the Board, the applicant shall serve, by relevant documentation in the railroad’s ll (Name of affiant) makes oath and says possession will be made available promptly that (s)he is the ll (title of affiant) of the first-class mail, a copy on the Governor to those requesting it. ll (name of applicant) applicant herein; of the state where the facility is located, (For facilities already in existence on that (s)he has been authorized by the and the state, local, and/or municipal October 16, 2008, address the extent to which applicant (or as appropriate, a court) to verify agency/ies that would have permitting the facility is or is not located in any of these and file with the Surface Transportation or review authority of the solid waste types of lands, and to the extent that it is so Board the foregoing application in STB rail transfer facility if there were no Finance Docket No. ll (Sub-No. ll); that located address any relevant criteria, and so federal preemption. A copy of the certify.) (s)he has carefully examined all of the Any interested person may file with the statements in the application as well as the certificate of service shall be filed with Surface Transportation Board written exhibits attached thereto and made a part the Board at the same time. comments concerning the application within thereof; that (s)he has knowledge of the facts (c) The applicant shall promptly 45 days of the filing of the application. and matters relied upon in the application; furnish by first class mail a copy of the Persons seeking information concerning the and that all representations set forth therein application to any interested person filing of comments should refer to 49 CFR are true and correct to the best of his/her 1155.25. knowledge, information, and belief. proposing to file a written comment Written comments should indicate the (Signature) upon request. A copy of the certificate proceeding designation STB Finance Docket Subscribed and sworn to before me ll in of service shall be filed with the Board No. ll (Sub-No. ll) and must be filed and for the State and County above named, at the same time. with the Secretary, Surface Transportation ll ll ll this day of , 20 . (d)(1) Upon the filing of a land-use- Board, 395 E Street, SW., Washington, DC My commission expires ll. 20423, no later than (insert the date 45 days exemption-permit application, the after the date applicant intends to file its § 1155.23 Additional requirements when Board will review the application and application). A copy of each written filing after an unsatisfactory result from a determine whether it conforms to all comment shall be served upon the State, local, or municipal authority affecting applicable regulations. If the application representative of the applicant (insert name, the siting of the facility. is substantially incomplete or its filing address, and phone number). Except as otherwise defective, the Board shall otherwise set forth in 49 CFR 1155, each (a) When an applicant has previously reject the application for stated reasons document filed with the Board must be sought permission from the applicable by order (which order will be served on all parties to the land-use- state, local, or municipal authority and exemption permit proceeding. 49 CFR received an unsatisfactory result, such administratively final) within 20 days 1104.12(a). as inordinate delay, affecting the siting from the date of filing of the application. Persons seeking further information If the Board does not reject the concerning land-use-exemption-permit of the facility, the applicant may petition the Board to accept an application, notice of the filing of the procedures may contact the Surface application shall be published in the Transportation Board or refer to 49 U.S.C. application for a land-use-exemption 10908, 10909, and the full land-use- permit. The applicant shall address in Federal Register by the Board, through exemption-permit regulations at 49 CFR its petition why applicant believes it the Director of the Office of Proceedings, 1155. can make the showing required in 49 within 20 days of the filing of the A copy of the application is available for CFR 1155.23(b). The petition shall be application. public inspection. The applicant shall filed simultaneously with the land-use- (2) An applicant may seek waiver of furnish a copy of the application to any exemption permit application. interested person proposing to file a specific regulations listed in subpart C comment, upon request. (b) Standard for review. The Board of this part by filing a petition for Questions concerning potential will not consider a land-use-exemption- waiver with the Board. A decision by environmental issues may be directed to the permit application regarding laws, the Director of the Office of Proceedings Board’s Section of Environmental Analysis. regulations, or other requirements upon granting or denying a waiver petition Where the preparation of environmental which the applicant has received an will be issued within 30 days of the date documentation under the National unsatisfactory result from a state, local, the petition is filed. Appeals from the Environmental Policy Act is warranted, a Director’s decision will be decided by Draft Environmental Impact Statement (EIS) or municipal authority, unless the Board (or more limited Environmental Assessment finds that the laws, regulations, or other the entire Board. If waiver is not (EA), if appropriate) prepared by the Section requirements affect the siting of the obtained prior to the filing of the of Environmental Analysis will be issued for facility, on their face or as applied, application, the application may be public review and comment and served upon either subject to rejection.

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§ 1155.25 Participation in application rail transfer facility is transferred to System, the National Wild and Scenic proceedings. another rail carrier or to an entity Rivers System, a National Reserve, or a (a) Public participation. (1) formed to become a rail carrier pursuant National Monument. Comments. Interested persons may to authority granted by the Board under (3) The Board will not grant a land- become parties to a land-use-exemption- 49 U.S.C. 10901, 10902, or 11323. When use-exemption permit for a solid waste permit proceeding by filing written seeking Board authority under 49 U.S.C. rail transfer facility proposed to be comments with the Board within 45 10901, 10902, or 11323, the applicant(s) located on land within any unit of or days of the filing of the application. should specifically advise the Board of land affiliated with lands referenced in Comments should contain the following the intended transfer. The Highlands Conservation Act, Public information, as appropriate: (b) When a carrier plans to cease Law No. 108–421, for which a state has (i) Name, address, and organizational using a facility as a solid waste rail implemented a conservation affiliation. transfer facility, or when a facility is management plan, if operation of the (ii) A statement describing transferred to any party in any manner facility would be inconsistent with commenter’s interest in the proceeding, other than that described in 49 CFR restrictions placed on such land. including information concerning any 1155.26(a), the entity that received the (4) A land-use-exemption permit will organization or public interest it land-use-exemption permit must notify not exempt a state requirement that a represents; and the Board in writing no later than 60 rail carrier comply with an (iii) Specific reasons why commenter days prior to the proposed cessation or environmental, public health, or public supports or opposes the application, transfer. Upon receipt of that notice, the safety standard that falls under the taking into account the standards for the Board will publish notice in the Federal traditional police powers of the state Board’s review and consideration set Register that the land-use-exemption unless the requirement is unreasonably forth in 49 U.S.C. 10909(c), (d) and 49 permit will be terminated on the 60th burdensome to interstate commerce or CFR part 1155. day unless otherwise ordered by the discriminates against rail carriers. (iv) If the applicant files under 49 CFR Board. (5) A land-use-exemption permit will 1155.23, specific reasons why the only exempt state, local, or municipal commenter supports or opposes the § 1155.27 Board determinations under 49 U.S.C. 10909. laws, regulations, orders, or other Board considering the application. requirements affecting the siting of the (v) Any rebuttal to the evidence and (a) Procedural schedule. (1) The solid waste rail transfer facility. argument submitted by applicant. following schedule shall govern the (c) Considerations. The Board will (vi) Any State, local, or municipal process for Board consideration and consider and give due weight to the law, regulation, order, or other decisions in land-use-exemption permit following, as applicable: requirement affecting the siting of the application proceedings from the time (1) The land-use, zoning, and siting facility not included in the application the application is filed until the time of regulations or solid waste planning and any argument concerning its the Board’s decision on the merits: requirements of the state or state bearing on the merits of the application Day 0—Application filed, including subdivision in which the facility is or in terms of the standards for the Board’s applicant’s case in chief. will be located that are applicable to review and consideration set forth in 49 Day 20—Due date for Notice of Application solid waste transfer facilities, including U.S.C. 10909(c), (d) and 49 CFR part to be published in the Federal Register. those that are not owned or operated by Day 45—Due date for comments. 1155. Day 60—Due date for applicant’s rebuttal. or on behalf of a rail carrier; (b) Filing and service of written (2) The land-use, zoning, and siting comments, along with evidence and (2) A decision on the merits will be regulations or solid waste planning argument, and rebuttals. (1) Written due 90 days after a full record is requirements applicable to the property comments shall be filed with the Board developed, including the appropriate where the solid waste rail transfer (addressed to the Secretary, Surface environmental review, if any. facility is proposed to be located; Transportation Board, 395 E Street, SW., (b) Standard for review. (1) The Board (3) Regional transportation planning Washington, DC 20423) within 45 days will issue a land-use-exemption permit requirements developed pursuant to of the filing with the Board of a land- only if it determines that the facility at Federal and state law; use-exemption permit application. An the existing or proposed location would (4) Regional solid waste disposal original and 10 copies of each written not pose an unreasonable risk to public plans developed pursuant to Federal or comment shall be filed with the Board. health, safety, or the environment. In state law; A copy of each written comment shall deciding whether a solid waste rail (5) Any Federal and State be served on applicant or its transfer facility that is or proposed to be environmental protection laws or representative at the time of filing with constructed or operated by or on behalf regulations applicable to the site; the Board. Each filing shall contain a of a rail carrier poses an unreasonable (6) Any unreasonable burdens certificate of service. risk to public health, safety, or the imposed on the interstate transportation (2) Rebuttals to written comments environment, the Board shall weigh the of solid waste by railroad, or the shall be filed and served by applicants particular facility’s potential benefits to potential for discrimination against the no later than 60 days after the filing of and the adverse impacts on public railroad transportation of solid waste, a the application. An original and 10 health, public safety, the environment, solid waste rail transfer facility, or a rail copies of such replies shall be filed with interstate commerce, and transportation carrier that owns or operates such a the Board. of solid waste by rail. facility; and (2) The Board will not grant a land- (7) Any other relevant factors, as § 1155.26 Transfer and termination of a use-exemption permit for a solid waste determined by the Board. land-use-exemption permit. rail transfer facility proposed to be (d) If the Board grants a land-use- (a) A land-use-exemption permit will located on land within any unit of or exemption permit to a solid waste rail be transferred to an acquiring rail carrier land affiliated with the National Park transfer facility, all State laws, without the need for a new application System, the National Wildlife Refuge regulations, orders, or other for a land-use-exemption permit if the System, the National Wilderness requirements affecting the siting of a rail line associated with the solid waste Preservation System, the National Trails facility are preempted with regard to

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that facility. A Board issued land-use- administratively final Board actions at requirements in this subpart C. The exemption permit may require 49 CFR 1115.4. The petition must language of the notifications shall be compliance with such State laws, demonstrate material error, new modified to note that the petition is for regulations, orders, or other evidence, or substantially changed a modification or amendment. requirements. circumstances that warrant the (b) The Board will approve or deny requested action, and is subject to these § 1155.28 Appellate procedures. petitions to modify, amend, or revoke a additional conditions: land-use-exemption permit within 90 General rule. Petitions to modify, (a) An entity that petitions for a days after the full record for the petition amend, or revoke land-use-exemption modification or amendment requesting is developed. permits shall be decided in accordance an expansion of federal preemption or with the Board’s normal standard of the facility’s operations or physical size [FR Doc. E9–1304 Filed 1–26–09; 8:45 am] review for petitions to reopen is subject to the notice and application BILLING CODE 4915–01–P

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Proposed Rules Federal Register Vol. 74, No. 16

Tuesday, January 27, 2009

This section of the FEDERAL REGISTER a Post Office; however, they could not Postal Service, Domestic Mail Manual contains notices to the public of the proposed be filed online. (DMM) as follows: issuance of rules and regulations. The The proposal would also permit a * * * * * purpose of these notices is to give interested customer to file a claim by downloading persons an opportunity to participate in the 500 Additional Mailing Services rule making prior to the adoption of the final a form from usps.com and mailing it rules. directly to Postal Service Accounting 503 Extra Services Services in St. Louis, MO. Customers * * * * * also could continue to file claim forms POSTAL SERVICE at a local Post Office. 2.0 Registered Mail Under the proposal, local Post Office * * * * * 39 CFR Part 111 facilities would no longer adjudicate insurance claims. To ensure consistency [Revise heading of 2.6 as follows:] Insurance Claims Process Changes and service quality, all claims would be 2.6 Inquiry on Article With No AGENCY: Postal ServiceTM. adjudicated by Accounting Services. Declared Value The proposal also would change the ACTION: Proposed rule. 2.6.1 Who May File current damaged goods inspection SUMMARY: The Postal Service proposes policy for domestic claims. The [Revise 2.6.1 to read as follows:] to revise its regulations governing the proposal would require a customer to If postal insurance was purchased, the processing and adjudication of domestic retain her or his damaged article and claim procedures in 609 apply. The mail insurance claims in order to container, including packaging, procedures in this section apply only to streamline the claims process and to wrapping, and any other contents Registered Mail with no declared value. provide customers with more consistent received, until the claim is fully Only the mailer may file an inquiry on service. resolved. Customers would no longer be Registered Mail with no declared value. DATES: Submit comments on or before required to take these materials to the For matter registered with no declared February 26, 2009. Post Office at the time a claim is filed. value but with merchandise return ADDRESSES: Address all comments to Rather, upon receiving a request from service, only the permit holder may file the Manager, Mailing Standards, U.S. the Postal Service, they would be an inquiry. Postal Service, Room 3436, 475 L’Enfant required to turn the materials over to Plaza, SW., Washington, DC 20260– their local Post Office for inspection, [Revise the heading of 2.6.2 to read as 3436. Copies of all comments will be retention, and disposition in accordance follows:] available for inspection and with the claims decision. 2.6.2 When and How To File photocopying between 9 a.m. and 4 This proposal also would update the p.m., Monday through Friday in the Registered Mail section by changing the [Revise introductory paragraph to read USPS Headquarters Library on the 11th term uninsured Registered Mail to as follows, and delete items 2.6.2a, Floor at the above address. Registered Mail with no declared value 2.6.2b, and 2.6.2c:] FOR FURTHER INFORMATION CONTACT: to reflect current policy. The mailer may not file any inquiry Monica Grein, 202–268–8411. Although exempt from the notice and until 15 days after the mailing date of comment requirements of the SUPPLEMENTARY INFORMATION: The Postal the article. An inquiry may be filed at Service is proposing to revise its Administrative Procedure Act [5 U.S.C. any Post Office, classified station, or procedures for processing and 553(b), (c)], regarding proposed classified branch, except for an inquiry adjudicating domestic mail insurance rulemaking by 39 U.S.C. 410(a), the about matter registered with claims in order to streamline the claims Postal Service invites comments on the merchandise return service, which must process and to provide its customers following proposed revision of the be filed by the permit holder at the Post with more consistent service. It Domestic Mail Manual, incorporated by Office where the permit is held. An proposes to do this by making its online reference in the Code of Federal inquiry for Registered Mail with no claims processing service available to Regulations. See 39 CFR part 111. declared value must be filed by completing a PS Form 1000, Domestic customers who purchase domestic List of Subjects in 39 CFR Part 111 insurance through any retail channel— or International Claim, which may be Administrative practice and obtained from any Post Office or online i.e., usps.com, Automated Postal _ Center® kiosks, local Post OfficeTM procedure, Postal Service. at www.usps.com/forms/ pdf/ ® ps1000.pdf. facilities, or authorized PC Postage PART 111—[AMENDED] providers. Currently, the online process * * * * * can only be used by customers who 1. The authority citation for 39 CFR 600 Basic Standards for All Mailing purchase postage and insurance through Part 111 continues to read as follows: Services Click-N-Ship® or eBay®. In addition, the proposal would allow Express Mail® Authority: 5 U.S.C. 552(a); 39 U.S.C. 101, * * * * * 401, 403, 404, 414, 416, 3001–3011, 3201– customers to file online claims, even if 609 Filing Indemnity Claims for Loss no additional insurance was purchased. 3219, 3403–3406, 3621, 3622, 3626, 3632, 3633, and 5001. or Damage The proposal would also allow Collect on Delivery (COD) and Registered 2. Revise the following sections of 1.0 General Filing Instructions MailTM claims to be filed by mail or at Mailing Standards of the United States * * * * *

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1.5 Where To File 1.6.3 Claims Filed at the Post Office 3.0 Providing Evidence of Insurance and Value [Revise 1.5 to read as follows:] A customer may file a claim form, PS 3.1 Evidence of Insurance A claim may be filed: Form 1000, at a local Post Office, which will then forward the form to a. Via mail to Domestic Claims, [Revise introductory paragraph and Accounting Services in St. Louis. Accounting Services (see 608.8.0 for item 3.1a to read as follows:] Customers may print PS Form 1000 address) for insured mail, Registered For a claim involving insured mail, Mail, COD, and Express Mail. from www.usps.com/insuranceclaims. Evidence of value is required and must Registered Mail, COD, or Express Mail, b. Online at www.usps.com/ accompany the PS Form 1000. Evidence the customer must retain evidence insuranceclaims/online.htm for of insurance must be retained by the showing that the particular service was domestic insured mail and Express customer until the claim is resolved. For purchased until the claim is resolved. Mail. Claims for COD and Registered Examples of acceptable evidence of Mail cannot be filed online. Express Mail COD and Registered Mail COD claims, the customer must provide insurance are: c. By submitting the required both the original COD receipt and the a. The original mailing receipt issued information at any Post Office facility Express Mail receipt or the Registered at the time of mailing (retail insured for mailing to Accounting Services in St. Mail receipt. Upon written request by mail, Registered Mail, and COD receipts Louis. the USPS, the customer must submit must contain a USPS postmark). If the * * * * * proof of damage (see 2.0) for damaged original mailing receipt is not available, 1.6 How To File items or missing contents, in person to the original USPS sales receipt listing a local Post Office for inspection, the mailing receipt number and [Revise 1.6 by deleting existing text and retention, and disposition in accordance insurance amount is acceptable. adding 1.6.1 and 1.6.2 to read as with the claims decision. Reproduced copies are not acceptable follows:] for Registered Mail and COD claims. * * * * * 1.6.1 Claims Filed by Mail Customers filing online claims may scan 2.0 Providing Proof of Loss or Damage the receipt and submit as an uploaded Customers may file a claim by file. completing a PS Form 1000, Domestic 2.1 Missing Contents * * * * * or International Claim, and mailing it to [Revise the first sentence of 2.1 to read Domestic Claims, Accounting Services as follows:] [Delete item 3.1d, and redesignate (see 608.8.0 for address). Customers may current items 3.1e and 3.1f as 3.1d and print PS Form 1000 from If a claim is filed because some or all 3.1e.] www.usps.com/insuranceclaims. of the contents are missing, the * * * * * Evidence of value is required and must addressee must retain the mailing accompany the PS Form 1000. Evidence container, including wrapping, 3.2 Evidence of Value of insurance must be retained by the packaging, and any contents that were customer until the claim is resolved. For [Revise introductory paragraph of 3.2 to received, and must, upon written add online option as follows:] Express Mail COD and Registered Mail request by the USPS, make them COD claims, the customer must provide available to the local Post Office for The customer (either the mailer or the both the original COD receipt and the inspection, retention, and disposition in addressee) must submit acceptable Express Mail receipt or the Registered accordance with the claims decision. evidence to establish the cost or value Mail receipt. Upon written request by *** of the article at the time it was mailed. the USPS, the customer must submit For claims submitted online, the proof of damage (see 2.0) for damaged 2.2 Proof of Damage evidence may be scanned and uploaded items or missing contents, in person to or sent via First-Class Mail to Domestic a local Post Office for inspection, [Revise the first and second sentences of Claims, Accounting Services (see retention, and disposition in accordance 2.2 to read as follows:] 608.8.0 for address). (Other evidence with the claims decision. If the addressee files the claim, the may be requested to help determine an 1.6.2 Claims Filed Online addressee must retain the damaged accurate value.) Examples of acceptable article and mailing container, including evidence are: Customers may file a claim online for wrapping, packaging, and contents, and insured mail and Express Mail at * * * * * must, upon written request by the www.usps.com/insuranceclaims/ USPS, make them available for 6.0 Adjudication of Claims online.htm. Evidence of value is required and may be submitted as an inspection. If the mailer files the claim, 6.1 Initial Adjudication of Claims Accounting Services in St. Louis may uploaded file or sent via First-Class Mail [Revise 6.1 to read as follows:] to Domestic Claims, Accounting notify the addressee by letter to present Services (see 608.8.0 for address). the damaged article and mailing Accounting Services in St. Louis Evidence of insurance must be retained container, including any wrapping, adjudicates and determines whether to by the customer until the claim is packaging, and any other contents uphold a claim in full, uphold a claim resolved. Upon written request by the received, to a local Post Office for in part, or deny a claim in full. Domestic USPS, the customer must submit proof inspection, retention, and disposition in insurance claims may be filed online of damage (see 2.0) for damaged items accordance with the claims decision. through www.usps.com/ or missing contents, in person to a local *** insuranceclaims/online.htm, via mail to Post Office for inspection, retention, and Domestic Claims Accounting Services disposition in accordance with the (see 608.8 for address), or by filing it at claims decision. COD and Registered a local Post Office. Claims for COD and Mail claims cannot be filed online. Registered Mail cannot be filed online.

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6.2 Appealing a Claim Decision determined that all appropriate that is placed in the public docket and response actions at these identified made available on the Internet. If you [Revise 6.2 to read as follows:] parcels under CERCLA, other than submit an electronic comment, EPA A customer may appeal a claim operation and maintenance and five- recommends that you include your decision by filing a written appeal to year reviews, have been completed. name and other contact information in Domestic Claims Appeals, Accounting However, this deletion does not the body of your comment and with any Services (see 608.8 for address) within preclude future actions under disk or CD–ROM you submit. If EPA 60 days of the date of the original Superfund. cannot read your comment due to decision. A customer may also appeal a This partial deletion pertains to the technical difficulties and cannot contact claim decision online through soil and sediment of former Wetland you for clarification, EPA may not be www.usps.com/insuranceclaims/ Areas B and C and the ground water at able to consider your comment. online.htm if the original claim was former Wetland Area C. The remaining Electronic files should avoid the use of filed online. areas/media will remain on the NPL and special characters, any form of 6.3 Final USPS Decision of Claims are not being considered for deletion as encryption, and be free of any defects or part of this action. viruses. [Revise text of 6.3 by adding a new last DATES: Comments must be received by Docket: All documents in the docket sentence as follows:] February 26, 2009. are listed in the http:// * * * The customer may file the ADDRESSES: Submit your comments, www.regulations.gov index. Although additional appeal online if the original identified by Docket ID no. EPA–HQ– listed in the index, some information is appeal was filed online. SFUND–1989–0008, by one of the not publicly available, e.g., CBI or other information whose disclosure is * * * * * following methods: restricted by statue. Certain other We will publish an appropriate • http://www.regulations.gov. Follow material, such as copyrighted material, amendment to 39 CFR 111 to reflect on-line instructions for submitting will be publicly available only in hard these changes if our proposal is comments. copy. Publicly available docket adopted. • E-mail: Larry C Johnson, Community Involvement Coordinator at materials are available either Neva R. Watson, [email protected] or Andy electronically in http:// Attorney, Legislative. Palestini, Remedial Project Manager at www.regulations.gov or in hard copy at: [FR Doc. E9–1645 Filed 1–26–09; 8:45 am] [email protected]. U.S. EPA Region 3 Library, U.S. EPA Region 3, 1650 Arch Street, BILLING CODE 7710–12–P • Fax: (215) 814–3002. • Mail: Larry C Johnson, Community Philadelphia, Pennsylvania 19103– Involvement Coordinator, U.S. EPA 2029, (215) 814–5000, Monday through Region 3, Mailcode 3HS52, Friday 8 a.m. to 12 p.m.; ENVIRONMENTAL PROTECTION Henrico County Municipal Reference AGENCY Philadelphia, Pennsylvania 19103. • Hand delivery: Larry C Johnson, and Law Library, Parham Road at 40 CFR Part 300 Community Involvement Coordinator, Hungary Spring Road, Richmond, U.S. EPA Region 3, Mailcode 3HS52, Virginia 23273. [EPA–HQ–SFUND–1989–0008; FRL–8761–1] Philadelphia, Pennsylvania 19103. Such FOR FURTHER INFORMATION CONTACT: Andy Palestini, Remedial Project National Oil and Hazardous Substance deliveries are only accepted during the Docket’s normal hours of operation, and Manager, U.S. Environmental Protection Pollution Contingency Plan National Agency, Region 3, Mailcode 3HS23, Priorities List special arrangements should be made for deliveries of boxed information. 1650 Arch Street, Philadelphia, AGENCY: Environmental Protection Instructions: Direct your comments to Pennsylvania 19103, (215) 814–3233. Agency. Docket ID no. EPA–HQ–SFUND–1989– SUPPLEMENTARY INFORMATION: In the ACTION: Notice of Intent for Partial 0008. EPA’s policy is that all comments ‘‘Rules and Regulations’’ Section of Deletion of the Rentokil, Inc. Superfund received will be included in the public today’s Federal Register, we are Site from the National Priorities List. docket without change and may be publishing a direct final Notice of made available online at http:// Partial Deletion for former Wetland SUMMARY: The Environmental Protection www.regulations.gov, including any Areas B and C of the Rentokil, Inc. Agency (EPA) Region 3 is issuing a personal information provided, unless Superfund Site without prior Notice of Notice of Intent to Delete former the comment includes information Intent for Partial Deletion because EPA Wetland Areas B and C of the Rentokil, claimed to be Confidential Business views this as a noncontroversial Inc. Superfund Site (Site) located in Information (CBI) or other information revision and anticipates no adverse Henrico County, Virginia, from the whose disclosure is restricted by statute. comment. We have explained our National Priorities List (NPL) and Do not submit information that you reasons for this partial deletion in the requests public comments on this consider to be CBI or otherwise preamble to the direct final Notice of proposed action. The NPL, promulgated protected through http:// Partial Deletion, and those reasons are pursuant to section 105 of the www.regulations.gov or e-mail. The incorporated herein. If we receive no Comprehensive Environmental http://www.regulations.gov Web site is adverse comment(s) on this partial Response, Compensation, and Liability an ‘‘anonymous access’’ system, which deletion action, we will not take further Act (CERCLA) of 1980, as amended, is means EPA will not know your identity action on this Notice of Intent for Partial found at Appendix B of 40 CFR part or contact information unless you Deletion. If we receive adverse 300, which is the National Oil and provide it in the body of your comment. comment(s), we will withdraw the Hazardous Substances Pollution If you send an e-mail comment directly direct final Notice of Partial Deletion Contingency Plan (NCP). The EPA and to EPA without going through http:// and it will not take effect. We will, as the Commonwealth of Virginia, through www.regulations.gov, your e-mail appropriate, address all public the Virginia Department of address will be automatically captured comments in a subsequent final Notice Environmental Quality, have and included as part of the comment of Partial Deletion based on this Notice

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of Intent for Partial Deletion. We will List of Subjects in 40 CFR Part 300 Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C. not institute a second comment period 9601–9657; E.O. 12777, 56 FR 54757, 3 CFR, on this Notice of Intent for Partial Environmental protection, Air 1991 Comp., p. 351; E.O. 12580, 52 FR 2923; Deletion. Any parties interested in pollution control, Chemicals, Hazardous 3 CFR, 1987 Comp., p. 193. commenting must do so at this time. substances, Hazardous waste, Dated: December 16, 2008. Intergovernmental relations, Penalties, For additional information, see the William T. Wisniewski, Reporting and recordkeeping direct final Notice of Partial Deletion Acting Regional Administrator, Region 3. which is located in the Rules section of requirements, Superfund, Water [FR Doc. E9–1705 Filed 1–26–09; 8:45 am] pollution control, Water supply. this Federal Register. BILLING CODE 6560–50–P

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Notices Federal Register Vol. 74, No. 16

Tuesday, January 27, 2009

This section of the FEDERAL REGISTER the Food and Drug Administration Moulec, International Issues Analyst, contains documents other than rules or (FDA), U.S. Department of Health and U.S. Codex Office, Food Safety and proposed rules that are applicable to the Human Services, are sponsoring a Inspection Service (FSIS), Room 4865, public. Notices of hearings and investigations, public meeting on February 10, 2009. South Building, 1400 Independence Ave committee meetings, agency decisions and The objective of the public meeting is to SW., Washington, DC 20250. Phone: rulings, delegations of authority, filing of petitions and applications and agency provide information and receive public (202) 250–7760, Fax: (202) 720–3157, statements of organization and functions are comments on agenda items and draft e-mail: doreen.chen-moulec@fsis. examples of documents appearing in this United States positions that will be usda.gov. discussed at the 41st Session of the section. SUPPLEMENTARY INFORMATION: Codex Committee on Food Additives (CCFA) of the Codex Alimentarius Background AFRICAN DEVELOPMENT Commission (Codex), which will be The Codex Alimentarius (Codex) was FOUNDATION held in Shanghai, China, on March 16– established in 1963 by two United 20, 2009. The Under Secretary for Food Nations organizations, the Food and Board of Directors Meeting Safety and FDA recognize the Agriculture Organization (FAO) and the importance of providing interested Meeting: African Development World Health Organization (WHO). parties the opportunity to obtain Through adoption of food standards, Foundation, Board of Directors Meeting. background information on the 41st Time: Tuesday, February 3, 2009, 9 codes of practice, and other guidelines Session of the CCFA and to address developed by its committees, and by a.m. to 1 p.m. items on the agenda. Place: African Development promoting their adoption and DATES: The public meeting is scheduled Foundation, Conference Room, 1400 I implementation by governments, Codex for Tuesday, February 10, 2009, from 1 Street, NW., Suite 1000, Washington, seeks to protect the health of consumers p.m. to 4 p.m. DC 20005. and ensure that fair practices are used Dates: Tuesday, February 3, 2009. ADDRESSES: The public meeting will be in trade. Status: held in the auditorium (Room 1A003), The CCFA was established to set or 1. Open session, Tuesday, February 3, Harvey W. Wiley Federal Building, endorse maximum levels for individual 2009, 9 a.m. to 12:05 p.m.; and FDA, Center for Food Safety and food additives; prepare priority lists of 2. Executive session, Tuesday, Applied Nutrition (CFSAN), 5100 Paint food additives for risk assessment by the February 3, 2009, 12:10 p.m. to 1 p.m. Branch Highway, College Park MD Joint FAO and WHO Expert Committee Due to security requirements and 20740. Documents related to the 41st on Food Additives (JECFA); assign limited seating, all individuals wishing Session of the CCFA are accessible via functional classes to individual food to attend the open session of the the World Wide Web at the following additives; recommend specifications of address: http://www. meeting must notify Doris Martin, identity and purity for food additives for codexalimentarius.net/current.asp. General Counsel, at (202) 673–3916 or adoption by the Commission; consider The U.S. Delegate to the CCFA, Dr. methods of analysis for the Michele M. Rivard at Dennis Keefe, invites interested U.S. [email protected] of your request to determination of additives in food; and parties to submit their comments consider and elaborate standards or attend by 4 p.m. on Friday, January 30, electronically to the following e-mail 2009. codes for related subjects such as the address: [email protected]. Registration: labeling of food additives when sold as Attendees may register electronically Lloyd O. Pierson, such. The Committee is hosted by the to the same e-mail address above by President. People’s Republic of China. [FR Doc. E9–1752 Filed 1–26–09; 8:45 am] February 6, 2009. Early registration is encouraged because it will expedite Issues To Be Discussed at the Public BILLING CODE 6117–01–P entry into the building and its parking Meeting area. If you require parking, please The following items on the agenda for include the vehicle make and tag the 41st Session of the CCFA will be DEPARTMENT OF AGRICULTURE number when you register. Because the discussed during the public meeting: meeting will be held in a Federal Food Safety and Inspection Service • Matters Referred to the Committee building, you should also bring photo from the Codex Alimentarius [Docket No. FSIS–2008–0042] identification and plan for adequate Commission and other Codex Bodies; time to pass through security screening • Matters of Interest Arising from the Codex Alimentarius Commission: systems. FAO, WHO, and JECFA; Meeting of the Codex Committee on FOR FURTHER INFORMATION ABOUT THE • Food Additives Endorsement or Revision of 41ST SESSION OF THE CCFA CONTACT: Maximum Levels for Food Additives AGENCY: Office of the Under Secretary Dennis Keefe, Office of Food Additive and Processing Aids in Codex for Food Safety, USDA. Safety (HFS–205), CFSAN, FDA, 5100 Standards; Paint Branch Parkway, College Park, MD • ACTION: Consideration of the Codex General Notice of public meeting and 20740. Phone: (301) 436–1284, request for comments. Standard for Food Additives (GSFA); Fax: (301) 436–2972, e-mail: • Discussion Paper on the Scope of SUMMARY: The Office of the Under [email protected]. Certain Food Categories of the GSFA; Secretary for Food Safety, U.S. FOR FURTHER INFORMATION ABOUT THE • Discussion Paper on the Department of Agriculture (USDA), and PUBLIC MEETING CONTACT: Doreen Chen- Identification of Problems and

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Recommendations Related to Additional Public Notification Done at Washington, DC, on: January 22, 2009. Inconsistent Presentation of Food Public awareness of all segments of Additive Provisions in Codex rulemaking and policy development is Paulo Almeida, Commodity Standards; important. Consequently, in an effort to U.S. Associate Manager for Codex • Discussion Paper on Inconsistencies ensure that minorities, women, and Alimentarius. in the Names of Compounds in the persons with disabilities are aware of [FR Doc. E9–1726 Filed 1–26–09; 8:45 am] Codex Specifications for Identity and this notice, FSIS will announce it online BILLING CODE 3410–DM–P Purity of Food Additives and in the through the FSIS Web page located at International Numbering System for http://www.fsis.usda.gov/regulations/ _ _ Food Additives; 2009 Notices Index/. FSIS will also DEPARTMENT OF COMMERCE • Proposed Draft Guidelines and make copies of this Federal Register Principles for Substances Used as publication available through the FSIS Office of the Secretary Processing Aids; Constituent Update, which is used to • International Numbering System provide information regarding FSIS Estimates of the Voting Age (INS) for Food Additives; policies, procedures, regulations, Population for 2008 Federal Register notices, FSIS public • Specifications for the Identity and AGENCY: meetings, and other types of information Office of the Secretary, Purity of Food Additives; and that could affect or would be of interest Commerce. • Priority List of Food Additives to constituents and stakeholders. The ACTION: General Notice Announcing Proposed for Evaluation by the JECFA Update is communicated via Listserv, a Population Estimates. Each item listed above will be fully free electronic mail subscription service SUMMARY: This notice announces the described in documents distributed, or for industry, trade groups, consumer to be distributed, by the Codex interest groups, health professionals, voting age population estimates, as of Secretariat prior to the March 16–20, and other individuals who have asked July 1, 2008, for each state and the 2009, meeting in Shanghai, China. to be included. The Update is also District of Columbia. We are providing Members of the public may access available on the FSIS Web page. this notice in accordance with the 1976 copies of these documents from http:// Through the Listserv and Web page, amendment to the Federal Election www.codexalimentarius.net/ FSIS is able to provide information to a Campaign Act, Title 2, United States current.asp. much broader and more diverse Code, Section 441a(e). FOR FURTHER INFORMATION CONTACT: Public Meeting audience. In addition, FSIS offers an electronic mail subscription service Enrique Lamas, Chief, Population At the February 10, 2009, public which provides automatic and Division, U.S. Census Bureau, Room meeting, draft U.S. positions on the customized access to selected food HQ–5H174, Washington, DC 20233, at agenda items will be described and safety news and information. This (301) 763–2071. discussed, and attendees will have the service is available at http:// SUPPLEMENTARY INFORMATION: Under the opportunity to pose questions and offer www.fsis.usda.gov/news_and_events/ requirements of the 1976 amendment to comments. Written comments may be email_subscription/. Options range from the Federal Election Campaign Act, offered at the meeting or sent to the U.S. recalls to export information to Title 2, United States Code, Section Delegate for the CCFA, Dr. Dennis Keefe regulations, directives and notices. 441a(e), I hereby give notice that the at [email protected]. Written Customers can add or delete estimates of the voting age population comments should state that they relate subscriptions themselves, and have the for July 1, 2008, for each state and the to activities of the 41st Session of the option to password protect their District of Columbia are as shown in the CCFA. accounts. following table.

ESTIMATES OF THE POPULATION OF VOTING AGE FOR EACH STATE AND THE DISTRICT OF COLUMBIA: JULY 1, 2008

Population 18 Population 18 Area and over Area and over

United States ...... 230,117,876 Alabama ...... 3,540,023 Missouri ...... 4,490,136 Alaska ...... 506,417 Montana ...... 747,082 Arizona ...... 4,792,959 Nebraska ...... 1,336,437 Arkansas ...... 2,152,909 Nevada ...... 1,932,366 California ...... 27,392,136 New Hampshire...... 1,022,451 Colorado ...... 3,732,321 New Jersey...... 6,635,079 Connecticut ...... 2,689,039 New Mexico...... 1,481,906 Delaware ...... 666,863 New York...... 15,082,281 District of Columbia ...... 479,817 North Carolina ...... 6,978,737 Florida ...... 14,324,069 North Dakota...... 498,433 Georgia ...... 7,136,903 Ohio ...... 8,755,533 Hawaii ...... 1,002,955 Oklahoma ...... 2,736,326 Idaho ...... 1,111,176 Oregon ...... 2,922,485 Illinois ...... 9,722,303 Pennsylvania ...... 9,686,275 Indiana ...... 4,792,111 Rhode Island...... 822,248 Iowa ...... 2,289,942 South Carolina...... 3,413,573 Kansas ...... 2,101,649 South Dakota...... 605,885 Kentucky ...... 3,261,181 Tennessee ...... 4,736,294 Louisiana ...... 3,302,823 Texas ...... 17,601,203 Maine ...... 1,041,589 Utah ...... 1,886,789 Maryland ...... 4,293,014 Vermont ...... 492,340

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ESTIMATES OF THE POPULATION OF VOTING AGE FOR EACH STATE AND THE DISTRICT OF COLUMBIA: JULY 1, 2008— Continued

Population 18 Population 18 Area and over Area and over

Massachusetts ...... 5,070,934 Virginia ...... 5,945,888 Michigan ...... 7,613,224 Washington ...... 5,008,049 Minnesota ...... 3,965,749 West Virginia...... 1,428,310 Mississippi ...... 2,171,898 Wisconsin ...... 4,313,555 Wyoming ...... 404,211

I have certified these counts to the II. Method of Collection DEPARTMENT OF COMMERCE Federal Election Commission. Paper (Form BIS–711) or company International Trade Administration Dated: January 12, 2009. letterhead. Carlos M. Gutierrez, [A–351–840] Secretary, U.S. Department of Commerce. III. Data Certain Orange Juice From Brazil: [FR Doc. E9–1687 Filed 1–26–09; 8:45 am] OMB Control Number: 0694–0021. BILLING CODE 3510–07–P Final Results of Antidumping Duty Form Number(s): BIS–711. Changed Circumstances Review Type of Review: Regular submission. DEPARTMENT OF COMMERCE AGENCY: Import Administration, Affected Public: Business or other for- International Trade Administration, Bureau of Industry and Security profit organizations. Department of Commerce. Estimated Number of Respondents: DATES: Effective Date: January 27, 2009. Proposed Information Collection; 1,884. SUMMARY: The Department of Commerce Comment Request; Statement by (the Department) has conducted a Ultimate Consignee and Purchaser Estimated Time per Response: 16 minutes. changed circumstances review on certain orange juice (OJ) from Brazil to AGENCY: Bureau of Industry and Estimated Total Annual Burden Security. determine whether the antidumping Hours: 582. duty order should be revoked with ACTION: Notice. Estimated Total Annual Cost to respect to imports of ultra low pulp SUMMARY: The Department of Public: $0. orange juice (ULPOJ). On October 10, 2008, the Department published the Commerce, as part of its continuing IV. Request for Comments effort to reduce paperwork and preliminary results of its changed respondent burden, invites the general Comments are invited on: (a) Whether circumstances review, in which we found that there was sufficient interest public and other Federal agencies to the proposed collection of information on the part of the domestic industry to take this opportunity to comment on is necessary for the proper performance justify maintaining the order with proposed and/or continuing information of the functions of the agency, including respect to ULPOJ. See Certain Orange collections, as required by the whether the information shall have Paperwork Reduction Act of 1995. Juice from Brazil: Preliminary Results of practical utility; (b) the accuracy of the Antidumping Duty Changed DATES: Written comments must be agency’s estimate of the burden Circumstances Review and Intent Not to submitted on or before March 30, 2009. (including hours and cost) of the Revoke, In Part, 73 FR 60241 (Oct. 10, ADDRESSES: Direct all written comments proposed collection of information; (c) 2008) (Preliminary Results). to Diana Hynek, Departmental ways to enhance the quality, utility, and We invited parties to comment on our Paperwork Clearance Officer, clarity of the information to be preliminary results of review. Based on Department of Commerce, Room 7845, collected; and (d) ways to minimize the our analysis of the comments received, 14th and Constitution Avenue, NW., burden of the collection of information we have not changed the final results Washington, DC 20230 (or via the on respondents, including through the from those presented in the Preliminary Internet at [email protected]). use of automated collection techniques Results. FOR FURTHER INFORMATION CONTACT: or other forms of information FOR FURTHER INFORMATION CONTACT: Requests for additional information or technology. Elizabeth Eastwood or Henry Almond; copies of the information collection Comments submitted in response to AD/CVD Operations, Office 2, Import instrument and instructions should be this notice will be summarized and/or Administration, International Trade directed to Larry Hall, BIS ICB Liaison, included in the request for OMB Administration, U.S. Department of (202) 482–4895, [email protected]. approval of this information collection; Commerce, 14th Street and Constitution SUPPLEMENTARY INFORMATION: they also will become a matter of public Avenue, NW., Washington, DC 20230; record. telephone: (202) 482–3874 or (202) 482– I. Abstract 0049, respectively. Dated: January 22, 2009. The Statement by Ultimate Consignee SUPPLEMENTARY INFORMATION: and Purchaser is required in support of Gwellnar Banks, an export license application where the Management Analyst, Office of the Chief Background country of ultimate destination is in Information Officer. On March 9, 2006, the Department Country Group Q,S,V,W,Y or Z. It is [FR Doc. E9–1682 Filed 1–26–09; 8:45 am] published in the Federal Register an used by licensing officers in BILLING CODE 3510–33–P antidumping duty order on OJ from determining the validity of the end-use. Brazil. See Antidumping Duty Order:

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Certain Orange Juice From Brazil, 72 FR companies are Cargill Citrus Limitada; duty order on OJ from Brazil. As a 12183 (Mar. 9, 2006). Coinbra-Frutesp S.A.; Sucocitrico result, we determine that producers On April 29, 2008, at the request of Cutrale, S.A.; Fischer S.A. Comercio, accounting for substantially all of the Tropicana Products, Inc. (Tropicana), a Industria and Agricutura; and production of the domestic like product domestic producer of orange juice, the Montecitrus Trading S.A. have not expressed a lack of interest in Department initiated a changed Excluded from the scope of the order maintaining the order with respect to circumstances review of the order to are reconstituted orange juice and ULPOJ. Thus, we find that changed consider partially revoking the order frozen concentrated orange juice for circumstances sufficient to warrant with respect to ULPOJ, pursuant to retail (FCOJR). Reconstituted orange revocation in part of the antidumping section 751(b)(1) of the Tariff Act of juice is produced through further duty order on OJ from Brazil do not 1930, as amended (the Act), and 19 CFR manufacture of FCOJM, by adding exist. The current requirements for the 351.216(b) and 351.222(g)(1)(i). See water, oils and essences to the orange cash deposit of estimated antidumping Certain Orange Juice From Brazil: juice concentrate. FCOJR is duties on the subject merchandise will Initiation of Antidumping Duty Changed concentrated orange juice, typically at remain in effect until further notice. Circumstances Review, 73 FR 23182 42 Brix, in a frozen state, packed in This notice also serves as a reminder (Apr. 29, 2008). On October 10, 2008, retail-sized containers ready for sale to to parties subject to administrative the Department published the consumers. FCOJR, a finished consumer protective orders (APOs) of their preliminary results of this changed product, is produced through further responsibility concerning the circumstances review. See Preliminary manufacture of FCOJM, a bulk disposition of proprietary information Results, 73 FR 60241. In the Preliminary manufacturer’s product. disclosed under APO in accordance Results, we found that there was The subject merchandise is currently with 19 CFR 351.306. Timely written sufficient interest on the part of the classifiable under subheadings notification of the return/destruction of domestic OJ industry to justify 2009.11.00, 2009.12.25, 2009.12.45, and APO materials or conversion to judicial maintaining the order with respect to 2009.19.00 of the Harmonized Tariff protective order is hereby requested. ULPOJ. Schedule of the United States (HTSUS). Failure to comply with the regulations We invited parties to comment on our These HTSUS subheadings are provided and terms of an APO is a sanctionable preliminary results of review. In for convenience and for customs violation. November 2008, we received case and purposes only and are not dispositive. We are issuing and publishing this rebuttal briefs from Tropicana and the Rather, the written description of the notice in accordance with sections petitioners in this case (i.e., Florida scope of the order is dispositive. 751(b)(1) and 777(i)(1) of the Act and 19 Citrus Mutual, A. Duda & Sons, Inc. CFR 351.216. (doing business as Citrus Belle), and Scope of Changed Circumstances Citrus World, Inc.).1 Based on our Review Dated: January 16, 2009. analysis of the comments received, we The product subject to this changed Ronald K. Lorentzen, have not changed the final results from circumstances review is ULPOJ, which Acting Assistant Secretary for Import those presented in the Preliminary is concentrated orange juice with a pulp Administration. Results. content of two percent or less by Appendix—Issue in the Decision Scope of the Order weight/volume on an 11.8 degree brix Memorandum equivalent base. This product is a form The scope of this order includes Issue: Whether the Department of FCOJM and is commonly used in the Should Include Growers in its Industry certain orange juice for transport and/or manufacture of soft drink concentrates. further manufacturing, produced in two Support Determination. different forms: (1) Frozen orange juice Analysis of Comments Received [FR Doc. E9–1586 Filed 1–26–09; 8:45 am] in a highly concentrated form, All issues raised in the case and BILLING CODE 3510–DS–P sometimes referred to as frozen rebuttal briefs by parties to this changed concentrated orange juice for circumstances review, and to which we manufacture (FCOJM); and (2) have responded, are listed in the DEPARTMENT OF COMMERCE pasteurized single-strength orange juice Appendix to this notice and addressed which has not been concentrated, in the Issues and Decision International Trade Administration referred to as not-from-concentrate Memorandum (Decision Memo), which [C–475–819] (NFC). At the time of the filing of the is adopted by this notice. Parties can petition, there was an existing find a complete discussion of all issues Certain Pasta From Italy: Notice of antidumping duty order on frozen raised in this review and the Partial Rescission of Twelfth (2007) concentrated orange juice (FCOJ) from corresponding recommendations in this Countervailing Duty Administrative Brazil. See Antidumping Duty Order; public memorandum, which is on file in Review Frozen Concentrated Orange Juice from the Central Records Unit, room 1117, of AGENCY: Import Administration, Brazil, 52 FR 16426 (May 5, 1987). the main Department Building. Therefore, the scope of this order with In addition, a complete version of the International Trade Administration, regard to FCOJM covers only FCOJM Decision Memo can be accessed directly Department of Commerce. produced and/or exported by those on the Web at http://ia.ita.doc.gov/ DATES: Effective Date: January 27, 2009. companies which were excluded or frn/. The paper copy and electronic FOR FURTHER INFORMATION CONTACT: revoked from the pre-existing version of the Decision Memo are Andrew McAllister or Brandon antidumping order on FCOJ from Brazil identical in content. Farlander, AD/CVD Operations, Office as of December 27, 2004. Those 1, Import Administration, U.S. Final Results of Changed Department of Commerce, 14th Street 1 These entities are opposing revocation of the Circumstances Review and Constitution Avenue, NW., order in part in this changed circumstances review; however, another petitioner, Southern Gardens More than 15 percent of the domestic Washington, DC 20230; telephone (202) Citrus Processing Corporation, has not joined these industry has expressed opposition to 482–1174 and (202) 482–0182, entities in opposing Tropicana’s request. excluding ULPOJ from the antidumping respectively.

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SUPPLEMENTARY INFORMATION: pasta from Italy that are accompanied by ounces is within the scope of the the appropriate certificate issued by antidumping and countervailing duty Background Bioagricert S.r.l. are also excluded from orders. See Memorandum from John On July 24, 1996, the Department of this order. See Memorandum from Eric Brinkmann to Richard Moreland, dated Commerce (‘‘the Department’’) B. Greynolds to Melissa G. Skinner, May 24, 1999, which is on file in the published a countervailing duty order dated August 4, 2004, which is on file CRU. on certain pasta from Italy. See Notice in the Department’s Central Records (4) On April 27, 2000, the Department of Countervailing Duty Order and Unit (‘‘CRU’’) in Room 1117 of the main self-initiated an anti-circumvention Amended Final Affirmative Department building. In addition, based inquiry to determine whether Pastificio Countervailing Duty Determination: on publicly available information, the Fratelli Pagani S.p.A.’s importation of Certain Pasta (‘‘Pasta’’) From Italy, 61 Department has determined that, as of pasta in bulk and subsequent FR 38543 (July 24, 1996). On July 28, March 13, 2003, imports of organic repackaging in the United States into 2008, we received a request for review pasta from Italy that are accompanied by packages of five pounds or less from F.lli De Cecco di Filippo Fara San the appropriate certificate issued by constitutes circumvention with respect Martino S.p.A. (‘‘De Cecco’’) of the Instituto per la Certificazione Etica e to the antidumping and countervailing countervailing duty order on certain Ambientale (ICEA) are also excluded duty orders on pasta from Italy pursuant pasta from Italy covering the period from this order. See Memorandum from to section 781(a) of the Tariff Act of January 1, 2007, through December 31, Audrey Twyman to Susan Kuhbach, 1930, as amended (‘‘the Act’’), and 19 2007. On July 31, 2008, we received a dated February 28, 2006, entitled CFR 351.225(b). See Certain Pasta from request for review from De Matteis ‘‘Recognition of Instituto per la Italy: Notice of Initiation of Anti- Agroalimentare S.p.A. (‘‘De Matteis’’). Certificazione Etica e Ambientale (ICEA) Circumvention Inquiry of the On July 31, 2008, we received a request as a Public Authority for Certifying Antidumping and Countervailing Duty for review from New World Pasta Organic Pasta from Italy’’ which is on Orders, 65 FR 26179 (May 5, 2000). On Company, American Italian Pasta file in the Department’s CRU. The September 19, 2003, we published an Company, and Dakota Growers Pasta merchandise subject to review is affirmative finding of the anti- Company (‘‘petitioners’’) for De Matteis. currently classifiable under items circumvention inquiry. See Anti- In accordance with 19 CFR 1901.90.90.95 and 1902.19.20 of the Circumvention Inquiry of the 351.221(c)(1)(i), we published a notice Harmonized Tariff Schedule of the Antidumping and Countervailing Duty of initiation of the review on August 26, United States (‘‘HTSUS’’). Although the Orders on Certain Pasta from Italy: 2008. See Initiation of Antidumping and HTSUS subheadings are provided for Affirmative Final Determinations of Countervailing Duty Administrative convenience and customs purposes, the Circumvention of Antidumping and Reviews, 73 FR 50308 (August 26, 2008). written description of the merchandise Countervailing Duty Orders, 68 FR On December 22, 2008, De Cecco subject to the order is dispositive. 54888 (September 19, 2003). withdrew its request for review. No other party requested a review for De Scope Rulings Rescission of Review Cecco. The Department has issued the Section 351.213(d)(1) of the following scope rulings to date: Department’s regulations provides that Scope of the Order (1) On August 25, 1997, the the Department will rescind an Imports covered by the order are Department issued a scope ruling that administrative review, in part, if the shipments of certain non-egg dry pasta multicolored pasta, imported in kitchen party that requested the review in packages of five pounds four ounces display bottles of decorative glass that withdraws its request for review within or less, whether or not enriched or are sealed with cork or paraffin and 90 days of the date of publication of the fortified or containing milk or other bound with raffia, is excluded from the notice of initiation of the requested optional ingredients such as chopped scope of the antidumping and review, or withdraws its request at a vegetables, vegetable purees, milk, countervailing duty orders. See later date if the Department determines gluten, diastasis, vitamins, coloring and Memorandum from Edward Easton to that it is reasonable to extend the time flavorings, and up to two percent egg Richard Moreland, dated August 25, limit for withdrawing the request. De white. The pasta covered by this scope 1997, which is on file in the CRU. Cecco withdrew its request for review is typically sold in the retail market, in (2) On July 30, 1998, the Department on December 22, 2008, which is after fiberboard or cardboard cartons, or issued a scope ruling finding that the 90-day deadline. Nonetheless, the polyethylene or polypropylene bags of multipacks consisting of six one-pound Department accepts the withdrawal varying dimensions. packages of pasta that are shrink- request because it has not yet expended Excluded from the scope of the order wrapped into a single package are significant resources on the review of De are refrigerated, frozen, or canned within the scope of the antidumping Cecco. Therefore, the Department is pastas, as well as all forms of egg pasta, and countervailing duty orders. See rescinding this administrative review with the exception of non-egg dry pasta Letter from Susan H. Kuhbach to with respect to De Cecco. We are containing up to two percent egg white. Barbara P. Sidari, dated July 30, 1998, continuing to conduct an administrative Also excluded are imports of organic which is on file in the CRU. review with respect to De Matteis. pasta from Italy that are accompanied by (3) On October 26, 1998, the The Department intends to issue the appropriate certificate issued by the Department self-initiated a scope assessment instructions to U.S. Customs Instituto Mediterraneo Di Certificazione, inquiry to determine whether a package and Border Protection (‘‘CBP’’) 15 days Bioagricoop S.r.l., QC&I International weighing over five pounds as a result of after publication of this rescission Services, Ecocert Italia, Consorzio per il allowable industry tolerances is within notice. The Department will instruct Controllo dei Prodotti Biologici, the scope of the antidumping and CBP to assess countervailing duties on Associazione Italiana per l’Agricoltura countervailing duty orders. On May 24, all entries from De Cecco between Biologica, or Codex S.r.l. In addition, 1999, we issued a final scope ruling January 1, 2007, and December 31, 2007, based on publicly available information, finding that, effective October 26, 1998, at the rates in effect at the time of entry. the Department has determined that, as pasta in packages weighing or labeled This notice serves as a reminder to of August 4, 2004, imports of organic up to (and including) five pounds four parties subject to an administrative

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protective order (‘‘APO’’) of their Avenue, NW., Washington DC. 20230; impregnation or other treatment), or responsibility concerning the telephone (202) 482–3207. product form. Unless specifically disposition of proprietary information excluded, the scope of this order covers Background disclosed under APO in accordance all physical forms of certain activated with 19 CFR 351.305. Timely On April 27, 2007, the Department of carbon, including powdered activated notification of return/destruction of Commerce (the ‘‘Department’’) carbon (‘‘PAC’’), granular activated APO materials or conversion to judicial published the antidumping duty order carbon (‘‘GAC’’), and pelletized protective order is hereby requested. on certain activated carbon from the activated carbon. Failure to comply with the regulations People’s Republic of China. See Notice Excluded from the scope of the order and the terms of an APO is a of Antidumping Duty Order: Certain are chemically activated carbons. The sanctionable violation. Activated Carbon from the People’s carbon-based raw material used in the This notice is issued and published in Republic of China, 72 FR 20988 (April chemical activation process is treated accordance with section 777(i)(1) of the 27, 2007). On December 15, 2008, the with a strong chemical agent, including Act, and 19 CFR 351.213(d)(4). Department received a request on behalf but not limited to phosphoric acid, zinc of Rolf C. Hagen (USA), Corp. (‘‘Hagen’’) Dated: January 21, 2009. chloride sulfuric acid or potassium for a changed circumstances review and John M. Andersen, hydroxide, that dehydrates molecules in a request to revoke in part the the raw material, and results in the Acting Deputy Assistant Secretary for antidumping duty order on certain formation of water that is removed from Antidumping and Countervailing Duty activated carbon from the People’s Operations. the raw material by moderate heat Republic of China with respect to [FR Doc. E9–1718 Filed 1–26–09; 8:45 am] treatment. The activated carbon created certain parts of fish tank filters which by chemical activation has internal BILLING CODE 3510–DS–P contain no more than 500 grams of porosity developed primarily due to the activated carbon, or a combination of action of the chemical dehydration DEPARTMENT OF COMMERCE activated carbon and zeolite, and fitted agent. Chemically activated carbons are to work with specific filters. On typically used to activate raw materials International Trade Administration December 17, 2008, Petitioners 1, Calgon with a lignocellulosic component such Carbon Corporation and Norit as cellulose, including wood, sawdust, [A–570–904] Americans Inc. (collectively, paper mill waste and peat. ‘‘Petitioners’’), submitted a response on To the extent that an imported Certain Activated Carbon From the the record and stated that they agree activated carbon product is a blend of People’s Republic of China: Notice of with Hagen’s request and agree with the steam and chemically activated carbons, Initiation and Preliminary Results of specific proposed exclusion language products containing 50 percent or more Changed Circumstances Review, and from Hagen’s December 15, 2008, steam (or CO2 gas) activated carbons are Intent To Revoke Order in Part submission, as described below. within this scope, and those containing more than 50 percent chemically AGENCY: Import Administration, Scope of the Order activated carbons are outside this scope. International Trade Administration, The merchandise subject to this order This exclusion language regarding Department of Commerce. is certain activated carbon. Certain blended material applies only to DATES: Effective Date: January 27, 2009. activated carbon is a powdered, mixtures of steam and chemically SUMMARY: On December 15, 2008, the granular, or pelletized carbon product activated carbons. Department of Commerce obtained by ‘‘activating’’ with heat and Also excluded from the scope are (‘‘Department’’) received a request for a steam various materials containing reactivated carbons. Reactivated carbons changed circumstances review and a carbon, including but not limited to coal are previously used activated carbons request to revoke in part the (including bituminous, lignite, and that have had adsorbed materials antidumping duty order on certain anthracite), wood, coconut shells, olive removed from their pore structure after activated carbon from the People’s stones, and peat. The thermal and steam use through the application of heat, Republic of China with respect to treatments remove organic materials and steam and/or chemicals. create an internal pore structure in the certain parts of fish tank filters which Also excluded from the scope is carbon material. The producer can also contain no more than 500 grams of activated carbon cloth. Activated carbon use carbon dioxide gas (CO ) in place of activated carbon, or a combination of 2 cloth is a woven textile fabric made of steam in this process. The vast majority activated carbon and zeolite, and are or containing activated carbon fibers. It of the internal porosity developed fitted to work with specific filters. is used in masks and filters and clothing during the high temperature steam (or Petitioners submitted a letter to the of various types where a woven format CO gas) activated process is a direct Department expressing lack of interest 2 is required. result of oxidation of a portion of the in antidumping duty relief from the Any activated carbon meeting the solid carbon atoms in the raw material, imports of certain parts of fish tank physical description of subject converting them into a gaseous form of filters as described below. Therefore, we merchandise provided above that is not carbon. are notifying the public of our intent to expressly excluded from the scope is The scope of this order covers all revoke, in part, the antidumping duty included within this scope. The forms of activated carbon that are order as it relates to import of certain products subject to the order are activated by steam or CO , regardless of fish tank filters as described below. The 2 currently classifiable under the the raw material, grade, mixture, Department invites interested parties to Harmonized Tariff Schedule of the additives, further washing or post- comment on these preliminary results. United States (‘‘HTSUS’’) subheading activation chemical treatment (chemical FOR FURTHER INFORMATION CONTACT: 3802.10.00. Although the HTSUS or water washing, chemical Catherine Bertrand, Import subheading is provided for convenience Administration, International Trade 1 See Memorandum to the File: Petitioners’ and customs purposes, the written Administration, U.S. Department of Representation of Domestic Industry (January 6, description of the scope of this order is Commerce, 14th Street and Constitution 2009). dispositive.

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Initiation and Preliminary Results of any other domestic interested parties, If final revocation occurs, we will Changed Circumstances Review, and we have preliminarily determined that instruct U.S. Customs and Border Intent To Revoke Order in Part the domestic producers of the like Protection to end the suspension of At the request of Hagen, and with product have no interest in the liquidation for the merchandise covered agreement by Petitioners, and in continued application of the by the revocation on the effective date accordance with sections 751(d)(1) and antidumping duty order on certain of the notice of revocation and to release 751(b)(1) of the Tariff Act of 1930, as activated carbon to the merchandise that any cash deposit or bond. See 19 CFR amended (the ‘‘Act’’) and 19 CFR is subject to this request. Accordingly, 351.222(g)(4). The current requirement 351.216, the Department is initiating a we are notifying the public of our intent for a cash deposit of estimated changed circumstances review of certain to revoke, in part, the antidumping duty antidumping duties on all subject activated carbon from the People’s order as it relates to imports of the merchandise will continue unless and Republic of China to determine whether certain parts of fish tank filters, which until it is modified pursuant to the final partial revocation of the antidumping contain no more than 500 grams of results of this changed circumstances duty order is warranted with respect to activated carbon, or a combination of review. certain parts of fish tank filters which activated carbon and zeolite, and are This initiation and preliminary results contain no more than 500 grams of fitted to work with specific filters, as of review and notice are in accordance activated carbon, or a combination of described below. Therefore, we intend with sections 751(b) and 777(i) of the activated carbon and zeolite, and are to change the scope of the order on Act and 19 CFR 351.216, 351.221, and fitted to work with specific filters. certain activated carbon from the 351.222. People’s Republic of China to include Section 782(h)(2) of the Act and 19 CFR Dated: January 16, 2009. 351.222(g)(1)(i) provide that the the following exclusion: Also excluded from the scope are Ronald K. Lorentzen, Department may revoke an order (in Acting Assistant Secretary for Import whole or in part) if it determines that molded plastic filter cartridges, woven textile filter pads and filter bags that Administration. producers accounting for substantially [FR Doc. E9–1584 Filed 1–26–09; 8:45 am] all of the production of the domestic contain not more than 500 grams of BILLING CODE 3510–DS–P like product have no further interest in certain activated carbon alone, or a the order, in whole or in part. In combined total of 500 grams of certain activated carbon and natural zeolite. addition, in the event the Department DEPARTMENT OF COMMERCE determines that expedited action is Combinations of subject activated carbon and other materials are not warranted, 19 CFR 351.221(c)(3)(ii) Patent and Trademark Office permits the Department to combine the subject to this exclusion. Molded plastic notices of initiation and preliminary filter cartridges and woven textile filter Submission for OMB Review; results. pads subject to this exclusion must be Comment Request In accordance with section 751(b) of packaged marked and ready for retail the Act, and 19 CFR 351.222(g)(l)(i) and sales as ready-to-use aquarium filters The United States Patent and 351.221(c)(3), we are initiating this and filter parts at the time of Trademark Office (USPTO) will submit changed circumstances review and have importation. Zeolite refers to a family of to the Office of Management and Budget determined that expedited action is hydrous aluminum silicate minerals, (OMB) for clearance the following warranted. Based on information from whose molecules enclose cations of proposal for collection of information the investigation placed on the record of sodium, potassium, calcium, strontium under the provisions of the Paperwork this review 2, in accordance with 19 CFR or barium, used chiefly as molecular Reduction Act (44 U.S.C. Chapter 35). 351.222(g)(1)(i), we find Petitioners filters and ion-exchange agents. Some of Agency: United States Patent and comprise substantially all of the the more common natural mineral Trademark Office (USPTO). production of the domestic like product. zeolites include analcime, chabazite, Title: Rules for Patent Maintenance Petitioners have expressed a lack of heulandite, natroliote, phillipsite, and Fees. interest in the order, in part, with stilbite. Excluded filters cartridges, filter Form Number(s): PTO/SB/45/47/65/ respect to certain fish tank filters. bags and woven filter bags are classified 66. Because this changed circumstances under subheading 8421.99.0040 of the Agency Approval Number: 0651– request was filed less than 24 months HTSUS. 0016. Type of Request: Revision of a after the date of publication of notice of Public Comment the final determination in an currently approved collection. Interested parties are invited to investigation, pursuant to 19 CFR Burden: 33,426 hours annually. comment on these preliminary results. Number of Respondents: 470,397 351.216(c), the Department must Written comments may be submitted no responses per year. determine whether good cause exists. later than 14 days after the date of Avg. Hours per Response: The USPTO We find that the Petitioners’ affirmative publication of these preliminary results. estimates that it will take the public statement of no interest in the order Rebuttals to written comments, limited approximately 20 seconds (0.006 hours) with respect to certain parts of fish tank to issues raised in such comments, may to eight hours to complete this filters, which contain no more than 500 be filed no later than 21 days after the information, depending on the form or grams of activated carbon, or a date of publication. The Department combination of activated carbon and petition. This includes time to gather will issue the final results of this zeolite, and are fitted to work with the necessary information, prepare the changed circumstances review, which specific filters, constitutes good cause form or petition, and submit the will include the results of its analysis for the conduct of this review. Based on completed request. raised in any such written comments, Needs and Uses: Under 35 U.S.C. 41 the expression of no interest by the no later than 270 days after the date on and 37 CFR 1.20(e)–(i) and 1.362–1.378, Petitioners and absent any objection by which this review was initiated, or the USPTO charges fees for maintaining 2 See Memorandum to the File: Petitioners’ within 45 days if all parties agree to our in force all utility patents based on Representation of Domestic Industry (January 6, preliminary results. See 19 CFR applications filed on or after December 2009). 351.216(e). 12, 1980. Payment of these maintenance

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fees is due at 31⁄2, 71⁄2, and 111⁄2 years Written comments and travelers are paid per diem at the most after the date the patent was granted. If recommendations for the proposed current rates. the USPTO does not receive payment of information collection should be sent on DATES: Effective Date: February 1, 2009. the appropriate maintenance fee and or before February 25, 2009 to Nicholas any applicable surcharge within a grace A. Fraser, OMB Desk Officer, via e-mail SUPPLEMENTARY INFORMATION: This period of six months following each of at [email protected], or document gives notice of revisions in the above intervals, the patent will by fax to 202–395–5167, marked to the per diem rates prescribed by the Per expire and no longer be enforceable. attention of Nicholas A. Fraser. Diem Travel and Transportation The public uses this collection to Dated: January 15, 2009. Allowance Committee for non-foreign submit patent maintenance fee Susan K. Fawcett, areas outside the continental United payments, to file petitions regarding States. It supersedes Civilian Personnel delayed or refused payments, and to Records Officer, USPTO, Office of the Chief Information Officer, Customer Information Per Diem Bulletin Number 261. designate an address to be used for fee- Services Group, Public Information Services Distribution of Civilian Personnel Per related correspondence. Division. Diem Bulletins by mail was Affected Public: Individuals or [FR Doc. E9–1617 Filed 1–26–09; 8:45 am] discontinued. Per Diem Bulletins households; businesses or other for- BILLING CODE 3510–16–P published periodically in the Federal profits; and not-for-profit institutions. Register now constitute the only Frequency: On occasion and three notification of revisions in per diem times at four-year intervals following rates to agencies and establishments the grant of the patent. DEPARTMENT OF DEFENSE outside the Department of Defense. For Respondent’s Obligation: Required to more information or questions about per obtain or retain benefits. Office of the Secretary diem rates, please contact your local OMB Desk Officer: Nicholas A. Fraser, e-mail: Foreign Overseas Per Diem Rates travel office. The text of the Bulletin [email protected]. follows: Once submitted, the request will be AGENCY: DoD, Per Diem, Travel and Dated: January 15, 2009. Transportation Allowance Committee. publicly available in electronic format Patricia L. Toppings, through the Information Collection ACTION: Notice of Revised Non-Foreign Overseas Per Diem Rates. OSD Federal Register Liaison Officer, Review page at www.reginfo.gov. Department of Defense. Paper copies can be obtained by: • E-mail: [email protected]. SUMMARY: The Per Diem, Travel and Maximum Per Diem Rates for Official Include ‘‘0651–0016 Rules for Patent Transportation Allowance Committee is Travel in Alaska, Hawaii, the Maintenance Fees copy request’’ in the publishing Civilian Personnel Per Diem Commonwealths of Puerto Rico and the subject line of the message. Bulletin Number 262. This bulletin lists Northern Mariana Islands and • Fax: 571–273–0112, marked to the revisions in the per diem rates Possessions of the United States by attention of Susan K. Fawcett. prescribed for U.S. Government Federal Government Civilian • Mail: Susan K. Fawcett, Records employees for official travel in Alaska, Employees Officer, Office of the Chief Information Hawaii, Puerto Rico, the Northern Officer, Customer Information Services Mariana Islands and Possessions of the The only change in Civilian Bulletin Group, Public Information Services United States. AEA changes announced 262 are updates to the rates for Division, United States Patent and in Bulletin Number 194 remain in effect. Fairbanks, Eielson AFB, Ft. Wainwright, Trademark Office, P.O. Box 1450, Bulletin Number 262 is being published Murphy Dome, Nome and Tanana Alexandria, VA 22313–1450. in the Federal Register to assure that Alaska.

Maximum Locality lodging M&IE rate Maximum per Effective date amount diem rate

(A) + (B) = (C)

ALASKA: ADAK ...... 120 79 199 07/01/2003 ANCHORAGE [INCL NAV RES]. 05/01–09/15 ...... 181 97 278 04/01/2007 09/16–04/30 ...... 99 89 188 04/01/2007 BARROW ...... 159 95 254 05/01/2002 BETHEL ...... 139 87 226 01/01/2009 BETTLES ...... 135 62 197 10/01/2004 CLEAR AB ...... 90 82 172 10/01/2006 COLDFOOT ...... 165 70 235 10/01/2006 COPPER CENTER. 05/01–09/30 ...... 125 84 209 01/01/2009 10/01–04/30 ...... 95 81 176 01/01/2009 CORDOVA. 05/01–09/30 ...... 95 78 173 06/01/2007 10/01–04/30 ...... 85 77 162 06/01/2007 CRAIG. 05/16–09/30 ...... 236 80 316 07/01/2008 10/01–05/15 ...... 151 71 222 07/01/2008 DELTA JUNCTION ...... 135 80 215 07/01/2008 DENALI NATIONAL PARK. 06/01–08/31 ...... 135 80 215 01/01/2009

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Maximum Locality lodging M&IE rate Maximum per Effective date amount diem rate

(A) + (B) = (C)

09/01–05/31 ...... 79 74 153 01/01/2009 DILLINGHAM. 04/15–10/15 ...... 185 83 268 01/01/2009 10/16–04/14 ...... 169 82 251 01/01/2009 DUTCH HARBOR-UNALASKA ...... 121 86 207 01/01/2009 EARECKSON AIR STATION ...... 90 77 167 06/01/2007 EIELSON AFB. 05/01–09/15 ...... 175 88 263 02/01/2009 09/16–04/30 ...... 75 79 154 02/01/2009 ELMENDORF AFB. 05/01–09/15 ...... 181 97 278 04/01/2007 09/16–04/30 ...... 99 89 188 04/01/2007 FAIRBANKS. 05/01–09/15 ...... 175 88 263 02/01/2009 09/16–04/30 ...... 75 79 154 02/01/2009 FOOTLOOSE ...... 175 18 193 06/01/2002 FT. GREELY ...... 135 80 215 07/01/2008 FT. RICHARDSON. 05/01–09/15 ...... 181 97 278 04/01/2007 09/16–04/30 ...... 99 89 188 04/01/2007 FT. WAINWRIGHT. 05/01–09/15 ...... 175 88 263 02/01/2009 09/16–04/30 ...... 75 79 154 02/01/2009 GLENNALLEN. 05/01–09/30 ...... 125 84 209 01/01/2009 10/01–04/30 ...... 95 81 176 01/01/2009 HAINES ...... 109 75 184 01/01/2009 HEALY. 06/01–08/31 ...... 135 80 215 01/01/2009 09/01–05/31 ...... 79 74 153 01/01/2009 HOMER. 05/15–09/15 ...... 167 85 252 01/01/2009 09/16–05/14 ...... 79 78 157 01/01/2009 JUNEAU. 05/01–09/30 ...... 149 85 234 01/01/2009 10/01–04/30 ...... 109 80 189 01/01/2009 KAKTOVIK ...... 165 86 251 05/01/2002 KAVIK CAMP ...... 150 69 219 05/01/2002 KENAI-SOLDOTNA. 05/01–08/31 ...... 129 92 221 04/01/2006 09/01–04/30 ...... 79 87 166 04/01/2006 KENNICOTT ...... 259 94 353 01/01/2009 KETCHIKAN. 05/01–09/30 ...... 140 83 223 01/01/2009 10/01–04/30 ...... 98 78 176 01/01/2009 KING SALMON. 05/01–10/01 ...... 225 91 316 05/01/2002 10/02–04/30 ...... 125 81 206 05/01/2002 KLAWOCK. 05/16–09/30 ...... 236 80 316 07/01/2008 10/01–05/15 ...... 151 71 222 07/01/2008 KODIAK. 05/01–09/30 ...... 136 85 221 01/01/2009 10/01–04/30 ...... 99 82 181 01/01/2009 KOTZEBUE ...... 179 93 272 07/01/2008 KULIS AGS. 05/01–09/15 ...... 181 97 278 04/01/2007 09/16–04/30 ...... 99 89 188 04/01/2007 MCCARTHY ...... 259 94 353 01/01/2009 MCGRATH ...... 165 69 234 10/01/2006 MURPHY DOME. 05/01–09/15 ...... 175 88 263 02/01/2009 09/16–04/30 ...... 75 79 154 02/01/2009 NOME ...... 135 97 232 02/01/2009 NUIQSUT ...... 180 53 233 05/01/2002 PETERSBURG ...... 100 71 171 07/01/2008 PORT ALSWORTH ...... 135 88 223 05/01/2002 SELDOVIA. 05/15–09/15 ...... 167 85 252 01/01/2009

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Maximum Locality lodging M&IE rate Maximum per Effective date amount diem rate

(A) + (B) = (C)

09/16–05/14 ...... 79 78 157 01/01/2009 SEWARD. 05/01–09/30 ...... 174 85 259 01/01/2009 10/01–04/30 ...... 99 77 176 01/01/2009 SITKA-MT. EDGECUMBE. 05/01–09/30 ...... 119 80 199 01/01/2009 10/01–04/30 ...... 99 77 176 01/01/2009 SKAGWAY. 05/01–09/30 ...... 140 83 223 01/01/2009 10/01–04/30 ...... 98 78 176 01/01/2009 SLANA. 05/01–09/30 ...... 139 55 194 02/01/2005 10/01–04/30 ...... 99 55 154 02/01/2005 SPRUCE CAPE. 05/01–09/30 ...... 136 85 221 01/01/2009 10/01–04/30 ...... 99 82 181 01/01/2009 ST. GEORGE ...... 129 55 184 06/01/2004 TALKEETNA ...... 100 89 189 07/01/2002 TANANA ...... 135 97 232 02/01/2009 TOGIAK ...... 100 39 139 07/01/2002 TOK. 05/01–09/30 ...... 109 72 181 01/01/2009 10/01–04/30 ...... 99 71 170 01/01/2009 UMIAT ...... 350 35 385 10/01/2006 VALDEZ. 05/01–09/30 ...... 159 88 247 01/01/2009 10/01–04/30 ...... 115 84 199 01/01/2009 WASILLA. 05/01–09/30 ...... 151 89 240 01/01/2009 10/01–04/30 ...... 96 83 179 01/01/2009 WRANGELL. 05/01–09/30 ...... 140 83 223 01/01/2009 10/01–04/30 ...... 98 78 176 01/01/2009 YAKUTAT ...... 105 76 181 01/01/2009 [OTHER] ...... 100 71 171 01/01/2009 AMERICAN SAMOA: AMERICAN SAMOA ...... 122 73 195 12/01/2005 GUAM: GUAM (INCL ALL MIL INSTAL) ...... 135 80 215 07/01/2008 HAWAII: CAMP H M SMITH ...... 177 106 283 05/01/2008 EASTPAC NAVAL. COMP TELE AREA ...... 177 106 283 05/01/2008 FT. DERUSSEY...... 177 106 283 05/01/2008 FT. SHAFTER...... 177 106 283 05/01/2008 HICKAM AFB...... 177 106 283 05/01/2008 HONOLULU ...... 177 106 283 05/01/2008 ISLE OF HAWAII: HILO ...... 112 104 216 06/01/2007 ISLE OF HAWAII: OTHER ...... 180 104 284 06/01/2007 ISLE OF KAUAI ...... 198 109 307 06/01/2007 ISLE OF MAUI ...... 160 101 261 05/01/2008 ISLE OF OAHU ...... 177 106 283 05/01/2008 KEKAHA PACIFIC MISSILE RANGE FAC ...... 198 109 307 06/01/2007 KILAUEA MILITARY CAMP ...... 112 104 216 06/01/2007 LANAI ...... 269 124 393 06/01/2008 LUALUALEI NAVAL MAGAZINE ...... 177 106 283 05/01/2008 MCB HAWAII...... 177 106 283 05/01/2008 MOLOKAI ...... 139 94 233 06/01/2008 NAS BARBERS POINT ...... 177 106 283 05/01/2008 PEARL HARBOR...... 177 106 283 05/01/2008 SCHOFIELD BARRACKS...... 177 106 283 05/01/2008 WHEELER ARMY AIRFIELD ...... 177 106 283 05/01/2008 [OTHER] ...... 112 104 216 05/01/2008 MIDWAY ISLANDS: MIDWAY ISLANDS INCL ALL MILITARY ...... 125 45 170 07/01/2008

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Maximum Locality lodging M&IE rate Maximum per Effective date amount diem rate

(A) + (B) = (C)

NORTHERN MARIANA ISLANDS: ROTA ...... 129 91 220 05/01/2006 SAIPAN ...... 121 98 219 06/01/2007 TINIAN ...... 138 71 209 07/01/2008 [OTHER] ...... 55 72 127 04/01/2000 PUERTO RICO: AGUADILLA ...... 75 64 139 11/01/2007 BAYAMON ...... 195 82 277 10/01/2007 CAROLINA ...... 195 82 277 10/01/2007 CEIBA. 05/01–11/30 ...... 155 57 212 08/01/2006 12/01–04/30 ...... 185 57 242 08/01/2006 FAJARDO [INCL ROOSEVELT RDS NAVS]. 05/01–11/30 ...... 155 57 212 08/01/2006 12/01–04/30 ...... 185 57 242 08/01/2006 FT. BUCHANAN. [INCL GSA SVC CTR] ...... 195 82 277 10/01/2007 HUMACAO. 05/01–11/30 ...... 155 57 212 08/01/2006 12/01–04/30 ...... 185 57 242 08/01/2006 LUIS MUNOZ MARIN IAP AGS ...... 195 82 277 10/01/2007 LUQUILLO. 05/01–11/30 ...... 155 57 212 08/01/2006 12/01–04/30 ...... 185 57 242 08/01/2006 MAYAGUEZ ...... 109 77 186 11/01/2007 PONCE ...... 139 83 222 11/01/2007 SABANA SECA. [INCL ALL MILITARY] ...... 195 82 277 10/01/2007 SAN JUAN & NAV RES STA ...... 195 82 277 10/01/2007 [OTHER] ...... 62 57 119 01/01/2000 VIRGIN ISLANDS (U.S.): ST. CROIX. 04/15–12/14 ...... 135 92 227 05/01/2006 12/15–04/14 ...... 187 97 284 05/01/2006 ST. JOHN. 04/15–12/14 ...... 163 98 261 05/01/2006 12/15–04/14 ...... 220 104 324 05/01/2006 ST. THOMAS. 04/15–12/14 ...... 240 105 345 05/01/2006 12/15–04/14 ...... 299 111 410 05/01/2006 WAKE ISLAND: WAKE ISLAND ...... 152 12 164 07/01/2008

[FR Doc. E9–1430 Filed 1–26–09; 8:45 am] Improvements Program (WSLIP) in Yolo requesting this permission and permit BILLING CODE 5001–06–M County and Solano County, CA. Under in order to reduce flood risk the City of 33 U.S.C. 408, the Chief of Engineers West Sacramento by meeting the grants permission to alter an existing following objectives for the project: DEPARTMENT OF DEFENSE flood control structure if it is not • Achieve a minimum of a 200-year injurious to the public interest and does Department of the Army; Corps of level (an event that has a 0.5% chance Engineers not impair the usefulness of such work. of occurring in any given year) of flood Under Section 404 of the Clean Water protection for the entire City by Notice of Intent To Prepare an Act, the District Engineer permits the improving approximately 50 miles of Environmental Impact Statement/ discharge of dredged or fill material into levees that protect it; Environmental Impact Report for the waters of the United States if the • West Sacramento Levee Improvements discharge meets the requirements for the Construct levee improvements as Program, West Sacramento, CA Environmental Protection Agency’s soon as possible to reduce flood risk as 404(b)(1) guidelines and is not contrary quickly as possible; and, AGENCY: Department of the Army, U.S. to the public interest. The U.S Army • Provide recreational and open space Army Corps of Engineers; DoD. Corps of Engineers (Corps) will consider elements for the City that are compatible ACTION: Notice of intent. granting both 408 permission to the with flood improvement actions. Central Valley Flood Protection Board SUMMARY: The action being taken is the DATES: A public scoping meeting will be (CVFPB) and 404 permit to West preparation of a programmatic and held on February 12, 2009 at 3:30 p.m. Sacramento Area Flood Control Agency project-specific Environmental Impact and 6:30 p.m. at the West Sacramento Statement/Environmental Impact Report (WSAFCA) for their work on the WSLIP. City Hall (see ADDRESSES). Send written (EIS/EIR) for the West Sacramento Levee The CVFPB and WSAFCA are

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comments by February 26, 2009 to (see were evaluated according to the latest analysis under a separate tiered ADDRESSES). Corps criteria for stability, seepage, environmental document(s). A No- ADDRESSES: Public Scoping meeting, erosion, geometry, and levee height. Action Alternative will be analyzed at West Sacramento City Hall, 1110 West Data collected from the evaluation the program level. Capitol Avenue, West Sacramento, CA. showed that much of the existing Three sites have been identified that Send written comments and suggestions system does not provide protection from would be analyzed at the project level concerning this study to Mr. Brian a 100-year flood event (an event having and included within the EIS/EIR. Also Buttazoni, U.S. Army Corps of a 1% chance of occurring in any given known as ‘‘Early Implementation Engineers, Sacramento District, Attn: year), the commonly accepted minimum Projects,’’ these sites are known as CHP Planning Division (CESPK–PD–RA), level of flood protection. Academy, The Rivers, and the Sac Bank 1325 J Street, Sacramento, CA 95814 or WSAFCA has identified the primary Extension Site. Analysis for the sites to Mr. John Powderly, City of West deficiencies of the levee system, which considered at the project level will Sacramento, 1110 West Capitol, include: Inadequate levee height, include the analysis of No Action, a Sacramento, CA 95691. Requests to be through-seepage and under-seepage, Preferred Alternative, and any other slope stability, seismic vulnerability, alternatives considered. placed on the mailing list should also be • sent to this address. erosion, and non-compliant vegetation. CHP Academy Site. This site The study area of the WSLIP includes includes 4,500 feet of the Sacramento FOR FURTHER INFORMATION CONTACT: the entire WSAFCA boundaries (over 50 Bypass Levee and the northern 2,000 Questions about the proposed action miles of levees) which encompasses feet of the Sacramento River West North and EIS/EIR should be addressed to portions of the Sacramento River, the Levee, for a total length of 6,500 feet. Brian Buttazoni at (916) 557–6956, e- Yolo Bypass, the Sacramento Bypass, Deficiencies include through-seepage mail [email protected] and the Sacramento Deep Water Ship and geometry. Under-seepage and or John Powderly at (916) 617–4674, e- Channel (DWSC). The study area has stability deficiencies are also present in mail [email protected] or been subdivided into the following sub- smaller pockets within this reach. by mail (see ADDRESSES). reaches: Sacramento River Levee North, • The Rivers Site. This site is located SUPPLEMENTARY INFORMATION: Sacramento River Levee South, Port just north of the confluence of the 1. Proposed Action. The Corps and North Levee, Port South Levee, South Sacramento and American Rivers, WSAFCA are preparing an EIS/EIR to Cross Levee, Deep Water Ship Channel incorporating part of The Rivers analyze the impacts of the work Levee East, Deep Water Ship Channel residential development. The site proposed in WSLIP. The Corps will Levee West, Yolo Bypass Levee, and extends from station 70+00 to station serve as the lead agency under the Sacramento Bypass Levee. 115+00 on the Sacramento River, for a provisions of NEPA and WSAFCA will 2. Alternatives. The EIS/EIR will total length of approximately 4,500 feet. serve as the lead agency under the address an array of flood control The site exhibits geometry, stability, and provisions of the California improvement alternatives at the under-seepage deficiencies. Environmental Quality Act (CEQA). program level. Alternatives analyzed • Sac Bank Extension Site. This site Several studies have been conducted during the investigation will include a is located just south of the barge canal since 1989 by the Corps, California combination of one or more flood on the Sacramento River and is the Department of Water Resources (DWR), protection measures. These measures northern most end of the Sacramento and WSAFCA to evaluate the condition include raising the existing levee; River West South Levee. The site of the various levees protecting the City constructing an adjacent setback levee, extends from station 270+00 to 332+50 of West Sacramento. These studies have cutoff walls, seepage berms, stability for a total length of 6,250 feet. The site indicated that the levee system is berms, internal drains, relief wells, or generally exhibits under-seepage, deficient and that the consequences of sheet-pile walls; slope flattening; stability, and geometry deficiencies. levee failure from a major flood event placing stone protection; and vegetation There are a few locations which have would be significant. removal. erosion and levee height deficiencies as Since the early 1990s, WSAFCA and Measures may be applied individually well. This site adjoins, complements, its partners have undertaken several or combined to address deficiencies. For and extends a separate Corps project levee repair projects to address urgent example, a seepage deficiency may be under the Sacramento River Bank levee deficiencies that pose serious addressed by utilizing a seepage berm or Protection Project. flood risk. Many of these repair projects a relief well, or a combination of both. 3. Scoping Process. a. Public scoping were the result of deficiencies noted Because each reach has a specific set of meetings will be held on February 12, during routine operations and levee deficiencies and each levee 2009 to present information and to maintenance inspections and repairs deficiency has a number of different receive comments from the public. The were performed on a case-by-case basis. measures that could be utilized to Corps, with WSAFCA, has initiated a In July 2006, in response to new improve the levee, WSAFCA is process to involve concerned Corps design standards and the Federal proposing to develop a range of individuals, and local, State, and Emergency Management Agency’s alternatives on a reach-by-reach basis Federal agencies. (FEMA) Flood Insurance Rate Map rather than basin-wide to provide b. Significant issues to be analyzed in modernization program, the City, as part greater flexibility. Constraints that depth in the EIS/EIR include effects on of WSAFCA, determined that it was would be considered during the aesthetics, biological resources, hazards necessary to perform a comprehensive development of alternatives for each and hazardous materials, mineral evaluation of all of the levees protecting reach could include land use (i.e., resources, public services, utilities/ the City to more definitely determine its development immediately adjacent to service systems, agricultural resources, current level of flood protection, the levee), available area for various cultural resources, hydrology/water determine the magnitude and severity of types of construction activities quality, noise, recreation, air quality, any deficiencies, and develop necessary to construct improvements, geology/soils, land use/planning, recommended strategies for and other environmental effects. Future population/housing, transportation/ improvement. For this most recent actions analyzed at the program level traffic, and cumulative effects of related comprehensive evaluation, the levees may or may not require additional projects in the study area.

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c. The Corps will consult with the Federal law, or substantially interfere Technical Assistance. The Case Studies State Historic Preservation Officer to with any agency’s ability to perform its will focus on the extent to which such comply with the National Historic statutory obligations. The Leader, assistance has resulted in enhanced Preservation Act, the U.S. Fish and Regulatory Information Management State Education Agency (SEA) capacity Wildlife Service (FWS) and National Services, Office of Management, to implement key No Child Left Behind Oceanic and Atmospheric publishes that notice containing Act (NCLB) provisions. Administration Fisheries Service to proposed information collection Requests for copies of the proposed comply with the Endangered Species requests prior to submission of these information collection request may be Act and the FWS to provide a Fish and requests to OMB. Each proposed accessed from http://edicsweb.ed.gov, Wildlife Coordination Act Report as an information collection, grouped by by selecting the ‘‘Browse Pending appendix to the EIS/EIR. Coordination office, contains the following: (1) Type Collections’’ link and by clicking on will also be carried out with Native of review requested, e.g. new, revision, link number 3934. When you access the American and tribal groups. extension, existing or reinstatement; (2) information collection, click on Consultation will be carried out on the Title; (3) Summary of the collection; (4) ‘‘Download Attachments’’ to view. three project level sites analyzed in the Description of the need for, and Written requests for information should document. Those reaches considered at proposed use of, the information; (5) be addressed to U.S. Department of the program level would be fully Respondents and frequency of Education, 400 Maryland Avenue, SW., analyzed in the future under separate collection; and (6) Reporting and/or LBJ, Washington, DC 20202–4537. tiered environmental document(s) and Recordkeeping burden. OMB invites Requests may also be electronically consultation would be carried out at public comment. mailed to [email protected] or faxed that time. The Department of Education is to 202–401–0920. Please specify the d. A 45-day public review period will especially interested in public comment complete title of the information be provided for individuals and addressing the following issues: (1) Is collection when making your request. agencies to review and comment on the this collection necessary to the proper Comments regarding burden and/or draft EIS/EIR. All interested parties are functions of the Department; (2) will the collection activity requirements encouraged to respond to this notice this information be processed and used should be electronically mailed to and provide a current address if they in a timely manner; (3) is the estimate [email protected]. Individuals who wish to be notified of the draft EIS/EIR of burden accurate; (4) how might the use a telecommunications device for the circulation. Department enhance the quality, utility, deaf (TDD) may call the Federal 4. Availability. The draft EIS/EIR is and clarity of the information to be Information Relay Service (FIRS) at 1– anticipated to be available for public collected; and (5) how might the 800–877–8339. review and comment in mid 2009. Department minimize the burden of this [FR Doc. E9–1703 Filed 1–26–09; 8:45 am] collection on the respondents, including Dated: January 13, 2009. BILLING CODE 4000–01–P Thomas C. Chapman, through the use of information COL, EN Commanding. technology. [FR Doc. E9–1678 Filed 1–26–09; 8:45 am] Dated: January 22, 2009. DEPARTMENT OF ENERGY BILLING CODE 3720–58–P Angela C. Arrington, Leader, Information Collections Clearance Ultra-Deepwater and Unconventional Division, Regulatory Information Natural Gas and Other Petroleum DEPARTMENT OF EDUCATION Management Services, Office of Management. Resources Research and Development Program 2009 Annual Plan Institute of Education Sciences Notice of Proposed Information Collection Requests Type of Review: Revision of a AGENCY: Office of Fossil Energy, currently approved collection. Department of Energy (DOE). AGENCY: Department of Education. Title: National Evaluation of the ACTION: Notice of Report Availability. SUMMARY: The Leader, Information Comprehensive Technical Assistance Collection Clearance Division, Centers. SUMMARY: The Office of Fossil Energy Regulatory Information Management Frequency: One time. announces the availability of the 2009 Services, Office of Management, invites Affected Public: Businesses or other Annual Plan for the Ultra-Deepwater comments on the proposed information for-profit; State, Local, or Tribal Gov’t, and Unconventional Natural Gas and collection requests as required by the SEAs or LEAs. Other Petroleum Resources Research Paperwork Reduction Act of 1995. Reporting and Recordkeeping Hour and Development Program on the DOE DATES: Interested persons are invited to Burden: Web site at http:// submit comments on or before March Responses: 130. management.energy.gov/FOIA/1480.htm 30, 2009. Burden Hours: 1,933. or in print form (see CONTACT below). SUPPLEMENTARY INFORMATION: Section Abstract: This is the third of three The 2009 Annual Plan is in compliance 3506 of the Paperwork Reduction Act of clearance requests submitted to OMB for with the Energy Policy Act of 2005, 1995 (44 U.S.C. Chapter 35) requires the National Evaluation of the Subtitle J, Section 999B(e)(3), which that the Office of Management and Comprehensive Technical Assistance requires the publication of this plan and Budget (OMB) provide interested Centers (‘‘Centers’’). This submission is all written comments in the Federal Federal agencies and the public an early necessitated because the National Register. opportunity to comment on information Center for Education Evaluation and FOR FURTHER INFORMATION CONTACT: collection requests. OMB may amend or Regional Assistance (NCEE), a division Elena Melchert, U.S. Department of waive the requirement for public of the Institute for Education Sciences, Energy, Office of Oil and Natural Gas, consultation to the extent that public U.S. Department of Education (ED), Mail Stop FE–30, 1000 Independence participation in the approval process exercised an Option within the Base Avenue, SW., Washington, DC 20585 or would defeat the purpose of the Contract in 2008 to conduct Case phone: 202–586–5600 or e-mail to information collection, violate State or Studies of Comprehensive Center [email protected].

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SUPPLEMENTARY INFORMATION: Executive Consortium’s research activities Issued in Washington, DC, on January 9, Summary [excerpted from the 2009 planned for 2009. The primary focus of 2009. Annual Plan p. 3]. these activities is to fill in any Guido DeHoratiis, This document is the 2009 Annual technology gaps not addressed by the Acting Deputy Assistant Secretary, Office of Plan for the Ultra-Deepwater and projects and solicitations to date. A Oil and Natural Gas, Office of Fossil Energy. Unconventional Natural Gas and Other highlight of this year’s plan is the [FR Doc. E9–1689 Filed 1–26–09; 8:45 am] Petroleum Resources Research and attention that will be given to BILLING CODE 6450–01–P Development Program established technology transfer. pursuant to Title IX, Subtitle J (Subtitle Technology transfer is an important J) of the Energy Policy Act of 2005 ENVIRONMENTAL PROTECTION focus of the program. Section 999C(d) of (EPAct). Subtitle J is reproduced in AGENCY Appendix A to the 2009 Annual Plan. EPAct requires 2.5% of the amount of As required by Subtitle J, the each award to be designated for [EPA–HQ–ORD–2008–0926; FRL–8767–8] Department of Energy (DOE) contracted technology transfer activities. The with a consortium (Program Federal advisory committees Board of Scientific Counselors, Science and Technology for Consortium) to administer three recommended that more information on Sustainability Mid-Cycle Subcommittee program elements identified in EPAct: technology transfer be included in Meetings—Winter 2009 Ultra-deepwater architecture and future annual plans. In response, the technology, unconventional natural gas 2009 Annual Plan includes the structure AGENCY: Environmental Protection and other petroleum resources for the overall technology transfer Agency (EPA). exploration and production technology, program. ACTION: Notice of meeting. and technology challenges of small Section 999 H(a) of EPAct provides producers. SUMMARY: Pursuant to the Federal A fourth program element of that the Ultra-Deepwater and Advisory Committee Act, Public Law complementary research identified in Unconventional Natural Gas and Other 92–463, the Environmental Protection EPAct is being performed by the Petroleum Research Fund be funded at Agency, Office of Research and National Energy Technology Laboratory $50-million-per-year, with funds Development (ORD), gives notice of a (NETL). NETL is also tasked with generated from Federal lease royalties, meeting of the Board of Scientific management of the consortium contract, rents, and bonuses paid by oil and gas Counselors (BOSC) Science and and review and oversight of the Program companies. Seventy-five percent of Technology for Sustainability Consortium. these funds are obligated to the Program Subcommittee. In 2006, NETL awarded a contract to Consortium’s contract to execute three DATES: the Research Partnership to Secure The first meeting (teleconference program elements. After allocations for call) will be held on Thursday, February Energy for America (RPSEA) to function program management by NETL and as the Program Consortium. 12, 2009, from 8 p.m. to 10 p.m. Eastern program administration by the Program Standard Time (EST). The second The 2007 Annual Plan, the first Consortium, the amount to be invested annual plan, resulted in a total of 15 meeting (face-to-face) will be held on in research activities by the Program Thursday, March 12, 2009, from 9 a.m. solicitations from which 43 projects Consortium totals $31.88 million per were selected. to 4 p.m. EST. Meetings may adjourn In August 2008, the 2008 Annual Plan year. early if all business is finished. Requests was transmitted to Congress and Under the Stage/Gate approach for the draft agenda or for making oral published in the Federal Register. applied to prior year activities, all presentations at the meetings will be Implementation will include a total of Program Consortium administered accepted up to one business day before 13 solicitations that are expected to be projects will be fully funded to the the meeting. issued by the Program Consortium in completion of the appropriate decision ADDRESSES: Participation in the late fall/early winter 2008, with point identified in each contract, which conference call will be by selections anticipated in early 2009. may include multiple stages. If a teleconference only—meeting rooms As further required by Subtitle J, in decision is made to move to the next will not be used. Members of the public September 2008, two Federal advisory stage or decision point or to gather may obtain the call-in number and committees, the Ultra-Deepwater additional data, additional funding will access code for the call from Greg Advisory Committee and the be provided from available funds. Susanke, whose contact information is Unconventional Resources Technology listed under the FOR FURTHER Advisory Committee, began their The NETL Strategic Center for Natural INFORMATION CONTACT section of this respective reviews of the draft 2009 Gas and Oil is responsible for notice. The face-to-face meeting will be Annual Plan. In October 2008, the two management of the consortium contract, held at the EPA Building—One Potomac advisory committees provided their and review and oversight of the Program Yard, 2777 S. Crystal Drive, Arlington, recommendations. Consortium. Complementary R&D is Virginia, 22202. The meeting is in the Section 999B(e)(3) of EPAct requires being carried out by NETL’s Office of Fourth Floor Conference Center North, DOE to publish all written comments on Research and Development. Planning room N–4830. Submit your comments, the annual plan. Accordingly, the and analysis related to the program, identified by Docket ID No. EPA–HQ– Program Consortium’s final 2009 draft including benefits assessment and ORD–2008–0926, by one of the Annual Plan is included here as technology impacts analysis, is being following methods: Appendix B and the comments and carried out by NETL’s Office of Systems, • http://www.regulations.gov: Follow recommendations provided by the Analysis, and Planning. the on-line instructions for submitting advisory committees are included here comments. Section 999F of EPAct contains a as Appendix C. No other written • E-mail: Send comments by comments were received. general sunset provision for Title IX, electronic mail (e-mail) to: The 2009 Annual Plan provides a Subtitle J, of September 30, 2014. [email protected], Attention Docket comprehensive outline of the Program ID No. EPA–HQ–ORD–2008–0926.

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• Fax: Fax comments to: (202) 566– listed in the index, some information is to recommendations from the previous 0224, Attention Docket ID No. EPA– not publicly available, e.g., CBI or other BOSC program review and other HQ–ORD–2008–0926. information whose disclosure is activities; subcommittee discussions. • Mail: Send comments by mail to: restricted by statute. Certain other Information on Services for Board of Scientific Counselors, Science material, such as copyrighted material, Individuals with Disabilities: For and Technology for Sustainability Mid- will be publicly available only in hard information on access or services for Cycle Subcommittee Meetings—Winter copy. Publicly available docket individuals with disabilities, please 2009 Docket, Mailcode: 28221T, 1200 materials are available either contact Greg Susanke at (202) 564–9945 Pennsylvania Ave., NW., Washington, electronically in http:// or [email protected]. To request DC, 20460, Attention Docket ID No. www.regulations.gov or in hard copy at accommodation of a disability, please EPA–HQ–ORD–2008–0926. the Board of Scientific Counselors, contact Greg Susanke, preferably at least • Hand Delivery or Courier. Deliver Science and Technology for 10 days prior to the meeting, to give comments to: EPA Docket Center (EPA/ Sustainability Mid-Cycle Subcommittee EPA as much time as possible to process DC), Room B102, EPA West Building, Meetings—Winter 2009 Docket, EPA/ your request. 1301 Constitution Avenue, NW., DC, EPA West, Room B102, 1301 Washington, DC, Attention Docket ID Dated: January 15, 2009. Constitution Ave., NW., Washington, Fred Hauchman, No. EPA–HQ–ORD–2008–0926. Note: DC. The Public Reading Room is open Director, Office of Science Policy. this is not a mailing address. Such from 8:30 a.m. to 4:30 p.m., Monday deliveries are only accepted during the through Friday, excluding legal [FR Doc. E9–1701 Filed 1–26–09; 8:45 am] docket’s normal hours of operation, and holidays. The telephone number for the BILLING CODE 6560–50–P special arrangements should be made Public Reading Room is (202) 566–1744, for deliveries of boxed information. and the telephone number for the ORD ENVIRONMENTAL PROTECTION Instructions: Direct your comments to Docket is (202) 566–1752. Docket ID No. EPA–HQ–ORD–2008– AGENCY FOR FURTHER INFORMATION CONTACT: The 0926. EPA’s policy is that all comments [FRL–8768–4] received will be included in the public Designated Federal Officer via mail at: Greg Susanke, Mail Drop 8104–R, Office docket without change and may be EPA Office of Children’s Health of Science Policy, Office of Research made available online at http:// Protection and Environmental and Development, Environmental www.regulations.gov, including any Education Staff Office; Notice of Public Protection Agency, 1300 Pennsylvania personal information provided, unless Meetings for the National Ave., NW., Washington, DC 20460; via the comment includes information Environmental Education Advisory phone/voice mail at: (202) 564–9945; claimed to be Confidential Business Council Information (CBI) or other information via fax at: (202) 565–2911; or via e-mail whose disclosure is restricted by statute. at: [email protected]. AGENCY: Environmental Protection Do not submit information that you SUPPLEMENTARY INFORMATION: Agency. ACTION: consider to be CBI or otherwise General Information Notice of meetings. protected through http:// www.regulations.gov or e-mail. The The meetings are open to the public. SUMMARY: The U.S. Environmental http://www.regulations.gov Web site is Any member of the public interested in Protection Agency (EPA or Agency) an ‘‘anonymous access’’ system, which receiving a draft BOSC agenda or Office of Children’s Health Protection means EPA will not know your identity making a presentation at the meeting and Environmental Education Office or contact information unless you may contact Greg Susanke, the hereby gives notice that the National provide it in the body of your comment. Designated Federal Officer, via any of Environmental Education Advisory If you send an e-mail comment directly the contact methods listed in the FOR Council will hold public meetings by to EPA without going through http:// FURTHER INFORMATION CONTACT section conference call on the 2nd Wednesday www.regulations.gov, your e-mail above. In general, each individual of each month, beginning with February address will be automatically captured making an oral presentation will be 11, 2009 from 12 p.m. to 1 p.m. All and included as part of the comment limited to a total of three minutes. times noted are eastern time. The that is placed in the public docket and EPA ORD is conducting an purpose of these meetings is to provide made available on the Internet. If you independent expert review through the the Council with the opportunity to submit an electronic comment, EPA BOSC, to evaluate the progress made by advise the Environmental Education recommends that you include your the Science and Technology for Division on its implementation of the name and other contact information in Sustainability Research Program National Environmental Protection Act the body of your comment and with any towards addressing the of 1990. Requests for the draft agenda disk or CD–ROM you submit. If EPA recommendations that resulted from its will be accepted up to 1 business day cannot read your comment due to initial program review in April 2007; before the meeting. technical difficulties and cannot contact and to evaluate and obtain advice on DATES: This notice is applicable for the you for clarification, EPA may not be key future directions for the research following dates: able to consider your comment. program which have been developed • February 11, 2009. Electronic files should avoid the use of and other potential areas that could be • March 11, 2009. special characters, any form of considered. Proposed agenda items for • April 8, 2009. encryption, and be free of any defects or the meetings include, but are not • May 13, 2009. viruses. For additional information limited to: Teleconference: objectives of • June 10, 2009. • about EPA’s public docket visit the EPA the review; an overview of ORD’s July 8, 2009. Docket Center homepage at http:// Science and Technology for SUPPLEMENTARY INFORMATION: www.epa.gov/epahome/dockets.htm. Sustainability Research Program; a Participation in the conference calls will Docket: All documents in the docket summary of major changes in the be by teleconference only—meeting are listed in the http:// research program since 2007; Face-to- rooms will not be used. Members of the www.regulations.gov index. Although face meeting: ORD progress in response public may obtain the call-in number

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and access code for the call from Ginger The meeting will be held in the Board FEDERAL MARITIME COMMISSION Potter, the Designated Federal Officer, Room on the sixth floor of the FDIC whose contact information is listed Building located at 550 17th Street, Meeting; Sunshine Act under the FOR FURTHER INFORMATION NW., Washington, DC. CONTACT section of this notice. Any AGENCY HOLDING THE MEETING: Federal This Board meeting will be Webcast Maritime Commission member of the public interested in live via the Internet and subsequently TIME AND DATE: receiving a draft meeting agenda may made available on-demand January 28, 2009—11 contact Ginger Potter via any of the approximately one week after the event. a.m. contact methods listed in the FOR Visit http://www.vodium.com/goto/fdic/ PLACE: 800 North Capitol Street, NW., FURTHER INFORMATION CONTACT section boardmeetings.asp to view the event. If First Floor Hearing Room, Washington, below. you need any technical assistance, DC. FOR FURTHER INFORMATION CONTACT: For please visit our Video Help page at: STATUS: A portion of the meeting will be information regarding this Notice, http://www.fdic.gov/video.html. in Open Session and the remainder of please contact Ms. Ginger Potter, The FDIC will provide attendees with the meeting will be in Closed Session. Designated Federal Officer (DFO), EPA auxiliary aids (e.g., sign language MATTERS TO BE CONSIDERED: National Environmental Education interpretation) required for this meeting. Open Session Advisory Council, at Those attendees needing such assistance [email protected] or (202) 564– should call (703) 562–6067 (Voice or 1. 2008 Funding for Purchase and 0453. General information concerning TTY), to make necessary arrangements. Installation of Media Equipment for NEEAC can be found on the EPA Web Commission Offices. Requests for further information 2. Docket No. 02–15 Passenger Vessel site at: http://www.epa.gov/enviroed. concerning the meeting may be directed For information on access or services for Financial Responsibility—Request of to Mr. Robert E. Feldman, Executive Commissioner Brennan. individuals with disabilities, please Secretary of the Corporation, at (202) contact Ginger Potter as directed above. 898–7043. Closed Session To request accommodation of a 1. FMC Agreement No. 011223–043: disability, please contact Ginger Potter, Dated: January 22, 2009. Transpacific Stabilization Agreement. preferable at least 10 days prior to the Federal Deposit Insurance Corporation 2. Internal Administrative Practices meeting, to give EPA as much time as Robert E. Feldman, and Personnel Matters. possible to process your request. Executive Secretary. [FR Doc. E9–1707 Filed 1–26–09; 8:45 am] CONTACT PERSON FOR MORE INFORMATION: Dated: January 15, 2009. Karen V. Gregory, Secretary, (202) 523– BILLING CODE 6714–01–P Ginger Potter, 5725. Designated Federal Officer. Karen V. Gregory, [FR Doc. E9–1700 Filed 1–26–09; 8:45 am] Secretary. BILLING CODE 6560–50–P FEDERAL ELECTION COMMISSION [FR Doc. E9–1755 Filed 1–23–09; 11:15 am] Sunshine Act Notices BILLING CODE 6730–01–P FEDERAL DEPOSIT INSURANCE AGENCY: Federal Election Commission. CORPORATION FEDERAL RESERVE SYSTEM DATE AND TIME: Tuesday, January 27, Notice of Agency Meeting 2009, at 10 a.m. Change in Bank Control Notices; Acquisition of Shares of Bank or Bank Pursuant to the provisions of the Wednesday, January 28, 2009, at 10 Holding Companies ‘‘Government in the Sunshine Act’’ (5 a.m. U.S.C. 552b), notice is hereby given that PLACE: 999 E Street, NW., Washington, The notificants listed below have the Federal Deposit Insurance DC. applied under the Change in Bank Corporation’s Board of Directors will STATUS: These meetings will be closed Control Act (12 U.S.C. 1817(j)) and meet in open session at 10 a.m. on to the public. § 225.41 of the Board’s Regulation Y (12 Tuesday, January 27, 2009, to consider CFR 225.41) to acquire a bank or bank the following matters: ITEMS TO BE DISCUSSED: holding company. The factors that are Summary Agenda: No substantive Compliance matters pursuant to 2 considered in acting on the notices are discussion of the following items is U.S.C. 437g. set forth in paragraph 7 of the Act (12 anticipated. These matters will be Audits conducted pursuant to 2 U.S.C. U.S.C. 1817(j)(7)). resolved with a single vote unless a 437g, 438(b), and Title 26, U.S.C. The notices are available for member of the Board of Directors immediate inspection at the Federal Matters concerning participation in civil requests that an item be moved to the Reserve Bank indicated. The notices actions or proceedings or arbitration. discussion agenda. also will be available for inspection at Disposition of minutes of previous Internal personnel rules and procedures the office of the Board of Governors. Board of Directors’ meetings. or matters affecting a particular Interested persons may express their Discussion Agenda: employee. views in writing to the Reserve Bank Memorandum and resolution re: PERSON TO CONTACT FOR INFORMATION: indicated for that notice or to the offices Proposed Rule for Interest Rate Judith Ingram, Press Officer, Telephone: of the Board of Governors. Comments Restrictions for Institutions that are Less (202) 694–1220. must be received not later than February than Well-Capitalized. 9, 2009. Memorandum and resolution re: Final Mary W. Dove, A. Federal Reserve Bank of Atlanta Rule on Processing Deposit Accounts in Secretary of the Commission. (Steve Foley, Vice President) 1000 the Event of an Insured Depository [FR Doc. E9–1530 Filed 1–26–09; 8:45 am] Peachtree Street, N.E., Atlanta, Georgia Institution Failure. BILLING CODE 6715–01–P 30309:

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1. David Weir Wood, II, Laura Halsey trading in a range of 0 to 1⁄4 percent. The Additional information on all bank Wood, John Halsey Wood, David Weir Committee directs the Desk to purchase holding companies may be obtained Wood, II, Sidney Wood Clap, Katherine GSE debt and agency–guaranteed MBS from the National Information Center Wood Hamilton, all of Birmingham, during the intermeeting period with the website at www.ffiec.gov/nic/. Alabama, and Susan Soule Wood, aim of providing support to the Unless otherwise noted, comments Pensacola, Florida; to acquire additional mortgage and housing markets. The regarding each of these applications shares of Capital South Bancorp, and its timing and pace of these purchases must be received at the Reserve Bank subsidiary CapitalSouth Bank, both of should depend on conditions in the indicated or the offices of the Board of Birmingham, Alabama. markets for such securities and on a Governors not later than February 20, 2. Harold B. Dunn, Birmingham, broader assessment of conditions in 2009. Alabama, Harold Crockett Dunn, primary mortgage markets and the A. Federal Reserve Bank of Boston Salinas, California, and Rebecca Dunn housing sector. By the end of the second (Richard Walker, Community Affairs Bryant, Fairhope, Alabama; to acquire quarter of next year, the Desk is Officer) P.O. Box 55882, Boston, additional voting shares of CapitalSouth expected to purchase up to $100 billion Massachusetts 02106-2204: Bancorp, and its subsidiary, in housing–related GSE debt and up to 1. Independent Bank Corp., Rockland, CapitalSouth Bank, both of Birmingham, $500 billion in agency–guaranteed MBS. Massachusetts; to merge with Benjamin Alabama. The System Open Market Account Franklin Bancorp, Inc., and thereby B. Federal Reserve Bank of Kansas Manager and the Secretary will keep the acquire its subsidiary bank, Benjamin City (Todd Offerbacker, Assistant Vice Committee informed of ongoing Franklin Bank, both of Franklin, President) 925 Grand Avenue, Kansas developments regarding the System’s Massachusetts. City, Missouri 64198-0001: balance sheet that could affect the B. Federal Reserve Bank of 1. Matthew A. Michaelis, New York, attainment over time of the Committee’s Richmond (A. Linwood Gill, III, Vice New York, and Amy L. Madsen, objectives of maximum employment President) 701 East Byrd Street, Wichita, Kansas, as proposed trustees of and price stability. Richmond, Virginia 23261-4528: the M.D. Michaelis Trust F, the Paula By order of the Federal Open Market 1. Live Oak Bancshares, Inc., Sue Michaelis Trust F, the Matthew Committee, January 14, 2009. Wilmington, North Carolina; to become Michaelis Trust F, the Amy Loflin Trust Brian F. Madigan, a bank holding company by acquiring F, and the Laura Haunschild Trust F, all Secretary, Federal Open Market Committee. 100 percent of the voting shares of Live dated October 27, 2003, Wichita, [FR Doc. E9–1603 Filed 1–26–09; 8:45 am] Oak Banking Company, Wilmington, Kansas; to acquire voting shares of BILLING CODE 6210–01–S North Carolina. Emprise Financial Corporation, and C. Federal Reserve Bank of Kansas thereby acquire shares of Emprise Bank, City (Todd Offerbacker, Assistant Vice both in Wichita, Kansas. FEDERAL RESERVE SYSTEM President) 925 Grand Avenue, Kansas Board of Governors of the Federal Reserve City, Missouri 64198-0001: System, January 22, 2009. Formations of, Acquisitions by, and 1. Manhattan Banking Corporation, Robert deV. Frierson, Mergers of Bank Holding Companies Manhattan, Kansas; to acquire 5.4 Deputy Secretary of the Board. The companies listed in this notice percent of the voting shares of Sonoran [FR Doc. E9–1697 Filed 1–26–09; 8:45 am] have applied to the Board for approval, Bank, National Association, Phoenix Arizona. BILLING CODE 6210–01–S pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841 et seq.) 2. Manhattan Banking Corporation, (BHC Act), Regulation Y (12 CFR Part Manhattan, Kansas; to retain 5.1 percent FEDERAL RESERVE SYSTEM 225), and all other applicable statutes of the voting shares of BOTS, Inc., and and regulations to become a bank thereby retain shares of Vision Bank, Federal Open Market Committee; holding company and/or to acquire the both of Topeka Kansas. Domestic Policy Directive of December assets or the ownership of, control of, or Board of Governors of the Federal Reserve 15 and 16, 2008 the power to vote shares of a bank or System, January 22, 2009. In accordance with § 271.25 of its bank holding company and all of the Robert deV. Frierson, rules regarding availability of banks and nonbanking companies Deputy Secretary of the Board. information (12 CFR part 271), there is owned by the bank holding company, [FR Doc. E9–1698 Filed 1–26–09; 8:45 am] including the companies listed below. set forth below the domestic policy BILLING CODE 6210–01–S The applications listed below, as well directive issued by the Federal Open as other related filings required by the Market Committee at its meeting held Board, are available for immediate on December 15 and 16, 2008.1 inspection at the Federal Reserve Bank DEPARTMENT OF HEALTH AND The Federal Open Market Committee indicated. The applications also will be HUMAN SERVICES seeks monetary and financial conditions available for inspection at the offices of that will foster price stability and Agency Information Collection the Board of Governors. Interested promote sustainable growth in output. Request; 30-Day Public Comment persons may express their views in To further its long–run objectives, the Request, Grants writing on the standards enumerated in Committee seeks conditions in reserve the BHC Act (12 U.S.C. 1842(c)). If the AGENCY: markets consistent with federal funds Office of the Secretary, HHS. proposal also involves the acquisition of Agency Information Collection 1 Copies of the Minutes of the Federal Open a nonbanking company, the review also Request; 30-Day Public Comment Market Committee at its meeting held on December includes whether the acquisition of the Request, Grants. 15 and 16, 2008, which includes the domestic nonbanking company complies with the In compliance with the requirement policy directive issued at the meeting, are available standards in section 4 of the BHC Act of section 3506(c)(2)(A) of the upon request to the Board of Governors of the Federal Reserve System, Washington, D.C. 20551. (12 U.S.C. 1843). Unless otherwise Paperwork Reduction Act of 1995, the The minutes are published in the Federal Reserve noted, nonbanking activities will be Office of the Secretary (OS), Department Bulletin and in the Board’s annual report. conducted throughout the United States. of Health and Human Services, is

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publishing the following summary of a and OS document identifier, to database containing information about proposed information collection request [email protected], or call entities that are awarded federal grants, for public comment. Interested persons the Reports Clearance Office on (202) loans, and contracts. The revised form are invited to send comments regarding 690–6162. Written comments and will assist agencies in collecting some of this burden estimate or any other aspect recommendations for the proposed the required data elements for the of this collection of information, information collections must be database through the SF–424 grant including any of the following subjects: received within 30 days of this notice applications. This form will be utilized (1) The necessity and utility of the directly to the OS OMB Desk Officer all by up to 26 federal grant making proposed information collection for the comments must be faxed to OMB at agencies. proper performance of the agency’s 202–395–6974. Proposed Project: SF–424 Grants The SF–424 form revisions functions; (2) the accuracy of the Application Form—OMB No. 4040– incorporate standard data elements estimated burden; (3) ways to enhance 0004—Revision—Grants.gov. required by the Transparency Act such the quality, utility, and clarity of the The SF–424 form is an OMB approved as a nine-digit zip code, the addition of information to be collected; and (4) the collection (4040–0004). Proposed ‘‘Parish’’ to the ‘‘County’’ field, and use of automated collection techniques revisions of the SF-424 include global common language in the form or other forms of information changes created by the Federal Funding instructions to ‘‘Areas Affected by technology to minimize the information Accountability and Transparency Act Project’’ and the ‘‘Congressional District collection burden. To obtain copies of (Transparency Act). The Transparency of.’’ We are requesting a three year the supporting statement and any Act was signed into law on September clearance of this form. The affected related forms for the proposed 26, 2006 (Pub. L. 109–282). The public may include: Federal, State, paperwork collections referenced above, legislation requires the Office of local, or tribal governments, business or e-mail your request, including your Management and Budget (OMB) to other for profit, and not for profit address, phone number, OMB number, establish a publicly available, online institutions.

ESTIMATED ANNUALIZED BURDEN TABLE

Number of Average Agency Number of responses per burden hours Total burden respondents respondent per response hours

DOC ...... 16,460 1 30/60 8,230 DOE ...... 2,700 1 60/60 2,700 ED ...... 10,235 1 60/60 10,235 EPA ...... 3,816 1 240/60 15,264 HHS ...... 5,800 1.1551 270/60 30,148 SSA ...... 1,000 2 20/60 667 USAID ...... 200 2 15/60 100 USDA ...... 229,946 1 60/60 229,946 DOI ...... 11,604 1.8156 26/60 9,130 DOD ...... 172 1.2 60/60 206 DOL ...... 1,000 1 30/60 500 TOTAL ...... 307,126

Seleda Perryman, instructions for submitting comments Services, 200 Independence Avenue, Office of the Secretary, Paperwork Reduction electronically there was a typographical SW., Washington, DC 20201, Attention: Act Reports Clearance Officer. error in the e-mail address. The National Vaccine Safety RFI. [FR Doc. E9–1650 Filed 1–26–09; 8:45 am] Vaccine Program Office (NVPO) is Dated: January 22, 2009. BILLING CODE 4151–AE–P requesting resubmission of any public Bruce Gellin, comments sent prior to January 16, 2009 in response to the previously published Deputy Assistant Secretary for Health, Director, National Vaccine Program Office, DEPARTMENT OF HEALTH AND Request for Information on the U.S. Department of Health and Human HUMAN SERVICES Immunization Safety Office Scientific Services. Agenda. Solicitation of Written Comments on [FR Doc. E9–1692 Filed 1–26–09; 8:45 am] FOR FURTHER INFORMATION CONTACT: Ms. Draft Centers for Disease Control and BILLING CODE 4150–28–P Kirsten Vannice, (202) 690–5566; e-mail Prevention’s Immunization Safety [email protected]. Office Scientific Agenda DEPARTMENT OF HEALTH AND Correction AGENCY: Department of Health and HUMAN SERVICES Human Services, Office of the Secretary. In the Federal Register of January 2, 2009, Vol. 74, No. 1, on page 107, in the Agency for Healthcare Research and ACTION: Notice; correction. 3rd column, correct the ADDRESSES Quality SUMMARY: caption to read: The Department of Health and Agency Information Collection ADDRESSES: Human Services published a document Electronic responses are Activities: Proposed Collection; in the Federal Register of January 2, preferred and may be addressed to Comment Request 2009 soliciting comments on the draft [email protected]. Written Centers for Disease Control and responses should be addressed to the AGENCY: Agency for Healthcare Research Prevention’s Immunization Safety Office National Vaccine Program Office, U.S. and Quality, Department of Health and Scientific Agenda. Within the Department of Health and Human Human Services.

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ACTION: Notice. 2008). Individuals may voluntarily continued listing will not begin until submit complaints to OCR if they several months before November 2011 SUMMARY: This notice announces the believe that an individual or which is three years after the first PSOs intention of the Agency for Healthcare organization in possession of patient were listed by the Secretary. (See Note Research and Quality (AHRQ) to request safety work product unlawfully after Exhibit 1.) that the Office of Management and disclosed it. Budget (OMB) allow information PSO Two Bona Fide Contracts collection related to implementation of Methods of Collection Requirement Certification the Patient Safety and Quality While there are a number of To implement 42 U.S.C. 299b– Improvement Act of 2005, 42 U.S.C. information collection forms described 24(b)(1)(C), the final rule states that, in 299b–21 to 299b–26, in: ‘‘Patient Safety below, they will be implemented at order to maintain its PSO listing, a PSO Organization Certification for Initial different times, some near the end of the will be required to submit a Listing and Related Forms and a Patient three year approval period for these certification, at least once in every 24- Safety Confidentiality Complaint Form’’ standard forms. The forms for month period after its initial date of In accordance with the Paperwork certifications of information will collect listing, indicating that it has contracts Reduction Act of 1995, 44 U.S.C. only the minimum amount of with two providers (45 CFR 3.102(d)(1)). 3506(c)(2)(A), AHRQ invites the public information from entities necessary for The annualized burden of 8 hours for to comment on this proposed the Secretary to determine compliance the collection of information requested information collection. with statutory requirements for PSOs, by the two bona fide contracts DATES: Comments on this notice must be i.e., most of the required certification requirement is based upon an estimate received by March 30, 2009. forms will consist of short attestations of 33 respondents per year and an ADDRESSES: Written comments should followed by ‘‘yes’’ and ‘‘no’’ checkboxes estimated 15 minutes per response. This be submitted to: Doris Lefkowitz, to be checked and initialed. collection of information will begin PSO Certification for Initial Listing Reports Clearance Officer, AHRQ, 540 when the first PSO timely notifies the and PSO Certification for Continued Gaither Road, Room # 5036, Rockville, Secretary that it has entered into two Listing Forms: The Patient Safety Act, at MD 20850, or by e-mail at contracts. 42 U.S.C. 299b–24(a), and the final rule [email protected]. at 45 CFR 3.102 provide that an entity PSO Disclosure Statement Form Copies of the proposed collection may seek an initial three-year listing as The Patient Safety statute at 42 U.S.C. plans, data collection instruments, and a PSO by submitting an initial 299b–24(b)(1)(E) requires a PSO to fully specific details on the estimated burden certification that it has policies and disclose information to the Secretary if can be obtained from AHRQ’s Reports procedures in place to perform eight the PSO has additional financial, Clearance Officer. patient safety activities (enumerated in contractual, or reporting relationships FOR FURTHER INFORMATION CONTACT: the statute and the final rule), and that with any provider to which the PSO Doris Lefkowitz, AHRQ, Reports it will comply, upon listing, with seven provides services pursuant to the Clearance Officer, (301) 427–1477. other statutory criteria. The proposed Patient Safety Act under contract, or if SUPPLEMENTARY INFORMATION: ‘‘Patient Certification for Initial Listing Form also the PSO is managed or controlled by, or Safety Organization Certification for includes additional questions related to is not operated independently from, any Initial Listing and Related Forms and a other requirements for listing related to of its contracting providers. Disclosure Patient Safety Confidentiality Complaint eligibility and pertinent organizational statement Forms will be collected only Form.’’ history. Similarly, the proposed when a PSO has such relationships with The Department of Health and Human Certification for Continued Listing Form a contracting provider to report. The Services’ (HHS) Agency for Healthcare (for each successive three-year period Secretary is required to review each Research and Quality (AHRQ) has been after the initial listing period) would disclosure statement and make public delegated the authority to implement require certifications that the PSO is findings as to whether a PSO can fairly the provisions of the Patient Safety and performing, and will continue to and accurately carry out its Quality Improvement Act of 2005 (for perform, the eight patient safety responsibilities. AHRQ assumes that brevity referenced here as the Patient activities, and is complying with, and only a small percentage of entities will Safety Act) that call for submission to will continue to comply with, the seven need to file such disclosure forms. the Secretary of certifications by entities statutory criteria. The average annual However, AHRQ is providing a high seeking to become listed by the burden in the first three years of 17 estimate of 17 respondents annually and Secretary as Patient Safety hours per year for the collection of thus presumably overestimating Organizations (PSOs). These entities information requested by the respondent burden. In summary, the must certify that they meet or will meet certification form for initial listing is annual burden of 8 hours for the specified statutory criteria and based upon a total average estimate of collection of information requested by requirements for PSOs as further 33 respondents per year and an the disclosure form is based upon the explained in the final rule to implement estimated time of 30 minutes per high estimate of 17 respondents per year the Patient Safety Act, published in the response. Information collection, i.e., and an estimated 30 minutes per Federal Register on November 21, 2008: collection of initial certification forms, response. This information collection 73 FR 70732. will begin as soon as the forms are will begin when a PSO first reports The HHS Office for Civil Rights (OCR) approved for use. The average annual having any of the specified types of has been delegated the authority to burden in the first three years of 8 hours additional relationships with a health enforce the provisions of the Patient per year for the collection of care provider with which it has a Safety Act that mandate confidentiality information requested by the contract to carry out patient safety of ‘‘patient safety work product.’’ This certification form for continued listing activities. term is defined in the statute, at 42 is based upon a total average estimate of U.S.C. 299b–21(7), and further 17 respondents per year and an PSO Information Form explained in the final rule (published in estimated time of 30 minutes per Annual completion of a PSO the Federal Register on November 1, response. Collection of forms for Information Form will be voluntary and

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will provide information to HHS on the Information Form is based upon an OCR’s information collection using this type of healthcare settings that PSOs are estimate of 33 respondents per year and form will not begin until after there is working with to carry out patient safety an estimated 30 minutes per response. at least one PSO receiving and activities. This form is designed to This information collection will begin generating patient safety work product, collect a minimum amount of data in one year after the first PSOs are listed and there is an allegation of a violation order to gather aggregate statistics on the by the Secretary. of the statutory protection of patient reach of the Patient Safety Act with safety work product. OCR Complaint Form respect to types of institutions All Administrative Forms participating and their general location The complaint form will collect from in the United States. This information individuals only the minimum amount The overall maximum anticipated will be included in AHRQ’s annual of information necessary for OCR to annual burden estimate is 75 hours for quality report, as required under Section process and assess incoming all the above described collections of 923(c) of the Patient Safety Act (42 complaints. The overall annual burden information. Because the forms filled U.S.C. 299b–23(c)). No PSO-specific estimate of 17 hours for the collection out by PSOs vary over each of their first data will be released without PSO of information requested by the three years, the table below includes consent. The overall annual burden underlying form is based upon an three-year total estimates divided by estimate of 17 hours for the collection estimate of 50 respondents per year and three to arrive at an annual estimate of of information requested by the PSO an estimated 20 minutes per response. burden hours. (See below.)

EXHIBIT 1—ESTIMATED ANNUALIZED BURDEN HOURS

Number of Total Number of responses Hours per burden Form respondents per response respondent hours

Certification for Initial Listing Form ...... 100/3 1 30/60 17 Certification for Continued Listing Form* ...... 50/3 1 30/60 8 Two Bona Fide Contracts Requirement Form** ...... 100/3 1 15/60 8 Disclosure Statement Form ...... 50/3 1 30/60 8 Information Form*** ...... 100/3 1 30/60 17 Patient Safety Confidentiality Complaint Form ...... 150/3 1 20/60 17 Total**** ...... 500/3 na na 75 Note. * The Certification for Continued Listing Form will be completed by any interested PSO at least 75 days before the end of its then-current three-year listing period. Therefore, we anticipate that only those PSOs that have completed the Certification for Initial Listing Form in the first year that these forms are available will complete the Certification for Continued Listing Form during the three-year approval period for these forms. In the out-years, we expect the number of PSOs to remain stable, with the number of new entrants offset by the number of entities that will relinquish their status or be revoked ** The Two Bona Fide Contracts Requirement Form will be completed by each PSO within the 24-month period after initial listing by the Sec- retary. *** 1AThe Information Form will collect data by calendar year, beginning in 2010, at a time when it is anticipated that PSOs will have submitted appreciable data to the Network of Patient Safety Databases. **** A total of 100 PSOs are expected to apply over three years: 50 in year one; 25 in year two; and 25 in year three. Disclosure Statement, Two Bona Fide Contracts Requirement, and even voluntary Information Forms may be submitted by individual PSOs in different years. OCR is anticipating considerable variation in the number of complaints per year. Hence we have expressed the total for each year as the average of the expected total over the three year collection period.

EXHIBIT 2—ESTIMATED ANNUALIZED COST BURDEN

Total Average Form Number of burden hourly wage Total cost respondents hours rate burden

Certification for Initial Listing Form ...... 100/3 17 $31.26 $531.42 Certification for Continued Listing Form ...... 50/3 8 31.26 250.08 Two Bona Fide Contracts Requirement Form ...... 100/3 8 31.26 250.08 Disclosure Statement Form ...... 50/3 8 31.26 250.08 Information Form ...... 100/3 17 31.26 531.42 Patient Safety Confidentiality Complaint Form ...... 150/3 17 31.26 531.42 Total ...... 500/3 75 na $2,344.50 * Based upon the mean of the hourly wages for healthcare practitioner and technical occupation, National Compensation Survey: Occupational wages in the United States 2007, U.S. Department of Labor, Bureau of Labor Statistics.

Estimated Annual Costs to the Federal also required for entities to remain estimated equivalent of approximately Government listed as a PSO (i.e., submissions 0.05 FTE or $7,500 per year and a. AHRQ regarding compliance with the two bona virtually no new overhead costs. fide contracts requirement and reports By statute, AHRQ must collect and of certain relationships between a PSO Description Amount review certifications from an entity that and each of its contracting providers). seeks listing or continued listing as a The cost to AHRQ of processing the Personnel & Support Staff ...... $7,500 PSO under the Patient Safety Act. information collected with the above- Consultant (sub-contractor) services ...... 0 Additional information collection is described forms is minimal: An

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Description Amount Dated: January 11, 2009. of 26 ‘‘Areas of Concern’’ (AOCs) along Carolyn M. Clancy, Great Lakes streams, rivers, and lakes. Equipment ...... 0 Director, AHRQ. These AOCs are defined under the Supplies ...... 0 [FR Doc. E9–1009 Filed 1–26–09; 8:45 am] Agreement as ecologically degraded All other expenses ...... 0 BILLING CODE 4160–90–M geographic areas requiring remediation. Average Annual Cost ...... 7,500 Much of the available data pertain to counties, and not to AOCs. Some AOCs b. OCR DEPARTMENT OF HEALTH AND occupy small parts of a single county, HUMAN SERVICES OCR cannot conduct its work without while others may reach across more collecting information through its Agency for Toxic Substances and than one county. The data come from proposed complaint forms. Even if OCR Disease Registry publicly available data sets provided by ATSDR and the U.S. EPA. did not use complaint forms and only [ATSDR–251] took information orally, it would still The GLWQA defines ‘‘critical have to capture the same information in Availability of the Report ‘‘ATSDR pollutants’’ as substances that persist in order to begin processing a complaint. Studies on Chemical Releases in the the environment, bioaccumulate in fish Therefore, the incremental cost to OCR Great Lakes Region’’ and wildlife, and are toxic to humans of processing the information collected and animals. There are 12 categories of AGENCY: Agency for Toxic Substances critical pollutants. This report from the complaint form is minimal and and Disease Registry (ATSDR), emphasizes the critical pollutants is equivalent to approximately 0.05 FTE Department of Health and Human (within the constraints imposed by or $7,500 per year with virtually no new Services (HHS). overhead costs. using existing data) but also presents ACTION: Notification of publication. information on other pollutants, when Description Amount SUMMARY: This report responds to a such information is available and request from the International Joint relevant. Personnel & Support Staff ...... $7,500 Commission (IJC), the binational This report compiles and presents Consultant (sub-contractor) serv- organization that works to implement ices ...... 0 previously collected environmental data the Great Lakes Water Quality from four sources: Equipment ...... 0 Agreement (GLWQA) between the U.S. • Supplies ...... 0 and Canada. The GLWQA calls for the Data on hazardous waste sites in All other expenses ...... 0 two nations to define ‘‘the threat to AOC counties, from evaluations Average Annual Cost ...... 7,500 human health from critical pollutants’’ prepared by the Agency for Toxic found in the Great Lakes basin. Substances and Disease Registry Request for Comments This notice announces the availability (ATSDR); of the report entitled ‘‘ATSDR Studies • Chemical release data from the U.S. In accordance with the above-cited on Chemical Releases in the Great Lakes Paperwork Reduction Act legislation, Environmental Protection Agency’s Region’’. This report summarizes (EPA) Toxic Release Inventory (TRI); comments on the above-described previously-published public health • AHRQ and OCR information collection assessment products and chemical Data on pollutant discharges into to implement the Patient Safety Act are release information for the 26 U.S. water, from EPA’s National Pollutant requested with regard to any of the AOCs and 54 counties that are in close Discharge Elimination System (NPDES); following: (a) Whether the proposed geographic proximity to those AOCs. • Data on ‘‘beneficial use collection of information is necessary This is a descriptive report that does not impairments’’ such as wildlife and for the proper performance of AHRQ’s make associations between health drinking water advisories, from each of health care research, quality outcomes and chemical exposures. The the Great Lakes states. improvement and information compilation of environmental data, dissemination functions, including gathered by ATSDR and the These data are presented in three whether the information will have Environmental Protection Agency ways: In text, in tables, and in practical utility; (b) the accuracy of (EPA), is intended to help decision- Geographic Information System-based AHRQ’s estimate of burden (including makers set future priorities. (GIS) maps created by ATSDR for each hours and costs) of the proposed ADDRESSES: Address all comments of the 26 U.S. AOCs. collection(s) of information; (c) ways to concerning this notice to Ms. Olga This is a descriptive report that does enhance the quality, utility, and clarity Dawkins, ATSDR, Division of not make associations between health of the information to be collected; and Toxicology and Environmental outcomes and chemical exposures. The (d) ways to minimize the burden of the Medicine, 1600 Clifton Road, NE., MS compilation of environmental data, F–32, Atlanta, Georgia 30333. collection of information upon the gathered by ATSDR and EPA, is respondents, including the use of FOR FURTHER INFORMATION CONTACT: intended to help decision-makers set automated collection techniques or Bruce Fowler, PhD, Division of future priorities. Toxicology and Environmental other forms of information technology. Medicine, Agency for Toxic Substances Dated: January 20, 2009. Comments submitted in response to and Disease Registry, Mailstop F–32, Ken Rose, this notice will be summarized and 1600 Clifton Road, NE., Atlanta, Georgia Director, Office of Policy, Planning, and included in the Agency’s subsequent 30333, telephone (770) 488–7250. Evaluation National Center for Environmental request for OMB approval of the Electronic access to these documents is Health/Agency for Toxic Substances and proposed information collection. All also available at the ATSDR Web site: Disease Registry. comments will become a matter of http://www.atsdr.cdc.gov/. [FR Doc. E9–1597 Filed 1–26–09; 8:45 am] public record. SUPPLEMENTARY INFORMATION: The BILLING CODE 4163–70–P geographic focus of this report is a set

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DEPARTMENT OF HEALTH AND DEPARTMENT OF HEALTH AND must also be submitted to the docket in HUMAN SERVICES HUMAN SERVICES writing in order to be considered by the Agency. Written comments will also be Centers for Disease Control and Centers for Disease Control and accepted at the meeting. Written Prevention Prevention comments may also be submitted to the [Docket Number NIOSH–144] NIOSH Docket Office, Robert A. Taft Disease, Disability, and Injury Laboratories, 4676 Columbia Parkway, Prevention and Control Notice of Request for Public To Submit MS–C34, Cincinnati, Ohio 45226, Comments; Extension of Comment telephone (513) 533–8611. All material Special Emphasis Panel (SEP): Autism Period submitted to the Agency should Therapy Evaluation Effects of reference docket number NIOSH–144 AGENCY: Hyperbaric Oxygen Therapy on National Institute for and must be submitted by March 31, Occupational Safety and Health Children with Autism, Request For 2009, to be considered by the Agency. (NIOSH) of the Centers for Disease Application (RFA), DD8EM–801. All electronic comments should be Control and Prevention (CDC), formatted as Microsoft Word. Please In accordance with Section 10(a)(2) of Department of Health and Human the Federal Advisory Committee Act make reference to docket number Services (HHS). NIOSH–144. (Pub. L. 92–463), the Centers for Disease ACTION: Extension of public comment All information received in response Control and Prevention (CDC) period. to this notice will be available for public announces the aforementioned meeting: SUMMARY: The National Institute for examination and copying at the NIOSH Time and Date: 1:30 p.m.–3 p.m., Occupational Safety and Health Docket Office, Room 111, 4676 January 29, 2009 (Closed). (NIOSH) of the Centers for Disease Columbia Parkway, Cincinnati, Ohio Place: Teleconference. Control and Prevention (CDC) 45226. CONTACT PERSONS FOR TECHNICAL Status: The meeting will be closed to announced the availability of a draft INFORMATION: Kathleen MacMahon, the public in accordance with document available for public comment DVM; (513) 533–8547; MS–C32, Robert provisions set forth in Section 552b(c) entitled ‘‘NIOSH Criteria Document Update: Occupational Exposure to A. Taft Laboratories, 4676 Columbia (4) and (6), Title 5 U.S.C., and the Parkway, Cincinnati, OH, 45226–1998. Determination of the Director, Hexavalent Chromium’’ on October 17, Management Analysis and Services 2008, as well as a public meeting to be Dated: January 16, 2009. held on January 22, 2009. The document Office, CDC, pursuant to Public Law 92– James D. Seligman, and instructions for submitting 463. Chief Information Officer, Centers for Disease comments can be found at http:// Control and Prevention. Matters To Be Discussed: The meeting www.cdc.gov/niosh/review/public/144/. [FR Doc. E9–1694 Filed 1–26–09; 8:45 am] will include the review, discussion, and Comments were to be provided to the BILLING CODE 4163–18–P evaluation of an application received in NIOSH docket by January 31, 2009, as response to ‘‘Autism Therapy well as given orally at the public Evaluation Effects of Hyperbaric Oxygen meeting. A request has been received to DEPARTMENT OF HEALTH AND Therapy on Children with Autism, RFA extend the comment period to permit HUMAN SERVICES DD8EM–801.’’ the public more time to gather and National Institutes of Health This Federal Register notice is being submit information. Accordingly, NIOSH is extending the published less than fifteen days prior to public comment period by 60 days to Eunice Kennedy Shriver National the meeting date, due to the decision of March 31, 2009. Institute of Child Health & Human the National Center for Chronic Disease Development; Notice of Closed DATES: Written comments to NIOSH Prevention and Health Promotion to Meeting must be sent or postmarked by March allow a deliberative discussion on this 31, 2009. The public meeting will still Pursuant to section 10(d) of the application. take place on January 22, 2009, at Robert Federal Advisory Committee Act, as Contact Person for More Information: A. Taft Laboratories, Taft Auditorium, amended (5 U.S.C. Appendix 2), notice Brenda Colley Gilbert, Ph.D., Scientific NIOSH, CDC, 4676 Columbia Parkway, is hereby given of the following Review Administrator, 2877 Cincinnati, OH 45226–1998. meeting. Brandywine Road, Atlanta, Georgia Status: The public meeting will The meeting will be closed to the 30341, telephone: (770) 488–8390. include scientists and representatives public in accordance with the from various government agencies, The Director, Management Analysis provisions set forth in sections industry, labor, and other stakeholders, and Services Office, has been delegated 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., and is open to the public, limited only as amended. The contract proposals and the authority to sign Federal Register by the space available. The meeting the discussions could disclose notices pertaining to announcements of room accommodates 80 people. Persons confidential trade secrets or commercial meetings and other committee wanting to attend or provide oral property such as patentable material, management activities, for both CDC comments at the meeting were and personal information concerning and the Agency for Toxic Substances requested to notify the NIOSH Docket individuals associated with the contract and Disease Registry. Office no later than January 7, 2009, at proposals, the disclosure of which Lorenzo J. Falgiano, (513) 533–8611 or by e-mail at would constitute a clearly unwarranted [email protected]. invasion of personal privacy. Acting Director, Management Analysis and Persons wanting to provide oral Services Office, Centers for Disease Control Name of Committee: National Institute of comments will be permitted up to 20 and Prevention. Child Health and Human Development minutes. If additional time becomes [FR Doc. E9–1690 Filed 1–26–09; 8:45 am] Special Emphasis Panel; Pediatric Functional available, presenters will be notified. Neuroimaging Study. BILLING CODE 4163–18–P Oral comments given at the meeting Date: January 29, 2009.

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Time: 1 p.m. to 3 p.m. Bethesda, MD 20892–9608, 301–402–8152, and personal information concerning Agenda: To review and evaluate contract [email protected]. individuals associated with the grant proposals. Name of Committee: National Institute of applications, the disclosure of which Place: National Institutes of Health, 6100 Mental Health Special Emphasis Panel; would constitute a clearly unwarranted Executive Boulevard, Room 5B01, Rockville, NIMH K99 Review. invasion of personal privacy. MD 20852, (Telephone Conference Call). Date: February 23, 2009. Contact Person: Sathasiva B. Kandasamy, Time: 8:30 a.m. to 5 p.m. Name of Committee: National Institute of PhD, Scientific Review Administrator, Agenda: To review and evaluate grant Allergy and Infectious Diseases Special Division of Scientific Review, National applications. Emphasis Panel; Ancillary Studies in Institute of Child Health and Human Place: St. Gregory Hotel, 2033 M Street, Immunomodulation Clinical Trials. Development, 6100 Executive Boulevard, NW, Washington, DC 20036. Date: February 17, 2009. Room 5b01, Bethesda, MD 20892–9304, (301) Contact Person: Megan Libbey, PhD, Time: 2 p.m. to 3 p.m. 435–6680, [email protected]. Scientific Review Officer, Division of Agenda: To review and evaluate grant This notice is being published less than 15 Extramural Activities, National Institute of applications. days prior to the meeting due to the timing Mental Health, NIH, Neuroscience Center, Place: National Institutes of Health, 6700B limitations imposed by the review and 6001 Executive Blvd, Room 6148, MSC 9609, Rockledge Drive, Bethesda, MD 20817, funding cycle. Bethesda, MD 20892–9609, 301–402–6807, (Telephone Conference Call). (Catalogue of Federal Domestic Assistance [email protected]. Contact Person: Paul A. Amstad, PhD, Program Nos. 93.864, Population Research; Name of Committee: National Institute of Scientific Review Officer, Scientific Review 93.865, Research for Mothers and Children; Mental Health Special Emphasis Panel; Program, Division of Extramural Activities, 93.929, Center for Medical Rehabilitation Silvio O. Conte Centers for Basic and DHHS/National Institutes of Health/NIAID, Research; 93.209, Contraception and Translational Mental Health Research. 6700B Rockledge Drive, MSC 7616, Bethesda, Infertility Loan Repayment Program, National Date: February 24–25, 2009. MD 20892–7616, 301–402–7098, Institutes of Health, HHS) Time: 8 a.m. to 5 p.m. [email protected]. Agenda: To review and evaluate grant (Catalogue of Federal Domestic Assistance Dated: January 16, 2009. applications. Program Nos. 93.855, Allergy, Immunology, Jennifer Spaeth, Place: St. Gregory Hotel, 2033 M Street, and Transplantation Research; 93.856, Director, Office of Federal Advisory NW, Washington, DC 20036. Microbiology and Infectious Diseases Committee Policy. Contact Person: Francois Boller, PhD, Research, National Institutes of Health, HHS) Scientific Review Officer, Division of [FR Doc. E9–1662 Filed 1–26–09; 8:45 am] Dated: January 16, 2009. Extramural Activities, National Institute of BILLING CODE 4140–01–P Mental Health, NIH, Neuroscience Center, Jennifer Spaeth, 6001 Executive Blvd., Room 6142, MSC 9606, Director, Office of Federal Advisory Bethesda, MD 20892–9606, 301–443–1513, Committee Policy. DEPARTMENT OF HEALTH AND [email protected]. [FR Doc. E9–1654 Filed 1–26–09; 8:45 am] HUMAN SERVICES (Catalogue of Federal Domestic Assistance BILLING CODE 4140–01–P National Institutes of Health Program Nos. 93.242, Mental Health Research Grants; 93.281, Scientist Development Award, Scientist Development Award for National Institute of Mental Health; DEPARTMENT OF HEALTH AND Clinicians, and Research Scientist Award; HUMAN SERVICES Notice of Closed Meetings 93.282, Mental Health National Research Pursuant to section 10(d) of the Service Awards for Research Training, National Institutes of Health National Institutes of Health, HHS) Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice Dated: January 16, 2009. National Institute of Diabetes and is hereby given of the following Jennifer Spaeth, Digestive and Kidney Diseases; Notice meetings. Director, Office of Federal Advisory of Closed Meetings The meetings will be closed to the Committee Policy. Pursuant to section 10(d) of the public in accordance with the [FR Doc. E9–1653 Filed 1–26–09; 8:45 am] Federal Advisory Committee Act, as provisions set forth in sections BILLING CODE 4140–01–P amended (5 U.S.C. Appendix 2), notice 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., is hereby given of the following as amended. The grant applications and meetings. DEPARTMENT OF HEALTH AND the discussions could disclose The meetings will be closed to the HUMAN SERVICES confidential trade secrets or commercial public in accordance with the property such as patentable material, National Institutes of Health provisions set forth in sections and personal information concerning 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., individuals associated with the grant National Institute of Allergy and as amended. The grant applications and applications, the disclosure of which Infectious Diseases; Notice of Closed the discussions could disclose would constitute a clearly unwarranted Meeting confidential trade secrets or commercial invasion of personal privacy. property such as patentable material, Name of Committee: National Institute of Pursuant to section 10(d) of the and personal information concerning Mental Health Special Emphasis Panel; Federal Advisory Committee Act, as individuals associated with the grant Mental Health Services Applications. amended (5 U.S.C. Appendix 2), notice applications, the disclosure of which Date: February 17, 2009. is hereby given of the following would constitute a clearly unwarranted Time: 11:30 a.m. to 2:30 p.m. meeting. invasion of personal privacy. Agenda: To review and evaluate grant The meeting will be closed to the applications. public in accordance with the Name of Committee: National Institute of Place: St. Gregory Hotel, 2033 M Street, provisions set forth in sections Diabetes and Digestive and Kidney Diseases NW, Washington, DC 20036. Special Emphasis Panel; R13 Conference Contact Person: Marina Broitman, PhD, 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Application. Scientific Review Officer, Division of as amended. The grant applications and Date: February 23, 2009. Extramural Activities, National Institute of the discussions could disclose Time: 2 p.m. to 4 p.m. Mental Health, NIH, Neuroscience Center, confidential trade secrets or commercial Agenda: To review and evaluate grant 6001 Executive Blvd., Room 6153, MSC 9608, property such as patentable material, applications.

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Place: National Institutes of Health, Two Time: 8 a.m. to 5 p.m. Research; 93.862, Genetics and Democracy Plaza, 6707 Democracy Agenda: To review and evaluate grant Developmental Biology Research; 93.88, Boulevard, Bethesda, MD 20892, (Telephone applications. Minority Access to Research Careers; 93.96, Conference Call). Place: Hyatt Regency Bethesda, One Special Minority Initiatives, National Contact Person: D. G. Patel, PhD, Scientific Bethesda Metro Center, 7400 Wisconsin Institutes of Health, HHS) Review Officer, Review Branch, DEA, Avenue, Bethesda, MD 20814. Dated: January 16, 2009. NIDDK, National Institutes of Health, Room Contact Person: Ruth Grossman, DDS, 756, 6707 Democracy Boulevard, Bethesda, Scientific Review Officer, National Institutes Jennifer Spaeth, MD 20892–5452, (301) 594–7682, of Biomedical Imaging, and Bioengineering, Director, Office of Federal Advisory [email protected]. 6707 Democracy Boulevard, Room 960, Committee Policy. Name of Committee: National Institute of Bethesda, MD 20892, 301–496–8775, [FR Doc. E9–1660 Filed 1–26–09; 8:45 am] Diabetes and Digestive and Kidney Diseases [email protected]. BILLING CODE 4140–01–P Special Emphasis Panel; Translation Dated: January 16, 2009. Research. Jennifer Spaeth, Date: March 12, 2009. DEPARTMENT OF HEALTH AND Director, Office of Federal Advisory Time: 8 a.m. to 5 p.m. HUMAN SERVICES Agenda: To review and evaluate grant Committee Policy. applications. [FR Doc. E9–1659 Filed 1–26–09; 8:45 am] National Institutes of Health Place: Bethesda Marriott Suites, 6711 BILLING CODE 4140–01–P Democracy Boulevard, Bethesda, MD 20817. National Institute of Dental & Contact Person: Michele L. Barnard, PhD, Scientific Review Officer, Review Branch, Craniofacial Research; Notice of DEPARTMENT OF HEALTH AND Closed Meetings DEA, NIDDK, National Institutes of Health, HUMAN SERVICES Room 753, 6707 Democracy Boulevard, Pursuant to section 10(d) of the Bethesda, MD 20892–2542, (301) 594–8898, National Institutes of Health [email protected]. Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), notice (Catalogue of Federal Domestic Assistance National Institute of General Medical is hereby given of the following Program Nos. 93.847, Diabetes, Sciences; Notice of Closed Meeting Endocrinology and Metabolic Research; meetings. 93.848, Digestive Diseases and Nutrition Pursuant to section 10(d) of the The meetings will be closed to the Research; 93.849, Kidney Diseases, Urology Federal Advisory Committee Act, as public in accordance with the and Hematology Research, National Institutes amended (5 U.S.C. Appendix 2), notice provisions set forth in sections of Health, HHS) is hereby given of the following 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Dated: January 16, 2009. meeting. as amended. The grant applications and Jennifer Spaeth, The meeting will be closed to the the discussions could disclose Director, Office of Federal Advisory public in accordance with the confidential trade secrets or commercial Committee Policy. provisions set forth in sections property such as patentable material, [FR Doc. E9–1655 Filed 1–26–09; 8:45 am] 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., and personal information concerning individuals associated with the grant BILLING CODE 4140–01–P as amended. The grant applications and the discussions could disclose applications, the disclosure of which confidential trade secrets or commercial would constitute a clearly unwarranted DEPARTMENT OF HEALTH AND property such as patentable material, invasion of personal privacy. HUMAN SERVICES and personal information concerning Name of Committee: National Institute of individuals associated with the grant Dental and Craniofacial Research Special National Institutes of Health applications, the disclosure of which Emphasis Panel, Review of R03, R21 and R01 would constitute a clearly unwarranted applications. National Institute of Biomedical Date: February 26, 2009. invasion of personal privacy. Imaging and Bioengineering; Notice of Time: 1 p.m. to 3 p.m. Closed Meeting Name of Committee: National Institute of Agenda: To review and evaluate grant General Medical Sciences Special Emphasis applications. Pursuant to section 10(d) of the Panel; Biomedical Behavioral Interface. Place: National Institutes of Health, Federal Advisory Committee Act, as Date: February 5, 2009. Bethesda, MD 20892. (Telephone Conference amended (5 U.S.C. Appendix 2), notice Time: 2:30 p.m. to 6 p.m. Call) is hereby given of the following Agenda: To review and evaluate grant Contact Person: Jonathan Horsford, Ph.D., meeting. applications. Scientific Review Officer, Natl Inst of Dental The meeting will be closed to the Place: National Institutes of Health, and Craniofacial Research, National Institutes Natcher Building, 45 Center Drive, 3AN12c, of Health, 6701 Democracy Blvd, Room 664, public in accordance with the Bethesda, MD, (Telephone Conference Call). Bethesda, MD 20892, 301–594–4859, provisions set forth in sections Contact Person: Meredith D. Temple- [email protected]. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., O’Connor, PhD, Scientific Review Officer, Name of Committee: National Institute of as amended. The grant applications and Office of Scientific Review, National Institute Dental and Craniofacial Research Special the discussions could disclose of General Medical Sciences, National Emphasis Panel. Review of R21 and R34 confidential trade secrets or commercial Institutes of Health, 45 Center Drive, Room applications. property such as patentable material, 3AN12C, Bethesda, MD 20892, 301–594– Date: February 27, 2009. and personal information concerning 2772, [email protected]. Time: 2 p.m. to 4 p.m. individuals associated with the grant This notice is being published less than 15 Agenda: To review and evaluate grant days prior to the meeting due to the timing applications. applications, the disclosure of which limitations imposed by the review and would constitute a clearly unwarranted Place: National Institutes of Health, funding cycle. Bethesda, MD 20892. (Telephone Conference invasion of personal privacy. (Catalogue of Federal Domestic Assistance Call) Name of Committee: National Institute of Program Nos. 93.375, Minority Biomedical Contact Person: Jonathan Horsford, Ph.D., Biomedical Imaging and Bioengineering Research Support; 93.821, Cell Biology and Scientific Review Officer, Natl Inst of Dental Special Emphasis Panel. Biophysics Research; 93.859, Pharmacology, and Craniofacial Research, National Institutes Date: March 13, 2009. Physiology, and Biological Chemistry of Health, 6701 Democracy Blvd, Room 664,

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Bethesda, MD 20892, 301–594–4859, Section on Fundamental Neuroscience, Unit DEPARTMENT OF HEALTH AND [email protected]. on Behavioral Genetics, Laboratory of HUMAN SERVICES Name of Committee: National Institute of Molecular Pathophysiology, and the Section Dental and Craniofacial Research Special on Molecular Neuroscience. National Institutes of Health Emphasis Panel, Review K23s, R03, F32. Place: National Institutes of Health, Date: March 4, 2009. Neuroscience Center, 6001 Executive National Institute of Neurological Time: 2 p.m. to 3 p.m. Boulevard, Rockville, MD 20852. Disorders and Stroke; Notice of Closed Agenda: To review and evaluate grant Time: February 10, 2009, 11:40 a.m. to 4 Meeting applications. p.m. Place: National Institutes of Health, 6701 Pursuant to section 10(d) of the Rockledge Drive, Bethesda, MD 20892. Agenda: To review and evaluate personal qualifications and performance, and Federal Advisory Committee Act, as (Telephone Conference Call) amended (5 U.S.C. Appendix 2), notice Contact Person: Mary Kelly, Scientific competence of individual investigators. Review Officer, Scientific Review Branch, Place: National Institutes of Health, is hereby given of the following National Inst of Dental & Craniofacial Neuroscience Center, 6001 Executive meeting. Research, NIH, 6701 Democracy Blvd., Room Boulevard, Rockville, MD 20852. The meeting will be closed to the 672, MSC 4878, Bethesda, MD 20892–4878, Time: February 10, 2009, 7 p.m. to 10 p.m. public in accordance with the _ 301–594–4809, mary [email protected]. Agenda: To review and evaluate personal provisions set forth in sections (Catalogue of Federal Domestic Assistance qualifications and performance, and 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Program Nos. 93.121, Oral Diseases and competence of individual investigators. as amended. The grant applications and Disorders Research, National Institutes of Place: Bethesda Marriott Suites, 6711 the discussions could disclose Health, HHS) Democracy Boulevard, Bethesda, MD 20817. confidential trade secrets or commercial Dated: January 16, 2009. Time: February 11, 2009, 8:30 a.m. to 11:50 property such as patentable material, Jennifer Spaeth, a.m. and personal information concerning Agenda: To review and evaluate the Director, Office of Federal Advisory individuals associated with the grant Committee Policy. Intramural Laboratories with site visits of the applications, the disclosure of which Genes, Cognition and Psychosis Program, the [FR Doc. E9–1661 Filed 1–26–09; 8:45 am] would constitute a clearly unwarranted Section on Clinical Studies, and the Section invasion of personal privacy. BILLING CODE 4140–01–P on Neuropathology. Name of Committee: Neurological Sciences Place: Bethesda Marriott Suites, 6711 Training Initial Review Group; NST–1 Democracy Boulevard, Bethesda, MD 20817. Subcommittee. DEPARTMENT OF HEALTH AND Time: February 11, 2009, 11:50 a.m. to HUMAN SERVICES Date: January 26–27, 2009. 12:10 p.m. Time: 8 a.m. to 6 p.m. National Institutes of Health Agenda: To review and evaluate personal Agenda: To review and evaluate grant qualifications and performance, and applications. National Institute of Mental Health; competence of individual investigators. Place: Renaissance Mayflower Hotel, 1127 Notice of Closed Meeting Place: Bethesda Marriott Suites, 6711 Connecticut Avenue, NW., Washington, DC Democracy Boulevard, Bethesda, MD 20817. 20036. Pursuant to section 10(d) of the Time: February 11, 2009, 11:50 a.m. to Contact Person: Raul A. Saavedra, PhD, Federal Advisory Committee Act, as 12:50 p.m. Scientific Review Officer, Scientific Review Agenda: To review and evaluate site visits Branch, Division of Extramural Research, amended (5 U.S.C. Appendix 2), notice NINDS/NIH/DHHS, NSC; 6001 Executive with Training Fellows and Staff Scientists. is hereby given of a meeting of the Blvd., Ste. 3208, Bethesda, MD 20892–9529, Board of Scientific Counselors, National Place: Bethesda Marriott Suites, 6711 301–496–9223, [email protected]. Institute of Mental Health. Democracy Boulevard, Bethesda, MD 20817. This notice is being published less than 15 The meeting will be closed to the Time: February 11, 2009, 12:50 p.m. to 4 days prior to the meeting due to the timing public as indicated below in accordance p.m. limitations imposed by the review and with the provisions set forth in section Agenda: To review and evaluate personal funding cycle. 552b(c)(6), Title 5 U.S.C., as amended qualifications and performance, and (Catalogue of Federal Domestic Assistance for the review, discussion, and competence of individual investigators. Program Nos. 93.853, Clinical Research evaluation of individual intramural Place: Bethesda Marriott Suites, 6711 Related to Neurological Disorders; 93.854, programs and projects conducted by the Democracy Boulevard, Bethesda, MD 20817. Biological Basis Research in the Contact Person: Dawn M. Johnson, PhD, Neurosciences, National Institutes of Health, National Institute of Mental Health, Executive Secretary, Division of Intramural HHS) including consideration of personnel Research Programs, National Institute of qualifications and performance, and the Dated: January 16, 2009. Mental Health, 10 Center Drive, Building 10, Jennifer Spaeth, competence of individual investigators, Room 4N222, Bethesda, MD 20892, 301–402– Director, Office of Federal Advisory the disclosure of which would 5234, [email protected]. Committee Policy. constitute a clearly unwarranted (Catalogue of Federal Domestic Assistance [FR Doc. E9–1664 Filed 1–26–09; 8:45 am] invasion of personal privacy. Program Nos. 93.242, Mental Health Research Name of Committee: Board of Scientific Grants; 93.281, Scientist Development BILLING CODE 4140–01–P Counselors, National Institute of Mental Award, Scientist Development Award for Health. Clinicians, and Research Scientist Award; DEPARTMENT OF HEALTH AND Date: February 9–11, 2009. 93.282, Mental Health National Research Time: February 9, 2009, 7 p.m. to 10 p.m. Service Awards for Research Training, HUMAN SERVICES Agenda: To review and evaluate personal National Institutes of Health, HHS) qualifications and performance, and National Institutes of Health competence of individual investigators. Dated: January 16, 2009. Place: Bethesda Marriott Suites, 6711 Jennifer Spaeth, National Institute on Deafness and Democracy Boulevard, Bethesda, MD 20817. Director, Office of Federal Advisory Other Communication Disorders; Time: February 10, 2009, 8:30 a.m. to 11:40 Committee Policy. Notice of Closed Meeting a.m. Agenda: To review and evaluate the [FR Doc. E9–1663 Filed 1–26–09; 8:45 am] Pursuant to section 10(d) of the Intramural Laboratories with site visits of the BILLING CODE 4140–01–P Federal Advisory Committee Act, as

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amended (5 U.S.C. Appendix 2), notice contemplating the grant of an exclusive 0220; e-mail: is hereby given of the following license worldwide to practice the [email protected]. meeting. invention embodied in: United States SUPPLEMENTARY INFORMATION: Clearance The meeting will be closed to the Provisional Patent Application No. 60/ of excess cholesterol from cells by high public in accordance with the 619,392, filed October 15, 2004, entitled density lipoproteins (HDL) is facilitated provisions set forth in sections ‘‘Multi-Domain Amphipathic Helical by the interaction of HDL 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Peptides and Methods of Their Use’’ apolipoprotein with cell surface binding as amended. The grant applications and (HHS Ref. No. E–114–2004/0–US–01), sites or receptors such as ABCA1. the discussions could disclose United States Patent Application Serial ABCA1 is a member of the ATP binding confidential trade secrets or commercial No. 11/577,259, filed April 13, 2007, cassette transporter family and is property such as patentable material, entitled ‘‘Multi-Domain Amphipathic expressed by many cell types. Mutations and personal information concerning Helical Peptides and Methods of Their in the ABCA1 transporter lead to individuals associated with the grant Use’’ (HHS Ref. No. E–114–2004/0–US– diseases characterized by the applications, the disclosure of which 07); Australian Patent Application accumulation of excess cellular would constitute a clearly unwarranted Serial No. 2005295640, filed October 14, cholesterol, low levels of HDL and an invasion of personal privacy. 2005, entitled ‘‘Multi-Domain increased risk for cardiovascular Name of Committee: Communication Amphipathic Helical Peptides and disease. Research has demonstrated an Disorders Review Committee. Methods of Their Use’’ (HHS Ref. No. E– inverse correlation between the Date: February 11–13, 2009. 114–2004/0–AU–03); Canadian Patent occurrence of atherosclerotic events and Time: February 11, 2009, 8 p.m. to 10 p.m. Application Serial No. 2584048, filed levels of HDL and its most abundant Agenda: To review and evaluate grant October 14, 2005, entitled ‘‘Multi- protein constituent, apolipoprotein A–1 applications. Domain Amphipathic Helical Peptides Place: Baltimore Marriott Waterfront, 700 (apoA–1). ApoA–1 has been shown to and Methods of Their Use’’ (HHS Ref. promote lipid efflux from ABCA1 Aliceanna Street, Baltimore, MD 21202. No. E–114–2004/0–CA–04); European Time: February 12, 2009, 8 a.m. to 5 p.m. transfected cells. However, the nature of Agenda: To review and evaluate grant Patent Application Serial No. the interaction between apoA–1 and applications. 05815961.7, filed October 14, 2005, ABCA1 is not fully understood. Several Place: Baltimore Marriott Waterfront, 700 entitled ‘‘Multi-Domain Amphipathic other exchangeable type apolipoproteins Aliceanna Street, Baltimore, MD 21202. Helical Peptides and Methods of Their have been shown to efflux lipid from Time: February 13, 2009, 8 a.m. to 5 p.m. Use’’ (HHS Ref. No. E–114–2004/0–EP– ABCA1 transfected cells. Although the Agenda: To review and evaluate grant 05); Japanese Patent Application Serial exchangeable type apolipoproteins do applications. No. 2007–536912, filed October 14, Place: Baltimore Marriott Waterfront, 700 not share a similar primary amino acid 2005, entitled ‘‘Multi-Domain sequence, they all contain amphipathic Aliceanna Street, Baltimore, MD 21202. Amphipathic Helical Peptides and Contact Person: Shiguang Yang, DVM, helices, a structural motif known to PhD, Scientific Review Officer, Scientific Methods of Their Use’’ (HHS Ref. No. E– facilitate the interaction of proteins with Review Branch, Division of Extramural 114–2004/0–JP–06) to KineMed, Inc., lipids. Recently, it has been shown in Activities, NIDCD, NIH, 6120 Executive having a place of business in the State both animal models and humans that Blvd., Suite 400C, Bethesda, MD 20892, 301– of California. The field of use may be intravenous administration of apoA–1 435–1425, [email protected]. limited to FDA or foreign regulatory can reduce the size of atherosclerotic (Catalogue of Federal Domestic Assistance body approved 5a peptide therapeutic plaques. It has also been observed that Program Nos. 93.173, Biological Research for the prevention and treatment of synthetic peptide mimics of apoA–1 can Related to Deafness and Communicative cardiovascular diseases. The United promote efflux of excess cholesterol Disorders, National Institutes of Health, HHS) States of America is the assignee of the from cells. Therefore, synthetic mimics Dated: January 16, 2009. patent rights in this invention. The of apoA–1 can potentially also be used Jennifer Spaeth, territory may be worldwide. This as therapeutic compounds in the Director, Office of Federal Advisory announcement is the second notice to prevention and treatment of Committee Policy. grant an exclusive license to this atherosclerosis. [FR Doc. E9–1665 Filed 1–26–09; 8:45 am] technology and supersedes any previous Currently, there are a wide variety of BILLING CODE 4140–01–P announcements including the Notice treatments for dyslipidemia, which published in the Federal Register on include, but are not limited to, Wednesday, May 11, 2005 (70 FR pharmacologic regimens (mostly DEPARTMENT OF HEALTH AND 24832). statins), partial ileal bypass surgery, HUMAN SERVICES portacaval shunt, liver transplantation, DATES: Only written comments and/or and removal of atherogenic lipoproteins National Institutes of Health application for a license, which are received by the NIH Office of by one of several apheresis procedures. The subject technology is related to Technology Transfer on or before March Prospective Grant of Exclusive peptides and peptide analogs with 30, 2009 will be considered. License: Multi-Domain Amphipathic multiple amphipathic alpha-helical Helical Peptides for the Treatment of ADDRESSES: Requests for a copy of the domains that promote lipid efflux from Cardiovascular Diseases patent applications, inquiries, cells and it relates to methods for AGENCY: National Institutes of Health, comments and other materials relating identifying non-cytotoxic peptides that Public Health Service, HHS. to the contemplated license should be promote lipid efflux from cells that are ACTION: Notice. directed to: Fatima Sayyid, M.H.P.M., useful in the treatment and prevention Senior Licensing and Patenting of dyslipidemic and vascular disorders. SUMMARY: This is notice, in accordance Manager, Office of Technology Transfer, Dyslipidemic and vascular disorders with 35 U.S.C. 209(c)(1) and 37 CFR National Institutes of Health, 6011 amenable to treatment with the isolated 404.7(a)(1)(i), that the National Executive Boulevard, Suite 325, multi-domain peptides include, but are Institutes of Health (NIH), Department Rockville, MD 20852–3804; Telephone: not limited to, hyperlipidemia, of Health and Human Services (HHS), is (301) 435–4521; Facsimile: (301) 402– hyperlipoproteinemia,

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hypercholesterolemia, by accessing the SAMHSA Committee submit written reports of certain hypertriglyceridemia, HDL deficiency, Web site, https://nac.samhsa.gov/ prescribed incidents. apoA-I deficiency, coronary artery CSAPcouncil/index.aspx, or by DATES: Send your comments by disease, atherosclerosis, thrombotic contacting Ms. Haynes. The transcript February 26, 2009. A comment to OMB stroke, peripheral vascular disease, for the open session will also be is most effective if OMB receives it restenosis, acute coronary syndrome, available on the SAMHSA Council Web within 30 days of publication. and reperfusion myocardial injury. site within three weeks after the ADDRESSES: Interested persons are The prospective exclusive license will meeting. invited to submit written comments on be royalty-bearing and will comply with Committee Name: Substance Abuse the proposed information collection to the terms and conditions of 35 U.S.C. and Mental Health Services the Office of Information and Regulatory 209 and 37 CFR 404.7. The prospective Administration, Center for Substance Affairs, Office of Management and exclusive license may be granted unless, Abuse Prevention National Advisory Budget. Comments should be addressed within 60 days from the date of this Council. to Desk Officer, Department of Date/Time/Type: February 10, 2009. published Notice, NIH receives written Homeland Security/TSA, and sent via From 1 p.m.–5 p.m.: Open. evidence and argument that establishes electronic mail to that the grant of the license would not Place: Gaylord Convention Center, _ 201 Waterfront Street, National Harbor oira [email protected] or faxed be consistent with the requirements of to (202) 395–6974. 35 U.S.C. 209 and 37 CFR 404.7. Room–4 & 5, National Harbor, MD Properly filed competing applications 20745. FOR FURTHER INFORMATION CONTACT: for a license filed in response to this Contact: Tia Haynes, Designated Ginger LeMay, Office of Information notice will be treated as objections to Federal Official, SAMHSA/CSAP Technology, TSA–11, Transportation the contemplated license. Comments National Advisory Council, 1 Choke Security Administration, 601 South and objections submitted in response to Cherry Road, Room 4–1066, Rockville, 12th Street, Arlington, VA 22202–4220; this notice will not be made available MD 20857, Telephone: (240) 276–2436, telephone (571) 227–3616; facsimile for public inspection, and, to the extent FAX: (240) 276–2430, E-mail: (571) 227–2907. permitted by law, will not be released [email protected]. SUPPLEMENTARY INFORMATION: under the Freedom of Information Act, Toian Vaughn, Comments Invited 5 U.S.C. 552. Committee Management Officer, Substance In accordance with the Paperwork Dated: January 21, 2009. Abuse and Mental Health, Services Reduction Act of 1995 (44 U.S.C. 3501 Administration. Richard U. Rodriguez, et seq.), an agency may not conduct or Director, Division of Technology Development [FR Doc. E9–1683 Filed 1–26–09; 8:45 am] sponsor, and a person is not required to and Transfer, Office of Technology Transfer, BILLING CODE 4162–20–P respond to, a collection of information National Institutes of Health. unless it displays a valid OMB control [FR Doc. E9–1754 Filed 1–26–09; 8:45 am] number. The ICR documentation is BILLING CODE 4140–01–P DEPARTMENT OF HOMELAND available at www.reginfo.gov. Therefore, SECURITY in preparation for OMB review and approval of the following information Transportation Security Administration DEPARTMENT OF HEALTH AND collection, TSA is soliciting comments HUMAN SERVICES Extension of Agency Information to— Substance Abuse and Mental Health Collection Activity Under OMB Review: (1) Evaluate whether the proposed Services Administration Federal Flight Deck Officer Program information requirement is necessary for the proper performance of the functions Center for Substance Abuse AGENCY: Transportation Security of the agency, including whether the Prevention; Notice of Meeting Administration, DHS. information will have practical utility; ACTION: 30-day notice. (2) Evaluate the accuracy of the Pursuant to Public Law 92–463, agency’s estimate of the burden; notice is hereby given of the meeting of SUMMARY: This notice announces that (3) Enhance the quality, utility, and the Center for Substance Abuse the Transportation Security clarity of the information to be Prevention’s (CSAP) National Advisory Administration (TSA) has forwarded the collected; and Council on February 10, 2009. Information Collection Request (ICR), (4) Minimize the burden of the The meeting is open and will include OMB control number 1652–0011, collection of information on those who discussion of the Center’s policy issues, abstracted below to the Office of are to respond, including using and current administrative, legislative Management and Budget (OMB) for appropriate automated, electronic, and program developments. review and approval of an extension of mechanical, or other technological Attendance by the public will be the currently approved collection under collection techniques or other forms of limited to space available. Public the Paperwork Reduction Act. The ICR information technology. comments are welcome. Please describes the nature of the information communicate with the CSAP Council’s collection and its expected burden. TSA Information Collection Requirement Designated Federal Official, Ms. Tia published a Federal Register notice, Title: Federal Flight Deck Officer Haynes (see contact information below), with a 60-day comment period soliciting Program. to make arrangements to attend, comments, of the following collection of Type of Request: Extension of a comment or to request special information on November 19, 2008, 73 currently approved collection. accommodations for persons with FR 69670. The collection requires OMB Control Number: 1652–0011. disabilities. interested volunteers to fill out an Forms(s): N/A. Substantive program information, a application to determine their Affected Public: Volunteer pilots, summary of the meeting, and a roster of suitability for participating in the flight engineers, and navigators. Council members may be obtained as Federal Flight Deck Officer (FFDO) Abstract: The Federal Flight Deck soon as possible after the meeting, either Program, and deputized FFDOs to Officer (FFDO) Program enables TSA to

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screen, select, train, deputize, and the decision shall have until February Environmental Coordinator, at the supervise qualified volunteer pilots, 26, 2009 to file an appeal. Bureau of Land Management, Las flight engineers, and navigators to 2. Parties receiving service of the Cruces District Office, 1800 Marquess defend the flight decks of commercial decision by certified mail shall have 30 Street, Las Cruces, New Mexico; passenger and all-cargo airliners. days from the date of receipt to file an telephone (575) 525–4316; or e-mail at Information collected as the result of appeal. [email protected]. this proposal would be used to assess Parties who do not file an appeal in Leticia Lister, the eligibility and suitability of accordance with the requirements of 43 prospective and current FFDOs, to CFR part 4, subpart E, shall be deemed Acting District Manager. ensure the readiness of every FFDO, to to have waived their rights. [FR Doc. E9–1600 Filed 1–26–09; 8:45 am] administer the program, and for security ADDRESSES: A copy of the decision may BILLING CODE 4310–VC–P purposes. be obtained from: Bureau of Land Number of Respondents: 5,000. Management, Alaska State Office, 222 DEPARTMENT OF THE INTERIOR Estimated Annual Burden Hours: An West Seventh Avenue, #13, Anchorage, estimated 5,000 hours annually. Alaska 99513–7504. National Park Service Issued in Arlington, Virginia, on January FOR FURTHER INFORMATION CONTACT: The 21, 2009. Bureau of Land Management by phone National Register of Historic Places; Ginger LeMay, at 907–271–5960, or by e-mail at Notification of Pending Nominations Paperwork Reduction Act Officer, Business [email protected]. Persons and Related Actions Improvements and Communications, Office who use a telecommunication device of Information Technology. Nominations for the following (TTD) may call the Federal Information properties being considered for listing [FR Doc. E9–1648 Filed 1–26–09; 8:45 am] Relay Service (FIRS) at 1–800–877– or related actions in the National BILLING CODE 9110–05–P 8330, 24 hours a day, seven days a Register were received by the National week, to contact the Bureau of Land Park Service before January 10, 2009. Management. Pursuant to section 60.13 of 36 CFR Part DEPARTMENT OF THE INTERIOR Robert Childers, 60 written comments concerning the Bureau of Land Management Land Law Examiner, Land Transfer significance of these properties under Adjudication II. the National Register criteria for [AA–9014–A, AA–9014–A2; AK–965–1410– [FR Doc. E9–1695 Filed 1–26–09; 8:45 am] evaluation may be forwarded by United KC–P] BILLING CODE 4310–JA–P States Postal Service, to the National Register of Historic Places, National Alaska Native Claims Selection Park Service, 1849 C St., NW., 2280, AGENCY: Bureau of Land Management, DEPARTMENT OF THE INTERIOR Washington, DC 20240; by all other Interior. carriers, National Register of Historic ACTION: Notice of decision approving Bureau of Land Management Places, National Park Service, 1201 Eye lands for conveyance. [LLNML00000 L16100000.DP0000] St., NW., 8th floor, Washington, DC 20005; or by fax, 202–371–6447. Written SUMMARY: As required by 43 CFR Correction to Notice of Intent To or faxed comments should be submitted 2650.7(d), notice is hereby given that an Prepare an Amendment to the Mimbres by February 11, 2009. appealable decision approving lands for Resource Management Plan (RMPA), J. Paul Loether, conveyance pursuant to the Alaska and Associated Environmental Native Claims Settlement Act will be Chief, National Register of Historic Places/ Assessment (EA), Las Cruces District National, Historic Landmarks Program. issued to Paimiut Corporation. The Office, NM lands are in the vicinity of Paimiut, ILLINOIS Alaska, and are located in: AGENCY: Bureau of Land Management (BLM), Interior. Cook County Independence Park, 3945 N. Springfield Seward Meridian, Alaska ACTION: Correction to Notice of Intent. Ave., Chicago, 09000023 T. 18 N., R. 89 W., Secs. 1 to 5, inclusive; SUMMARY: This document contains Inland Steel Building, 30 W. Monroe St., Chicago, 09000024 Secs. 7 to 12, inclusive. corrections to the Notice of Intent Containing approximately 4,551 acres. published in the Federal Register [73 Spiegel Office Building, 1038 W. 35th St., T. 19 N., R. 89 W., FR No. 240, pages 75764–75765] on Chicago, 09000025 Secs. 25 to 28, inclusive; Friday, December 12, 2008, under the Hamilton County Secs. 30 to 36, inclusive. DATES and SUPPLEMENTARY INFORMATION. Containing approximately 4,619 acres. Cloud, Chalon Guard and Emma Blades, Aggregating approximately 9,170 acres. DATES: The heading, the 30-day public House, 300 S. Washington St., scoping period to identify relevant McLeansboro, 09000026 These lands lie entirely within issues has been extended to February Kane County Clarence Rhode National Wildlife 23, 2009. Range, established January 20, 1969. Wing Park Golf Course, 1000 Wing St., Elgin, SUPPLEMENTARY INFORMATION: The The subsurface estate will be reserved to 09000027 heading for the legal description for T. the United States in the conveyance to 17 S., R. 12 W. should read: La Salle County Paimiut Corporation. Notice of the Hegeler I, Julius W., House, 1306 Seventh St., decision will also be published four New Mexico Principal Meridian LaSalle, 09000028 times in the Tundra Drums. T. 17 S., R. 12 W., KANSAS DATES: The time limits for filing an Secs 3, 4, 9, 10, 15, 16, 20, 21, 22, 23, 24, appeal are: and 31. Kiowa County 1. Any party claiming a property FOR FURTHER INFORMATION CONTACT: Robinett, S.D., Building, 148 S. Main, interest which is adversely affected by Jennifer Montoya, Planning and Greensburg, 09000029

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Meade County VIRGINIA ILLINOIS Fowler Swimming Pool and Bathhouse, (New Louisa County Cook County Deal-Era Resources of Kansas MPS) 308 E. 6th, Fowler, 09000030 Baker-Strickler House, 10074 W. Gordon Rd., Lindemann and Hoverson Company Gordonsville, 09000046 Showroom and Warehouse, 2620 W. Riley County Washington Blvd., Chicago, 8001095, WASHINGTON Houston and Pierre Streets Residential LISTED, 11/26/08 King County Historic District (Late 19th and Early 20th KENTUCKY Century Residential Resources in JOHN N. COBB (fisheries research vessel), Manhattan, Kansas MPS), Bounded by S. NOAA NW Regional Office, 7600 Sand Fayette County 5th St., Pierre St., S. 9th St., and Houston Point Way NE., Seattle, 09000047 New Zion Historic District, 4972 Newtown St., Manhattan, 09000031 WISCONSIN Pike through 5200 Newtown Pike, and MASSACHUSETTS 103–135 New Zion Rd., Georgetown Columbia County vicinity, 08001118, LISTED, 12/04/08 Essex County Mills, Richard W. and Margaret, House, 104 Green County L.H. Hamel Leather Company Historic Grand Ave., Lodi, 09000048 District, Bounded by Essex, Locke, Duncan, Creel, Elijah, House, E. Columbia Ave., and Winter Sts., and the former Boston and [FR Doc. E9–1666 Filed 1–26–09; 8:45 am] Greensburg, 85003589, LISTED, 12/03/08 Maine Railroad tracks, Haverhill, 09000032 BILLING CODE 4310–70–P (Green County MRA) Middlesex County Greenup County M.H. Merriam and Company, 7–9 Oakland DEPARTMENT OF THE INTERIOR Wurtland Union Church, 325 Wurtland Ave., St., Lexington, 09000033 Wurtland, 08001119, LISTED, 12/04/08 MISSOURI National Park Service Jefferson County St. Louis Independent city National Register of Historic Places; Johnston, J. Stoddard, Elementary School, 2301 Bradley Blvd., Louisville, 82005031, Central Carondelet Historic District Weekly Listing of Historic Properties LISTED, 12/03/08 (Boundary Increase II), Bounded by Iron St., Minnesota, Pennsylvania, and Holly Pursuant to (36 CFR 60.13(b,c)) and MARYLAND Hills Aves., St. Louis, 09000034 (36 CFR 63.5), this notice, through Baltimore Independent City Dreer, Dr. Herman S., House (The Ville, St. publication of the information included Louis, Missouri MPS), 4335 Cote Brilliante herein, is to appraise the public as well Park Circle Historic District, Roughly Ave., Saint Louis, 09000035 as governmental agencies, associations bounded by Overview Ave., Shirley Ave., Phillips, Homer G., House (The Ville, St. and all other organizations and Cottage Ave., and Henry G. Parks Jr. Circle, Baltimore, 08001124, LISTED, 12/04/08 Louis, Missouri MPS), 4524 Cottage Ave., individuals interested in historic St. Louis, 09000036 preservation, of the properties added to, Cecil County Turner, Dr. Charles Henry, House, (The Ville, or determined eligible for listing in, the Gilpin’s Falls Covered Bridge, MD Rt. 272, St. Louis, Missouri MPS) 4540 Garfield National Register of Historic Places from North East vicinity, 08001125, LISTED, 12/ Ave., Saint Louis, 09000037 December 1 to December 5, 2008. 03/08 NEW YORK For further information, please MASSACHUSETTS Cattaraugus County contact Edson Beall via: United States Dukes County House at 520 Hostageh Road, 520 Hostageh Postal Service mail, at the National Rd., Rock City, 09000038 Register of Historic Places, 2280, Tashmoo Springs Pumping Station, 325 W. National Park Service, 1849 C St., NW., Spring St., Tisbury, 08001126, LISTED, 12/ Suffolk County Washington, DC 20240; in person (by 03/08 Jamesport Meeting House, 1590 Main Rd., appointment), 1201 Eye St., NW., 8th Franklin County Jamesport, 09000039 floor, Washington, DC 20005; by fax, Leverett Center Historic District, Amherst, Ulster County 202–371–2229; by phone, 202–354– Montague, Depot, and Shutesbury Rds., Yeomans, Moses, House, 252–278 Delaware 2255; or by e-mail, Leverett, 08001127, LISTED, 12/05/08 Ave., Kingston, 09000041 [email protected]. Norfolk County Dated: January 6, 2009. PUERTO RICO Wollaston Congregational Church, 47–57 J. Paul Loether, Coamo Municipality Lincoln Ave., Quincy, 08001128, LISTED, Chief, National Register of Historic Places/ 12/05/08 (Quincy MRA) Puente de las Calabazas (Historic Bridges of National Historic Landmarks Program. Puerto Rico MPS), PR 14, km. 39.3, Cuyon MISSOURI Ward, Coamo, 09000042 KEY: State, County, Property Name, Address/ Boundary, City, Vicinity, Reference Pettis County SOUTH DAKOTA Number, NHL, Action, Date, Multiple Jones, Henry, Farmstead, 17000 Hwy. EE, Custer County Name Sedalia vicinity, 08001129, LISTED, 12/03/ Hermosa Masonic Lodge, W. side of 2nd St., GEORGIA 08 between Folsom St. and Hwy 40, Hermosa, Bulloch County St. Louis Independent City 09000043 Upper Lott’s Creek Primitive Baptist Church More Automobile Company Building, 2801 Hutchinson County and Cemetery, Metter-Portal Hwy. and Locust St., St. Louis, 08001130, LISTED, Tucek-Sykora Farmstead (Czech Folk Westside Rd., Metter vicinity, 08000967, 12/03/08 (Auto-Related Resources of St. Architecture in Southeastern South Dakota LISTED, 12/04/08 Louis, Missouri MPS) MRA), 28883 412th Ave., Tripp, 09000044 Harris County St. Louis Independent City Lincoln County Copeland, William and Ann, Jr., House, Peabody Coal Company National Elster House, 27765 476th Ave., Canton, 19444 GA 116, Shiloh vicinity, 08000969, Headquarters, 301 N. Memorial Dr., St. 09000045 LISTED, 12/04/08 Louis, 08001131, LISTED, 12/03/08

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NEBRASKA WASHINGTON contacting the Commission’s TDD Butler County King County terminal on (202) 205–1810. SUPPLEMENTARY INFORMATION: The St. Mary of the Assumption Catholic Church, Preston Community Clubhouse, 8625 310th Commission instituted the underlying School and Grottoes, 336 W. Pine St., Ave. SE., Preston, 08001186, LISTED, 12/ Dwight, 08001132, LISTED, 12/04/08 04/08 investigation on August 3, 2005, based on a complaint filed by Unilin Beheer WISCONSIN Hamilton County B.V. of the Netherlands, Flooring United Brethren Church, 1103 K St., Aurora, Oconto County Industries Ltd. of Ireland, and Unilin 08001133, LISTED, 12/03/08 Citizens State Bank of Gillett, 137 E. Main Flooring N.C., LLC of North Carolina St., Gillett, 08001159, LISTED, 12/04/08 (collectively ‘‘Unilin’’). 70 FR 44,694 Madison County [FR Doc. E9–1667 Filed 1–26–09; 8:45 am] (August 3, 2005). The complaint, as First United Presbyterian Church, 104 E. 4th amended, alleged violations of section BILLING CODE 4310–70–P St., Madison, 08001134, LISTED, 12/03/08 337 in the importation into the United NEW MEXICO States, the sale for importation, and the sale within the United States after Roosevelt County Courthouse INTERNATIONAL TRADE importation of certain laminated floor Roosevelt County Courthouse, 100 W. 2nd COMMISSION panels by reason of infringement of one or more of claims 1, 14, 17, 19–21, 37, St., Portales, 08001136, LISTED, 12/03/08 [Investigation No. 337–TA–545 (New Deal in New Mexico MPS) (Consolidated Enforcement and Advisory 52, 65, and 66 of U.S. Patent No. Opinion Proceeding)] 6,006,486; claims 1, 2, 10, 13, 18, 19, NEW YORK 22–24, and 27 of U.S. Patent No. Rockland County In the Matter of Certain Laminated 6,490,836 (‘‘the ‘836 patent’’); claims 1– Piermont Railroad Station, 50 Ash St., Floor Panels Certain Laminated Floor 6 of U.S. Patent No. 6,874,292 (‘‘the ‘292 Piermont, 08001146, LISTED, 12/03/08 Panels; Notice of a Commission patent’’); and claims 1, 5, 13, 17, 27 and Determination Not To Review an Initial 28 of U.S. Patent No. 6,928,779 (‘‘the OKLAHOMA Determination Terminating ‘779 patent’’). Grady County Consolidated Enforcement and On January 5, 2007, the Commission Advisory Opinion Proceeding on the issued its final determination finding a Silver City Cemetery, 6/10th of a mile from Basis of a Settlement Agreement and violation of section 337 and Section line on S. side of section 22, T10N, Cross-License Agreement infringement of claims 1, 2, 10, 18, and R6W I.M., Tuttle vicinity, 08001149, 23 of the ‘836 patent, claims 5 and 17 LISTED, 12/04/08 AGENCY: U.S. International Trade of the ‘779 patent, and claims 3 and 4 Oklahoma County Commission. of the ‘292 patent. The Commission Kivlehen House, 525 N. Jackson St., Edmond, ACTION: Notice. determined to issue a general exclusion 08001150, LISTED, 12/04/08 order under 19 U.S.C. 1337(d)(2), as SUMMARY: Notice is hereby given that well as cease and desist orders to certain Osage County the U.S. International Trade respondents. On July 31, 2008, the U.S. Woolaroc Ranch Historic District, Eight mi. Commission has determined not to Court of Appeals for the Federal Circuit E. of the jct. of St. Hwys. 11 and 123, review an initial determination (‘‘ID’’) issued a decision in Yingbin-Nature Barnsdall vicinity, 08001151, LISTED, 12/ (Order No. 38) of the presiding (Guangdong) Wood Industry Co., Ltd. v. 05/08 administrative law judge (‘‘ALJ’’) in the Int’l Trade Comm’n., 535 F.3d 1322 above-captioned proceeding terminating Tulsa County (Fed. Cir. 2008) affirming the the proceeding on the basis of a Commission’s final determination on Mayo Building, 420 S. Main St., Tulsa, settlement agreement and cross-license violation. 08001152, LISTED, 12/04/08 agreement. Unilin filed a complaint on March 24, Woodward County FOR FURTHER INFORMATION CONTACT: 2008, and a corrected complaint on Woodward Theater, The, 818 Main, Michael K. Haldenstein, Office of the April 30, 2008, requesting that the Woodward, 08001153, LISTED, 12/04/08 General Counsel, U.S. International Commission institute a formal Trade Commission, 500 E Street, SW., enforcement proceeding under OREGON Washington, DC 20436, telephone (202) Commission rule 210.75 to investigate Multnomah County 205–3041. Copies of non-confidential violations of the general exclusion documents filed in connection with this order. The complaint named as Bohnsen Cottages, 1918–1926 SW. Elm St. investigation are or will be available for respondent Uniboard Canada, Inc. and 2412–2416 SW. Vista Ave., Portland, inspection during official business (Quebec, Canada) (‘‘Uniboard’’). On 08001182, LISTED, 12/04/08 hours (8:45 a.m. to 5:15 p.m.) in the April 15, 2008, Uniboard filed a request UTAH Office of the Secretary, U.S. for an advisory opinion that its products Salt Lake County International Trade Commission, 500 E would not violate the general exclusion Street, SW., Washington, DC 20436, order. Uniboard requested that the Best, Amanda Conk, House, 3622 S. 1100 E., telephone (202) 205–2000. General advisory opinion proceeding be Millcreek, 08001154, LISTED, 12/04/08 information concerning the Commission consolidated with the enforcement Salt Lake County may also be obtained by accessing its proceeding. On June 20, 2008, the Oquirrh School, 350 S. 400 E., Salt Lake City, Internet server at http://www.usitc.gov. Commission determined to consolidate 08001156, LISTED, 12/04/08 The public record for this investigation the formal enforcement and advisory may be viewed on the Commission’s opinion proceedings and certify the Uintah County electronic docket (EDIS) at http:// consolidated proceedings to Judge Bank of Vernal, 3 W. Main St., Vernal, edis.usitc.gov. Hearing-impaired Luckern. 73 FR. 36355 (June 25, 2008). 08001155, LISTED, 12/04/08 (Vernal— persons are advised that information on On December 8, 2008, Unilin and Maeser, Utah MPS) this matter can be obtained by Uniboard jointly moved, pursuant to

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Commission rule 210.21, to terminate diagram; develop and implement an DEPARTMENT OF JUSTICE the consolidated enforcement and enhanced facility inspection, advisory opinion proceeding in light of maintenance, and replacement plan; Notice of Lodging of Stipulated Order a settlement agreement and a cross- integrity test all buried flowlines that for Preliminary Relief Under the Clean license agreement between Unilin and are not visually accessible for Water Act Uniboard. The Commission inspection; and bring the facility’s Spill Notice is hereby given that on January investigative attorney filed a response in Prevention Control and 15, 2009, the United States Department support of the motion. Countermeasures Plan into compliance of Justice, on behalf of the U.S. The ALJ issued the subject ID on with the applicable regulatory Environmental Protection Agency December 29, 2008, granting the joint requirements. (‘‘EPA’’) and the People of the State of motion to terminate the proceeding. No The Department of Justice will receive California ex. rel. California State Water petitions for review were filed and the for a period of thirty (30) days from the Resources Control Board and California Commission has determined not to date of this publication comments Regional Water Quality Control Board, review the subject ID. The consolidated San Francisco Region (the ‘‘State’’), enforcement and advisory opinion relating to the settlement. Comments should be addressed to the Assistant lodged with the United States District proceeding is terminated. Court for the Northern District of This action is taken under the Attorney General, Environment and Natural Resources Division, and either California a stipulated order for authority of section 337 of the Tariff Act preliminary relief with defendant East of 1930, as amended, 19 U.S.C. 1337, e-mailed to pubcomment- [email protected] or mailed to P.O. Bay Municipal Utility District and Commission rules 210.21, 210.42, (‘‘EBMUD’’) in the case of United States 19 CFR 210.21, 210.42. Box 7611, U.S. Department of Justice, Washington, DC 20044–7611, and et al. v. East Bay Municipal Utility By order of the Commission. should refer to United States v. Citation District (cv–09–0186). On the same day, Issued: January 21, 2009. Oil & Gas Corp. and Citation 1994 the United States and the State filed a Marilyn R. Abbott, Investment Limited Partnership, Civil Complaint pursuant to the federal Clean Secretary to the Commission. Action No. 09–CV–0003–B, D.J. Ref. 90– Water Act, 33 U.S.C. 1319 and [FR Doc. E9–1702 Filed 1–26–09; 8:45 am] 5–1–1–08867. California Water Code Sections 13376, BILLING CODE 7020–02–P 13385 and 13386. Under the stipulated The Consent Decree may be examined order, EBMUD shall perform various at the United States Attorneys Office for studies and take a number of interim the District of Wyoming, 2120 Capitol DEPARTMENT OF JUSTICE steps aimed at the ultimate cessation of Avenue—4th Floor, Cheyenne, discharges from its three wet weather Wyoming 82001 (USAO No. 06V100) Notice of Lodging of Consent Decree facilities. These facilities discharge and at U.S. EPA Region 8, 1595 Under the Clean Water Act partially treated sewage into the San Wynkoop Street, Denver, CO 80202– Francisco Bay when wet weather flows Notice is hereby given that on January 1129. During the public comment exceed the capacity of EBMUD’s 7, 2009, a proposed Consent Decree in period, the Consent Decree, may also be treatment plant. United States v. Citation Oil & Gas examined on the following Department The Department of Justice will receive Corp. and Citation 1994 Investment of Justice Web site, follows http:// for a period of thirty (30) days from the Limited Partnership, Civil Action No. www.usdoj.gov/enrd/ date of this publication comments 09–CV–0003–B was lodged with the Consent_Decrees.html. A copy of the relating to the stipulated order. United States District Court for the Consent Decree may also be obtained by Comments should be addressed to the District of Wyoming. mail from the Consent Decree Library, Assistant Attorney General, In this action the United States seeks P.O. Box 7611, U.S. Department of Environment and Natural Resources civil penalties and injunctive relief for Justice, Washington, DC 20044–7611 or Division, and either e-mailed to violations of Sections 301(a) or, by faxing or e-mailing a request to Tonia [email protected] or alternatively 311(b)(3), and Section Fleetwood ([email protected]), mailed to P.O. Box 7611, U.S. 311(j) of the Clean Water Act (‘‘CWA’’), fax no. (202) 514–0097, phone Department of Justice, Washington, DC 33 U.S.C. 1311(a), or alternatively confirmation number (202) 514–1547. In 20044–7611, and should refer to the 1321(b)(3), and 1321(j), arising from the requesting a copy from the Consent stipulated order between the United alleged unlawful discharge of Decree Library, please enclose a check States, the State of California and approximately 597 barrels of crude oil in the amount of $11.00 (25 cents per EBMUD, DOJ Ref. No. 90–5–1–1–09361. and produced water into the North Fork page reproduction cost) payable to the The proposed stipulated order may be Powder River and onto the banks U.S. Treasury or, if by e-mail or fax, examined at the office of the United adjacent to that river from Defendants’ forward a check in that amount to the States Attorney, 450 Golden Gate Ave., Celler Ranch Unit in Johnson County, Consent Decree Library at the stated 11th Floor, San Francisco, CA 94102 Wyoming. Further, the United States address. In requesting a copy exclusive and at EPA’s office, 75 Hawthorne also seeks civil penalties and injunctive of exhibits and defendants’ signatures, Street, San Francisco, CA 94105. During relief from Defendants’ alleged failure to please enclose a check in the amount of: the public comment period, the prepare and fully implement an $9.75 (25 cents per page reproduction Settlement Agreement may also be adequate Spill Prevention Control and cost) payable to the U.S. Treasury; examined on the following Department Countermeasures Plan as required by 40 $11.25, exhibits included. of Justice Web site, http:// CFR Part 112. www.usdoj.gov/enrd/ The settlement secures $280,000 in Robert Brook, Consent_Decrees.html. A copy of the civil penalties and an estimated Assistant Chief, Environmental Enforcement Settlement Agreement may also be $580,000 in injunctive relief from Section, Environment and Natural Resources obtained by mail from the Consent Citation. Among other things, the Division. Decree Library, P.O. Box 7611, U.S. injunctive relief requires Citation to: [FR Doc. E9–1657 Filed 1–26–09; 8:45 am] Department of Justice, Washington, D.C. Update its facility inventory and facility BILLING CODE 4410–15–P 20044–7611 or by faxing or e-mailing a

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request to Tonia Fleetwood 2. Operations & Regulations 2. Approval of the minutes of the ([email protected]), fax no. Committee. Committee’s October 31, 2008 meeting. (202) 514–0097, phone confirmation 3. Panel Presentation by Grantee Saturday, January 31, 2009 number (202) 514–1547. In requesting a Board Chairs on the Role of Grantee copy from the Consent Decree Library, 3. Governance and Performance Boards of Directors in Grantee please enclose a check in the amount of Review Committee.—9 a.m. Governance and Oversight. $11.50 (25 cents per page reproduction 4. Finance Committee. • Michael Doucette, Board Chair— cost) payable to the U.S. Treasury or, if 5. Audit Committee. Virginia Legal Aid Society. by email or fax, forward a check in that 6. Board of Directors. • Robert Goodin, Board Chair—Bay amount to the Consent Decree Library at LOCATION: Legal Services Corporation, Area Legal Aid (California). the stated address. 3333 K Street, NW., Washington, DC • Diane Kutzko, Former Board 20007. Chair—Iowa Legal Aid. Henry Friedman, STATUS OF MEETINGS: Open, except as • Marjorie Anne McDiarmid, Board Assistant Section Chief Environmental noted below. Chair—Legal Aid of West Virginia. Enforcement Section, Environment and January 30, 2009 Board of Directors • Fern Schair, Board Chair—Legal Natural Resources Division. Meeting—Open, except that a portion of Services New York City. [FR Doc. E9–1699 Filed 1–26–09; 8:45 am] the meeting of the Board of Directors 4. Consider and act on rulemaking BILLING CODE 4410–15–P may be closed to the public pursuant to petition regarding financial eligibility a vote of the Board of Directors to requirements in disaster areas. consider and perhaps act on the General • Staff report. LEGAL SERVICES CORPORATION Counsel’s report on potential and • OIG comment. pending litigation involving LSC. A • Public comment. Sunshine Act Meetings of the Board of verbatim written transcript of the 5. Discussion of the responsibilities of Directors and the Board’s Five session will be made. The transcript of Independent Public Accountants. Committees; Notice any portions of the closed session • OIG report. Times and Dates: The Legal Services falling within the relevant provisions of • Staff comment. Corporation Board of Directors and five the Government in the Sunshine Act, 5 6. Staff report on LSC’s FOIA of the Board’s Committees will meet on U.S.C. 552b(c)(10), and the function. January 30 & 31, 2009 in the order set corresponding provisions of the Legal 7. Consider and act on other business. forth in the following schedule, with Services Corporation’s implementing 8. Other public comment. each meeting commencing promptly regulation, 45 CFR 1622.5(h), will not be 9. Consider and act on adjournment of upon adjournment of the immediately available for public inspection. A copy meeting. of the General Counsel’s Certification preceding meeting. Saturday, January 31, 2009 Public Observation by Telephone: that the closing is authorized by law Members of the public who wish to will be available upon request. Governance and Performance Review listen to the open portions of the MATTERS TO BE CONSIDERED: Committee meetings live may do so by following Friday, January 30, 2009 Agenda the telephone call-in directions given below. You are asked to keep your Provision for the Delivery of Legal 1. Approval of agenda. telephone muted to eliminate Services Committee 2. Approval of minutes of the Committee’s November 1, 2008 meeting. background noises. Comments from the Agenda public may from time to time be 3. Consider and act on self-assessment solicited by the presiding Chairman. 1. Approval of agenda. documents for 2008–2009. Call-In Directions for Open Sessions: 2. Approval of the minutes of the • Committee Chairman’s observations Committee’s October 31, 2008 meeting on individual self-assessments and Friday, January 30, 2009 3. Staff Update on activities possible follow-up. • Call toll-free number: 1–800–247- implementing the LSC Private Attorney • Committee Chairman’s observations 9979; Involvement Action Plan—Help Close on results of the Board self-assessment • When prompted, enter the the Justice Gap: Unleash the Power of and the upcoming full Board discussion. following numeric pass code: 82624085; Pro Bono. 4. Transition materials and plan for • When connected to the call, please a. PAI Honor Roll. new Board orientation. ‘‘MUTE’’ your telephone immediately. b. PAI Advisory Group. • Presentation by Victor Fortuno and c. Law School Activities. Saturday, January 31, 2009 4. Staff Update on Pilot Loan John Constance. 5. Consider and act on other business. • Call toll-free number: 1–800–247- Repayment Assistance Program. 5. Staff Update on Native American 6. Public comment. 9979; 7. Consider and act on motion to • Delivery and Funding—Data Analysis When prompted, enter the adjourn meeting. following numeric pass code: 82625239; Process. • When connected to the call, please 6. Staff Update on Cooperative Finance Committee ‘‘MUTE’’ your telephone immediately. Agreement with the College of Law Practice Management. Agenda MEETING SCHEDULE/TIME:1 7. Public comment. 1. Approval of agenda. Friday, January 30, 2009 8. Consider and act on other business. 2. Approval of the minutes of the 9. Consider and act on adjournment of Committee’s October 14, 2008 meeting. 1. Provision for the Delivery of Legal meeting. Services Committee (‘‘Provisions 3. Approval of the minutes of the Committee’’).—1 p.m. Operations and Regulations Committee Committee’s November 1, 2008 meeting. 4. Staff report on FY 2009 Agenda 1 Please note that all times in this notice are Appropriations. Eastern Daylight Time. 1. Approval of agenda. • Report by John Constance.

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5. Consider and act on revised 14. Consider and act on the report of Act of 1995 (Pub. L. 104–13, 44 U.S.C. Temporary Operating Budget for FY the Governance & Performance Review 3506(c)(2)(A)). 2009, Resolution 2009–001. Committee. DATES: All comments should be • Presentation by David Richardson. 15. Consider and act on Board self- • submitted within 60 calendar days from Comments by Charles Jeffress. assessment. the date of this publication. 6. Presentation on LSC’s Financial 16. Consider and act on the draft Risk Reports for the first three months of FY Management Program for LSC. ADDRESSES: All comments should be 2009. 17. Consider and act on nominations addressed to Dr. Walter Kit, National • Presentation by David Richardson. for the Chairman of the Board of Aeronautics and Space Administration, • Comments by Charles Jeffress. Directors. Washington, DC 20546–0001. 7. Public comment. 18. Consider and act on nominations FOR FURTHER INFORMATION CONTACT: 8. Consider and act on other business. for the Vice Chairman of the Board of Requests for additional information or 9. Consider and act on adjournment of Directors. copies of the information collection meeting. 19. Consider and act on delegation of instrument(s) and instructions should Audit Committee authority to Chairman to make be directed to Dr. Walter Kit, NASA Committee assignments. Clearance Officer, NASA Headquarters, Agenda 20. Public comment. 300 E Street SW., JE0000, Washington, 1. Approval of agenda. 21. Consider and act on whether to DC 20546, (202) 358–1350, Walter.Kit- 2. Approval of minutes of the authorize an executive session of the 1@nasa.gov. Board to address items listed below Committee’s October 31, 2008 meeting. SUPPLEMENTARY INFORMATION: 3. Presentation of the Fiscal Year 2008 under Closed Session. Annual Financial Audit. I. Abstract • Closed Session Jeffrey Schanz, Inspector General. NASA needs information pertaining • Nancy Davis, 22. Consider and act on General Counsel’s report on potential and to experiences of program beneficiaries WithumSmith+Brown. in programs and activities receiving • David Karakashian, pending litigation involving LSC. NASA financial assistance, such as WithumSmith+Brown. 23. Consider and act on other student experiences in science, 4. Review of Form 990 for FY 2008. business. technology, engineering, and 5. Consider and act on the 24. Consider and act on motion to mathematics (STEM) programs, in order establishment of procedures for the adjourn meeting. to more effectively conduct civil rights receipt, retention, processing and Contact Person for Information: compliance reviews of programs resolution of complaints or expressions Katherine Ward, Executive Assistant to receiving federal financial assistance of concern regarding accounting, the Vice President & General Counsel, at from NASA. Such reviews are required internal controls and auditing issues. (202) 295–1500. by NASA regulations under Title VI of 6. Public comment. Special Needs: Upon request, meeting 7. Consider and act on other business. notices will be made available in the Civil Rights Act of 1964, Title IX of 8. Consider and act on adjournment of alternate formats to accommodate visual the Education Amendments of 1972, meeting. and hearing impairments. Individuals Section 504 of the Rehabilitation Act of who have a disability and need an 1973, the Age Discrimination Act of Board of Directors accommodation to attend the meeting 1975, and Section 619 of the NASA Agenda may notify Katherine Ward, at (202) Authorization Act of 2005 (requiring 295–1500. NASA to conduct at least two Title IX Open Session reviews annually of NASA grant Dated: January 22, 2009. 1. Approval of agenda. recipient institutions). Victor M. Fortuno, 2. Approval of minutes of the Board’s II. Method of Collection Open Session of November 1, 2008. Vice President & General Counsel. 3. Approval of minutes of the Board’s [FR Doc. E9–1792 Filed 1–23–09; 4:15 pm] NASA will utilize several on-line Open Session Telephonic meeting of BILLING CODE 7050–01–P survey tools that will allow students at November 20, 2008. institutions on which NASA is 4. Chairman’s Report. conducting Title IX compliance reviews 5. Members’ Reports. NATIONAL AERONAUTICS AND to provide responses by e-mail. 6. President’s Report. SPACE ADMINISTRATION III. Data 7. Inspector General’s Report. [Notice: (09–010)] 8. Consider and act on the report of Title: External Program: Civil Rights the Provision for the Delivery of Legal Notice of Information Collection Survey. Services Committee. OMB Number: 2700–XXXX. 9. Consider and act on the report of AGENCY: National Aeronautics and Type of review: New Collection. the Finance Committee. Space Administration (NASA). Affected Public: Individuals or 10. Consider and act on the report of ACTION: Notice of information collection. households. the Operations & Regulations Estimated Number of Respondents: Committee. SUMMARY: The National Aeronautics and 500. 11. Consider and act on the report of Space Administration, as part of its the Audit Committee. continuing effort to reduce paperwork Estimated Number of Responses per 12. Consider and act on the report of and respondent burden, invites the Respondent: 1. the Board’s 2008 Ad Hoc Committee general public and other Federal Estimated Time per Response: 0.25 Liaison. agencies to take this opportunity to hour. 13. Consider and act on the comment on proposed and/or Estimated Total Annual Burden dissolution of the 2008 Ad Hoc continuing information collections, as Hours: 125 hours. Committee. required by the Paperwork Reduction Estimated Total Annual Cost: $0.00.

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IV. Request for Comments NATIONAL TRANSPORTATION such amendment involves no significant SAFETY BOARD hazards consideration, notwithstanding Comments are invited on: (1) Whether the pendency before the Commission of the proposed collection of information Sunshine Act Meeting; Agenda a request for a hearing from any person. is necessary for the proper performance This biweekly notice includes all of the functions of NASA, including TIME AND DATE: 9:30 a.m., Wednesday, notices of amendments issued, or whether the information collected has January 28, 2009. proposed to be issued from December practical utility; (2) the accuracy of PLACE: NTSB Conference Center, 429 31, 2008 to January 13, 2009. The last NASA’s estimate of the burden L’Enfant Plaza SW., Washington, DC biweekly notice was published on (including hours and cost) of the 20594. January 13, 2009 (74 FR 1712). proposed collection of information; (3) STATUS: The two items are open to the Notice of Consideration of Issuance of ways to enhance the quality, utility, and public. Amendments to Facility Operating clarity of the information to be MATTERS TO BE CONSIDERED: Licenses, Proposed No Significant collected; and (4) ways to minimize the 8077 Aviation Accident Report— Hazards Consideration Determination, burden of the collection of information Midair Collision of Electronic News and Opportunity for a Hearing on respondents, including automated Gathering (ENG) Helicopters, KTVK– The Commission has made a collection techniques or the use of other TV, Eurocopter AS350B2, N613TV, and proposed determination that the forms of information technology. U.S. Helicopters, Inc., Eurocopter following amendment requests involve AS350B2, N215TV, Phoenix, Arizona, Comments submitted in response to no significant hazards consideration. this notice will be summarized and July 27, 2007. 7943A Aircraft Accident (Summary) Under the Commission’s regulations in included in the request for OMB 10 CFR 50.92, this means that operation Report—In-ifight Fire, Emergency approval of this information collection. of the facility in accordance with the Descent and Crash in a Residential Area, They will also become a matter of proposed amendment would not (1) Cessna 310R, N501N, Sanford, Florida, public record. involve a significant increase in the July 10, 2007. Walter Kit, probability or consequences of an NEWS MEDIA CONTACT: Telephone: (202) accident previously evaluated; or (2) NASA Clearance Officer. 314–6100. create the possibility of a new or [FR Doc. E9–1709 Filed 1–26–09; 8:45 am] Individuals requesting specific different kind of accident from any BILLING CODE 7510–13–P accommodations should contact accident previously evaluated; or (3) Rochelle Hall at (202) 314–6305 by involve a significant reduction in a Friday, January 23, 2008. margin of safety. The basis for this The public may view the meeting via proposed determination for each NATIONAL SCIENCE FOUNDATION a live or archived webcast by accessing amendment request is shown below. a link under ‘‘News & Events’’ on the The Commission is seeking public Physics Proposal Review Panel; Notice NTSB home page at www.ntsb.gov. comments on this proposed of Meeting FOR FURTHER INFORMATION CONTACT: determination. Any comments received Vicky D’Onofrio, (202) 314–6410. within 30 days after the date of In accordance with the Federal Dated: January 12, 2009. publication of this notice will be Advisory Committee Act (Pub. L. 92– Vicky D’Onofrio, considered in making any final 463, as amended), the National Science Federal Register Liaison Officer. determination. Foundation announces the following Normally, the Commission will not meeting. [FR Doc. E9–1619 Filed 1–26–09; 8:45 am] issue the amendment until the BILLING CODE 7533–01–P Name: LIGO Annual Review Policy on expiration of 60 days after the date of access to LIGO Data for Physics (1208). publication of this notice. The Date and Time: Tuesday, February 17, Commission may issue the license NUCLEAR REGULATORY amendment before expiration of the 60- 2009; 8:30 a.m.–5 p.m. COMMISSION Wednesday, February 18, 2009; 8:30 a.m.– day period provided that its final 3 p.m. [NRC–2009–0016] determination is that the amendment Place: National Science Foundation Rm. involves no significant hazards II–535 and Room 130. Biweekly Notice; Applications and consideration. In addition, the Type of Meeting: Open. Amendments to Facility Operating Commission may issue the amendment Contact Person: Dr. Beverly Berger, Licenses Involving No Significant prior to the expiration of the 30-day Program Director for Gravitational Physics, Hazards Considerations comment period should circumstances National Science Foundation, 4201 Wilson change during the 30-day comment I. Background Blvd., Arlington, VA 22230. Telephone: (703) period such that failure to act in a 292–7372. Pursuant to section 189a.(2) of the timely way would result, for example, Purpose of Meeting: To provide advice and Atomic Energy Act of 1954, as amended in derating or shutdown of the facility. recommendations concerning NSF support of (the Act), the U.S. Nuclear Regulatory Should the Commission take action the LIGO project. Commission (the Commission or NRC prior to the expiration of either the Agenda: To review and evaluate LIGO’s staff) is publishing this regular biweekly comment period or the notice period, it practices and proposed policies regarding the notice. The Act requires the will publish in the Federal Register a availability of data. Commission publish notice of any notice of issuance. Should the Dated: January 21, 2009, amendments issued, or proposed to be Commission make a final No Significant issued and grants the Commission the Hazards Consideration Determination, Susanne Bolton, authority to issue and make any hearing will take place after Committee Management Officer. immediately effective any amendment issuance. The Commission expects that [FR Doc. E9–1658 Filed 1–26–09; 8:45 am] to an operating license upon a the need to take this action will occur BILLING CODE 7555–01–P determination by the Commission that very infrequently.

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Written comments may be submitted property, financial, or other interest in request for hearing, a petition for leave by mail to the Chief, Rulemaking, the proceeding; and (4) the possible to intervene, any motion or other Directives and Editing Branch, TWB– effect of any decision or order which document filed in the proceeding prior 05–B01M, Division of Administrative may be entered in the proceeding on the to the submission of a request for Services, Office of Administration, U.S. requestor’s/petitioner’s interest. The hearing or petition to intervene, and Nuclear Regulatory Commission, petition must also set forth the specific documents filed by interested Washington, DC 20555–0001, and contentions which the petitioner/ governmental entities participating should cite the publication date and requestor seeks to have litigated at the under 10 CFR 2.315(c), must be filed in page number of this Federal Register proceeding. accordance with the NRC E-Filing rule, notice. Copies of written comments Each contention must consist of a which the NRC promulgated in August received may be examined at the specific statement of the issue of law or 28, 2007 (72 FR 49139). The E-Filing Commission’s Public Document Room fact to be raised or controverted. In process requires participants to submit (PDR), located at One White Flint North, addition, the petitioner/requestor shall and serve all adjudicatory documents Public File Area O1F21, 11555 provide a brief explanation of the bases over the Internet or in some cases to Rockville Pike (first floor), Rockville, for the contention and a concise mail copies on electronic storage media. Maryland. statement of the alleged facts or expert Participants may not submit paper Within 60 days after the date of opinion which support the contention copies of their filings unless they seek publication of this notice, any person(s) and on which the petitioner/requestor a waiver in accordance with the whose interest may be affected by this intends to rely in proving the contention procedures described below. action may file a request for a hearing at the hearing. The petitioner/requestor To comply with the procedural and a petition to intervene with respect must also provide references to those requirements of E-Filing, at least five (5) to issuance of the amendment to the specific sources and documents of days prior to the filing deadline, the subject facility operating license. which the petitioner is aware and on petitioner/requestor must contact the Requests for a hearing and a petition for which the petitioner/requestor intends Office of the Secretary by e-mail at leave to intervene shall be filed in to rely to establish those facts or expert [email protected], or by calling accordance with the Commission’s opinion. The petition must include (301) 415–1677, to request (1) a digital ‘‘Rules of Practice for Domestic sufficient information to show that a ID certificate, which allows the Licensing Proceedings’’ in 10 CFR Part genuine dispute exists with the participant (or its counsel or 2. Interested person(s) should consult a applicant on a material issue of law or representative) to digitally sign current copy of 10 CFR 2.309, which is fact. Contentions shall be limited to documents and access the E-Submittal available at the Commission’s PDR, matters within the scope of the server for any proceeding in which it is located at One White Flint North, Public amendment under consideration. The participating; and/or (2) creation of an File Area 01F21, 11555 Rockville Pike contention must be one which, if electronic docket for the proceeding (first floor), Rockville, Maryland. proven, would entitle the petitioner/ (even in instances in which the Publicly available records will be requestor to relief. A petitioner/ petitioner/requestor (or its counsel or accessible from the Agencywide requestor who fails to satisfy these representative) already holds an NRC- Documents Access and Management requirements with respect to at least one issued digital ID certificate). Each System’s (ADAMS) Public Electronic contention will not be permitted to petitioner/requestor will need to Reading Room on the Internet at the participate as a party. download the Workplace Forms NRC Web site, http://www.nrc.gov/ Those permitted to intervene become Viewer TM to access the Electronic reading-rm/doc-collections/cfr/. If a parties to the proceeding, subject to any Information Exchange (EIE), a request for a hearing or petition for limitations in the order granting leave to component of the E-Filing system. The leave to intervene is filed within 60 intervene, and have the opportunity to Workplace Forms ViewerTM is free and days, the Commission or a presiding participate fully in the conduct of the is available at http://www.nrc.gov/site- officer designated by the Commission or hearing. help/e-submittals/install-viewer.html. by the Chief Administrative Judge of the If a hearing is requested, and the Information about applying for a digital Atomic Safety and Licensing Board Commission has not made a final ID certificate is available on NRC’s Panel, will rule on the request and/or determination on the issue of no public Web site at http://www.nrc.gov/ petition; and the Secretary or the Chief significant hazards consideration, the site-help/e-submittals/apply- Administrative Judge of the Atomic Commission will make a final certificates.html. Safety and Licensing Board will issue a determination on the issue of no Once a petitioner/requestor has notice of a hearing or an appropriate significant hazards consideration. The obtained a digital ID certificate, had a order. final determination will serve to decide docket created, and downloaded the EIE As required by 10 CFR 2.309, a when the hearing is held. If the final viewer, it can then submit a request for petition for leave to intervene shall set determination is that the amendment hearing or petition for leave to forth with particularity the interest of request involves no significant hazards intervene. Submissions should be in the petitioner in the proceeding, and consideration, the Commission may Portable Document Format (PDF) in how that interest may be affected by the issue the amendment and make it accordance with NRC guidance results of the proceeding. The petition immediately effective, notwithstanding available on the NRC public Web site at should specifically explain the reasons the request for a hearing. Any hearing http://www.nrc.gov/site-help/e- why intervention should be permitted held would take place after issuance of submittals.html. A filing is considered with particular reference to the the amendment. If the final complete at the time the filer submits its following general requirements: (1) The determination is that the amendment documents through EIE. To be timely, name, address, and telephone number of request involves a significant hazards an electronic filing must be submitted to the requestor or petitioner; (2) the consideration, any hearing held would the EIE system no later than 11:59 p.m. nature of the requestor’s/petitioner’s take place before the issuance of any Eastern Time on the due date. Upon right under the Act to be made a party amendment. receipt of a transmission, the E-Filing to the proceeding; (3) the nature and All documents filed in NRC system time-stamps the document and extent of the requestor’s/petitioner’s adjudicatory proceedings, including a sends the submitter an e-mail notice

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confirming receipt of the document. The electronic hearing docket which is consequences of an accident previously EIE system also distributes an e-mail available to the public at http:// evaluated? notice that provides access to the ehd.nrc.gov/EHD_Proceeding/home.asp, Replacement of full-strength compression document to the NRC Office of the unless excluded pursuant to an order of sleeve control element assemblies with full- strength silver (Ag)-indium (In)-Cadmium General Counsel and any others who the Commission, an Atomic Safety and (Cd) control element assemblies. have advised the Office of the Secretary Licensing Board, or a Presiding Officer. Response: No. that they wish to participate in the Participants are requested not to include The proposed change involves a new proceeding, so that the filer need not personal privacy information, such as design for the full-strength Control Element serve the documents on those social security numbers, home Assemblies (CEA) that replaces a portion of participants separately. Therefore, addresses, or home phone numbers in B4C pellets (including the compression applicants and other participants (or their filings. With respect to copyrighted sleeve) in the tips of the CEA fingers with their counsel or representative) must works, except for limited excerpts that hollow silver-indium-cadmium slugs. apply for and receive a digital ID serve the purpose of the adjudicatory The following events are related to inadvertent movement of the CEAs; however, certificate before a hearing request/ filings and would constitute a Fair Use they are not initiated by the CEAs. petition to intervene is filed so that they application, participants are requested • Uncontrolled Control Element Assembly can obtain access to the document via not to include copyrighted materials in Withdrawal from a Subcritical or Low (Hot the E-Filing system. their submission. Zero) Power Condition. A person filing electronically may For further details with respect to this • Uncontrolled Control Element Assembly seek assistance through the ‘‘Contact amendment action, see the application Withdrawal at Power. Us’’ link located on the NRC Web site for amendment which is available for • Single Full-Strength Control Element at http://www.nrc.gov/site-help/e- public inspection at the Commission’s Assembly Drop. • submittals.html or by calling the NRC PDR, located at One White Flint North, Control Element Assembly Ejection. electronic filing Help Desk, which is Public File Area 01F21, 11555 Rockville These previously analyzed accidents are initiated by the failure of plant structures, available between 8 a.m. and 8 p.m., Pike (first floor), Rockville, Maryland. systems, or components (SSC) other than the Eastern Time, Monday through Friday. Publicly available records will be CEA itself. The proposed change to the CEA The help electronic filing Help Desk can accessible from the ADAMS Public design does not have a detrimental impact on be contacted by telephone at 1–866– Electronic Reading Room on the Internet the integrity of any plant SSC that initiates 672–7640 or by e-mail at at the NRC Web site, http:// an analyzed event. Additionally, the CEAs [email protected]. www.nrc.gov/reading-rm/adams.html. If mitigate other events. In these events, the Participants who believe that they you do not have access to ADAMS or if chrome plating on the portion of the clad have a good cause for not submitting there are problems in accessing the exterior and the added weight has been documents electronically must file a documents located in ADAMS, contact conservatively accounted for in the SCRAM motion, in accordance with 10 CFR the PDR Reference staff at 1 (800) 397– [safety control rod axe man] calculation. The 2.302(g), with their initial paper filing change does not adversely affect the 4209, (301) 415–4737 or by e-mail to protective and mitigative capabilities of the requesting authorization to continue to [email protected]. plant, nor does the change affect the submit documents in paper format. Arizona Public Service Company, et al., initiation or probability of occurrence of any Such filings must be submitted by: (1) accident. The SSCs will continue to perform First class mail addressed to the Office Docket Nos. STN 50–528, STN 50–529, and STN 50–530, Palo Verde Nuclear their intended safety functions. of the Secretary of the Commission, U.S. The proposed change in CEA design has Nuclear Regulatory Commission, Generating Station, Units 1, 2, and 3, resulted in a slight (less than 1%) reduction Washington, DC 20555–0001, Attention: Maricopa County, Arizona of total reactivity. Rulemaking and Adjudications Staff; or Date of amendment request: July 2, Computer modeling events which exhibit (2) courier, express mail, or expedited 2008. sensitivity to time dependent rod worth delivery service to the Office of the Description of amendment request: (sheared shaft/seized rotor, loss of flow from SAFDL [specified acceptable fuel design Secretary, Sixteenth Floor, One White The amendments would revise Technical Specification (TS) 4.2.2, limits] and total loss of reactor coolant flow) Flint North, 11555 Rockville Pike, demonstrate that all acceptance criteria Rockville, Maryland, 20852, Attention: ‘‘Control Element Assemblies,’’ to continued to be met. Rulemaking and Adjudications Staff. support replacement of the full strength Therefore this change will not significantly Participants filing a document in this control element assemblies (CEAs) with increase the probability or consequences of manner are responsible for serving the a new design beginning with the 14th any accident previously evaluated. document on all other participants. refueling outage (U3R14) for Palo Verde The removal of the registered trademark Filing is considered complete by first- Nuclear Generating Station (PVNGS), name ‘‘Inconel’’. class mail as of the time of deposit in Unit 3 in the spring of 2009. Response: No. the mail, or by courier, express mail, or Additionally, Arizona Public Service This change is considered editorial. Inconel is a registered trademark of Special expedited delivery service upon Company (APS) will be updating the TS by removing the registered trademark Metals Corporation, while Alloy 625 is a depositing the document with the generic alloy designation from the Unified provider of the service. ‘‘Inconel’’ while retaining the generic Numbering System. Retaining the already Non-timely requests and/or petitions terminology ‘‘Alloy 625’’ and deleting referenced term ‘‘Alloy 625’’ does not involve and contentions will not be entertained the references to part-length CEAs in TS a significant increase in the probability or absent a determination by the 4.2.2. consequences of an accident previously Commission, the presiding officer, or Basis for proposed no significant evaluated, as the material properties and the Atomic Safety and Licensing Board hazards consideration determination: application of Alloy 625 have not changed. that the petition and/or request should As required by 10 CFR 50.91(a), the Deletion of the references to part-length licensee has provided its analysis of the control element assemblies. be granted and/or the contentions Response: No. should be admitted, based on a issue of no significant hazards consideration, which is presented This change is considered editorial. The balancing of the factors specified in 10 removal of this information does not involve CFR 2.309(c)(1)(i)–(viii). below: a significant increase in the probability or Documents submitted in adjudicatory 1. Does the proposed amendment involve consequences of an accident previously proceedings will appear in NRC’s a significant increase in the probability or evaluated as the part-length CEAs were

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replaced in accordance with License accident from any accident previously a significant reduction in the margin of safety Amendment 152, dated March 23, 2004 evaluated as the part-length CEAs were as the material properties and application of (Agency Document Access and Management replaced in accordance with License Alloy 625 have not changed. System (ADAMS) Accession No. Amendment 152, dated March 23, 2004 Deletion of the references to part-length ML040860573) and the information is no (Agency Document Access and Management control element assemblies. longer applicable. System (ADAMS) Accession No. Response: No. 2. Does the proposed amendment create ML040860573) and the information is no This change is considered editorial. The the possibility of a new or different kind of longer applicable. removal of this information does not involve accident from any accident previously 3. Does the proposed amendment involve a significant reduction in the margin of safety evaluated? a significant reduction in a margin of safety? as the part-length CEAs were replaced in Replacement of full-strength compression Replacement of full-strength compression accordance with Amendment 152, dated sleeve control element assemblies with full- sleeve control element assemblies with full- March 23, 2004 (Agency Document Access strength silver(Ag)-indium(In)-Cadmium(Cd) strength silver(Ac)-indium(In)-Cadmium(Cd) and Management System (ADAMS) control element assemblies. control element assemblies. Accession No. ML040860573) and the Response: No. Response: No. information is no longer applicable. There are three differences in the Reactor core safety limits are established in The NRC staff has reviewed the replacement CEAs as compared to the current the PVNGS Technical Specifications to CEAs. prevent overheating of the fuel and cladding licensee’s analysis and, based on that First, there is a very slight change in the that would result in the release of fission review, it appears that the three outside diameter of a portion of the cladding products to the reactor coolant during steady standards of 10 CFR 50.92(c) are on the replacement CEAs due to chrome state operation, normal operational satisfied. Therefore, the NRC staff plating on the lower portion of cladding. transients, and anticipated operational proposes to determine that the request Analysis demonstrates that this change will occurrences. The margin to these safety for amendments involves no significant not cause interference between the CEA limits is not affected by the CEA design hazards consideration. cladding and the guide tube inside diameter changes under consideration. Attorney for licensee: Michael G. in the buffer region. Secondly, there is a Overheating of the fuel is prevented by Green, Senior Regulatory Counsel, slight increase in weight with the Ag-In-Cd maintaining steady state, peak linear heat CEAs. However, this difference has been rate (LHR) below the level at which fuel Pinnacle West Capital Corporation, P.O. analyzed with respect to the performance centerline melting occurs. If the local LHR is Box 52034, Mail Station 8695, Phoenix, capability of the CEDMs [Control Element high enough to cause the fuel centerline Arizona 85072–2034. Drive Mechanisms] and found to be within temperature to reach the melting point of the NRC Branch Chief: Michael T. design capabilities and design analyses. fuel, expansion of the pellet caused by Markley. Finally, the upper edges of the spider bosses centerline melting may cause the pellet to have been chamfered to prevent damage to stress the cladding to the point of failure, Carolina Power & Light Company, the self-latching mechanisms that can occur allowing an uncontrolled release of activity Docket Nos. 50–325 and 50–324, if the CEA hangs up when lifting through the to the reactor coolant. Brunswick Steam Electric Plant, Units 1 upper guide structure cut outs. This change Compliance with the DNBR [departure and 2, Brunswick County, North is for ease of maintenance and has no impact from nucleate boiling ratio] and fuel Carolina on operation of the CEAs. centerline melt specified acceptable fuel Date of amendments request: October Therefore, the Ag-In-Cd CEAs are identical design limits (SAFDLs) is assured through to the compression sleeve CEAs in terms of the CEA insertion limits and alignment 6, 2008. form, fit and function and the proposed technical specifications, and through the Description of amendments request: change will not introduce any new failure power distribution limit technical The proposed change would remove mechanisms, malfunctions, or accident specifications. work hour controls and/or references to initiators not already considered in the There is no change to the operation of the the NRC Generic Letter 82–12 from the design and licensing bases. The possibility of full-strength CEAs due to the change from administrative control sections of the a new or different malfunction of safety- compression sleeve CEAs to Ag-In-Cd CEAs. technical specifications. On April 17, related equipment is not created. No new Since the Ag-In-Cd CEAs may be used to 2007, the NRC approved a final rule that accident scenarios, transient precursors, or control power distribution similar to the amended 10 CFR Part 26 and, among limiting single failures are introduced as a compression sleeve CEAs, power result of these changes. There will be no distributions will still be controlled and other changes, established requirements adverse effects or challenges imposed on any maintained within the limits necessary to for managing worker fatigue at operating safety-related system as a result of these assure SAFDLs are met. nuclear power plants. Subpart I, changes. Therefore, the possibility of a new The proposed change in CEA design has ‘‘Managing Fatigue,’’ specifically or different accident from any accident resulted in a slight (less than 1%) reduction addresses managing worker fatigue by previously evaluated is not created as a result in total reactivity. designating individual break of any dimensional change. Computer modeling results of events requirements, work hour limits, and The removal of the registered trademark which exhibit sensitivity to time dependent annual reporting requirements. Subpart name ‘‘Inconel’’. rod worth (sheared shaft/seized rotor, loss of I was published in the Federal Register Response: No. flow from SAFDL and total loss of reactor This change is considered editorial. coolant flow) demonstrate that all acceptance on March 31, 2008 (73 FR 16966), with Inconel is a registered trademark of Special criteria continued to be met. a required implementation period of 18 Metals Corporation, while Alloy 625 is a Therefore, since SAFDLs continue to be months. Compliance is, therefore, generic alloy designation from the Unified met, the change from compression sleeve required by October 1, 2009. In order to Numbering System. Retaining the already CEAs to Ag-In-Cd CEAs does not involve a support compliance with 10 CFR Part referenced term ‘‘Alloy 625’’ does not create significant reduction in a margin of safety. 26, Subpart I, the licensee is proposing the possibility of a new or different kind of The removal of the registered trademark to remove these work hour controls accident from any accident previously name ‘‘Inconel’’. from Technical Specification 5.2.2.e at evaluated, as the material properties and Response: No. the Brunswick Steam Electric Plant, application of Alloy 625 have not changed. The removal of the registered trademark Deletion of the references to part-length name ‘‘Inconel’’ [ ] is considered editorial. Units 1 and 2. control element assemblies. Inconel is a registered trademark of Special Basis for proposed no significant Response: No. Metals Corporation, while Alloy 625 is a hazards consideration determination This change is considered editorial. The generic alloy designation from the Unified Basis for proposed no significant removal of this information does not create Numbering System. Retaining the already hazards consideration determination: the possibility of a new or different kind of referenced term ‘‘Alloy 625’’ does not involve As required by 10 CFR 50.91(a), the

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licensee has provided its analysis of the The proposed changes do not alter the As required by 10 CFR 50.91(a), the issue of no significant hazards manner in which safety limits, limiting safety licensee has provided its analysis of the consideration, which is presented system settings or limiting conditions for issue of no significant hazards below: operation are determined. The safety analysis consideration, which is presented acceptance criteria are not affected by this 1. Do the proposed changes involve a change. The proposed changes will not result below: significant increase in the probability or in plant operation in a configuration outside 1. Do the proposed changes involve a consequences of an accident previously the design basis. The proposed changes will significant increase in the probability or evaluated? not adversely affect systems that respond to consequences of an accident previously Response: No. safely shutdown the plant and to maintain evaluated? The proposed changes remove TS the plant in a safe shutdown condition. Response: No. [technical specification] controls on working Removal of plant-specific TS The proposed changes remove TS hours for personnel who perform safety administrative requirements will not reduce [technical specification] controls on working related functions. The TS controls are a margin of safety because the requirements hours for personnel who perform safety superseded by the worker fatigue in 10 CFR Part 26 are adequate to ensure that related functions. The TS controls are requirements in 10 CFR Part 26. Removal of worker fatigue is managed. Therefore, it is superseded by the worker fatigue the TS requirements will be performed concluded that these changes do not involve requirements in 10 CFR Part 26. Removal of concurrently with the implementation of the a significant reduction in a margin of safety. the TS requirements will be performed 10 CFR Part 26, Subpart I requirements. The concurrently with the implementation of the proposed changes do not impact the physical The NRC staff has reviewed the 10 CFR Part 26, Subpart I requirements. The configuration or function of plant structures, licensee’s analysis and, based on this proposed changes do not impact the physical systems, or components (SSCs) or the manner review, it appears that the three configuration or function of plant structures, in which SSCs are operated, maintained, standards of 10 CFR 50.92(c) are systems, or components (SSCs) or the manner modified, tested, or inspected. The proposed satisfied. Therefore, the NRC staff in which SSCs are operated, maintained, changes do not impact the initiators or proposes to determine that the modified, tested, or inspected. The proposed assumptions of analyzed events, nor do they amendment request involves no changes do not impact the initiators or impact the mitigation of accidents or significant hazards consideration. assumptions of analyzed events, nor do they transient events. impact the mitigation of accidents or Therefore, it is concluded that these Attorney for licensee: David T. transient events. changes do not involve a significant increase Conley, Associate General Counsel II— Therefore, it is concluded that these in the probability or consequences of an Legal Department, Progress Energy changes do not involve a significant increase accident previously evaluated. Service Company, LLC, Post Office Box in the probability or consequences of an 2. Do the proposed changes create the 1551, Raleigh, NC 27602. accident previously evaluated. possibility of a new or different kind of NRC Branch Chief: Thomas H. Boyce. 2. Do the proposed changes create the accident from any accident previously possibility of a new or different kind of evaluated? Carolina Power & Light Company, accident from any accident previously Response: No. Docket No. 50–261, H. B. Robinson evaluated? The proposed changes remove TS controls Steam Electric Plant, Unit No. 2, Response: No. on working hours for personnel who perform Darlington County, South Carolina The proposed changes remove TS controls safety related functions. The TS controls are on working hours for personnel who perform superseded by the worker fatigue Date of amendment request: October safety related functions. The TS controls are requirements in 10 CFR Part 26. Work hours 6, 2008. superseded by the worker fatigue will continue to be controlled in accordance Description of amendments request: requirements in 10 CFR Part 26. Work hours with NRC requirements. The new rule allows The proposed change would remove will continue to be controlled in accordance for deviations from controls to mitigate or work hour controls and/or references to with NRC requirements. The new rule allows prevent a condition adverse to safety or as the NRC Generic Letter 82–12 from the for deviations from controls to mitigate or necessary to maintain the security of the administrative control sections of the prevent a condition adverse to safety or as facility. This ensures that the new rule will technical specifications. On April 17, necessary to maintain the security of the not restrict work hours and thereby create the 2007, the NRC approved a final rule that facility. This ensures that the new rule will possibility of a new or different kind of amended 10 CFR Part 26 and, among not restrict work hours and thereby create the accident from any accident previously possibility of a new or different kind of evaluated. other changes, established requirements accident from any accident previously The proposed changes do not alter plant for managing worker fatigue at operating evaluated. configuration, require that new plant nuclear power plants. Subpart I, The proposed changes do not alter plant equipment be installed, alter assumptions ‘‘Managing Fatigue,’’ specifically configuration, require that new plant made about accidents previously evaluated, addresses managing worker fatigue by equipment be installed, alter assumptions add any initiators, or effect the function of designating individual break made about accidents previously evaluated, plant systems or the manner in which requirements, work hour limits, and add any initiators, or affect the function of systems are operated, maintained, modified, annual reporting requirements. Subpart plant systems or the manner in which tested, or inspected. I was published in the Federal Register systems are operated, maintained, modified, Therefore, it is concluded that this change tested, or inspected. does not create the possibility of a new or on March 31, 2008 (73 FR 16966), with Therefore, it is concluded that this change different kind of accident from any accident a required implementation period of 18 does not create the possibility of a new or previously evaluated. months. Compliance is, therefore, different kind of accident from any accident 3. Do the proposed changes involve a required by October 1, 2009. In order to previously evaluated. significant reduction in a margin of safety? support compliance with 10 CFR Part 3. Do the proposed changes involve a Response: No. 26, Subpart I, the licensee is proposing significant reduction in a margin of safety? The proposed changes remove TS controls to remove these work hour controls Response: No. on working hours for personnel who perform from Technical Specification 5.2.2.e at The proposed changes remove TS controls safety related functions. The TS controls are the H. B. Robinson Steam Electric Plant, on working hours for personnel who perform superseded by the worker fatigue safety related functions. The TS controls are requirements in 10 CFR Part 26. The Unit 2. superseded by the worker fatigue proposed changes do not involve any Basis for proposed no significant requirements in 10 CFR Part 26. The physical changes to plant or the manner in hazards consideration determination proposed changes do not involve any which plant systems are operated, Basis for proposed no significant physical changes to the plant or the manner maintained, modified, tested, or inspected. hazards consideration determination: in which plant systems are operated,

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maintained, modified, tested, or inspected. licensee has provided its analysis of the The proposed changes do not alter the The proposed changes do not alter the issue of no significant hazards manner in which safety limits, limiting safety manner in which safety limits, limiting safety consideration, which is presented system settings or limiting conditions for system settings or limiting conditions for below: operation are determined. The safety analysis operation are determined. The safety analysis acceptance criteria are not affected by this acceptance criteria are not affected by this 1. Do the proposed changes involve a change. The proposed changes will not result change. The proposed changes will not result significant increase in the probability or in plant operation in a configuration outside in plant operation in a configuration outside consequences of an accident previously the design basis. The proposed changes will the design basis. The proposed changes will evaluated? not adversely affect systems that respond to not adversely affect systems that respond to Response: No. safely shut down the plant and to maintain safely shut down the plant and to maintain The proposed changes remove TS the plant in a safe shutdown condition. the plant in a safe shutdown condition. [technical specification] controls on working Removal of plant-specific TS Removal of plant-specific TS hours for personnel who perform safety administrative requirements will not reduce administrative requirements will not reduce related functions. The TS controls are a margin of safety because the requirements a margin of safety because the requirements superseded by the worker fatigue in 10 CFR Part 26 are adequate to ensure that in 10 CFR Part 26 are adequate to ensure that requirements in 10 CFR Part 26. Removal of worker fatigue is managed. Therefore, it is worker fatigue is managed. Therefore, it is the TS requirements will be performed concluded that these changes do not involve concluded that these changes do not involve concurrently with the implementation of the a significant reduction in a margin of safety. a significant reduction in a margin of safety. 10 CFR Part 26, Subpart I requirements. The proposed changes do not impact the physical The NRC staff has reviewed the The NRC staff has reviewed the configuration or function of plant structures, licensee’s analysis and, based on this licensee’s analysis and, based on this systems, or components (SSCs) or the manner review, it appears that the three review, it appears that the three in which SSCs are operated, maintained, standards of 10 CFR 50.92(c) are standards of 10 CFR 50.92(c) are modified, tested, or inspected. The proposed satisfied. Therefore, the NRC staff satisfied. Therefore, the NRC staff changes do not impact the initiators or proposes to determine that the proposes to determine that the assumptions of analyzed events, nor do they amendment request involves no amendment request involves no impact the mitigation of accidents or significant hazards consideration. significant hazards consideration. transient events. Therefore, it is concluded that these Attorney for licensee: David T. Attorney for licensee: David T. changes do not involve a significant increase Conley, Associate General Counsel II— Conley, Associate General Counsel II— in the probability or consequences of an Legal Department, Progress Energy Legal Department, Progress Energy accident previously evaluated. Service Company, LLC, Post Office Box Service Company, LLC, Post Office Box 2. Do the proposed changes create the 1551, Raleigh, NC 27602. 1551, Raleigh, NC 27602. possibility of a new or different kind of NRC Branch Chief: Thomas H. Boyce. NRC Branch Chief: Thomas H. Boyce. accident from any accident previously evaluated? Entergy Operations, Inc., Docket No. 50– Carolina Power & Light Company, et al., Response: No. 368, Arkansas Nuclear One, Unit No. 2, Docket No. 50–400, Shearon Harris The proposed changes remove TS controls Pope County, Arkansas Nuclear Power Plant, Unit 1, Wake and on working hours for personnel who perform Date of amendment request: Chatham Counties, North Carolina safety related functions. The TS controls are superseded by the worker fatigue November 13, 2008. Date of amendment request: October requirements in 10 CFR Part 26. Work hours Description of amendment request: 6, 2008. will continue to be controlled in accordance The proposed change will modify Description of amendment request: with NRC requirements. The new rule allows Technical Specification (TS) 3.3.1.1, The proposed change would remove for deviations from controls to mitigate or ‘‘Reactor Protective Instrumentation.’’ work hour controls and/or references to prevent a condition adverse to safety or as Specifically, Table 4.3–1 and the the NRC Generic Letter 82–12 from the necessary to maintain the security of the associated Notes 7 and 8 will be revised administrative control sections of the facility. This ensures that the new rule will to clarify and streamline the reactor technical specifications. On April 17, not restrict work hours and thereby create the coolant system (RCS) flow verification 2007, the NRC approved a final rule that possibility of a new or different kind of accident from any accident previously requirements associated with the amended 10 CFR Part 26 and, among evaluated. departure from nucleate boiling ratio other changes, established requirements The proposed changes do not alter plant (DNBR) reactor trip signal. for managing worker fatigue at operating configuration, require that new plant Basis for proposed no significant nuclear power plants. Subpart I, equipment be installed, alter assumptions hazards consideration determination: ‘‘Managing Fatigue,’’ specifically made about accidents previously evaluated, As required by 10 CFR 50.91(a), the addresses managing worker fatigue by add any initiators, or affect the function of licensee has provided its analysis of the designating individual break plant systems or the manner in which issue of no significant hazards requirements, work hour limits, and systems are operated, maintained, modified, consideration, which is presented annual reporting requirements. Subpart tested, or inspected. Therefore, it is concluded that this change below: I was published in the Federal Register does not create the possibility of a new or 1. Does the proposed change involve a on March 31, 2008 (73 FR 16966), with different kind of accident from any accident significant increase in the probability or a required implementation period of 18 previously evaluated. consequences of an accident previously months. Compliance is, therefore, 3. Do the proposed changes involve a evaluated? required by October 1, 2009. In order to significant reduction in a margin of safety? Response: No. support compliance with 10 CFR Part Response: No. The CPC [Core Protection Calculator] 26, Subpart I, the licensee is proposing The proposed changes remove TS controls reactor protective function is not considered to remove these work hour controls on working hours for personnel who perform an accident initiator. The primary function is from Technical Specification 6.2.2.f at safety related functions. The TS controls are to initiate an automatic reactor trip signal superseded by the worker fatigue when specific plant conditions are reached, the Shearon Harris Nuclear Power Plant, requirements in 10 CFR Part 26. The thereby limiting the consequences of an Unit 1. proposed changes do not involve any accident. The proposed change acts to Basis for proposed no significant physical changes to the plant or the manner eliminate unnecessary conservatisms and hazards consideration determination: in which plant systems are operated, accordingly increase operational margin by As required by 10 CFR 50.91(a), the maintained, modified, tested, or inspected. eliminating the requirement to use

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calorimetric flow measurement in the CPC Echelon Parkway, Jackson, Mississippi probability or consequences of an accident flow verification. This method of verification 39213. previously evaluated. will normally only be used in the future NRC Branch Chief: Michael T. 2. Does the proposed change create the during periods when the COLSS [Core Markley. possibility of a new or different kind of Operating Limits Supervisory System] RCP accident from any accident previously [Reactor Coolant Pump] D p flow Entergy Gulf States Louisiana, LLC, and evaluated? measurement is unavailable. Regardless of Entergy Operations, Inc., Docket No. 50– Response: No. the method of verification used, the CPC will 458, River Bend Station, Unit 1, West The proposed amendment does not involve continue to be verified to have an indicated Feliciana Parish, Louisiana a physical alteration of any system, structure, RCS flow equal to or conservative relative to or component (SSC), or a change in the way the measured RCS flow on a once per 12- Date of amendment request: any SSC is operated. The surveillance hour basis. In so doing, the CPC will December 8, 2008 intervals of the level instrumentation are continue to act to generate a reactor trip on Description of amendment request: currently evaluated for 30 months, which low DNBR as originally designed in order to The proposed amendment adds a bounds the requested interval extension. The ensure the DNBR reactor core Safety Limit is license condition to allow a one-time proposed amendment does not involve not exceeded. extension of surveillance requirements operation of any SSCs in a manner or The relocation of measurement uncertainty configuration different from those previously references to the TS Bases does not reduce involving the 18-month channel recognized or evaluated. No new failure the requirements to account for uncertainties calibration and logic system functional mechanisms will be introduced by the one- in any Limiting Safety System Setting (LSSS) tests for one channel of the reactor water time surveillance extension being requested. designed to protect reactor core Safety level instrumentation system. The Therefore, the proposed change does not Limits. The necessary uncertainties will extension is to account for the effects of create the possibility of a new or different continue to be applied as required and will rescheduling the next refueling outage kind of accident from any previously be controlled in accordance with TS 6.5.14, from early to late 2009. evaluated. Technical Specification Bases Control Basis for proposed no significant 3. Does the proposed change involve a Program, and station procedures. hazards consideration determination: significant reduction in a margin of safety? Therefore, the proposed change does not Response: No. involve a significant increase in the As required by 10 CFR 50.91(a), the The proposed amendment is a one-time probability or consequences of an accident licensee has provided its analysis of the extension of the performance-interval of previously evaluated. issue of no significant hazards certain TS surveillance requirements. 2. Does the proposed change create the consideration, which is presented Extending the surveillance requirements does possibility of a new or different kind of below: not involve a modification of any TS accident from any accident previously Limiting Conditions for Operation. Extending 1. Does the proposed change involve a evaluated? the surveillance frequency does not involve significant increase in the probability or Response: No. a change to any limit on accident consequences of an accident previously The proposed change does not result in consequences specified in the license or evaluated? any physical plant modifications or changes regulations. Extending the surveillance Response: No. in the way the plant is operated. In addition, frequency does not involve a change to how The requested action is a one-time the CPCs are unrelated to any type of accidents are mitigated or a significant extension to the performance interval of accident initiator previously evaluated. increase in the consequences of an accident. certain TS [Technical Specification] Therefore, the proposed change does not Extending the surveillance frequency does surveillance requirements. The performance create the possibility of a new or different not involve a change in a methodology used of the surveillances, or the failure to perform kind of accident from any previously to evaluate consequences of an accident. the surveillances, is not a precursor to an evaluated. Extending the surveillance frequency does accident. Performing the surveillances or 3. Does the proposed change involve a not involve a change in any operating failing to perform the surveillances does not significant reduction in a margin of safety? procedure or process. The surveillance affect the probability of an accident. Response: No. intervals of the level instrumentation are Therefore, the proposed delay in The proposed change increases operating currently evaluated for 30 months which performance of the surveillance requirements margin when the COLSS RCP Dp flow bounds the requested interval extension. The in this amendment request does not increase measurement is available for use while components involved in this request have the probability of an accident previously unaffecting the CPC ability to initiate an exhibited reliable operation based on the evaluated. automatic reactor trip on low DNBR prior to A delay in performing the surveillances results of the most recent performances of the DNBR reactor core safety limit being does not result in a system being unable to their 18-month surveillance requirements exceeded. Relocating the references to perform its required function. Additionally, and the associated functional surveillances. measurement uncertainties to the TS Bases the defense in depth of the system design Based on the limited additional period of likewise has no impact on the CPC design provides additional confidence that the time that the systems and components will function and the uncertainties will continue safety function is maintained. In the case of be in service before the surveillance is next to be applied as required and controlled in this one-time extension request, the relatively performed, as well as the operating accordance with TS 6.5.14, Technical short period of additional time that the experience that these surveillances are Specification Bases Control Program, and systems and components will be in service typically successful when performed, it is station procedures. before the next performance of the reasonable to conclude that the margin of Therefore, the proposed change does not surveillance will not affect the ability of safety associated with the surveillance involve a significant reduction in a margin of those systems to operate as designed. requirement will not be affected by the safety. Therefore, the systems required to mitigate requested extension. The NRC staff has reviewed the accidents will remain capable of performing Therefore, the proposed change does not licensee’s analysis and, based on this their required function. No new failure involve a significant reduction in a margin of review, it appears that the three modes have been introduced because of this safety. standards of 10 CFR 50.92(c) are action and the consequences remain The NRC staff has reviewed the satisfied. Therefore, the NRC staff consistent with previously evaluated licensee’s analysis and, based on this accidents. Therefore, the proposed delay in review, it appears that the three proposes to determine that the performance of the surveillance requirement amendment request involves no in this amendment request does not involve standards of 10 CFR 50.92(c) are significant hazards consideration. a significant increase in the consequences of satisfied. Therefore, the NRC staff Attorney for licensee: Terence A. an accident. proposes to determine that the Burke, Associate General Counsel— Therefore, the proposed change does not amendment request involves no Nuclear Entergy Services, Inc., 1340 involve a significant increase in the significant hazards consideration.

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Attorney for licensee: Terence A. Time has no impact on the Traveler No. 2, ‘‘Relocate the 10–Year Burke, Associate General Counsel— consequences of any design basis Sediment Cleaning of the Fuel Oil Nuclear Entergy Services, Inc., 1340 accident since the consequences of an Storage Tank to Licensee Control,’’ Echelon Parkway, Jackson, Mississippi accident during the extended approved by the Nuclear Regulatory 39213. Completion Time are the same as the Commission on July 16, 1998. NRC Branch Chief: Michael T. consequences of an accident during the Basis for proposed no significant Markley. Completion Time. As a result, the hazards consideration determination: Exelon Generation Company, LLC, consequences of any accident As required by 10 CFR 50.91(a), the Docket Nos. STN 50–456 and STN 50– previously evaluated are not licensee has provided its analysis of the 457, Braidwood Station, Units 1 and 2, significantly increased. issue of no significant hazards Will County, Illinois Criterion 2—The Proposed Change consideration which is presented below: Does Not Create the Possibility of a New Docket Nos. STN 50–454 and STN 50– 1. Does the proposed amendment involve or Different Kind of Accident from any a significant increase in the probability or 455, Byron Station, Unit Nos. 1 and 2, Accident Previously Evaluated. consequences of an accident previously Ogle County, Illinois. The proposed change in specific evaluated? Date of amendment request: activity limits does not alter any Response: No. December 4, 2008. physical part of the plant nor does it The FOSTs [fuel oil storage tanks] provide Description of amendment request: affect any plant operating parameter. the storage for the DG [diesel generator] fuel oil, assuring an adequate volume is available The proposed amendments would The change does not create the potential revise Technical Specifications (TSs) for each DG to operate for seven days in the for a new or different kind of accident event of a loss of offsite power concurrent 1.1, ‘‘Definitions,’’ and 3.4.16, ‘‘RCS from any previously calculated. Specific Activity,’’ and Surveillance with a loss of coolant accident. The Criterion 3—The Proposed Change relocation of the SR to drain and clean the Requirements 3.4.16.1 and 3.4.16.3. The Does Not Involve a Significant FOSTs to a licensee-controlled document proposed changes would replace the Reduction in the Margin of Safety. will not impact any of the previously current TS 3.4.16 limit on reactor The proposed change revises the analyzed accidents. Sediment in the tank, or coolant system (RCS) gross specific limits on noble gas radioactivity in the failure to perform this SR, does not activity with a new limit on RCS noble primary coolant. The proposed change necessarily result in an inoperable storage gas specific activity. The noble gas is consistent with the assumptions in tank. Fuel oil quantity and quality are assured by other TS SRs that remain specific activity limit would be based on the safety analyses and will ensure the a new dose equivalent Xe–133 unchanged. These SRs help ensure tank monitored values protect the initial sediment is minimized and ensure that any definition that would replace the assumptions in the safety analyses. degradation of the tank wall surface that current E Bar average disintegration The Nuclear Regulatory Commission results in fuel oil volume reduction is energy definition. In addition, the (NRC) staff has reviewed the analysis detected and corrected in a timely manner. current dose equivalent I–131 definition adopted by the licensee and, based on Future changes to the licensee-controlled would be reformatted. The availability this review, it appears that the three document will be evaluated pursuant to the of this TS revision was announced in standards of 10 CFR 50.92(c) are requirements of 10 CFR 50.59, ‘‘Changes, the Federal Register on March 15, 2007 satisfied. Therefore, the NRC staff tests, and experiments,’’ to ensure that such (72 FR 12217) as part of the changes do not result in more than a minimal proposes to determine that the increase in the probability or consequences consolidated line item improvement amendments involve no significant of an accident previously evaluated. process. The licensee affirmed the hazards consideration. The proposed change does not adversely applicability of the model no significant Attorney for licensee: Mr. Bradley J. affect accident initiators or precursors nor hazards consideration determination in Fewell, Associate General Counsel, alter the design assumptions, conditions, and its application. Exelon Generation Company, LLC, 4300 configuration or the manner in which the Basis for proposed no significant Winfield Road, Warrenville, IL 60555. plant is operated and maintained. The hazards consideration determination: NRC Branch Chief: Russell Gibbs. proposed change does not adversely affect As required by 10 CFR 50.91(a), an the ability of structures, systems or analysis of the issue of no significant Exelon Generation Company, LLC, components (SSCs) to perform their intended Docket No. 50–461, Clinton Power safety function to mitigate the consequences hazards consideration adopted by the of an initiating event within the assumed licensee is presented below: Station, Unit No. 1, DeWitt County, Illinois acceptance limits. Criterion 1—The Proposed Change The proposed change does not affect the Does Not Involve a Significant Increase Date of amendment request: source term, containment isolation, or in the Probability or Consequences of an September 2, 2008. radiological release assumptions used in Accident Previously Evaluated. Description of amendment request: evaluating the radiological consequences of Reactor coolant specific activity is not The proposed amendments would any accident previously evaluated. Further, an initiator for any accident previously relocate Surveillance Requirements (SR) the proposed change does not increase the evaluated. The Completion Time when 3.8.3.6 from the technical specifications types and amounts of radiological effluent primary coolant gross activity is not (TSs) to a licensee-controlled document. that may be released offsite, nor significantly increase individual or cumulative within limit is not an initiator for any SR 3.8.3.6 requires Emergency Diesel occupational/public radiation exposures. accident previously evaluated. The Generator fuel oil storage tanks to be Therefore, the proposed change does not current variable limit on primary drained, sediment removed, and involve a significant increase in the coolant iodine concentration is not an cleaned on a 10-year interval. The probability or consequences of an accident initiator to any accident previously change is consistent with the current previously evaluated. evaluated. As a result, the proposed revision (i.e., Rev. 3) of the Improved 2. Does the proposed amendment create change does not significantly increase Standard Technical Specifications the possibility of a new or different kind of the probability of an accident. The (ISTS), NUREG 1434, ‘‘Standard accident from any accident previously evaluated? proposed change will limit primary Technical Specifications General Response: No. coolant noble gases to concentrations Electric Plants, BWR/6.’’ The SR was The proposed TS change does not involve consistent with the accident analyses. removed from the ISTS under Technical the addition or modification of any plant The proposed change to the Completion Specification Task Force (TSTF) equipment. Also, the proposed change will

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not alter the design configuration, or method plant operations. Any existing NaOH The NRC staff has reviewed the of operation of plant equipment beyond its delivery system equipment which remains in licensee’s analysis and, based on this normal functional capabilities. The place but is removed from service would review, it appears that the three requirements retained in the TS continue to meet existing seismic, electrical and standards of 10 CFR 50.92(c) are require testing of the diesel fuel oil to ensure containment isolation requirements. the proper functioning of the DGs. The Therefore the change in additive, including satisfied. Therefore, the NRC staff proposed TS change does not create any new removal of NaOH equipment from service, proposes to determine that the credible failure mechanisms, malfunctions or would not result in any failure modes that amendment request involves no accident initiators. could initiate an accident. significant hazards consideration. Therefore, the proposed change does not The spray additive is used to mitigate the Attorney for licensee: David W. create the possibility of a new or different consequences of a LOCA [loss-of-coolant Jenkins, FirstEnergy Nuclear Operating kind of accident from any previously accident]. Use of NaTB as an additive in lieu Company, FirstEnergy Corporation, 76 evaluated. of NaOH would not involve a significant increase in the consequences of a previously South Main Street, Akron, OH 44308. 3. Does the proposed amendment involve NRC Branch Chief: Mark G. Kowal. a significant reduction in a margin of safety? evaluated accident because the amount of Response: No. NaTB specified in the proposed TS would FirstEnergy Nuclear Operating Company The proposed change does not alter or achieve a pH of 7 or greater, consistent with (FENOC), et al., Docket No. 50–440, exceed a design basis or safety limit. The the current licensing basis. This pH is sufficient to achieve long-term retention of Perry Nuclear Power Plant, Unit No. 1 requirements retained in the TS continue to (PNPP), Lake County, Ohio require testing of the diesel fuel oil to ensure iodine by the containment sump fluid for the the DGs are able to perform their intended purpose of reducing accident related Date of amendment request: function. radiation dose following a LOCA. November 18, 2008 Therefore, the proposed changes does not Therefore, the proposed change does not Description of amendment request: involve a significant reduction in a margin of involve a significant increase in the The proposed amendment would safety. probability or consequences of an accident previously evaluated. modify Technical Specification (TS) The NRC staff has reviewed the 2. Does the proposed amendment create 5.5.6 to incorporate Technical licensee’s analysis and, based on this the possibility of a new or different kind of Specification Task Force (TSTF) review, it appears that the three accident from any accident previously Travelers TSTF–479, ‘‘Changes to standards of 10 CFR 50.92(c) are evaluated? Reflect Revision of 10 CFR 50.55a,’’ and satisfied. Therefore, the NRC staff Response: No. TSTF 497, ‘‘Limit Inservice Testing Regarding the proposed use of NaTB in Program SR [Surveillance Requirement] proposes to determine that the lieu of NaOH, the NaTB would be stored and amendment request involves no delivered by a passive method that does not 3.0.2 Application to Frequencies of 2 significant hazards consideration. have potential to affect plant operations. Any Years or Less.’’ Attorney for licensee: Mr. Bradley J. existing NaOH delivery system equipment Basis for proposed no significant Fewell, Associate General Counsel, remaining in place but which is removed hazards consideration determination: Exelon Nuclear, 4300 Winfield Road, from service would meet existing seismic, As required by 10 CFR 50.91(a), the Warrenville, IL 60555. electrical and containment isolation licensee has provided its analysis of the NRC Branch Chief: Russell Gibbs. requirements. Hydrogen generation would issue of no significant hazards not be significantly impacted by the change. consideration, which is presented FirstEnergy Nuclear Operating Therefore, no new failure mechanisms, below: Company, et al., Docket Nos. 50–334 malfunctions, or accident initiators would be and 50–412, Beaver Valley Power introduced by the proposed change and it 1. Does the proposed amendment involve Station, Unit Nos. 1 and 2 (BVPS–1 and would not create the possibility of a new or a significant increase in the probability or consequences of an accident previously 2), Beaver County, Pennsylvania different kind of accident from any previously evaluated. evaluated? Date of amendment request: 3. Does the proposed amendment involve Response: No. September 24, 2008. a significant reduction in a margin of safety? The proposed amendment revises TS 5.5.6, Description of amendment request: Response: No. ‘‘Inservice Testing Program,’’ for consistency The proposed amendment would Since the quantity of NaTB specified in the with 10 CFR 50.55a(f)(4) requirements modify Technical Specifications (TSs) amended TS would reduce the potential for regarding inservice testing of pumps and valves. The proposed amendment to allow the BVPS–2 containment spray undesirable chemical effects while achieving radiation dose reductions, corrosion control incorporates revisions to the ASME Code that additive sodium hydroxide (NaOH) to and hydrogen generation effects that are result in a net improvement in the measures be replaced by sodium tetraborate comparable to NaOH, the proposed change for testing pumps and valves. The proposed (NaTB). does not involve a significant reduction in a changes do not impact any accident initiators Basis for proposed no significant margin of safety. The primary function of an or analyzed events or assumed mitigation of hazards consideration determination: additive is to reduce loss of coolant accident accident or transient events. They do not As required by10 CFR 50.91(a), the consequences by controlling the amount of involve the addition or removal of any licensee has provided its analysis of the iodine fission products released to equipment, or any design changes to the issue of no significant hazards containment atmosphere from reactor coolant facility. Therefore, the proposed changes do not represent a significant increase in the consideration, which is presented accumulating in the sump during a LOCA. Because the amended technical probability or consequences of an accident below: specifications would achieve a pH of 7 or previously evaluated. 1. Does the proposed amendment involve greater using NaTB, dose related safety 2. Does the proposed amendment create a significant increase in the probability or margins would not be significantly reduced. the possibility of a new or different kind of consequences of an accident previously Use of NaTB reduces the potential for accident from any accident previously evaluated? undesirable chemical effects that could evaluated? Response: No. interfere with recirculation flow through the Response: No. Use of NaTB in lieu of NaOH would not sump strainers. Any existing NaOH delivery The proposed changes do not involve a involve a significant increase in probability system equipment which remains in place modification to the physical configuration of of a previously evaluated accident because but is removed from service would meet the plant. There is no new equipment to be the containment spray additive is not an existing seismic, electrical and containment installed or a change in the methods initiator of any analyzed accident. The NaTB isolation requirements and would not governing normal plant operation. The would be stored and delivered by a passive interfere with operation of the existing proposed change will not impose any new or method that does not have potential to affect containment or containment spray system. different requirements or introduce a new

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accident initiator, accident precursor, or Basis for proposed no significant physical changes to plant or the manner in malfunction mechanism. Additionally, there hazards consideration determination: which plant systems are operated, is no change in the types or increases in the As required by 10 CFR 50.91(a), the maintained, modified, tested, or inspected. amounts of any effluent that may be released licensee has provided its analysis of the The proposed changes do not alter the off-site and there is no increase in individual manner in which safety limits, limiting safety cumulative occupational exposure. issue of no significant hazards system settings or limiting conditions for Therefore, the proposed change does not consideration, which is presented operation are determined. The safety analysis create the possibility of an accident of a below: acceptance criteria are not affected by this different kind than previously evaluated. 1. Do the proposed changes involve a change. The proposed changes will not result 3. Does the proposed amendment involve significant increase in the probability or in plant operation in a configuration outside a significant reduction in a margin of safety? consequences of an accident previously the design basis. The proposed changes will Response: No. evaluated? not adversely affect systems that respond to The proposed amendment revises TS 5.5.6, Response: No. safely shut down the plant and to maintain ‘‘Inservice Testing Program,’’ for consistency The proposed changes remove TS the plant in a safe shutdown condition. with the requirements of 10 CFR 50.55a(f)(4) [technical specification] controls on working Removal of plant-specific TS regarding the inservice testing of pumps and hours for personnel who perform safety administrative requirements will not reduce valves. The proposed amendment related functions. The TS controls are a margin of safety because the requirements incorporates revisions to the ASME Code that superseded by the worker fatigue in 10 CFR Part 26 are adequate to ensure that result in a net improvement in the measures requirements in 10 CFR Part 26. Removal of worker fatigue is managed. Therefore, it is for testing pumps and valves. The safety the TS requirements will be performed concluded that these changes do not involve function of the affected pumps and valves concurrently with the implementation of the a significant reduction in a margin of safety. will be maintained. Therefore, the proposed 10 CFR Part 26, Subpart I requirements. The change does not involve a significant The NRC staff has reviewed the proposed changes do not impact the physical licensee’s analysis and, based on this reduction in a margin of safety. configuration or function of plant structures, The NRC staff has reviewed the systems, or components (SSCs) or the manner review, it appears that the three licensee’s analysis and, based on this in which SSCs are operated, maintained, standards of 10 CFR 50.92(c) are review, it appears that the three modified, tested, or inspected. The proposed satisfied. Therefore, the NRC staff standards of 10 CFR 50.92(c) are changes do not impact the initiators or proposes to determine that the assumptions of analyzed events, nor do they amendment request involves no satisfied. Therefore, the NRC staff impact the mitigation of accidents or proposes to determine that the significant hazards consideration. transient events. Attorney for licensee: David T. amendment request involves no Therefore, it is concluded that these Conley, Associate General Counsel II— significant hazards consideration. changes do not involve a significant increase Legal Department, Progress Energy Attorney for licensee: David W. in the probability or consequences of an Jenkins, Attorney, FirstEnergy accident previously evaluated. Service Company, LLC, Post Office Box Corporation, Mail Stop A–GO–15, 76 2. Do the proposed changes create the 1551, Raleigh, NC 27602. NRC Branch Chief: Thomas H. Boyce. South Main Street, Akron, OH 44308. possibility of a new or different kind of NRC Branch Chief: Russell Gibbs. accident from any accident previously Florida Power Corporation, et al., evaluated? Florida Power Corporation, et al., Response: No. Docket No. 50–302, Crystal River Unit 3 Docket No. 50–302, Crystal River Unit 3 The proposed changes remove TS controls Nuclear Generating Plant, Citrus Nuclear Generating Plant, Citrus on working hours for personnel who perform County, Florida County, Florida safety related functions. The TS controls are Date of amendment request: superseded by the worker fatigue Date of amendment request: October December 17, 2008. requirements in 10 CFR Part 26. Work hours Description of amendments request: 6, 2008. will continue to be controlled in accordance Description of amendment request: with NRC requirements. The new rule allows The proposed change would revise the The proposed change would remove for deviations from controls to mitigate or Crystal River Unit 3 Improved Technical work hour controls and/or references to prevent a condition adverse to safety or as Specifications Administrative Controls, the NRC Generic Letter 82–12 from the necessary to maintain the security of the Section 5.6, to revise the Inservice facility. This ensures that the new rule will administrative control sections of the Testing Program to incorporate the not restrict work hours and thereby create the Technical Specification Task Force technical specifications. On April 17, possibility of a new or different kind of 2007, the NRC approved a final rule that (TSTF) Standard TS Change Traveler, accident from any accident previously TSTF–479, Revision 0, ‘‘Changes to amended 10 CFR Part 26 and, among evaluated. Reflect Revision of 10 CFR 50.55a,’’ and other changes, established requirements The proposed changes do not alter plant for managing worker fatigue at operating configuration, require that new plant TSTF–497, Revision 0, ‘‘Limit Inservice nuclear power plants. Subpart I, equipment be installed, alter assumptions Testing Program SR 3.0.2 Application to ‘‘Managing Fatigue,’’ specifically made about accidents previously evaluated, Frequencies of 2 Years or Less.’’ Basis for proposed no significant addresses managing worker fatigue by add any initiators, or effect the function of plant systems or the manner in which hazards consideration determination: designating individual break systems are operated, maintained, modified, As required by 10 CFR 50.91(a), the requirements, work hour limits, and tested, or inspected. licensee has provided its analysis of the annual reporting requirements. Subpart Therefore, it is concluded that this change issue of no significant hazards I was published in the Federal Register does not create the possibility of a new or consideration, which is presented on March 31, 2008 (73 FR 16966), with different kind of accident from any accident below: a required implementation period of 18 previously evaluated. months. Compliance is, therefore, 3. Do the proposed changes involve a 4. Does not involve a significant increase required by October 1, 2009. In order to significant reduction in a margin of safety? in the probability or consequences of an support compliance with 10 CFR Part Response: No. accident previously evaluated. The proposed changes remove TS controls The proposed change revises the CR–3 26, Subpart I, the licensee is proposing on working hours for personnel who perform [Crystal River Unit 3] ITS [Improved to remove these work hour controls safety related functions. The TS controls are Technical Specifications], Section 5.6.2.9, from Technical Specification 5.2.2.e at superseded by the worker fatigue ‘‘Inservice Testing Program,’’ for consistency the Crystal River Unit 3 Nuclear requirements in 10 CFR Part 26. The with the requirements of 10 CFR 50.55a(f)(4) Generating Plant. proposed changes do not involve any regarding the inservice testing of pumps and

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valves which are classified as ASME Attorney for licensee: David T. the changes proposed in this license [American Society of Mechanical Engineers] Conley, Associate General Counsel II— amendment request do not involve a Code Class 1, Class 2, and Class 3. The Legal Department, Progress Energy significant increase in the consequences of an proposed change incorporates revisions to Service Company, LLC, Post Office Box accident previously evaluated. the ASME Code that result in a net The changes proposed in this license 1551, Raleigh, NC 27602. amendment do not involve a significant improvement in the measures for testing NRC Branch Chief: Thomas H. Boyce. pumps and valves. increase in the probability or consequences The proposed change does not impact any Northern States Power Company— of an accident previously evaluated. accident initiators or analyzed events or Minnesota, Docket Nos. 50–282 and 50– 2. Does the proposed amendment create assumed mitigation of accident or transient the possibility of a new or different kind of 306, Prairie Island Nuclear Generating accident from any accident previously events. The proposed change does not Plant, Units 1 and 2, Goodhue County, involve the addition or removal of any evaluated? equipment, or any design changes to the Minnesota Response: No. facility. Therefore, this proposed change does Date of amendment request: This license amendment request proposes to increase a portion of the Prairie Island not involve an increase in probability or November 4, 2008. consequences of an accident previously Nuclear Generating Plant Unit 1 emergency Description of amendment request: diesel generator’s 24-month test loading, evaluated. The proposed amendments would make reduce the Unit 2 emergency diesel 5. Does not create the possibility of a new changes to the Technical Specifications generators’ monthly test loading which or different kind of accident from any to increase the 24 month test load for demonstrates Technical Specification accident previously evaluated. the Unit 1 Emergency Diesel Generators operability and revise the 24-month test to The proposed change revises the CR–3 ITS, require the Unit 2 emergency diesel Section 5.6.2.9, ‘‘Inservice Testing Program,’’ (EDGs), D1 and D2, reduce the monthly test load for the Unit 2 EDGs, D5 and generators to operate for at least 2 hours at for consistency with the requirements of 10 100–110% of the continuous rated loading CFR 50.55a(f)(4) regarding the inservice D6, and reduce the 24 month test loads and the remainder of the 24-hour test at or testing of pumps and valves which are for the Unit 2 EDGs. above 4000 kW. The proposed test loads will classified as ASME Code Class 1, Class 2, and Basis for proposed no significant continue to assure that the emergency diesel Class 3. The proposed change incorporates hazards consideration determination: generators have the necessary reliability and revisions to the ASME Code that result in a As required by 10 CFR 50.91(a), the availability for the design basis accidents and net improvement in the measures for testing licensee has provided its analysis of the station blackout events. pumps and valves. The proposed Technical Specification The proposed change does not involve a issue of no significant hazards consideration, which is presented changes do not involve a change in the plant modification to the physical configuration of design, system operation, or the use of the the plant (i.e., no new equipment will be below: emergency diesel generators. The proposed installed) or involve a change in the methods 1. Does the proposed amendment involve changes require the Unit 1 emergency diesel governing normal plant operation. The a significant increase in the probability or generators to be tested at increased loads and proposed change will not introduce a new consequences of an accident previously allow the Unit 2 emergency diesel generator accident initiator, accident precursor, or evaluated? to be tested at reduced loads which envelope malfunction mechanism. Additionally, there Response: No. the required safety function loads. These is no change in types or increases in the This license amendment request proposes revised loads continue to demonstrate the amounts of any effluents that may be released to increase a portion of the Prairie lsland capability and capacity of the emergency offsite and there is no increase in individual Nuclear Generating Plant Unit 1 emergency diesel generators to perform their required or cumulative occupational exposure. diesel generator’s 24-month test loading, functions. There are no new failure modes or Therefore, the proposed change does not reduce the Unit 2 emergency diesel mechanisms created due to testing the create the possibility of an accident of a generators’ monthly test loading which emergency diesel generators at the proposed different kind than previously evaluated. demonstrates Technical Specification test loading. Testing of the emergency diesel 6. Does not involve a significant reduction operability and revise the 24-month test to generators at the proposed test loadings does in a margin of safety[.] require the Unit 2 emergency diesel not involve any modification in the The proposed change revises the CR–3 ITS, generators to operate for at least 2 hours at operational limits or physical design of plant Section 5.6.2.9, ‘‘Inservice Testing Program,’’ 100–110% of the continuous rated loading systems. There are no new accident for consistency with the requirements of 10 and the remainder of the 24-hour test at or precursors generated due to the proposed test CFR 50.55a(f)(4) regarding the inservice above 4000 kW. The proposed test loads will loadings. testing of pumps and valves which are continue to assure that the emergency diesel The Technical Specification changes classified as ASME Code Class 1, Class 2, and generators have the necessary reliability and proposed in this license amendment do not Class 3. The proposed change does not availability for the design basis accidents and create the possibility of a new or different involve a modification to the physical station blackout events. kind of accident from any previously configuration of the plant (i.e., no new The emergency diesel generators are evaluated. equipment will be installed) or change the required to be operable in the event of a 3. Does the proposed amendment involve methods governing normal plant operation. design basis accident coincident with a loss a significant reduction in a margin of safety? The proposed change incorporates revisions of offsite power to mitigate the consequences Response: No. to the ASME Code that result in a net of the accident. They are also the alternate This license amendment request proposes improvement in the measures for testing AC source for a station blackout on the other to increase a portion of the Prairie Island pumps and valves. The safety function of the Prairie lsland Nuclear Generating Plant unit. Nuclear Generating Plant Unit 1 emergency affected pumps and valves will be The emergency diesel generators are not diesel generator’s 24-month test loading, maintained. Therefore, the proposed change accident initiators and therefore these reduce the Unit 2 emergency diesel does not involve a significant reduction in a changes do not involve a significant increase generators’ monthly test loading which margin of safety. in the probability of an accident previously demonstrates Technical Specification evaluated. operability and revise the 24-month test to The NRC staff has reviewed the The accident analyses assume that at least require the Unit 2 emergency diesel licensee’s analysis and, based on this one safeguards bus is provided with power generators to operate for at least 2 hours at review, it appears that the three either from the offsite sources or the 100–110% of the continuous rated loading standards of 10 CFR 50.92(c) are emergency diesel generators. The Technical and the remainder of the 24-hour test at or Specification changes proposed in this above 4000 kW. The proposed test loads will satisfied. Therefore, the NRC staff license amendment request will continue to continue to assure that the emergency diesel proposes to determine that the assure that the emergency diesel generators generators have the necessary reliability and amendment request involves no have the capacity and capability to assume availability for the design basis accidents and significant hazards consideration. their maximum auto-connected loads. Thus, station blackout events.

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The proposed Technical Specification NUREGs. The proposed revision to the no new or different type of equipment will changes will continue to demonstrate that the TS and associated Bases is similar to the be installed) or a significant change in the emergency diesel generators meet the TSTF–448, Revision 3. The supplement methods governing normal plant operation. Technical Specification definition of contains additional information related The proposed change does not alter any operability, that is, the proposed tests will safety analysis assumptions and is consistent demonstrate that the emergency diesel to smoke and chemical effects and with current plant operating practice. generators will perform their safety function addresses the associated proposed Therefore, this change does not create the and the necessary emergency diesel generator revision to TS Section 3.7.3, TS Section possibility of a new or different kind of attendant instrumentation, controls, cooling, 5.5.13 and TS Bases 3.7.3. accident from any accident previously lubrication and other auxiliary equipment Basis for proposed no significant evaluated. required for the emergency diesel generators hazards consideration determination: 3. Does the proposed Technical to perform their safety function loads are also As required by 10 CFR 50.91(a), the Specification change involve a significant tested at these proposed loadings. The licensee has provided its analysis of the reduction in a margin of safety? proposed testing will also continue to issue of no significant hazards The proposed change does not alter the demonstrate the capability and capacity of consideration, which is presented manner in which safety limits, limiting safety the emergency diesel generators to supply system settings or limiting conditions for their required loss of offsite power loads below: operation are determined. The proposed coincident with station blackout loads from 1. Does the proposed Technical change does not affect safety analysis the opposite unit. Since the proposed Specification change involve a significant acceptance criteria. The proposed change surveillance testing will continue to increase in the probability or consequences will not result in plant operation in a demonstrate operability, and the capability of an accident previously evaluated? configuration outside the design basis for an and capacity to supply their required loss of No. The proposed change does not unacceptable period of time without offsite power coincident with opposite unit adversely affect accident initiators or compensatory measures. The proposed station blackout loads, the proposed precursors nor alter the design assumptions, change does not adversely affect systems that Technical Specification changes do not conditions, or configuration of the facility. respond to safely shut down the plant and to involve a significant reduction in a margin of The proposed change does not alter or maintain the plant in a safe shutdown safety. prevent the ability of structures, systems, and condition. Therefore, the proposed change Therefore, the proposed changes do not components (SSCs) to perform their intended does not involve a significant reduction in a involve a significant reduction in a margin of function to mitigate the consequences of an margin of safety. safety. initiating event within the assumed acceptance limits. The proposed change The NRC staff has reviewed the The NRC staff has reviewed the revises the TS for the CRE emergency licensee’s analysis and, based on this licensee’s analysis and, based on this ventilation system, which is a mitigation review, it appears that the three review, it appears that the three system designed to minimize unfiltered air standards of 10 CFR 50.92(c) are standards of 10 CFR 50.92(c) are leakage into the CRE and to filter the CRE satisfied. Therefore, the NRC staff satisfied. Therefore, the NRC staff atmosphere to protect the CRE occupants in proposes to determine that the proposes to determine that the the event of accidents previously analyzed. amendment request involves no amendment requests involve no An important part of the CRE emergency significant hazards consideration. ventilation system is the CRE boundary. The Attorney for licensee: General significant hazards consideration. CRE emergency ventilation system is not an Attorney for licensee: Peter M. Glass, initiator or precursor to any accident Counsel, Tennessee Valley Authority, Assistant General Counsel, Xcel Energy previously evaluated. Therefore, the 400 West Summit Hill Drive, ET 11A, Services, Inc., 414 Nicollet Mall, probability of any accident previously Knoxville, Tennessee 37902. Minneapolis, MN 55401. evaluated is not increased. Performing tests NRC Branch Chief: Thomas H. Boyce. NRC Branch Chief: Lois M. James. to verify the operability of the CRE boundary and implementing a program to assess and Tennessee Valley Authority, Docket No. Tennessee Valley Authority, Docket maintain CRE habitability ensure that the 50–260, Browns Ferry Nuclear Plant, Nos. 50–259, 50–260 and 50–296, CRE emergency ventilation system is capable Unit 2, Limestone County, Alabama Browns Ferry Nuclear Plant, Units 1, 2 of adequately mitigating radiological Date of amendment request: and 3, Limestone County, Alabama consequences to CRE occupants during December 22, 2008 (TS–463–T). accident conditions, and that the CRE Date of amendment request: March Description of amendment request: emergency ventilation system will perform as The proposed amendment would, on a 27, 2008, as supplemented by a letter assumed in the consequence analyses of December 19, 2008. design basis accidents. Thus, the one-time basis, extend several Technical Description of amendment request: consequences of any accident previously Specification (TS) surveillance The proposed amendment would revise evaluated are not increased. Therefore, the frequencies approximately 45 days. the Technical Specifications (TS) proposed change does not involve a Basis for proposed no significant requirements related to control building significant increase in the probability or hazards consideration determination: envelope habitability in TS Section consequences of an accident previously As required by 10 CFR 50.91(a), the 3.7.3 Control Room Emergency evaluated. licensee has provided its analysis of the 2. Does the proposed Technical Ventilation (CREV) System, and add TS issue of no significant hazards Specification change create the possibility of consideration, which is presented Section 5.5.13, Control Building a new or different kind of accident from any Envelope Habitability Program, to the accident previously evaluated? below: Administrative Section of the TSs. The No. The proposed change does not impact 1. Does the proposed amendment involve licensee has included conforming the accident analysis. The proposed change a significant increase in the probability or technical changes to the TS Bases. The does not alter the required mitigation consequences of an accident previously proposed revision to the Bases also capability of the CRE emergency ventilation evaluated? includes editorial and administrative system, or its functioning during accident Response: No. changes to reflect applicable changes to conditions as assumed in the licensing basis The requested action is a one-time analyses of design basis accident radiological extension to the performance interval of a the corresponding TS Bases, which were consequences to CRE occupants. No new or limited number of TS surveillance made to improve clarity, conform to the different accidents result from performing the requirements. The performance of these latest information and references, new surveillance or following the new surveillances, or the failure to perform these correct factual errors, and achieve more program. The proposed change does not surveillances, is not a precursor to an consistency with the standard TS involve a physical alteration of the plant (i.e., accident. Performing these surveillances or

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failing to perform these surveillances does most recent performance of their 24-month Response: No. not affect the probability of an accident. surveillance requirements. The proposed change modifies the Therefore, the proposed delay in Based on the limited additional period of maximum number of TPBARs in the core. performance of the surveillance requirements time that the systems and components will The required boron concentration for the in this amendment request does not increase be in service before the surveillances are next cold leg accumulators (CLAs) and RWST the probability of an accident previously performed, as well as the operating remains unchanged. The current boron evaluated. experience that these surveillances are concentration has been demonstrated to A delay in performing these surveillances typically successful when performed, it is maintain the required accident mitigation does not result in a system being unable to reasonable to conclude that the margins of safety function for the CLAs and RWST with perform its required function. In the case of safety associated with these surveillance the higher number of TPBARs and this will this one-time extension request, the relatively requirements will not be affected by the be verified for each core that contains short period of additional time that the requested extension. TPBARs as part of the normal reload systems and components will be in service The NRC staff has reviewed the analysis. The CLAs and RWST safety function is to mitigate accidents that require before the next performance of the licensee’s analysis and, based on this surveillance will not affect the ability of the injection of borated water to cool the core those systems to operate as designed. review, it appears that the three and to control reactivity. These functions are Therefore, the systems required to mitigate standards of 10 CFR 50.92(c) are not potential sources for accident generation accidents will remain capable of performing satisfied. Therefore, the NRC staff and the modification of the number of their required function. No new failure proposes to determine that the TPBARs will not increase the potential for an modes have been introduced because of this amendment request involves no accident. Therefore, the possibility of an action and the consequences remain significant hazards consideration. accident is not increased by the proposed consistent with previously evaluated Attorney for licensee: General changes. The current boron concentration accidents. Therefore, the proposed delay in Counsel, Tennessee Valley Authority, levels are supported by the proposed number of TPBARs in the core. Since the current performance of the surveillance requirements 400 West Summit Hill Drive, ET 11A, in this amendment request does not involve boron concentration levels will continue to a significant increase in the consequences of Knoxville, Tennessee 37902. maintain the safety function of the CLAs and an accident. NRC Branch Chief: Thomas Boyce. RWST in the same manner as currently Therefore, operation of the facility in Tennessee Valley Authority, Docket No. approved, the consequences of an accident accordance with the proposed license are not increased by the proposed changes. 50 390, Watts Bar Nuclear Plant, Unit 1, 2. Does the proposed amendment create amendment would not involve a significant Rhea County, Tennessee increase in the probability or consequences the possibility of a new or different kind of of an accident previously evaluated. Date of amendment request: August 1, accident from any accident previously 2. Does the proposed amendment create 2008, as supplemented November 25 evaluated? the possibility of a new or different kind of and December 31, 2008 (2 letters). Response: No. accident from any accident previously Description of amendment request: The proposed change only modifies the maximum number of TPBARs in the core. evaluated? The proposed amendment would revise Response: No. The boron concentrations for accident the following: (1) Technical mitigation functions of the CLAs and RWST The proposed amendment does not involve Specification (TS) 4.2.1, ‘‘Fuel a physical alteration of any system, structure, remain unchanged. These functions do not or component (SSC) or a change in the way Assemblies,’’ and TS Surveillance have a potential to generate accidents as they any SSC is operated. The proposed Requirements 3.5.1.4, ‘‘Accumulators,’’ only serve to perform mitigation functions amendment does not involve operation of and 3.5.4.3, ‘‘RWST [Refueling Water associated with an accident. The proposed any SSCs in a manner or configuration Storage Tank],’’ to increase the modification will maintain the mitigation different from those previously recognized or maximum number of Tritium Producing function in an identical manner as currently approved. There are no plant equipment or evaluated. No new failure mechanisms will Burnable Absorber Rods (TPBARs) that be introduced by the one-time surveillance operational changes associated with the can be irradiated per cycle from 400 to proposed revision. Therefore, since the CLA requirement extensions being requested. 704. Therefore, the proposed change does not and RWST functions are not altered and the An application that addressed similar plant will continue to operate without create the possibility of a new or different issues was previously submitted on kind of accident from any accident change, the possibility of a new or different previously evaluated. August 1, 2008, and notice of that kind of an accident is not created. 3. Does the proposed amendment involve 3. Does the proposed amendment involve application was provided in the Federal a significant reduction in a margin of safety? a significant reduction in a margin of safety? Register on November 12, 2008 (73 FR Response: No. Response: No. 66946). Due to certain changes in the This change proposes a change to the The proposed amendment is a one-time specifics of the December 31, 2008, maximum number of TPBARs in the core. extension of the performance interval of a revision from those proposed in the The boron concentration requirements that limited number of TS surveillance August 1, 2008, application, as support the accident mitigation functions of requirements. Extending these surveillance supplemented on November 25 and the CLAs and RWST remain unchanged. The requirements does not involve a modification December 31, 2008, the application is proposed change does not alter any plant of any TS Limiting Conditions for Operation. being renoticed in its entirety. This equipment or components and does not alter Extending these surveillance requirements any setpoints utilized for the actuation of does not involve a change to any limit on notice supersedes the notice published in the Federal Register on November 12, accident mitigation system or control accident consequences specified in the functions. The proposed number of TPBARs, license or regulations. Extending these 2008. in conjunction with the current boron surveillance requirements does not involve a Basis for proposed no significant concentration values, has been demonstrated change to how accidents are mitigated or a hazards consideration determination: to provide an adequate level of reactivity significant increase in the consequences of an As required by 10 CFR 50.91(a), the control for accident mitigation and this will accident. Extending these surveillance licensee has provided its analysis of the be verified for each core that contains requirements does not involve a change in a issue of no significant hazards TPBARs as part of the normal reload methodology used to evaluate consequences analysis. Therefore, the proposed change will of an accident. Extending these surveillance consideration, which is presented below: not involve a significant reduction in a requirements does not involve a change in margin of safety. any operating procedure or process. 1. Does the proposed amendment involve The instrumentation and components a significant increase in the probability or The NRC staff has reviewed the involved in this request have exhibited consequences of an accident previously licensee’s analysis and, based on this reliable operation based on the results of the evaluated? review, it appears that the three

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standards of 10 CFR 50.92(c) are trains (ESW Train A and Train B) from with 10 CFR 51.22. Therefore, pursuant satisfied. Therefore, the NRC staff 72 hours to 14 days. The extended to 10 CFR 51.22(b), no environmental proposes to determine that the completion time was requested to impact statement or environmental amendment request involves no support planned replacement of the assessment need be prepared for these significant hazards consideration. underground carbon steel piping with amendments. If the Commission has Attorney for licensee: General new high density polyethylene (HDPE) prepared an environmental assessment Counsel, Tennessee Valley Authority, piping for ESW Train A and ESW Train under the special circumstances 400 West Summit Hill Drive, ET 11A, B during plant operation. The provision in 10 CFR 51.22(b) and has Knoxville, Tennessee 37902. amendment was issued with a made a determination based on that NRC Acting Branch Chief: P. Milano. requirement to complete the assessment, it is so indicated. replacement of carbon steel piping with For further details with respect to the Previously Published Notices of HDPE piping for both ESW trains by action see (1) the applications for Consideration of Issuance of December 31, 2008. By its application amendment, (2) the amendment, and (3) Amendments to Facility Operating dated December 1, 2008, the licensee the Commission’s related letter, Safety Licenses, Proposed No Significant informed NRC that it had experienced Evaluation and/or Environmental Hazards Consideration Determination, significant delays in completing the Assessment as indicated. All of these and Opportunity for a Hearing replacement of underground piping/ items are available for public inspection The following notices were previously conduit due, in part, to underground at the Commission’s Public Document published as separate individual obstructions during excavation, a longer Room (PDR), located at One White Flint notices. The notice content was the refueling outage (Refuel 16) than North, Public File Area 01F21, 11555 same as above. They were published as anticipated, a forced outage at the Rockville Pike (first floor), Rockville, individual notices either because time beginning of Cycle 17, switchyard Maryland. Publicly available records did not allow the Commission to wait maintenance, and other equipment and will be accessible from the Agencywide for this biweekly notice or because the personnel issues. However, the Documents Access and Management action involved exigent circumstances. replacement of ESW Train A carbon Systems (ADAMS) Public Electronic They are repeated here because the steel piping was completed by the Reading Room on the internet at the biweekly notice lists all amendments required date of December 31, 2008, but NRC Web site, http://www.nrc.gov/ issued or proposed to be issued the replacement of ESW Train B carbon reading-rm/adams.html. If you do not involving no significant hazards steel piping was deferred. Consequently, have access to ADAMS or if there are consideration. the licensee proposed to extend the problems in accessing the documents For details, see the individual notice implementation date for completion of located in ADAMS, contact the PDR in the Federal Register on the day and replacement of carbon steel piping for Reference staff at 1 (800) 397–4209, page cited. This notice does not extend ESW Train B from December 31, 2008, (301) 415–4737 or by e-mail to the notice period of the original notice. to April 30, 2009. [email protected]. Date of publication of individual Entergy Nuclear Operations, Inc., notice in Federal Register: December 23, AmerGen Energy Company, LLC, Docket Docket No. 50–255, Palisades Plant, Van 2008 (73 FR 78858). No. 50–461, Clinton Power Station, Unit Buren County, Michigan Expiration date of individual notice No. 1, DeWitt County, Illinois Date of amendment request: comment period: January 22, 2009. AmerGen Energy Company, LLC, et al., November 25, 2008. Notice of Issuance of Amendments to Docket No. 50–219, Oyster Creek Brief description of amendment Facility Operating Licenses Nuclear Generating Station, Ocean request: The proposed amendment County, New Jersey would revise Appendix A, Technical During the period since publication of Specifications (TS), as they apply to the the last biweekly notice, the AmerGen Energy Company, LLC, Docket spent fuel pool (SFP) storage Commission has issued the following No. 50–289, Three Mile Island Nuclear requirements in TS section 3.7.16 and amendments. The Commission has Station, Unit 1 (TMI–1), Dauphin the criticality requirements for the determined for each of these County, Pennsylvania Region I SFP and north tilt pit fuel amendments that the application Date of application for amendments: storage racks, in TS section 4.3.1.1. complies with the standards and June 20, 2008. Date of publication of individual requirements of the Atomic Energy Act Brief description of amendments: The notice in Federal Register: January 2, of 1954, as amended (the Act), and the amendments conform the licenses to 2009 (74 FR 123). Commission’s rules and regulations. reflect the direct transfer of AmerGen Expiration date of individual notice: The Commission has made appropriate Energy Company, LLC’s ownership and February 3, 2009. findings as required by the Act and the operating authority for Clinton Power Commission’s rules and regulations in Station, Unit No. 1, Oyster Creek Union Electric Company, Docket No. 10 CFR Chapter I, which are set forth in Nuclear Generating Station (Oyster 50–483, Callaway Plant, Unit 1, the license amendment. Creek), and Three Mile Island Nuclear Callaway County, Missouri Notice of Consideration of Issuance of Station, Unit 1, to Exelon Generation Date of amendment request: Amendment to Facility Operating Company, LLC, (ECG) as approved by December 1, 2008. License, Proposed No Significant Commission Order dated December 23, Description of amendment request: By Hazards Consideration Determination, 2008. Transfer of the license for Oyster letter dated October 31, 2008, the and Opportunity for A Hearing in Creek will also authorize EGC to store Nuclear Regulatory Commission issued connection with these actions was spent fuel in the Oyster Creek Amendment No. 186, to Callaway Plant, published in the Federal Register as independent spent fuel storage Unit 1, Facility Operating License No. indicated. installation. NPF–30. The amendment allowed a Unless otherwise indicated, the Date of issuance: January 8, 2009. one-time extension of the allowed Commission has determined that these Effective date: As of the date of outage time (completion time) for each amendments satisfy the criteria for issuance and shall be implemented of the two essential service water (ESW) categorical exclusion in accordance within 30 days.

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Amendment Nos.: CPS–183, Oyster Effective date: As of the date of Protection System (WCAP–15376).’’ The Creek–271, and TMI–1–267. issuance and shall be implemented NRC approved TSTF–411, Revision 1, Facility Operating License Nos. NPF– within 60 days. by letter dated August 30, 2002. The 62, DPR–16, and DPR–50: The Amendment No.: 202. licensee also requested additional amendments revised the Technical Facility Operating License No. DPR– changes not specifically included in the Specifications and Licenses. 43: Amendment revised the operating above topical reports. These changes Date of initial notice in Federal license and Technical Specifications. will be evaluated in a future Register: August 26, 2008 (73 FR Date of initial notice in Federal amendment. 50368). The Commission’s related Register: June 17, 2008 (73 FR 34340) Date of issuance: December 22, 2008. evaluation of the amendments is The Commission’s related evaluation of Effective date: As of the date of contained in a Safety Evaluation dated the amendment is contained in a Safety issuance and shall be implemented December 23, 2008. Evaluation dated January 12, 2009. within 90 days from the date of No significant hazards consideration No significant hazards consideration issuance. comments received: The NRC received comments received: No. Amendment Nos.: 247 and 240. three comments on August 27, 2008, Duke Energy Carolinas, LLC, et. al., Facility Operating License Nos. NPF– one for each plant’s initial notice. The Docket Nos. 50–413 and 50–414, 35 and NPF–52: Amendments revised comments did not provide any Catawba Nuclear Station, Units 1 and 2, the licenses and the technical information additional to that in the York County, South Carolina specifications. application, nor did they provide any Date of application for amendments: Date of initial notice in Federal information contradictory to that Register: March 25, 2008 (73 FR provided in the application. December 11, 2007, as supplemented December 18, 2008. 15783). The supplement dated Dominion Energy Kewaunee, Inc. Brief description of amendments: The December 18, 2008, provided additional Docket No. 50–305, Kewaunee Power amendments revised the Technical information that clarified the Station, Kewaunee County, Wisconsin Specifications sections to allow the application, did not expand the scope of the application as originally noticed, Date of application for amendment: bypass test times and Completion Times (CTs) for Limiting Condition for and did not change the staff’s original April 4, 2008. proposed no significant hazards Brief description of amendment: The Operation (LCOs) 3.3.1, ‘‘Reactor Trip consideration determination. amendment revised the Technical System (RTS) Instrumentation;’’ 3.3.2, The Commission’s related evaluation Specifications by removing the ‘‘Engineered Safety Feature Actuation of the amendments is contained in a operability and surveillance System (ESFAS) Instrumentation;’’ Safety Evaluation dated December 22, requirements for the shield building 3.3.6, ‘‘Containment Air Release and 2008. ventilation (SBV) and auxiliary building Addition Isolation Instrumentation,’’ No significant hazards consideration special ventilation filter train heaters, and 3.3.9, ‘‘Boron Dilution Mitigation comments received: and reducing the operating time System (BDMS).’’ No. required to verify the SBV system The proposed license amendment Duke Energy Carolinas, LLC, et. al., operability from 10 hours to 15 minutes. request (LAR) adopts changes as Docket Nos. 50–413 and 50–414, Date of issuance: December 30, 2008. described in Westinghouse Commercial Catawba Nuclear Station, Units 1 and 2, Effective date: As of the date of Atomic Power (WCAP) topical report York County, South Carolina issuance and shall be implemented WCAP–14333–P–A, Revision 1, within 60 days. ‘‘Probabilistic Risk Analysis of the Date of application for amendments: Amendment No.: 201. Reactor Protection System and December 11, 2007, as supplemented by Facility Operating License No. DPR– Engineered Safety Features Actuation letter dated December 18, 2008. 43: Amendment revised the Technical System Test Times and Completion Brief description of amendments: The Specifications. Times,’’ issued October 1998 and amendments revised the Technical Date of initial notice in Federal approved by U.S. Nuclear Regulatory Specification sections to allow the Register: June 3, 2008 (73 FR 31720) Commission (NRC) letter dated July 15, bypass test times and Completion Times The Commission’s related evaluation of 1998. Implementation of the proposed for Limiting Condition for Operation the amendment is contained in a Safety changes is consistent with Technical 3.3.1, ‘‘Reactor Trip System (RTS) Evaluation dated December 30, 2008. Specification Task Force (TSTF) Instrumentation’’ and 3.3.2, No significant hazards consideration Traveler TSTF–418, Revision 2, ‘‘RPS ‘‘Engineered Safety Feature Actuation comments received: No. [Reactor Protection System] and ESFAS System (ESFAS) Instrumentation.’’ Test Times and Completion Times By letter dated December 30, 2008 Dominion Energy Kewaunee, Inc. (WCAP–14333).’’ The NRC approved (Agencywide Documents Access and Docket No. 50–305, Kewaunee Power TSTF–418, Revision 2, by letter dated Management System Accession No. Station, Kewaunee County, Wisconsin April 2, 2003. ML0083460216), the NRC issued Date of application for amendment: In addition, the proposed LAR adopts Amendment No. 247 and Amendment April 14, 2008, as supplemented by changes as described in WCAP–15376– No. 240 for Catawba Units 1 and 2, letter dated October 17, 2008. P–A, Revision 1, ‘‘Risk-Informed respectively, for all the proposed Brief description of amendment: The Assessment of the RTS and ESFAS changes approved by the NRC in TSTFs amendment adds a new footnote to Surveillance Test Intervals and Reactor 411 and 418. The December 30, 2008, Kewaunee Technical Specifications Trip Breaker Test and Completion amendment stated that the following Table 3.5–4, ‘‘Instrument Operating Times,’’ issued March 2003, as changes would be evaluated in a future Conditions for Isolation Functions.’’ The approved by NRC letter dated December amendment: new footnote allows the main steam line 20, 2002. Implementation of the Surveillance requirement (SR) 3.3.1.5, isolation circuitry to be inoperable proposed changes is consistent with Safety injection input from ESFAS, when both main steam isolation valves TSTF Traveler # TSTF–411, Revision 1, Condition J, Feedwater isolation with are closed and deactivated. ‘‘Surveillance Test Interval Extension low average core temperature coincident Date of issuance: January 12, 2009. for Components of the Reactor with reactor trip P–4, SR 3.3.2.2, turbine

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trip and feedwater isolation for steam July 29, 2008, provided additional 3.1.3.3; (2) removed the reference to SR generator water level high high. information that clarified the 3.1.3.2 from Required Action A.2 of TS (P–14), SR 3.3.2.4 turbine trip and application, did not expand the scope of 3.1.3, ‘‘Control Rod OPERABILITY’’; (3) feedwater isolation for steam generator the application as originally noticed, clarified the requirement to fully insert water level high high (P–14), and SR and did not change the staff’s original all insertable rods for the limiting 3.3.2.5 turbine trip and feedwater proposed no significant hazards condition for operation in TS 3.3.1.2 isolation for low average core consideration determination. The Required Action E.2, ‘‘Source Range temperature trip coincident with reactor Commission’s related evaluation of this Monitoring Instrumentation’’; and (4) trip P–4. amendment is contained in a Safety revised Example 1.4–3 in Section 1.4, This amendment approves the above Evaluation dated January 7, 2009. ‘‘Frequency,’’ to clarify the applicability changes. No significant hazards consideration of the 1.25 surveillance test interval Date of issuance: January 9, 2009. comments received: No. extension. Effective date: As of the date of Date of issuance: December 31, 2008. issuance and shall be implemented Entergy Operations, Inc., Docket No. 50– Effective date: As of the date of within 90 days from the date of 313, Arkansas Nuclear One, Unit No. 1, issuance and shall be implemented issuance. Pope County, Arkansas within 60 days of issuance. Amendment Nos.: 248 and 241. Date of amendment request: July 30, Facility Operating License Nos. NPF– 2008, as supplemented by letter dated Amendment No: 180. 35 and NPF–52: Amendments revised October 2, 2008. Facility Operating License No. NPF– the licenses and the technical Brief description of amendment: The 29: The amendment revised the Facility specifications. amendment revises the current TS Operating License and Technical Date of initial notice in Federal 3.6.6.3 surveillance requirements for Specifications. Register: March 25, 2008 (73 FR sodium hydroxide (NaOH) Date of initial notice in Federal 15783). The supplement dated concentration. Specifically, the Register: August 26, 2008 (73 FR December 18, 2008, provided additional amendment changes the surveillance 50359). information that clarified the requirements of the NaOH tank solution The Commission’s related evaluation application, did not expand the scope of concentration from between 5.0 weight of the amendment is contained in a the application as originally noticed, (wt.) percent and 16.5 wt. percent to Safety Evaluation dated December 31, and did not change the NRC staff’s between 6.0 wt. percent and 8.5 wt. 2008. original proposed no significant hazards percent. No significant hazards consideration consideration determination. Date of issuance: January 13, 2009. comments received: No. The Commission’s related evaluation Effective date: As of the date of of the amendments is contained in a issuance and shall be implemented Florida Power Corporation, et al., Safety Evaluation dated January 9, 2009. within 90 days from the date of Docket No. 50–302, Crystal River Unit No significant hazards consideration issuance. No. 3, Nuclear Generating Plant, Citrus comments received: No. Amendment No.: Unit 1—234. County, Florida Renewed Facility Operating License Entergy Nuclear Vermont Yankee, LLC Date of application for amendment: No. DPR–51: Amendment revised the and Entergy Nuclear Operations, Inc., January 17, 2008. License and Technical Specifications. Docket No. 50–271, Vermont Yankee Date of initial notice in Federal Brief description of amendment: The Nuclear Power Station, Vernon, Register: November 4, 2008, (73 FR amendment revises the Crystal River, Vermont 65694). The supplement dated October Unit 3 Improved Technical Date of application for amendment: 2, 2008, provided additional Specification Surveillance Requirement February 6, 2008, as supplemented by information that clarified the 3.7.5.2, ‘‘Emergency Feedwater letter dated July 29, 2008. application, did not expand the scope of System,’’ to align the text for the Brief description of amendment: The the application as originally noticed, emergency feedwater system amendment revised the Surveillance and did not change the staff’s original surveillance frequency with the text in Requirements (SRs) for control rod proposed no significant hazards the Technical Specifications Task Force exercising from weekly to monthly in consideration determination as Standard Technical Specification Technical Specification (TS) 4.3.A.2, published in the Federal Register. Change Traveler-101, Revision 0 and the revise verification of control rod The Commission’s related evaluation NRC technical report, NUREG–1430, coupling integrity as described in TS of the amendment is contained in a Volume 1, Revision 3, ‘‘Standard 4.3.B.1, revise the scram insertion time Safety Evaluation dated January 13, Technical Specifications Babcock and Limiting Conditions for Operation 2009. Wilcox Plants—Specification.’’ (LCOs) and SRs as described in TS 3.3.C No significant hazards consideration Date of issuance: January 9, 2009. and 4.3.C, and enhance TS 3.3.D and comments received: No. Effective date: Date of issuance, to be 4.3.D, the LCO and SR for Control Rod Entergy Operations, Inc., System Energy implemented within 60 days. Accumulators. Resources, Inc., South Mississippi Amendment No.: 231. Date of issuance: January 7, 2009. Facility Operating License No. DPR– Effective date: As of the date of Electric Power Association, and Entergy 72: Amendment revises the technical issuance, and shall be implemented Mississippi, Inc., Docket No. 50–416, specifications. within 60 days. Grand Gulf Nuclear Station, Unit 1, Amendment No.: 233. Claiborne County, Mississippi Date of initial notice in Federal Facility Operating License No. DPR– Date of application for amendment: Register: May 20, 2008 (73 FR 29163). 28: Amendment revised the License and June 30, 2008. The Commission’s related evaluation Technical Specifications. Brief description of amendment: The of the amendment is contained in a Date of initial notice in Federal amendment (1) deleted Technical Safety Evaluation dated January 9, 2009. Register: March 11, 2008 (73 FR Specification (TS) surveillance No significant hazards consideration 13024). The supplemental letter dated requirement (SR) 3.1.3.2 and revised SR comments received: No.

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Pacific Gas and Electric Company, that has been approved generically for revised the License and Technical Docket Nos. 50–275 and 50–323, Diablo the Boiling-Water Reactor (BWR) Specifications. Canyon Nuclear Power Plant, Unit Nos. Standard TS, NUREG–1433 (BWR/4) Date of initial notice in Federal 1 and 2, San Luis Obispo County, and NUREG–1434 (BWR/6) by revising Register: October 7, 2008 (73 FR California the frequency of SR 3.1.4.2, control rod 58675). The Commission’s related evaluation Date of application for amendments: scram time testing, from ‘‘120 days of the amendments is contained in a December 17, 2007, as supplemented by cumulative operation in MODE 1’’ to Safety Evaluation dated January 2, 2009. letters dated October 2, and November ‘‘200 days cumulative operation in No significant hazards consideration 18, 2008. MODE 1.’’ comments received: No. Brief description of amendments: The Date of issuance: January 2, 2009. Effective date: January 2, 2009. amendments increase the completion Amendment Nos.: 249 for Unit 1 and Tennessee Valley Authority, Docket No. times (CTs) for required actions related 228 for Unit 2 50 390, Watts Bar Nuclear Plant, Unit 1, to Technical Specifications (TS) 3.5.2, Facility Operating License Nos. NPF– Rhea County, Tennessee regarding the Emergency Core Cooling 14 and NPF–22: The amendments Date of application for amendment: System, and 3.6.6, regarding the revised the License and Technical September 19, 2008. Containment Spray and Cooling Specifications. Brief description of amendment: The Systems from 72 hours to 14 days. In Date of initial notice in Federal amendment modifies the Final Safety addition, invalid notes were deleted Register: October 7, 2008 (73 FR Analysis Report by requiring an from TSs 3.5.2 and 3.6.6 and new notes 58675). inspection of the ice condenser within were added to specify the limitations on The Commission’s related evaluation 24 hours of experiencing a seismic event the use of the 14-day extended CT. of the amendments is contained in a greater than or equal to an operating Date of issuance: December 31, 2008. Safety Evaluation dated January 2, 2009. basis earthquake within the 5-week Effective date: As of its date of No significant hazards consideration period after ice basket replenishment issuance and shall be implemented comments received: No. has been completed to confirm that within 180 days from the date of adverse ice fallout has not occurred that issuance. PPL Susquehanna, LLC, Docket Nos. 50–387 and 50–388, Susquehanna could impede the ability of the ice Amendment Nos.: Unit 1—202; Unit condenser lower inlet doors to open. 2—203. Steam Electric Station, Units 1 and 2, Luzerne County, Pennsylvania Date of issuance: January 6, 2009. Facility Operating License Nos. DPR– Effective date: As of the date of 80 and DPR–82: The amendments Date of application for amendments: issuance and shall be implemented revised the Facility Operating Licenses July 7, 2008. within 45 days of issuance. and Technical Specifications. Brief description of amendments: The Amendment No.: 73. Date of initial notice in Federal amendment adopted the Nuclear Facility Operating License No. NPF– Register: January 29, 2008 (73 FR Regulatory Commission (NRC) approved 90: Amendment authorizes revision to 5227). The supplement(s) dated October Technical Specification Task Force the FSAR. 2 and November 18, 2008, provided (TSTF) change traveler TSTF–475, Date of initial notice in Federal additional information that clarified the (Revision 1), ‘‘Control Rod Notch Register: November 4, 2008 (73 FR application, did not expand the scope of Testing Frequency and SRM [Source 65698). the application as originally noticed, Range Monitor] Insert Control Rod The Commission’s related evaluation and did not change the staff’s original Action,’’ to change the Standard of the amendment is contained in a proposed no significant hazards Technical Specifications (STS) for Safety Evaluation dated January 6, 2009. consideration determination as General Electric (GE) Plants (NUREG– No significant hazards consideration published in the Federal Register. 1433, BWR/4 to the plant-specific TS, comments received: No. The Commission’s related evaluation that allows: (1) Revising the frequency of the amendments is contained in a of Surveillance Requirement (SR) Tennessee Valley Authority, Docket No. Safety Evaluation dated December 31, 3.1.3.2, notch testing of fully withdrawn 50 390, Watts Bar Nuclear Plant, Unit 1, 2008. control rod, from ‘‘7 days after the Rhea County, Tennessee No significant hazards consideration control rod is withdrawn and Date of application for amendment: comments received: No. THERMAL POWER is greater than the March 27, 2008, as supplemented PPL Susquehanna, LLC, Docket Nos. LPSP of RWM’’ to ‘‘31 days after the September 26, 2008. Brief description of amendment: The 50–387 and 50–388, Susquehanna control rod is withdrawn and amendment revises the allowable value Steam Electric Station, Units 1 and 2, THERMAL POWER is greater than the listed for Function 3, ‘‘Containment Luzerne County, Pennsylvania LPSP [Low Power Set Point] of the RWM [Rod With Minimizer]’’, and (2) Purge Exhaust Radiation Monitors,’’ in Date of application for amendments: revising Example 1.4–3 in Section 1.4 Table 3.3.6–1, ‘‘Containment Vent July 7, 2008. ‘‘Frequency’’ to clarify that the 1.25 Isolation Instrumentation,’’ of the Brief description of amendments: The surveillance test interval extension in limited condition for operation 3.3.6. amendments revised the Technical SR 3.0.2 is applicable to time periods Date of issuance: January 8, 2009. Specification (TS) testing frequency for discussed in NOTES in the Effective date: As of the date of the Surveillance Requirement (SR) in TS ‘‘SURVEILLANCE’’ column in addition issuance and shall be implemented 3.1.4, ‘‘Control Rod Scram Times.’’ The to the time periods in the within 30 days of issuance. change revised the frequency of SR ‘‘FREQUENCY’’ column. Amendment No.: 74. 3.1.4.2, control rod scram time testing, Date of issuance: January 2, 2009. Facility Operating License No. NPF– from ‘‘120 days cumulative operation in Effective date: January 2, 2009. 90: Amendment revises the Technical Mode 1’’ to ‘‘200 days cumulative Amendment Nos.: 250 for Unit 1 and Specifications and License. operation in Mode 1.’’ These changes 229 for Unit 2. Date of initial notice in Federal are based on TS Task Force (TSTF) Facility Operating License Nos. NPF– Register: May 6, 2008 (73 FR 25047). change traveler TSTF–460 (Revision 0) 14 and NPF–22: The amendments The supplement dated September 26,

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2008, provided additional information For the Nuclear Regulatory Commission. III that clarified the application, did not Joseph G. Giitter, Accordingly, pursuant to sections expand the scope of the application as Director, Division of Operating Reactor 161c, 161o, 182 and 186 of the Atomic originally noticed, and did not change Licensing, Office of Nuclear Reactor Energy Act of 1954, as amended, and the staff’s original proposed no Regulation. the Commission’s regulations in 10 CFR significant hazards consideration [FR Doc. E9–1568 Filed 1–26–09; 8:45 am] 2.204 and 10 CFR 31.5, the NRC seeks determination as published in the BILLING CODE 7590–01–P information in order to determine Federal Register. whether additional regulatory action The Commission’s related evaluation should be taken to ensure compliance of the amendment is contained in a NUCLEAR REGULATORY with NRC requirements. Within 60 days Safety Evaluation dated January 8, 2009. COMMISSION of the date of this Demand for Information, you must submit a written No significant hazards consideration [EA–09–001; NRC–2009–0017] answer to the Director, Office of Federal comments received: No. and State Materials and Environmental Virginia Electric and Power Company, In the Matter of Certain General Management Programs, U.S. Nuclear Docket Nos. 50–338 and 50–339, North Material Licensees; Demand for Regulatory Commission, Washington, Anna Power Station, Units 1 and 2, Information DC 20555–0001. Your answer must be submitted under oath or affirmation, Louisa County, Virginia I and it must provide the following Date of application for amendment: The Nuclear Regulatory Commission information: December 17, 2007, as supplemented on (NRC or Commission) is issuing this A. Explain how you ensure July 22, 2008, September 26, 2008, and Demand for Information because it is compliance with the NRC requirements November 25, 2008. our understanding that you possess applying to the possession, transfer, and Brief description of amendment: radioactive material in the form of disposal of tritium exit signs you have These amendments revised Technical tritium in exit signs. Because you acquired. Identify and provide contact Specification (TS) 3.8.3 to allow a one- possess radioactive material in this information for the individual you have time extended 14-day completion time form, you hold what is referred to as a appointed who is responsible for (CT) for each of the two underground ‘‘general license’’ to possess such ensuring day-to-day compliance with diesel fuel oil storage tanks (FOST) to material. In this case, your general these requirements. permit removal of the current coating license has been issued by the NRC B. State the number of tritium exit and to recoat the tanks in preparation pursuant to section 31.5 in Part 10 of the signs you currently possess and the for use of ultra-low sulfur diesel fuel oil. Code of Federal Regulations (10 CFR number of signs that, according to your The change revised the TS to extend the 31.5). This general license authorizes records, should be in your possession. CT associated with an inoperable you, the licensee, to receive, possess, C. Explain the reasons for any emergency diesel generator FOST from use, or transfer, in accordance with the discrepancy between the number of 7 days to 14 days, applicable once for provisions of paragraphs (b), (c) and (d) tritium exit signs you currently possess each of the two tanks. of 10 CFR 31.5, radioactive material and the number of signs that should be in your possession. Date of issuance: December 31, 2008. contained in devices designed and manufactured for the purpose of D. Describe any actions you have Effective date: As of the date of producing light. taken, or plan to take, to locate tritium issuance and shall be implemented exit signs that should be, but are not, in within 30 days from the date of II your possession. issuance. E. Describe any actions you have On December 7, 2006, NRC issued taken, or plan to take, to prevent future Amendment Nos.: 254 and 235. Regulatory Issue Summary (RIS) 2006– losses of tritium exit signs. Renewed Facility Operating License 25, ‘‘Requirements for the Distribution After reviewing your response, the Nos. NPF–4 and NPF–7: Amendments and Possession of Tritium Exit Signs NRC will determine whether further change the licenses and the technical and the Requirements in 10 CFR 31.5 action is necessary to ensure specifications. and 32.51a.’’ This RIS was issued in part compliance with regulatory to remind general licensees of the Date of initial notice in Federal requirements. requirements in 10 CFR 31.5 regarding Register: January 15, 2008 (73 FR The Director, Office of Federal and transfer and disposal of tritium exit 2552). The supplements dated July 22, State Materials and Environmental signs. It was NRC’s intent that issuance 2008, September 26, 2008, and Management Programs, may, in writing, of this RIS would minimize the chances November 25, 2008, provided additional relax or rescind any of the above of improper disposal of tritium exit information that clarified the conditions upon demonstration by the signs. application, did not expand the scope of Licensee of good cause, such as a the application as originally noticed, Despite the publication of the RIS in particularly large number of signs and did not change the staff’s original 2006, NRC has reason to believe that spread over multiple locations. If you proposed no significant hazards certain general licensees may lack believe you cannot report the results consideration determination. The awareness of their responsibility to within the 60-day deadline, you may Commission’s related evaluation of the account for and properly dispose of forward a request to extend the amendments is contained in a Safety tritium exit signs. Therefore, the NRC deadline. Extensions will be granted if Evaluation dated December 31, 2008. needs further information to determine you can reasonably demonstrate an whether we can have reasonable inability to meet the deadline. No significant hazards consideration assurance that general licensees are Additionally, any other requirement can comments received: No. complying with NRC regulations be relaxed or rescinded, as long as you Dated at Rockville, Maryland, this 15th day applying to the possession, transfer, and can reasonably demonstrate why that of January 2009. disposal of tritium exit signs. requirement should be relaxed or

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rescinded. Such requests may be e- University of Alaska, Dr. Ivan va Tets, Kuhio Avenue, Honolulu, HI 96815– mailed to [email protected] or faxed to RSC Chairman, 3211 Providence 2992. Angela McIntosh at (301) 415–5955. Drive, Anchorage, AK 99508. Dominion Virginia Power, Attn: Peter Questions about this Demand for Giant Food, Landover Corporate Moss, P.O. Box 26532, Richmond, VA Information may be referred to Tritium Headquarters, 8301 Professional 23261–6532. Exit Sign Inventory Support at (301) Place, Suite 115, Landover, MD Goodrich Corporation, Attn: Dennis 415–3340. 20785. Hussey, 2730 W Tyvola Rd #600, Send responses to: Director, Office of Bed Bath and Beyond, Attention: Charlotte, NC 28217. Federal and State Materials and Michael Wilck, 650 Liberty Ave., Thomson Tinos, 101 West 103rd Street, Environmental Management Programs, Union, NJ 07083. Indianapolis, IN 46290–1102. Attention: Angela R. McIntosh, Mail U.S. General Services Administration, State of Alaska, Dept. of Health & Social Stop T8–E24, U.S. Nuclear Regulatory 1800 F Street, NW., Washington, DC Services, Division of Public Health, Commission, Washington, DC 20555. 20405. Section of Laboratories, Radiological Department of Veterans Affairs, E. Lynn Dated this 16th day of January 2009. Health Program, 4500 Boniface McGuire, Director, NHPP (115HP– Parkway, Anchorage, AK 99507–1270. For the Nuclear Regulatory Commission. NLR), Veterans Health United States Coast Guard, 2100 Second Cynthia A. Carpenter, Administration, 2200 Fort Roots Drive Street, SW., Washington, DC 20024. Director, Office of Enforcement. North, Little Rock, AR 72114–1706. Atlantic Aviation, 6504 International Middlebury College, Ed Sullivan, Pkwy #2400, Plano, TX 75093. Attachment 1—List of General Material Environ. Health & Safety, Coordinator, Military Academy, West Point, Attn: Licensees 161 Adirondack View, Middlebury, Keith Katz, Safety, 667A Ruger Road, Church of Jesus Christ of Latter Day VT 05753. West Point, NY 10996. Saints, 50 E Temple St., Salt Lake State Farm Insurance, Attn: Mike NASA Headquarters, Attn: Marla City, UT 84150. Devore, One State Farm Plaza, E–4, Newstadt, 300 E St., SW., Code Eli Lilly, Lilly Corporate Center, 893 S. Bloomington, IL 61710. LM031, Washington, DC 20546. Delaware, Indianapolis, IN 46285. Dupont, 1007 N. Market St., Attention: Air Cruisers Company, 1740 Highway Home Depot, Attention: Ryan Williams, Leo Hamilton, Rm D–6088, 34 N., Wall, NJ 07719. 2455 Paces Ferry Rd., SE., Atlanta, GA Wilmington, DE 19898. Pacific Electric Sales Agency, 541 Ahui 30339. Anchorage School District, Carol Street, Honolulu, HI 96813. Federal Corrections, Attention: RADM Comeau, Superintendent, 5530 E Wallens Ridge Prison, Attn: Adam Newton E. Kendig, Assistant Director, Northern Lights Blvd., Anchorage, AK Harvey Assistant Warden, 272 Health Services Division, 320 First 99504–3135. Dogwood Drive, P.O. Box 759, Big AMC Theaters, 920 Main Street, #1400, St., NW., Washington, DC 20534. Stone Gap, VA 24219. Department of the Air Force, Attn: Kansas City, MO 64105. Robert A. Rodgers, Maj, USAF, BSC, AMR Corporation, Capt. Al Madar, [FR Doc. E9–1680 Filed 1–26–09; 8:45 am] USAF Radioisotope Committee, HQ Director of Safety, 4333 Amon Carter BILLING CODE 7590–01–P AFMOA/SG3PR, 110 Luke Ave., Suite Blvd., Fort Worth, TX 76155. Federated Retail Holdings, Inc., Elena 405, Bowling AFB, Washington, DC Pharr, Environmental Services NUCLEAR REGULATORY 20322–7050. COMMISSION Chief of Naval Operations, Environment Manager, 7 West Seventh Street, 15th Protection Division (N45), Floor, Cincinnati, OH 45202. Helicopter Support, Inc., Attn: Carmen Advisory Committee on Reactor Radiological Controls and Health, Jausel, Director, Environmental Safeguards Office of Chief of Naval Operations Health, 124 Quarry Road, Trumbull, (N455), Attention: CAPT Lino In accordance with the purposes of CT 06611. Sections 29 and 182b of the Atomic Fragoso, PhD, RSO, 2000 Navy Avon Community Schools Corporation, Energy Act (42 U.S.C. 2039, 2232b), the Pentagon (NC–1 Suite 2000), Attn: Brock Bowsher, 7203 East U.S. Advisory Committee on Reactor Washington, DC 20350–2000. Highway 36, Avon, IN 46123. Department of the Army, Army Material S.A.S. Technical Forwarding Dept., 150 Safeguards (ACRS) will hold a meeting Command, Director of Army Newark Intl. Airport, Newark, NJ on February 5–7, 2009, 11545 Rockville Radiation Safety, Attention: Greg 07114. Pike, Rockville, Maryland. The date of Komp, RSO, 223 23rd Street, Suite MEMC Electronic Materials, Inc., 501 this meeting was previously published 980, Arlington, VA 22060–5527. Pearl Drive (City of O’Fallon), St. in the Federal Register on Monday, United States Army Garrison-Rock Peters, MO 63376. October 6, 2008, (73 FR 58268–58269). Island Arsenal, IMWE–RIA–ZA Bldg United States Postal Service, Carolyn C. Thursday, February 5, 2009, 90, 1 Rock Island Arsenal, Rock Cole, Manager, Energy Initiatives, 475 Conference Room T–2b3, Two White Island, IL 61299–5000. L’Enfant Plaza, SW., Washington, DC Flint North, Rockville, Maryland Honeywell International Inc., Attention: 20260. Peter Jungfer, 101 Columbia Road, Northwest Airlines, Inc., Attention: 8:30 a.m.–8:35 a.m.: Opening Morristown, NJ 07962. Kenneth J. Hylander, 2700 Lone Oak Remarks by the ACRS Chairman Stusser Electric Co., Dave Lockwood, Pky., Eagan, MN 55121. (Open)—The ACRS Chairman will make 411 E. 54th Ave., Anchorage, AK Smithsonian Institution, 1000 Jefferson opening remarks regarding the conduct 99518. Dr., SW., Washington, DC 20560. of the meeting. Herb Stevens Labor & Industry Building, Defense General Supply Center, 8000 8:35 a.m.–10:30 a.m.: Draft Final John Fitch Plaza, Room 209, Trenton, Jefferson Davis Highway, Richmond, NUREG–1855, Guidance on the NJ 08625. VA 23297–5100. Treatment of Uncertainties Associated Nassau Electric, 106 Black Horse Pike, Feldman Electric, 210 Spanglers Mill with PRAs in Risk-Informed West Collingswood Heights, NJ 08059. Rd., New Cumberland, PA 17070. Decisionmaking (Open)—The Alton Iron Works Inc, 1475 Palisado Outrigger Hotel, Attn: David Lee, Vice Committee will hear presentations by Ave., Windsor, CT 06095. President Property Services, 2375 and hold discussions with

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representatives of the NRC staff Procedures Subcommittee (Open/ meetings may be adjusted by the regarding the draft final NUREG–1855 Closed)—The Committee will discuss Chairman as necessary to facilitate the and related matters. the recommendations of the Planning conduct of the meeting, persons 10:45 a.m.–11:45 a.m.: Draft Final and Procedures Subcommittee regarding planning to attend should check with Regulatory Guide DG–5021, Safety/ items proposed for consideration by the the Cognizant ACRS staff if such Security Interface (Open)—The Full Committee during future ACRS rescheduling would result in major Committee will hear presentations by meetings and other matters related to inconvenience. and hold discussions with the conduct of the ACRS business. In accordance with Subsection 10(d) representatives of the NRC staff [NOTE: A portion of this session may be Public Law 92–463, I have determined regarding the draft final Regulatory closed pursuant to 5 U.S.C. 552b(c)(2) that it may be necessary to close Guide DG–5021 on the Safety/Security and (6) to discuss organizational and portions of this meeting noted above to Interface. personnel matters that relate solely to discuss organizational and personnel 12:45 p.m.–2:45 p.m.: Digital Upgrade internal personnel rules and practices of matters that relate solely to the internal of the Oconee Reactor Protection System ACRS, and information the release of personnel rules and practices of the and Engineered Safety Features (Open/ which would constitute a clearly ACRS, and information the release of Closed)—The Committee will hear unwarranted invasion of personal which would constitute a clearly presentations by and hold discussions privacy] unwarranted invasion of personal with representatives of the NRC staff 11:45 a.m.–12 p.m.: Reconciliation of privacy pursuant to 5 U.S.C. 552b(c)(2) and Duke Energy regarding the digital ACRS Comments and and (6). In addition, it may be necessary upgrade of the reactor protection system Recommendations (Open)—The to close a portion of the meeting to and engineered safety features at Committee will discuss the responses protect information designated as Oconee Nuclear Station, Units 1, 2, & 3, from the NRC Executive Director for proprietary by Duke Energy or its and related matters. Operations to comments and contractors pursuant to 5 U.S.C. recommendations included in recent 552b(c)(4). [Note: A portion of this session may be ACRS reports and letters. Further information regarding topics closed to discuss and protect information 1 p.m.–7 p.m.: Preparation of ACRS that is proprietary to Duke Energy or its to be discussed, whether the meeting contractors pursuant to 5 U.S.C. 552b(c)(4).] Reports (Open)—The Committee will has been canceled or rescheduled, as discuss proposed ACRS reports. well as the Chairman’s ruling on 3 p.m.–7 p.m.: Preparation of ACRS Saturday, February 7, 2009, Conference requests for the opportunity to present Reports (Open)—The Committee will oral statements and the time allotted discuss proposed ACRS reports on Room T–2b3, Two White Flint North, Rockville, Maryland therefor can be obtained by contacting matters discussed during this meeting, Girija Shukla, Cognizant ACRS staff as well as a proposed report on 8:30 a.m.–12:30 p.m.: Preparation of (301–415–6855), between 7:15 a.m. and containment overpressure credit. ACRS Reports (Open)—The Committee 5 p.m., (ET). ACRS meeting agenda, will continue its discussion of proposed Friday, February 6, 2009, Conference meeting transcripts, and letter reports ACRS reports. are available through the NRC Public Room T–2b3, Two White Flint North, 12:30 p.m.–1 p.m.: Miscellaneous Document Room at [email protected], or by Rockville, Maryland (Open)—The Committee will discuss calling the PDR at 1–800–397–4209, or 8:30 a.m.–8:35 a.m.: Opening matters related to the conduct of from the Publicly Available Records Remarks by the ACRS Chairman Committee activities and specific issues System (PARS) component of NRC’s (Open)—The ACRS Chairman will make that were not completed during document system (ADAMS) which is opening remarks regarding the conduct previous meetings, as time and accessible from the NRC Web site at of the meeting. availability of information permit. http://www.nrc.gov/reading-rm/ 8:35 a.m.–10 a.m.: SECY–08–0197, Procedures for the conduct of and adams.html or http://www.nrc.gov/ Options to Revise Radiation Protection participation in ACRS meetings were reading-rm/doc-collections/ACRS/. published in the Federal Register on Regulations and Guidance Based on Video teleconferencing service is October 6, 2008, (73 FR 58268–58269). Recommendations of the International available for observing open sessions of In accordance with those procedures, Commission on Radiological Protection ACRS meetings. Those wishing to use oral or written views may be presented (ICRP) (Open)—The Committee will this service for observing ACRS by members of the public, including hear presentations by and hold meetings should contact Mr. Theron representatives of the nuclear industry. discussions with representatives of the Brown, ACRS Audio Visual Technician Electronic recordings will be permitted NRC staff regarding options to revise the (301–415–8066), between 7:30 a.m. and only during the open portions of the NRC radiation protection regulations 3:45 p.m., (ET), at least 10 days before meeting. Persons desiring to make oral and guidance based on the the meeting to ensure the availability of statements should notify the Cognizant recommendations of the ICRP. this service. 10:15 a.m.–10:45 a.m.: Subcommittee ACRS staff named below five days Individuals or organizations Reports (Open)—The Committee will before the meeting, if possible, so that requesting this service will be hear reports by and hold discussions appropriate arrangements can be made responsible for telephone line charges with the cognizant Chairman of the to allow necessary time during the and for providing the equipment and Plant License Renewal Subcommittee meeting for such statements. Use of still, facilities that they use to establish the regarding interim reviews of the Beaver motion picture, and television cameras video teleconferencing link. The Valley and National Institute of during the meeting may be limited to availability of video teleconferencing Standards and Technology license selected portions of the meeting as services is not guaranteed. renewal applications and the associated determined by the Chairman. NRC Staff’s Safety Evaluation Reports Information regarding the time to be set Dated: January 21, 2009 with Open Items that were discussed aside for this purpose may be obtained Annette L. Vietti-Cook, during meetings on February 4, 2009. by contacting the Cognizant ACRS staff Secretary of the Commission. 10:45 a.m.–11:45 a.m.: Future ACRS prior to the meeting. In view of the [FR Doc. E9–1679 Filed 1–22–09; 4:15 pm] Activities/Report of the Planning and possibility that the schedule for ACRS BILLING CODE 7590–01–P

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NUCLEAR REGULATORY Week of February 23, 2009—Tentative ACTION: Notice and request for OMB COMMISSION There are no meetings scheduled for review and comment. the week of February 23, 2009. Sunshine Federal Register Notice Title: Focus Groups with Returned Week of March 2, 2009—Tentative Peace Corps Volunteers. AGENCY HOLDING THE MEETINGS: Nuclear SUMMARY: In accordance with the Wednesday, March 4, 2009 Regulatory Commission. Paperwork Reduction Act, this notice DATE: Weeks of January 26, February 2, 1:30 p.m. Briefing on Guidance for invites the public to comment on the 9, 16, 23, March 2, 2009. Implementation of Security collection of information by the Peace Rulemaking (Public Meeting) PLACE: Commissioners’ Conference Corps and gives notice of the Peace (Contact: Rich Correia, 301–415– Corps’ intention to request Office of Room, 11555 Rockville Pike, Rockville, 7674). Maryland. Management and Budget (OMB) This meeting will be Webcast live at approval of the information collection. STATUS: Public and Closed. the Web address—http://www.nrc.gov. The Peace Corps’ Office of Strategic Week of January 26, 2009 * * * * * Information, Research and Planning * The schedule for Commission wishes to conduct focus groups with Tuesday, January 27, 2009 meetings is subject to change on short Returned Peace Corps Volunteers 1:25 p.m. Affirmation Session (Public notice. To verify the status of meetings, (RPCVs) about their post-service Meeting) (Tentative). call (recording)—(301) 415–1292. transition, post-service education and a. Shieldalloy Metallurgical Contact person for more information: career, and their third goal activities of Corporation (License Amendment Rochelle Bavol, (301) 415–1651. promoting a better understanding of Request for Decommissioning of the * * * * * other peoples on the part of Americans. Newfield, New Jersey Facility) The NRC Commission Meeting The data will be used to assess the range (Tentative). Schedule can be found on the Internet and type of services available to RPCVs at: http://www.nrc.gov/about-nrc/policy- and to support accurate interpretation of Week of February 2, 2009—Tentative making/schedule.html. Agency level data. The initial Federal Wednesday, February 4, 2009 * * * * * Register notice was published on December 2, 2008, Volume 73, No. 232, 1:25 p.m. Affirmation Session (Public The NRC provides reasonable pg. 73356 for 60 days. Also available at Meeting) (Tentative). accommodation to individuals with GPO Access: wais.access.gpo.gov. No a. AmerGen Energy Company, LLC disabilities where appropriate. If you comments, inquiries or responses to the (License Renewal for Oyster Creek need a reasonable accommodation to notice were received. A copy of the Nuclear Generating Station), Docket participate in these public meetings, or proposed information collections can be No. 50–219–LR, Citizens’ Petition need this meeting notice or the obtained from Susan Jenkins, Office of for Review of LBP–07–17 and Other transcript or other information from the Strategic Information, Research and Interlocutory Decisions in the public meetings in another format (e.g., Planning, Peace Corps, 1111 20th Street, Oyster Creek Proceeding braille, large print), please notify the NW., Washington, DC 20526. Dr. (Tentative). NRC’s Disability Program Coordinator, Rohn Brown, at 301–492–2279, TDD: Jenkins can be contacted by telephone at This meeting will be Webcast live at 301–415–2100, or by e-mail at 202–692–1241 or e-mail at the Web address—http://www.nrc.gov. [email protected]. Determinations on [email protected]. E-mail 1:30 p.m. Briefing on Risk-Informed, requests for reasonable accommodation comments must be made in text and not Performance-Based Regulation will be made on a case-by-case basis. in attachments. Comments on the (Public Meeting) (Contact: Gary * * * * * collections should be addressed to the Demoss, 301–251–7584). This notice is distributed by mail to attention of Dr. Jenkins and should be This meeting will be Webcast live at several hundred subscribers; if you no received on or before February 26, 2009. the Web address—http://www.nrc.gov. longer wish to receive it, or would like ADDRESSES: Written comments should be sent to the Peace Corps Desk Officer, Thursday, February 5, 2009 to be added to the distribution, please contact the Office of the Secretary, Office of Information and Regulatory 9:30 a.m. Briefing on Uranium Washington, DC 20555 (301–415–1969). Affairs, Office of Management and Enrichment—Part 1 (Public In addition, distribution of this meeting Budget, New Executive Office Building, Meeting). notice over the Internet system is Room 10102, 735 17th Street, NW., 1:30 p.m. Briefing on Uranium available. If you are interested in Washington, DC 20503. And to Susan Enrichment—Part 2 (Public receiving this Commission meeting Jenkins, Office of Strategic Information, Meeting). (Contact for both parts: schedule electronically, please send an Research and Planning, Peace Corps, Brian Smith, 301–492–3137). electronic message to 1111 20th Street, NW., Washington, DC Both parts of this meeting will be [email protected]. 20526. Dr. Jenkins can be contacted by telephone at 202–692–1241 or e-mail at Webcast live at the Web address— January 22, 2009. [email protected]. http://www.nrc.gov. Richard J. Laufer, FOR FURTHER INFORMATION CONTACT: 3 p.m. Briefing on Uranium Office of the Secretary. Enrichment (Closed—Ex. 1). Susan Jenkins, Office of Strategic [FR Doc. E9–1772 Filed 1–23–09; 11:15 am] Information, Research and Planning, Week of February 9, 2009—Tentative BILLING CODE 7590–01–P Peace Corps, 1111 20th Street, NW., There are no meetings scheduled for Washington, DC 20526. the week of February 9, 2009. SUPPLEMENTARY INFORMATION: PEACE CORPS Title: Focus Groups with Returned Week of February 16, 2009—Tentative Notice of Information Collection Peace Corps Volunteers. There are no meetings scheduled for Need for and Use of This Information: the week of February 16, 2009. AGENCY: Peace Corps. The third strategic goal in the Peace

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Corps’ 2009 to 2014 strategic plan, is to PEACE CORPS telephone at 202–692–1241 or e-mail at ‘‘Foster outreach to Americans through [email protected]. agency programs that assist Volunteers Notice of Information Collection FOR FURTHER INFORMATION CONTACT: and Returned Peace Corps Volunteers to AGENCY: Peace Corps. Susan Jenkins, Office of Strategic help promote a better understanding of ACTION: Notice and request for OMB Information, Research and Planning, other peoples on the part of review and comment. Peace Corps, 1111 20th Street, NW., Americans.’’ The Agency meets this goal Washington, DC 20526. through programs that encourage Title: Survey of Returned Peace Corps SUPPLEMENTARY INFORMATION: outreach to the American public Volunteers. Title: Survey of Returned Peace Corps through a variety of means such as SUMMARY: The Peace Corps has Volunteers. personal interaction, electronic submitted to the Office of Management Need for and Use of This Information: communication, and cross-cultural and Budget (OMB) for clearance, a The survey is the fourth in a series of education curricula. The challenge for proposal for collection of information Returned Peace Corps Volunteer surveys the Peace Corps in advancing such under the provisions of the Paperwork that have been administered outreach is to ensure that the programs Reduction Act of 1995. The proposed approximately every ten years. This are publicized and on target in matching collection will survey a sample of iteration will be a voluntary, Web-based Volunteers and RPCVs with appropriate Returned Peace Corps Volunteers about survey to gather information about audiences, and that the agency uses their thoughts about their in-country Volunteers’ in-country experience, post- technology effectively. The agency experience, post-service transition, post- service transition, post-service administers a Volunteer survey and service education and career, and their education and career, and their third third core goal activities of promoting a project specific surveys to gather goal activities of promoting a better better understanding of other peoples on information about how active understanding of other peoples on the the part of Americans. The data Volunteers support this goal. But, there part of Americans. The data will be used collected will inform agency to assess the range and type of services is no similar mechanism for gathering programming and help the Agency to such information from Returned available to RPCVs, improve Peace assess, through updated and objective Corps operations (e.g., recruitment for Volunteers. These focus groups will be data, the extent of RPCVs’ cross-cultural PC Response), and support Agency level conducted to test the assumption that activities with their family, friends, and performance reporting. Where possible, promoting a better understanding of the communities throughout the United data will be compared across surveys to cultures in which they served is a States with whom RPCVs come in look for trends over time. Data will be lifelong commitment that becomes contact. The data will be used collected from a simple random sample integrated into their lives but that specifically by the Office of Domestic of Returned Peace Corps Volunteers RPCVs do not necessarily report such Programs to review the range and type sufficient to gather data with a 99 interactions to the agency. These focus of services and support available to percent confidence level and a groups will provide an opportunity for RPCVs and by the Office of Strategic confidence interval of plus or minus 5. in-depth discussion with RPCVs about Information, Research, and Planning to Respondents: Returned Peace Corps the long-term outcomes of their Service support Agency level reporting. The Volunteers. on their promotion of a better initial Federal Register notice was Respondents’ Obligation To Reply: understanding of other peoples on the published on December 2, 2008, Volume Voluntary. part of Americans. The information 73, No. 232, pgs. 73356–73357 for 60 Burden on the Public: gathered will be used by the Office of days. Also available at GPO Access: a. Annual reporting burden: 750 Strategic Information, Research and http://wais.access.gpo.gov. No hours. Planning to identify the breadth and comments, inquiries or responses to the b. Annual respondent recordkeeping scope of third core goal activities by notice were received. A copy of the burden: 0 hours. Returned Volunteers. proposed information collections can be c. Estimated average burden per Respondents: 96. obtained from Susan Jenkins, Office of response: 30 minutes. Strategic Information, Research and d. Frequency of response: One-time. Respondents’ Obligation To Reply: Planning, Peace Corps, 1111 20th Street, e. Estimated number of respondents: Voluntary. NW., Washington, DC 20526. Dr. 1500. Burden on the Public: Jenkins can be contacted by telephone at f. Estimated cost to respondents: a. Annual reporting burden: 144 202–692–1241 or e-mail at $0.00/$0.00. hours. [email protected]. E-mail Dated: January 15, 2009. comments must be made in text and not Wilbert Bryant, b. Annual recordkeeping burden: 0 in attachments. Comments on the Associate Director for Management. hours. collections should be addressed to the [FR Doc. E9–1669 Filed 1–26–09; 8:45 am] c. Estimated average burden per attention of Dr. Jenkins and should be response: 90 minutes. received on or before February 26, 2009. BILLING CODE 6051–01–P d. Frequency of response: One-time. ADDRESSES: Written comments should be sent to the Peace Corps Desk Officer, e. Estimated number of respondents: Office of Information and Regulatory PENSION BENEFIT GUARANTY 96. Affairs, Office of Management and CORPORATION f. Estimated cost to respondents: Budget, New Executive Office Building, Submission of Information Collection $0.00/$0.00. Room 10102, 735 17th Street, NW., for OMB Review; Comment Request; Washington, DC 20503. And to Susan Wilbert Bryant, Notice of Failure To Make Required Jenkins, Office of Strategic Information, Contributions Associate Director for Management. Research and Planning, Peace Corps, [FR Doc. E9–1668 Filed 1–26–09; 8:45 am] 1111 20th Street, NW., Washington, DC AGENCY: Pension Benefit Guaranty BILLING CODE 6015–01–P 20526. Dr. Jenkins can be contacted by Corporation.

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ACTION: Notice of request for extension interest), when added to the aggregate PENSION BENEFIT GUARANTY of OMB approval of a currently unpaid balance of all preceding CORPORATION approved collection (with payments for which payment was not modifications). made when due (including interest), Submission of Information Collection exceeds $1 million. (For this purpose, a for OMB Review; Comment Request; SUMMARY: The Pension Benefit Guaranty Reportable Events Corporation (PBGC) is requesting that plan is underfunded if its funding target the Office of Management and Budget attainment percentage is less than 100 AGENCY: Pension Benefit Guaranty (OMB) extend approval, under the percent.) The lien is upon all property Corporation. Paperwork Reduction Act, of the and rights to property belonging to the ACTION: Notice of request for extension collection of information (with person or persons who are liable for of OMB approval of a currently modifications) under subparts A and D required contributions (i.e., a approved collection (with of Part 4043 of its regulations on contributing sponsor and each member modifications). Reportable Events and Certain Other of the controlled group of which that Notification Requirements (OMB control contributing sponsor is a member). SUMMARY: The Pension Benefit Guaranty Corporation (PBGC) is requesting that number 1212–0041; expires February Only PBGC (or, at its direction, the the Office of Management and Budget 28, 2009). This notice informs the plan’s contributing sponsor or a member (OMB) extend approval, under the public of PBGC’s request and solicits of the same controlled group) may public comment on the collection of Paperwork Reduction Act, of the perfect and enforce this lien. ERISA and information. collection of information (with the Code require persons committing modifications) under subparts A, B, and DATES: Comments must be submitted by payment failures to notify PBGC within February 26, 2009. C of Part 4043 of its regulations on 10 days of the due date whenever there Reportable Events and Certain Other ADDRESSES: Comments should be sent to is a failure to make a required payment Notification Requirements (OMB control the Office of Information and Regulatory and the total of the unpaid balances number 1212–0013; expires February Affairs, Office of Management and (including interest) exceeds $1 million. 28, 2009). This notice informs the Budget, Attention: Desk Officer for public of PBGC’s request and solicits Pension Benefit Guaranty Corporation, These statutory requirements are public comment on the collection of via electronic mail at OIRA_DOCKET@ implemented by subparts A and D of information. omb.eop.gov or by fax to 202–395–6974. PBGC’s regulation on Reportable Events Copies of the collection of and Certain Other Notification DATES: Comments must be submitted by information and comments may be Requirements (29 CFR part 4043). February 26, 2009. obtained without charge by writing to Section 4043.81 of the regulation ADDRESSES: Comments should be sent to the Disclosure Division, Office of provides that required reports must be the Office of Information and Regulatory General Counsel, 1200 K St., NW., made using PBGC Form 200, Notice of Affairs, Office of Management and Washington, DC 20005–4026, or by Failure to Make Required Contributions, Budget, Attention: Desk Officer for visiting the Disclosure Division or in accordance with the related filing Pension Benefit Guaranty Corporation, calling 202–326–4040 during normal instructions. The form and instructions via electronic mail at business hours. (TTY and TDD users have been revised to remove [email protected] or by fax may call the Federal relay service toll- information that is no longer applicable to 202–395–6974. free at 1–800–877–8339 and ask to be in light of changes made by the Pension Copies of the collection of connected to 202–326–4040.) The Protection Act of 2006. information and comments may be reportable events regulations, forms, obtained without charge by writing to and instructions may be accessed on The collection of information under the Disclosure Division, Office of PBGC’s Web site at http:// the regulation has been approved General Counsel, 1200 K St., NW., www.pbgc.gov. through February 28, 2009, by OMB Washington, DC 20005–4026, or by under control number 1212–0041. PBGC FOR FURTHER INFORMATION CONTACT: visiting the Disclosure Division or is requesting that OMB extend approval James Bloch, Program Analyst, calling 202–326–4040 during normal of the collection (with modifications) for Legislative and Policy Division, or business hours. (TTY and TDD users Catherine B. Klion, Manager, Regulatory another three years. An agency may not may call the Federal relay service toll- and Policy Division, Legislative and conduct or sponsor, and a person is not free at 1–800–877–8339 and ask to be Regulatory Department, Pension Benefit required to respond to, a collection of connected to 202–326–4040.) The Guaranty Corporation, 1200 K Street, information unless it displays a reportable events regulation, forms, and NW., Washington, DC 20005–4026; 202– currently valid OMB control number. instructions may be accessed on PBGC’s 326–4024. (For TTY/TDD users, call the PBGC estimates that it will receive Web site at http://www.pbgc.gov. Federal relay service toll-free at 1–800– 185 Form 200 filings per year under this FOR FURTHER INFORMATION CONTACT: 877–8339 and ask to be connected to collection of information. PBGC further James Bloch, Program Analyst, 202–326–4024.) estimates that the average annual Legislative and Policy Division, or SUPPLEMENTARY INFORMATION: Section burden of this collection of information Catherine B. Klion, Manager, Regulatory 303(k) of the Employee Retirement is 873 hours and $305,550. and Policy Division, Legislative and Income Security Act of 1974 (‘‘ERISA’’) Regulatory Department, Pension Benefit Issued in Washington, DC, this 21st day of and section 430(k) of the Internal Guaranty Corporation, 1200 K Street, January, 2009. Revenue Code of 1986 (‘‘Code’’) impose NW., Washington, DC 20005–4026; 202– a lien in favor of an underfunded single- John H. Hanley, 326–4024. (For TTY/TDD users, call the employer plan that is covered by the Director, Legislative and Regulatory Federal relay service toll-free at 1–800– termination insurance program if (1) any Department, Pension Benefit Guaranty 877–8339 and ask to be connected to person fails to make a contribution Corporation. 202–326–4024.) payment when due, and (2) the unpaid [FR Doc. E9–1783 Filed 1–26–09; 8:45 am] SUPPLEMENTARY INFORMATION: Section balance of that payment (including BILLING CODE 7709–01–P 4043 of the Employee Retirement

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Income Security Act of 1974 (ERISA) collections; (2) the accuracy of the Type of request: Extension without requires plan administrators and plan estimated burden of the collections; (3) change of a currently approved sponsors to report certain plan and ways to enhance the quality, utility and collection. employer events to PBGC. The reporting clarity of the information that is the Affected Public: Business or other for- requirements give PBGC notice of events subject of collection; and (4) ways to profit. that indicate plan or employer financial minimize the burden of collections on Estimated annual number of problems. PBGC uses the information respondents, including the use of respondents: 300. provided in determining what, if any, automated collection techniques or Total annual responses: 300. action it needs to take. For example, other forms of information technology. Total annual reporting hours: 150. PBGC might need to institute Comments to RRB or OIRA must contain Abstract: Under the Railroad proceedings to terminate a plan (placing the OMB control number of the ICR. For Retirement Act (RRA), benefits are not it in trusteeship) under section 4042 of proper consideration of your comments, payable if an annuitant works for an ERISA to ensure the continued payment it is best if RRB and OIRA receive them employer covered under the RRA or last of benefits to plan participants and their within 30 days of publication date. non-railroad employer. The collection obtains information regarding an beneficiaries or to prevent unreasonable 1. Title and purpose of information annuitant’s work and earnings from a increases in its losses. collection: The forms and instructions have been non-railroad employer. The information Request to Non-Railroad Employer for revised to remove information that is no will be used for determining whether Information About Annuitant’s Work longer applicable in light of changes benefits should be withheld. and Earnings; OMB 3220–0107. made by the Pension Protection Act of Changes Proposed: The RRB proposes 2006 and to refer to interim guidance Under Section 2 of the Railroad no changes to Form RL–231–F. issued by PBGC. Retirement Act (RRA), a railroad 2. Title and Purpose of Information The collection of information under employee’s retirement annuity or an Collection the regulation has been approved annuity paid to the spouse of a railroad Supplemental Information on through February 28, 2009, by OMB employee is subject to work deductions Accident and Insurance; OMB 3220– under control number 1212–0013. PBGC in the Tier II component of the annuity 0036. is requesting that OMB extend approval and any employee supplemental Under Section 12(o) of the Railroad of the collection (with modifications) for annuity for any month in which the Unemployment Insurance Act (RUIA), another three years. An agency may not annuitant works for a Last Pre- the Railroad Retirement Board is conduct or sponsor, and a person is not Retirement Non-Railroad Employer entitled to reimbursement of the required to respond to, a collection of (LPE). LPE is defined as the last person, sickness benefits paid to a railroad information unless it displays a company, or institution, other than a employee if the employee receives a currently valid OMB control number. railroad employer, that employed an sum or damages for the same infirmity PBGC estimates that it will receive employee or spouse annuitant. In for which the benefits are paid. Section 637 reportable events per year under addition, the employee, spouse or 2(f) of the RUIA requires employers to this collection of information. PBGC divorced spouse Tier I annuity benefit is reimburse the RRB for days in which further estimates that the average annual subject to work deductions under salary, wages, pay for time lost or other burden of this collection of information Section 2(F)(1) of the RRA for earnings remuneration is later determined to be is 2,676 hours and $936,600. from any non-railroad employer that are payable. Reimbursements under section over the annual exempt amount. The 2(f) generally result from the award of Issued in Washington, DC, this 21st day of pay for time lost or the payment of January 2009. regulations pertaining to non-payment guaranteed wages. The RUIA prescribes John H. Hanley, of annuities by reason of work are contained in 20 CFR 230.1 and 230.2. that the amount of benefits paid be Director, Legislative and Regulatory deducted and held by the employer in Department, Pension Benefit Guaranty The RRB utilizes Form RL–231–F, Corporation. Request to Non-Railroad Employer for a special fund for reimbursement to the Information About Annuitant’s Work RRB. [FR Doc. E9–1790 Filed 1–26–09; 8:45 am] The RRB currently utilizes Form(s) BILLING CODE 7709–01–P and Earnings, to obtain the information needed for determining if any work SI–1c, (Supplemental Information on deductions should be applied because Accident and Insurance), SI–5 (Report of Payments to Employee Claiming RAILROAD RETIREMENT BOARD an annuitant worked in non-railroad employment after the annuity beginning Sickness Benefits Under the RUIA), ID– 3s (Request for Lien Information), ID– Agency Forms Submitted for OMB date. One response is requested of each 3s–1, (Lien Information Under Section Review, Request for Comments respondent. Completion is voluntary. 12(o) of the RUIA), ID–3U (Request for Previous Requests for Comments: The SUMMARY: In accordance with the Section 2(f) Information), ID–30k (Form RRB has already published the initial Paperwork Reduction Act of 1995 (44 Letter Asking Claimant for Additional 60-day notice (73 FR 68462 and 68463 U.S.C. Chapter 35), the Railroad Information on Injury or Illness), and on November 18, 2008) required by 44 Retirement Board (RRB) is forwarding ID–30k–1 (Request for Supplemental U.S.C. 3506(c)(2). That request elicited two (2) Information Collection Requests Information on Injury or Illness—3rd no comments. (ICR) to the Office of Information and Party), to obtain the necessary Regulatory Affairs (OIRA), Office of Information Collection Request (ICR) information from claimants and railroad Management and Budget (OMB). Our employers. Completion is required to Title: Request to Non-Railroad ICR describes the information we seek obtain or retain benefits. Employer for Information About to collect from the public. Review and Previous Requests for Comments: The Annuitant’s Work and Earnings. approval by OIRA ensures that we RRB has already published the initial impose appropriate paperwork burdens. Form(s) submitted: RL–231–F. 60-day notice (73 FR 68462 and 68463 The RRB invites comments on the OMB Control Number: 3220–0107. on November 18, 2008) required by 44 proposed collections of information to Expiration date of current OMB U.S.C. 3506(c)(2). That request elicited determine (1) The practical utility of the clearance: 1/31/2009. no comments.

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Information Collection Request (ICR) (44 U.S.C. 3501 et seq.), the Securities ‘‘Act’’),1 and Rule 19b–4 thereunder,2 Title: Supplemental Information on and Exchange Commission notice is hereby given that on January Accident and Insurance. (‘‘Commission’’) is soliciting comments 12, 2009, BATS Exchange, Inc. (‘‘BATS’’ Form(s) submitted: SI–1c, SI–5, ID– on the collection of information or the ‘‘Exchange’’) filed with the 3s–1, ID–3U, ID–30k, ID–30k–1, ID–3s. summarized below. The Commission Securities and Exchange Commission OMB Control Number: 3220–0036. plans to submit this existing collection (‘‘Commission’’) the proposed rule Expiration date of current OMB of information to the Office of change as described in Items I and II clearance: 1/31/2009. Management and Budget for extension below, which Items have been prepared Type of request: Revision of a and approval. by the Exchange. The Exchange has currently approved collection. Form SE (17 CFR 239.64) is used by designated this proposal as a ‘‘non- Affected Public: Individuals or registrants to file paper copies of controversial’’ proposed rule change exhibits that would be difficult or pursuant to Section 19(b)(3)(A) of the Households, Business or other for-profit. 3 Estimated annual number of impossible to submit electronically. The Act and Rule 19b–4(f)(6)(iii) thereunder,4 which renders it effective respondents: 10,000. information contained in Form SE is upon filing with the Commission. The Total annual responses: 28,500. used by the Commission to identify Commission is publishing this notice to Total annual reporting hours: 1,693. paper copies of exhibits. Form SE is solicit comments on the proposed rule Abstract: The Railroad filed by individuals, companies or other change from interested persons. Unemployment Insurance Act provides for-profit organizations that are required for the recovery of sickness benefits to file electronically. Approximately 782 I. Self-Regulatory Organization’s paid if an employee receives a registrants file Form SE and it takes an Statement of the Terms of Substance of settlement for the same injury for which estimated .10 hours per response for a the Proposed Rule Change total annual burden of 78 hours. benefits were paid. The collection The Exchange is proposing to amend obtains information abut the person or Written comments are invited on: (a) Whether these proposed collections of BATS Rule 11.9, entitled ‘‘Orders and company responsible for such payments Modifiers,’’ to provide Exchange system that is needed to determine the amount information are necessary for the proper performance of the functions of the functionality that will cancel any of the RRB’s entitlement. portion of a market order submitted to Changes Proposed: The RRB proposes agency, including whether the information will have practical utility; the Exchange (a ‘‘BATS market order’’) minor non-burden impacting changes to that would execute at a price that is Forms SI–1c, ID–3s, ID–3s–1 and ID–3U. (b) the accuracy of the agency’s estimate of the burden imposed by the collection more than 50 cents or 5 percent worse No other changes are proposed. than the NBBO at the time the order Additional Information or Comments: of information; (c) ways to enhance the quality, utility, and clarity of the initially reaches the Exchange (the Copies of the form and supporting ‘‘Initial NBBO’’), whichever is greater. documents can be obtained from information collected; and (d) ways to minimize the burden of the collection of The text of the proposed rule change Charles Mierzwa, the agency clearance is available at the Exchange’s Web site officer at (312–751–3363) or information on respondents, including through the use of automated collection at http://www.batstrading.com, at the [email protected]. principal office of the Exchange, and at Comments regarding the information techniques or other forms of information technology. Consideration will be given the Commission’s Public Reference collection should be addressed to Room. Ronald J. Hodapp, Railroad Retirement to comments and suggestions submitted Board, 844 North Rush Street, Chicago, in writing within 60 days of this II. Self-Regulatory Organization’s Illinois 60611–2092 or publication. Statement of the Purpose of, and [email protected] and to the Please direct your written comments Statutory Basis for, the Proposed Rule OMB Desk Officer for the RRB, at the to Charles Boucher, Director/CIO, C/O Change Office of Management and Budget, Shirley Martinson, 6432 General Green In its filing with the Commission, the Room 10230, New Executive Office Way, Alexandria, Virginia 22312; or Exchange included statements send an e-mail to: Building, Washington, DC 20503. _ concerning the purpose of and basis for PRA [email protected]. the proposed rule change and discussed Charles Mierzwa, Dated: January 14, 2009. any comments it received on the Clearance Officer. Florence E. Harmon, proposed rule change. The text of these [FR Doc. E9–1649 Filed 1–26–09; 8:45 am] Deputy Secretary. statements may be examined at the BILLING CODE 7905–01–P [FR Doc. E9–1676 Filed 1–26–09; 8:45 am] places specified in Item IV below. The BILLING CODE 8011–01–P Exchange has prepared summaries, set forth in Sections A, B, and C below, of SECURITIES AND EXCHANGE the most significant parts of such COMMISSION SECURITIES AND EXCHANGE statements. COMMISSION Proposed Collection; Comment A. Self-Regulatory Organization’s Request [Release No. 34–59258; File No. SR–BATS– Statement of the Purpose of, and 2009–001] Statutory Basis for, the Proposed Rule Upon written request, copies available Change from: Securities and Exchange Self-Regulatory Organizations; BATS Commission, Office of Investor Exchange, Inc.; Notice of Filing and 1. Purpose Education and Advocacy, Immediate Effectiveness of Proposed The purpose of the proposed rule Washington, DC 20549–0213. Rule Change To Amend BATS Rule change is to protect market participants Extension: Form SE, OMB Control No. 3235– 11.9, entitled ‘‘Orders and Modifiers’’ 1 0327, SEC File No. 270–289. 15 U.S.C. 78s(b)(1). January 15, 2009. 2 17 CFR 240.19b–4. Notice is hereby given that, pursuant Pursuant to Section 19(b)(1) of the 3 15 U.S.C. 78s(b)(3)(A). to the Paperwork Reduction Act of 1995 Securities Exchange Act of 1934 (the 4 17 CFR 240.19b–4(f)(6).

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from executions at prices that are available and there was no additional executed at a significantly worse price. significantly worse than the NBBO at non-displayed liquidity at that price); Also, the Exchange believes that this the time of order entry by providing • 800 shares returned to the proposal is consistent with existing Exchange system functionality that will Exchange; exchange rules that allow for the cancel any portion of a BATS market • 100 shares executed at the breaking of trades deemed clearly order that would execute at a price that Exchange at the $8.15 price level; erroneous by reference to objective • is 50 cents or 5 percentage points worse 100 shares executed at the thresholds away from the NBBO.9 than the Initial NBBO, whichever is Exchange at the $8.20 price level. Accordingly, the modifications to BATS greater. Any portion of a BATS market Under this example, 400 shares of the Rule 11.9 promote just and equitable order that would otherwise execute BATS market order would be executed. principles of trade, remove outside of these thresholds will be The remaining 600 shares of the BATS impediments to, and perfect the immediately cancelled back to the market order would be cancelled back to mechanism of, a free and open market User.5 The Exchange believes that Users the User because the liquidity on the and a national market system. who submit market orders to the Exchange at the $8.60 price level Exchange generally intend to receive exceeds the BATS market order A. Self-Regulatory Organization’s executions for the full size of their thresholds set forth in proposed Rule Statement of Burden on Competition orders at or near the Initial NBBO and 11.9(a)(2), and such order is not eligible The Exchange does not believe that are not always aware that there may not for routing outside of such thresholds. the proposed rule change imposes any be enough liquidity at that price to fill Such BATS market order could only be burden on competition. the entire size of their orders. The executed or routed by the Exchange up B. Self-Regulatory Organization’s Exchange believes that the market order to and including a price of $8.55 ($0.50 Statement on Comments Regarding the thresholds proposed in this rule filing worse than the Initial NBBO). Proposed Rule Changes Received From will help avoid executions of BATS For those Users who intend to trade Members, Participants or Others market orders at prices that are against liquidity at multiple price points significantly worse than the Initial from the Initial NBBO beyond the BATS The Exchange has neither solicited NBBO, particularly in thinly-traded market order thresholds proposed in nor received written comments on the securities. The following example this rule filing, those Users can clearly proposed rule change. demonstrates how the BATS market and unambiguously specify that intent by submitting a marketable limit order i. Date of Effectiveness of the Proposed order thresholds would operate: Rule Changes and Timing for • A User submits a routable BATS to the Exchange. For example, using the Commission Action market order 6 (i.e., not designated as a scenario described above, if the User ‘‘BATS Only’’ order) to buy 1,000 shares submitted a limit order to buy 1,000 Because the foregoing rule change of ABC; shares of security ABC with a limit price does not: (1) Significantly affect the • The Initial NBBO in security ABC is of $9.00, such order would be executed protection of investors or the public $8.00 (bid) by $8.05 (offer), 100 shares up to its full size, either on the interest; (2) impose any significant each, both published by ‘‘Market Center Exchange (provided that the Exchange burden on competition; and (3) become A’’; would not trade through protected operative for 30 days after the date of • The Exchange has 100 shares of quotations) or at away market centers if this filing, or such shorter time as the liquidity at the $8.05 offer price and the order was routable. Commission may designate, it has also has resting orders on its book to sell become effective pursuant to Section 2. Statutory Basis 100 shares at $8.15, 100 shares at $8.20 19(b)(3)(A) of the Act 10 and Rule 19b– and 1,000 shares at $8.60; and The Exchange believes the proposal is 4(f)(6) thereunder.11 • Other than the $8.05 offer consistent with the requirements of the A proposed rule change filed under published by Market Center A there are Act and the rules and regulations 19b–4(f)(6) normally may not become no offers to sell the security at or thereunder that are applicable to a operative prior to 30 days after the date between $8.05 and $8.60 at other market national securities exchange, and, in of filing.12 However, Rule 19b– centers. particular, with the requirements of 4(f)(6)(iii) 13 permits the Commission to Under the circumstances described Section 6(b).7 In particular, for the designate a shorter time if such action above, with the Initial NBBO of $8.00 reasons described above, the proposed is consistent with the protection of (bid) by $8.05 (offer), the BATS market change is consistent with Section 6(b)(5) investors and the public interest. The order would be executed as follows: of the Act,8 because it would promote Exchange has requested that the • 100 shares executed at the $8.05 just and equitable principles of trade, Commission waive the 30-day operative price on the Exchange; remove impediments to, and perfect the delay so that the proposal may become • 900 shares routed to Market Center mechanism of, a free and open market operative upon filing. The Commission A as an immediate or cancel order with and a national market system, and, in believes that waiving the 30-day a price of $8.05; general, protect investors and the public operative delay is consistent with the • 100 shares executed at Market interest, by helping to avoid executions Center A (presuming this offer was still of market orders on the Exchange at 9 See, e.g., NASDAQ Rule 11890. prices that are significantly worse than 10 15 U.S.C. 78s(b)(3)(A). 5 As defined in Exchange Rule 1.5(bb). the NBBO at the time an order is 11 17 CFR 240.19b–4(f)(6). 6 If the order is not routable then it would be initially received by the Exchange. The 12 17 CFR 240.19b–4(f)(6)(iii). In addition, Rule executed on the Exchange only if such executions Exchange believes that the Initial NBBO 19b–4(f)(6)(iii) requires that a self-regulatory would not trade through the protected quotations of organization submit to the Commission written other market centers. If the order is a routable order, is a fair representation of then-available notice of its intent to file the proposed rule change, then such order will be executed in accordance prices and accordingly provides for an along with a brief description and text of the with BATS Rule 11.13(a), however, orders will not appropriate pricing mechanism such proposed rule change, at least five business days be routed away for execution at prices outside of that BATS market orders should not be prior to the date of filing of the proposed rule the market order thresholds proposed in this rule change, or such shorter time as designated by the filing, which applies both to market orders executed Commission. The Exchange has satisfied this notice on the Exchange and to market orders that are to 7 15 U.S.C. 78f(b). requirement. be routed away. 8 15 U.S.C. 78f(b)(5). 13 Id.

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protection of investors and the public the Commission’s Public Reference This order approves the proposed rule interest because such waiver will allow Room, 100 F Street, NE., Washington, change. BATS Users to immediately benefit from DC 20549, on official business days II. Description of the Proposed Rule the protections provided by BATS between the hours of 10 a.m. and 3 p.m. Change market orders. The Commission hereby Copies of such filing also will be grants the Exchange’s request and available for inspection and copying at On September 5, 2007, the Exchange designates the proposal operative upon the principal office of BATS. All announced the discontinuation of the filing.14 comments received will be posted operations of the Boston Equities At any time within 60 days of the without change; the Commission does Exchange. In addition to that filing of such proposed rule change the not edit personal identifying announcement, in October 2007, all Commission may summarily abrogate information from submissions. You issuers were given additional notice that such rule change if it appears to the should submit only information that the BSE had terminated its Listing Commission that such action is you wish to make available publicly. All Program. While trading in all securities necessary or appropriate in the public submissions should refer to File No. on the BSE ceased on September 5, interest, for the protection of investors SR–BATS–2009–001 and should be 2007, not all companies have delisted or otherwise in furtherance of the submitted on or before February 17, their securities from the Exchange by purposes of the Act. 2009. filing a Form 25 with the Commission.4 As a result, the Exchange proposes to ii. Solicitation of Comments For the Commission, by the Division of adopt new rules that would give it the Trading and Markets, pursuant to delegated Interested persons are invited to authority.15 authority to delist, under certain conditions, the remaining BSE-listed submit written data, views and Florence E. Harmon, companies, because there is no basis to arguments concerning the foregoing, Deputy Secretary. including whether the proposal is involuntarily delist these companies [FR Doc. E9–1670 Filed 1–26–09; 8:45 am] consistent with the Act. Comments may under BSE’s existing rules. be submitted by any of the following BILLING CODE 8011–01–P Under the proposal, the Exchange methods: may determine to delist a security when the Exchange has terminated its Listing Electronic Comments SECURITIES AND EXCHANGE Program in connection with the COMMISSION • Use the Commission’s Internet discontinuation of trading in all comment form (http://www.sec.gov/ [Release No. 34–59265; File No. SR–BSE– securities listed on its market. The rules/sro.shtml); or 2008–36] proposed new rule will provide that at • Send an e-mail to rule- least 15 days before issuing such [email protected]. Please include File Self-Regulatory Organizations; Boston delisting determination, the Board of No. SR–BATS–2009–001 on the subject Stock Exchange, Inc.; Order Approving Directors or its designee must give line. Proposed Rule Change Relating to notice of the delisting to the company. Delisting Standards As soon as practicable after the issuance Paper Comments of the delisting determination, notice January 16, 2009. • Send paper comments in triplicate will be provided to the company and to Elizabeth M. Murphy, Secretary, I. Introduction the Commission of such delisting Securities and Exchange Commission, On November 3, 2008, the Boston determination. Notice to the company of 100 F Street, NE., Washington, DC Stock Exchange, Inc. (‘‘BSE’’ or the the delisting determination shall inform 20549–1090. ‘‘Exchange’’) filed with the Securities the company of the opportunity to All submissions should refer to File No. and Exchange Commission (the appeal, applying the same appeal rights SR–BATS–2009–001. This file number ‘‘Commission’’), pursuant to Section that exist under BSE rules for any should be included on the subject line 19(b)(1) of the Securities Exchange Act company involuntarily delisted by the if e-mail is used. To help the of 1934 (‘‘Act’’),1 and Rule 19b–4 Exchange when the BSE was 5 Commission process and review your thereunder,2 a proposed rule change to operational. comments more efficiently, please use adopt new criteria permitting the The Exchange represents that it would only one method. The Commission will delisting of a security when the use this authority to delist on the post all comments on the Commission’s Exchange has terminated its program for grounds that BSE is not currently Internet Web site (http://www.sec.gov/ listing and trading cash equities operating a listing program and, rules/sro.shtml). Copies of the (‘‘Listing Program’’) in connection with therefore, it is in the public interest that submission, all subsequent the discontinuation of trading in all the Exchange not maintain any amendments, all written statements securities listed on its market. The appearance of having any listings on the with respect to the proposed rule proposed rule change was published for Exchange as long as programs for listing change that are filed with the comment in the Federal Register on and trading cash equities and related Commission, and all written November 28, 2008.3 The Commission activity have ceased. In addition, prior communications relating to the received no comments on the proposal. to implementing any involuntary proposed rule changes between the delistings, the Exchange represented Commission and any person, other than 15 17 CFR 200.30–3(a)(12). that it will contact each company and those that may be withheld from the 1 15 U.S.C. 78s(b)(1). suggest that it file a Form 25 to effect a public in accordance with the 2 17 CFR 240.19b–4. voluntary delisting before the Exchange provisions of 5 U.S.C. 552, will be 3 See Securities Exchange Act Release No. 58990 issues any delisting determination. (November 20, 2008), 73 FR 72534 (‘‘Notice’’). In available for inspection and copying in Thereafter, the Exchange will move to order for a company to voluntarily delist from the delist those companies that do not act Exchange, it would have to follow the procedures 14 For the purposes only of waiving the 30-day set forth in Rule 12d2–2 under the Act, which operative delay, the Commission has considered the includes the filing of a Form 25 with the 4 As of the date of the Notice, twenty-nine issuers proposed rule’s impact on efficiency, competition, Commission. See Rule 12d2–2 under the Act, 17 currently have listings with the Exchange. and capital formation. See 15 U.S.C. 78c(f). CFR 240.12d2–2. 5 See infra note 6.

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in accordance with that suggestion. general, to protect investors and the thus investors and the public would not Companies that are involuntarily public interest and are not designed to have necessary information regarding delisted under the rule being adopted in permit unfair discrimination between these companies’ viability. The this filing will have the appeal right customers, issuers, brokers or dealers. Commission thus believes that the provided for by new Section 2(c)(3) of The Commission also finds that the proposed new delisting standard is Chapter XXVII of the Rules of the proposed rule change is consistent with consistent with the protection of Exchange.6 Section 6(b)(7) of the Act,12 which investors under Section 6(b)(5) of the In its filing, BSE noted that the requires, among other things, that the Act.14 NASDAQ OMX Group, Inc. (‘‘NASDAQ rules of the exchange provide a fair The Commission also believes the OMX’’) has acquired the Exchange. procedure for the prohibition or proposal provides sufficient notice to According to BSE, NASDAQ OMX limitation by the exchange of any companies facing delisting pursuant to expects that the Exchange will resume person with respect to access to services the new criteria consistent with the Act. a program for listing and trading cash offered by the exchange. First, notice will be given to the equities. Accordingly, the Exchange The BSE proposes to adopt new company at least 15 days before the believes it is appropriate to leave all of criteria permitting the delisting of Exchange issues its delisting its listing rules, as amended, in place securities that are no longer being determination. The Commission pending rule changes to its listing traded in connection with the believes that the proposed rule affords 7 rules. Upon the resumption of a listing discontinuation of trading in all sufficient time for interested parties to business by the Exchange, delisted securities listed on its market. The submit to the Exchange and/or companies may be eligible for relisting Commission notes that the new Commission any comments they have if their securities meet the applicable delisting standard can only be utilized 8 on the anticipated delisting, or to take standards of the Exchange. in rare and unusual circumstances and any other action as permitted under emphasizes that it can only be used to III. Discussion and Commission state and federal law including involuntarily delist companies when the Findings commencing a voluntary delisting in Exchange has discontinued trading in accordance with Rule 12d2–2 under the After careful consideration, the all listed securities in its marketplace, as Act.15 Commission finds that the proposed BSE has done. Specifically, the rule change is consistent with the Exchange announced in September 2007 Second, notice will be given to the requirements of the Act and the rules that it was terminating its Listings company (and the Commission) after the and regulations thereunder applicable to Program, and in October 2007, all issuance of the delisting determination, a national securities exchange 9 and, in issuers were given additional notice that and the notice shall inform the company particular, the requirements of Section 6 the Listings Program had ceased. of the opportunity to appeal. The of the Act.10 Specifically, the However, not all issuers have appeals procedures proposed in new Commission finds that the proposed voluntarily delisted their securities in Section 2(c)(3) of Chapter XXVII, which rule change is consistent with Section accordance with the requirements in are identical to the appeals procedures 6(b)(5) of the Act,11 which requires, Rule 12d2–2 under the Act 13 and BSE currently set forth in Section 2(b)(2) of among other things, that the rules of a rules. The proposed rule change should Chapter XXVII, provide for notice to the national securities exchange be also make the delisting process more issuer of the Exchange’s decision to designed to prevent fraudulent and efficient for both the Exchange and delist its securities; an opportunity for manipulative acts and practices, to listed companies in light of the appeal to the Exchange’s board of promote just and equitable principles of cessation of trading on the BSE market. directors, or to a designee of the board, trade, to foster cooperation and The new delisting standard should with a $3000 fee; and public notice, no coordination with persons engaged in provide the Exchange with an fewer than 10 days before the delisting regulating, clearing, settling, processing additional means of ensuring the quality becomes effective, of the Exchange’s information with respect to, and of and public confidence in BSE as a final determination to delist the facilitating transactions in securities, to national securities exchange during its security. The Commission believes that remove impediments to and perfect the reorganization. the proposed rule requiring notice to the mechanism of a free and open market The proposed rule change further issuer of the Exchange’s delisting and a national market system, and, in serves to protect the public from being decision and establishing appeal mislead into believing that these procedures provides issuers with 6 The Commission notes that the appeals securities retain the imprimatur of an adequate notice and opportunity to procedures proposed in new Section 2(c)(3) of exchange listing on an active trading appeal the delisting as required by Rule Chapter XXVII are identical to the appeals 16 procedures set forth in the current BSE Rules. See market. In this regard, the Commission 12d2–2 under the Act. The Chapter XXVII, Section 2(b)(2) of the BSE Rules. notes that companies listed on a Commission notes that the appeal 7 Any future proposal to resume trading on a BSE national securities exchange retain procedures being adopted by the market and amend listing standards would be certain benefits and privileges. If an Exchange set forth an adequate structure required to be submitted as a proposed rule change to the Commission under Section 19(b) of the Act exchange has ceased all trading in all to meet the requirements of Section and Rule 19b–4 thereunder. See 15 U.S.C. 78s(b), securities due to discontinuation of its 6(b)(7) of the Act 17 and for BSE to 17 CFR 240.19b–4. marketplace, companies generally review on appeal any involuntary 8 Any company that seeks listing on the Exchange should not be able to retain their delistings commenced under the new would be required to apply and meet the 18 Exchange’s initial listing standards. Delisted exchange listing and corresponding rule being adopted herein. companies may also apply to list on another privileges, as they are no longer national securities exchange if they meet that providing liquidity via the market. 14 15 U.S.C. 78f(b)(5). exchange’s initial listing standards. Moreover, these companies would no 15 17 CFR 240.12d2–2. 9 In approving this proposed rule change the longer be monitored for compliance 16 17 CFR 240.12d2–2. Commission has considered the proposed rule’s 17 with maintenance listing criteria, and 15 U.S.C. 78f(b)(7). impact on efficiency, competition, and capital 18 The Commission has made similar findings in formation. 15 U.S.C. 78c(f). approving the original delisting appeal procedures 10 15 U.S.C. 78f. 12 15 U.S.C. 78f(b)(7). of the BSE. See Securities Exchange Act Release No. 11 15 U.S.C. 78f(b)(5). 13 17 CFR 240.12d2–2. Continued

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Finally, the proposed rule change publishing this notice to solicit equitable principles of trade for a requires that public notice of the final comments from interested persons. member or person associated with a delisting determination by the Exchange member 3 to interfere with a customer’s I. Self-Regulatory Organization’s be provided no fewer than 10 days request to transfer his or her account in Statement of the Terms of Substance of connection with the change in before the delisting becomes effective, the Proposed Rule Change in accordance with Rule 12d2–2 under employment of the customer’s registered the Act.19 The Commission believes that FINRA is proposing to adopt without representative provided that the account public notice of the Exchange’s final material change NASD Interpretive is not subject to any lien for monies determination should ensure that Material 2110–7 (IM–2110–7) owed by the customer or other bona fide investors have adequate notice of an (‘‘Interfering With the Transfer of claim. Prohibited interference includes, exchange delisting and is consistent Customer Accounts in the Context of but is not limited to, seeking a judicial with the protection of investors under Employment Disputes’’) as a FINRA rule order or decree that would bar or restrict Section 6(b)(5) of the Act.20 in the consolidated FINRA rulebook. the submission, delivery, or acceptance The proposed rule change would of a written request from a customer to IV. Conclusion renumber NASD IM–2110–7 as FINRA transfer his or her account.4 On the basis of the foregoing, the Rule 2140 in the consolidated FINRA FINRA adopted IM–2110–7 to address Commission finds that the proposed rulebook. the practice of delaying customer account transfers.5 In adopting IM– rule change is consistent with the II. Self-Regulatory Organization’s 2110–7, FINRA noted that, when a requirements of the Act and in Statement of the Purpose of, and registered representative leaves his or particular Section 6 of the Act and the Statutory Basis for, the Proposed Rule her firm for a position at a different rules and regulations thereunder. Change It is therefore ordered, pursuant to firm, clients serviced by the registered Section 19(b)(2) of the Act, that the In its filing with the Commission, representative may decide to continue proposed rule change (File No. SR– FINRA included statements concerning their relationship with the registered BSE–2008–36) is approved. the purpose of and basis for the representative by transferring their proposed rule change and discussed any For the Commission, by the Division of accounts to the registered Trading and Markets, pursuant to delegated comments it received on the proposed representative’s new firm. FINRA authority.21 rule change. The text of these statements expressed concern that the registered Florence E. Harmon, may be examined at the places specified representative’s former firm, concerned in Item IV below. FINRA has prepared Deputy Secretary. that its former employee may have summaries, set forth in sections (A), (B), breached his or her employment [FR Doc. E9–1673 Filed 1–26–09; 8:45 am] and (C) below, of the most significant contract by sharing client information BILLING CODE 8011–01–P aspects of these statements. with the new firm or by soliciting (A) Self-Regulatory Organization’s clients to transfer their accounts to the new firm, sometimes would seek a court SECURITIES AND EXCHANGE Statement of the Purpose of, and order to prevent the transfer of accounts. COMMISSION Statutory Basis for, the Proposed Rule FINRA noted that in a prior Notice to Change [Release No. 34–59253; File No. SR–FINRA– Members it had already alerted members 2008–052] 1. Purpose that unnecessary delays in transferring As part of the process of developing customer accounts, including delays Self-Regulatory Organizations; accompanied by attempts to persuade Financial Industry Regulatory the new consolidated rulebook 2 customers not to transfer their accounts, Authority, Inc.; Notice of Filing of (‘‘Consolidated FINRA Rulebook’’), FINRA is proposing to adopt without are inconsistent with just and equitable Proposed Rule Change Relating to the principles of trade.6 FINRA stated that Adoption of FINRA Rule 2140 material change NASD Interpretive (Interfering With the Transfer of Material 2110–7 (IM–2110–7) (‘‘Interfering With the Transfer of 3 The term ‘‘person associated with a member’’ Customer Accounts in the Context of includes, among others, registered representatives. Employment Disputes) in the Customer Accounts in the Context of See FINRA By-Laws, Article I, Paragraph (rr). Consolidated FINRA Rulebook Employment Disputes’’) as a FINRA rule 4 IM–2110–7 further states that nothing in the in the Consolidated FINRA Rulebook. Interpretation shall affect the operation of NASD January 15, 2009. The proposed rule change would Rule 11870 (Customer Account Transfer Contracts). Generally, Rule 11870 addresses the transfer of Pursuant to Section 19(b)(1) of the renumber NASD IM–2110–7 as FINRA securities account assets from one member to Securities Exchange Act of 1934 Rule 2140 in the Consolidated FINRA another member in connection with a customer (‘‘Act’’),1 notice is hereby given that on Rulebook. request. (FINRA intends to review NASD Rule October 29, 2008, Financial Industry 11870 and related interpretive materials as part of (A) Background a later phase in the rulebook consolidation process. Regulatory Authority, Inc. (‘‘FINRA’’) Note that the Commission has approved FINRA’s (f/k/a National Association of Securities NASD IM–2110–7 provides that it proposed rule change to rescind, as duplicative of Dealers, Inc. [‘‘NASD’’]) filed with the shall be inconsistent with just and Rule 11870, Incorporated NYSE Rule 412 and its Securities and Exchange Commission Interpretation. See Securities Exchange Act Release (‘‘Commission’’) the proposed rule 2 The current FINRA rulebook includes, in No. 58533 (September 12, 2008), 73 FR 54652 addition to FINRA Rules, (1) NASD Rules and (2) (September 22, 2008) [File No. SR–FINRA–2008– change described in Items I, II, and III rules incorporated from NYSE (‘‘Incorporated NYSE 036]. below, which items have been prepared Rules’’) (together, the NASD Rules and Incorporated 5 See NASD Notice to Members 02–07 (January by FINRA. The Commission is NYSE Rules are referred to as the ‘‘Transitional 2002) (Interfering With Customer Account Rulebook’’). While the NASD Rules generally apply Transfers); see also Securities Exchange Act Release to all FINRA members, the Incorporated NYSE No. 45239 (January 4, 2002), 67 FR 1790 (January 53700 (April 21, 2006), 71 FR 25257 (April 28, Rules apply only to those members of FINRA that 14, 2002) [File No. SR–NASD–2001–95]. 2006) (SR–BSE–2005–46). are also members of the NYSE (‘‘Dual Members’’). 6 NASD Notice to Members 79–7 (February 1979) 19 17 CFR 240.12d2–2. For more information about the rulebook (Fair Treatment of Customer Accounts); see also 20 15 U.S.C. 78f(b)(5). consolidation process, see FINRA Information Securities Exchange Act Release No. 15194 21 17 CFR 200.30–3(a)(12). Notice, March 12, 2008 (Rulebook Consolidation (September 28, 1978) (Notice to Broker-Dealers 1 15 U.S.C. 78s(b)(1). Process). Concerning Fair Treatment of Customer Accounts).

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obtaining court orders to prevent of customer accounts in the context of Internet Web site (http://www.sec.gov/ customers from following a registered employment disputes. rules/sro.shtml). Copies of the representative to a different firm is submission, all subsequent (B) Self-Regulatory Organization’s similar to the unfair practice of delaying amendments, all written statements Statement on Burden on Competition transfers that the earlier Notice had with respect to the proposed rule warned about. FINRA does not believe that the change that are filed with the In adopting IM–2110–7, FINRA proposed rule change will result in any Commission, and all written further stated that the Interpretive burden on competition that is not communications relating to the Material does not affect the ability of necessary or appropriate in furtherance proposed rule change between the member firms to use employment of the purposes of the Act. Commission and any person, other than those that may be withheld from the agreements to prevent former (C) Self-Regulatory Organization’s public in accordance with the representatives from soliciting firm Statement on Comments on the provisions of 5 U.S.C. 552, will be customers. Members are not prevented Proposed Rule Change Received From available for inspection and copying in from pursuing other remedies they may Members, Participants, or Others have arising from employment disputes the Commission’s Public Reference with former registered representatives. Written comments were neither Room, 100 F Street, NE., Washington, Rather, IM–2110–7 is limited to solicited nor received. DC 20549, on official business days restricting a member from interfering III. Date of Effectiveness of the between the hours of 10 a.m. and 3 p.m. with a customer’s right to transfer his or Proposed Rule Change and Timing for Copies of such filing also will be her account once the customer has Commission Action available for inspection and copying at asked the firm to move the account. the principal office of FINRA and on Within thirty-five days of the date of FINRA’s Web site at http:// (B) Proposal publication of this notice in the Federal www.finra.org/Industry/Regulation/ FINRA believes that NASD IM–2110– Register or within such longer period: RuleFilings/2008/P117330. All 7 is consistent with the goal of investor (i) As the Commission may designate up comments received will be posted protection and serves the public to ninety days of such date if it finds without change; the Commission does interest. FINRA proposes to transfer such longer period to be appropriate not edit personal identifying NASD IM–2110–7 with only minor and publishes its reasons for so finding information from submissions. You changes into the Consolidated FINRA or (ii) as to which the self-regulatory should submit only information that Rulebook. Specifically, IM–2110–7 organization consents, the Commission you wish to make available publicly. All would be recodified with conforming will: submissions should refer to File revisions as a stand-alone FINRA rule (A) by order approve such proposed Number SR–FINRA–2008–052 and rather than as interpretive material to rule change or should be submitted on or before NASD Rule 2110 (Standards of (B) institute proceedings to determine February 17, 2009. whether the proposed rule change Commercial Honor and Principles of For the Commission by the Division of Trade).7 should be disapproved. Trading and Markets, pursuant to delegated FINRA will announce the IV. Solicitation of Comments authority.9 implementation date of the proposed Florence E. Harmon, Interested persons are invited to rule change in a Regulatory Notice to be Deputy Secretary. submit written data, views, and published no later than ninety days arguments concerning the foregoing, [FR Doc. E9–1656 Filed 1–26–09; 8:45 am] following Commission approval. including whether the proposed rule BILLING CODE 8011–01–P 2. Statutory Basis change is consistent with the Act. Comments may be submitted by any of FINRA believes that the proposed rule SECURITIES AND EXCHANGE change is consistent with the provisions the following methods: COMMISSION of Section 15A(b)(6) of the Act,8 which Electronic Comments [Release No. 34–59267; File No. SR–FINRA– requires, among other things, that • Use the Commission’s Internet 2009–003] FINRA rules must be designed to comment form (http://www.sec.gov/ prevent fraudulent and manipulative rules/sro.shtml) or Self-Regulatory Organizations; acts and practices, to promote just and • Send an e-mail to rule- Financial Industry Regulatory equitable principles of trade, and, in [email protected]. Please include File Authority, Inc.; Notice of Filing and general, to protect investors and the Number SR–FINRA–2008–052 on the Immediate Effectiveness of Proposed public interest. FINRA believes that the subject line. Rule Change To Implement Technical proposed rule change would further the Changes to the Code of Arbitration purposes of the Act because as part of Paper Comments Procedure for Customer Disputes and the Consolidated FINRA Rulebook the • Send paper comments in triplicate Industry Disputes proposed rule change will protect to Elizabeth M. Murphy, Secretary, January 16, 2009. investors and the public interest by Securities and Exchange Commission, addressing interference with the transfer Pursuant to Section 19(b)(1) of the 100 F Street, NE., Washington, DC Securities Exchange Act of 1934 20549–1090. (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 7 The exact revised text of IM–2100–8 is attached All submissions should refer to File as Exhibit 5 to the proposed rule change and is notice is hereby given that Financial available at http://www.finra.org/Industry/ Number SR–FINRA–2008–052. This file Industry Regulatory Authority, Inc. Regulation/RuleFilings/2008/P117330. Similarly, number should be included on the (‘‘FINRA’’) (f/k/a National Association FINRA has transferred NASD Rule 2110 to the subject line if e-mail is used. To help the of Securities Dealers, Inc. (‘‘NASD’’)) Consolidated FINRA Rulebook without change as Commission process and review your FINRA Rule 2010. Securities Exchange Act Release No. 58643 (September 25, 2008), 73 FR 57174 comments more efficiently, please use 9 17 CFR 200.30–3(a)(12). (October 1, 2008) [File No. SR–FINRA–2008–028]. only one method. The Commission will 1 15 U.S.C. 78s(b)(1). 8 15 U.S.C. 78o–3(b)(6). post all comments on the Commission’s 2 17 CFR 240.19b–4.

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filed with the Securities and Exchange reorganized the old Code into three 12102(b) to insert language similar to Commission (‘‘SEC’’ or ‘‘Commission’’) separate procedural codes: the Customer that in old Rule 10102(a), which will on January 8, 2009, the proposed rule Code, the Industry Code, and the NASD authorize the Committee to establish change as described in Items I and II Code of Mediation Procedure and maintain rosters of neutrals below, which Items have been prepared (‘‘Mediation Code’’).5 The Customer, composed of persons from within and by FINRA Dispute Resolution. FINRA Industry and Mediation Codes (the outside of the securities industry. As the has designated the proposed rule change ‘‘new Codes’’) replace the old Code in Committee currently works to establish as constituting a ‘‘non-controversial’’ its entirety.6 and maintain FINRA’s arbitrator rosters, rule change under paragraph (f)(6) of Since the new Codes became the amendment would not be a change Rule 19b–4 under the Act,3 which effective, FINRA has found some to current practice. renders the proposal effective upon inaccurate cross-references, Rule 12206—Time Limits receipt of this filing by the Commission. typographical errors, inadvertent The Commission is publishing this omissions, and rule language that could FINRA proposes to amend Rule notice to solicit comments on the be improved to better convey FINRA’s 12206(d) to correct a proofreading proposed rule change from interested intent or to clarify current practice oversight by removing the word persons. regarding those rules. FINRA is, ‘‘matter’’ from the end of the sentence. Under the new Codes, the term ‘‘claim,’’ I. Self-Regulatory Organization’s therefore, proposing several technical, non-substantive amendments to the not ‘‘matter,’’ is used when referring to Statement of the Terms of Substance of an allegation or request for relief. the Proposed Rule Change Customer and Industry Codes that would correct inaccurate cross- Rule 12307—Deficient Claims FINRA is proposing to amend the references and typographical errors, In the Customer Code, FINRA Code of Arbitration Procedure for insert rule language that was codified its practice regarding deficient Customer Disputes (‘‘Customer Code’’) inadvertently omitted, codify current claims, which had not been codified in and the Code of Arbitration Procedure practice concerning the administration the old Code. Under Rule 12307, the for Industry Disputes (‘‘Industry Code’’) of existing rules, and make certain deficient claims rule, FINRA lists the to insert rule language from the Code of clarifying changes. FINRA will discuss reasons that a claim may be deficient, Arbitration Procedure (‘‘old Code’’) that the proposed changes in the order that explains the process if a deficiency is was inadvertently omitted when the they appear in the new Codes, Customer Code and Industry Code were not corrected, and sets forth procedures beginning with the proposed for handling other pleadings that may be adopted, to correct inaccurate cross- amendments to the Customer Code. references, and typographical errors. deficient. Specifically, Rule 12307(b) The text of the proposed rule change is Proposed Non-Substantive Amendments provides that the Director will not available on FINRA’s Web site at http:// to the Customer Code refund any filing fees paid by claimants when staff closes a deficient case. www.finra.org, at the principal office of Table of Contents FINRA, and at the Commission’s Public FINRA proposes to amend Rule Reference Room. FINRA proposes to amend the title 12307(b) because it does not reflect that introduces Part IV of the Table of accurately its practice concerning II. Self-Regulatory Organization’s Contents, by adding a comma after the refunding certain fees paid by claimants Statement of the Purpose of, and word ‘‘Disqualification,’’ so that the title when FINRA closes a deficient claim. Statutory Basis for, the Proposed Rule in the Table of Contents to the Customer When claimants filed a claim under Change Code is the same as the title in the the old Code, they submitted their In its filing with the Commission, Customer Code. Statement of Claim along with two FINRA included statements concerning separate fees: A non-refundable filing Rule 12102—National Arbitration and fee and a hearing session deposit.7 the purpose of and basis for the Mediation Committee proposed rule change and discussed any When FINRA staff closed a deficient comments it received on the proposed Rule 10102(a) of the old Code case, FINRA would retain the non- rule change. The text of these statements authorized the then—NASD Dispute refundable filing fee and refund the may be examined at the places specified Resolution Board of Directors to appoint hearing session deposit to the claimants. in Item IV below. FINRA has prepared a National Arbitration and Mediation Under the Customer Code, FINRA summaries, set forth in Sections A, B, Committee (the ‘‘Committee’’); and, combined the old Code filing fee and and C below, of the most significant under this rule, the Committee was hearing session deposit into one ‘‘filing aspects of such statements. authorized to establish and maintain fee.’’ 8 However, FINRA did not change rosters of neutrals. its practice regarding refunds of a A. Self-Regulatory Organization’s When the old Code was reorganized portion of the filing fee when it closes Statement of the Purpose of, and into the Customer Code, the a deficient case—FINRA continues to Statutory Basis for, the Proposed Rule Committee’s authorization to establish refund the refundable part of the filing Change and maintain neutral rosters was fee to claimants, while retaining the 1. Purpose inadvertently omitted from Rule 12102. remaining portion. Thus, FINRA Thus, FINRA proposes to amend Rule believes the language in Rule 12307(b) On January 24, 2007, the SEC does not reflect accurately its practice approved a proposal to amend the old (File Nos. SR–NASD–2003–158 and SR–NASD– and could be confusing to users of the Code by simplifying the language, 2004–011). forum. Therefore, FINRA proposes to codifying current dispute resolution 5 The SEC approved the Mediation Code on amend Rule 12307(b) to state that the practices, and implementing several October 31, 2005. See Securities Exchange Act Director will close the case without substantive changes to dispute Release No. 52705 (Oct. 31, 2005); 70 FR 67525 4 (November 7, 2005) (File No. SR–NASD–2004–013). resolution rules. The proposal It became effective on January 30, 2006. See Notice 7 See Rule 10332(c) of the Code of Arbitration to Members 05–85 (December 2005). Procedure. 3 17 CFR 240.19b–4(f)(6). 6 The Customer and Industry Codes became 8 See Rule 12900. A portion of the filing fee is 4 See Securities Exchange Act Release No. 55158 effective on April 16, 2007. See Notice to Members refundable under certain circumstances, Rule (January 24, 2007); 72 FR 4574 (January 31, 2007) 07–07 (February 2007). 12900(c).

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serving the claim, and will refund part Amendments to the Customer Code’’ of Section 15A(b)(6) of the Act, which of the filing fee in the amount indicated above. requires, among other things, that in the schedule of fees. FINRA believes FINRA rules must be designed to Rule 13307—Deficient Claims the amendment will reflect accurately prevent fraudulent and manipulative its practice concerning refunds when it For an explanation of the proposed acts and practices, to promote just and closes a deficient case and will amendment, see the relevant section equitable principles of trade, and, in minimize confusion concerning its fees. under ‘‘Proposed Non-Substantive general, to protect investors and the Amendments to the Customer Code’’ public interest. Rule 12410—Removal of Arbitrator by above. FINRA believes that the proposed rule Director change will assist in the efficient Rule 13314—Combining Claims Rule 12410 addresses removal of an administration of arbitrations by arbitrator by the Director of Arbitration. FINRA proposes to amend the clarifying current practices and by Specifically, Rule 12410(a)(1) states, in erroneous cross-reference to Rule correcting inaccurate cross-references relevant part, that ‘‘the Director will 13404(c) in Rule 13314. Rule 13314 and typographical errors. FINRA grant a party’s request to remove an states, in relevant part, that before believes these technical, non- arbitrator if it is reasonable to infer, ranked arbitrator lists are due to the substantive amendments will enhance based on information known at the time Director under Rule 13404(c), the the new Codes by making them easier to of the request, that the arbitrator is Director may combine separate but understand and apply. biased, lacks impartiality, or has a direct related claims into one arbitration. Rule 13404(c) instructs parties on the ranking B. Self-Regulatory Organization’s or indirect interest in the outcome of the Statement on Burden on Competition arbitration. The interest or bias must be procedures in the forum. Rule 13404(d) direct, definite, and capable of governs when ranked lists must be FINRA does not believe that the reasonable demonstration, rather than returned to the Director. Thus, the proposed rule change will result in any remote or speculative.’’ 9 FINRA reference to Rule 13404(c) in Rule 13314 burden on competition that is not believes the word ‘‘direct’’ in the second is inaccurate and should be changed to necessary or appropriate in furtherance sentence of the rule conflicts with the Rule 13404(d). of the purposes of the Act, as amended. meaning of the first sentence, in which Rule 13403—Generating and Sending C. Self-Regulatory Organization’s an arbitrator may be challenged for Lists to the Parties Statement on Comments on the having ‘‘a direct or indirect interest in FINRA proposes to amend the Proposed Rule Change Received From the outcome of the arbitration.’’ Thus, Members, Participants, or Others FINRA proposes to remove ‘‘direct’’ erroneous cross-reference to Rule Written comments were neither from the second sentence of Rule 13404(c) in Rule 13403(c)(2). The solicited nor received by FINRA. 12410(a)(1) to eliminate the conflict in relevant provision of Rule 13403(c)(2) the rule language. states that when a party requests III. Date of Effectiveness of the additional information, the Director Proposed Rule Change and Timing for Proposed Non-Substantive Amendments may, but is not required to, toll the time Commission Action to the Industry Code 10 for parties to return the ranked lists FINRA has represented that the Table of Contents under Rule 13404(c). For the reason discussed pertaining to the proposed proposed rule change qualifies for For an explanation of the proposed amendment to Rule 13314, the reference immediate effectiveness pursuant to 11 amendment, see the relevant section to Rule 13404(c) is inaccurate and Section 19(b)(3)(A) of the Act and 12 under ‘‘Proposed Non-Substantive should be changed to Rule 13404(d). Rule 19b–4(f)(6) thereunder because Amendments to the Customer Code’’ it: (i) Does not significantly affect the above. Rule 13410—Removal of Arbitrator by protection of investors or the public Director interest; (ii) does not impose any Rule 13102—National Arbitration and For an explanation of the proposed significant burden on competition; and Mediation Committee amendment, see the relevant section (iii) by its terms, does not become For an explanation of the proposed under ‘‘Proposed Non-Substantive operative for 30 days from the date on amendment, see the relevant section Amendments to the Customer Code’’ which it was filed, or such shorter time under ‘‘Proposed Non-Substantive above. as the Commission may designate if Amendments to the Customer Code’’ consistent with the protection of Rule 13804—Temporary Injunctive above. investors and the public interest.13 Orders; Requests for Permanent FINRA has requested that the Rule 13206—Time Limits Injunctive Relief Commission waive the 30-day operative For an explanation of the proposed FINRA proposes to correct a delay, so that the proposed rule change amendment, see the relevant section typographical error in Rule may become operative upon filing. The under ‘‘Proposed Non-Substantive 13804(b)(3)(A)(ii). The relevant sentence Commission hereby grants FINRA’s of the rule states that ‘‘the Direct shall request.14 The Commission believes that 9 See Rule 12410(a)(1). consolidate the parties’’ rankings, and 11 10 Most rules of the Customer and Industry Codes shall appoint arbitrators based on the 15 U.S.C. 78s(b)(3)(A). are identical, except for panel composition, order of rankings on the consolidated 12 17 CFR 240.19b–4(f)(6). 13 references to document production lists that apply list, subject to the arbitrators’ In addition, Rule 19b–4(f)(6)(iii) requires a self- only in customer cases, and rules relating to regulatory organization to give the Commission employment discrimination and injunctive relief availability and disqualification.’’ written notice of its intent to file the proposed rule that apply only to industry claims. Wherever FINRA proposes to change the word change at least five business days prior to the date possible, the last three digits of the rule numbers ‘‘Direct’’ to ‘‘Director.’’ of filing of the proposed rule change, or such in the Customer and Industry Codes are the same. shorter time as designated by the Commission. Thus, the explanation for the proposed 2. Statutory Basis FINRA has satisfied this requirement. amendments in the Customer Code also apply to the 14 For the purposes only of waiving the 30-day proposed amendments in the Industry Code, except FINRA believes that the proposed rule operative delay, the Commission has considered the where indicated. change is consistent with the provisions Continued

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waiving the 30-day operative delay is available for inspection and copying at I. Self-Regulatory Organization’s consistent with the protection of the principal office of FINRA. Statement of the Terms of the Substance investors and the public interest All comments received will be posted of the Proposed Rule Change because it makes only technical changes without change; the Commission does The Exchange proposes (i) to suspend to FINRA’s rules which should help to not edit personal identifying the operation of the Exchange’s newly avoid confusion among FINRA members information from submissions. You adopted listing standards with respect and other market participants. should submit only information that to primary listings on the Exchange At any time within 60 days of the you wish to make available publicly. All until such time as the Exchange adopts filing of the proposed rule change, the submissions should refer to the File listing fees, and (ii) to adopt rules Commission may summarily abrogate Number SR–FINRA–2009–003 and reflecting the requirements for trading such rule change if it appears to the products on the Exchange pursuant to Commission that such action is should be submitted on or before February 17, 2009. unlisted trading privileges (‘‘UTP’’) that necessary or appropriate in the public have been established in various new interest, for the protection of investors, For the Commission, by the Division of product proposals previously approved or otherwise in furtherance of the Trading and Markets, pursuant to delegated by the Commission. The Exchange purposes of the Act. authority.15 proposes to make the change operative IV. Solicitation of Comments Florence E. Harmon, on January 12, 2009. Deputy Secretary. The text of the proposed rule change Interested persons are invited to [FR Doc. E9–1675 Filed 1–26–09; 8:45 am] is available from the principal office of submit written data, views, and the Exchange, at the Commission’s BILLING CODE 8011–01–P arguments concerning the foregoing, Public Reference Room and also on the including whether the proposed rule Exchange’s Web site at http://nasdaq change is consistent with the Act. SECURITIES AND EXCHANGE trader.com/Trader.aspx?id=Boston Comments may be submitted by any of _Stock_Exchange. the following methods: COMMISSION II. Self-Regulatory Organization’s Electronic Comments [Release No. 34–59261; File No. SR–BX– Statement of the Purpose of, and • Use the Commission’s Internet 2009–001] Statutory Basis for, the Proposed Rule comment form (http://www.sec.gov/ Change rules/sro.shtml); or Self-Regulatory Organizations; In its filing with the Commission, the • Send an e-mail to rule- NASDAQ OMX BX, Inc.; Notice of Filing Exchange included statements [email protected]. Please include File and Immediate Effectiveness of concerning the purpose of and basis for Number SR–FINRA–2009–003 on the Proposed Rule Change Deferring the proposed rule change and discussed subject line. Operation of Its Listing Standards for any comments it received on the Primary Listings and Consolidating proposed rule change. The text of these Paper Comments Into a Single Rule Certain statements may be examined at the • Send paper comments in triplicate Requirements for Products Traded on places specified in Item IV below. The to Elizabeth M. Murphy, Secretary, the Exchange Pursuant to Unlisted Exchange has prepared summaries, set Securities and Exchange Commission, Trading Privileges forth in Sections A, B, and C below, of 100 F Street, NE., Washington, DC the most significant aspects of such 20549–1090. January 15, 2009. statements. All submissions should refer to File Pursuant to Section 19(b)(1) of the A. Self-Regulatory Organization’s Number SR–FINRA–2009–003. This file Securities Exchange Act of 1934 Statement of the Purpose of, and 1 2 number should be included on the (‘‘Act’’) and Rule 19b–4 thereunder, Statutory Basis for, the Proposed Rule subject line if e-mail is used. To help the notice is hereby given that on January 8, Change Commission process and review your 2009, NASDAQ OMX BX, Inc. (the comments more efficiently, please use ‘‘Exchange’’) filed with the Securities 1. Purpose only one method. The Commission will and Exchange Commission On August 29, 2008, the Exchange post all comments on the Commission’s (‘‘Commission’’) the proposed rule was acquired by The NASDAQ OMX Internet Web site (http://www.sec.gov/ change as described in Items I and II Group, Inc. At the time of this rules/sro.shtml). Copies of the below, which Items have been prepared acquisition, the Exchange was not submission, all subsequent by the Exchange. The Exchange has operating a venue for listing or trading amendments, all written statements designated the proposed rule change as cash equities. Pursuant to SR–BSE– with respect to the proposed rule constituting a non-controversial rule 2008–48, the Exchange has adopted a change that are filed with the change under Section 19(b)(3)(A) of the new rulebook with rules governing Commission, and all written Act 3 and Rule 19b–4(f)(6) thereunder,4 membership, the regulatory obligations communications relating to the 5 which renders the proposal effective of members, listing, and equity trading. proposed rule change between the The new rules, which are designated as Commission and any person, other than upon filing with the Commission. The Commission is publishing this notice to the ‘‘Equity Rules,’’ include rules that those that may be withheld from the permit issuers of various types of solicit comments on the proposed rule public in accordance with the securities to establish primary listings change from interested persons. provisions of 5 U.S.C. 552, will be on the Exchange. However, the available for inspection and copying in Exchange has determined that market the Commission’s Public Reference 15 17 CFR 200.30–3(a)(12). conditions do not currently warrant Room. Copies of such filing also will be 1 15 U.S.C. 78s(b)(1). offering the Exchange as a listing venue. 2 17 CFR 240.19b–4. proposed rule’s impact on efficiency, competition, 3 15 U.SC. 78s(b)(3)(A). 5 Securities Exchange Act Release No. 59154 and capital formation. See 15 U.S.C. 78c(f). 4 17 CFR 240.19b–4(f)(6). (December 23, 2008) (SR–BSE–2008–48).

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Accordingly, although the listing underlying index value, the intraday Thus, as amended, the rule provides standards will remain in the Exchange’s indicative value, or a similar value. that the Exchange, upon notification by rulebook, the Exchange is proposing Proposed Equity Rule 4421(a)(3)(A) the listing market of a halt due to a new Equity Rule 4401, which provides reminds Members 7 that they are subject temporary interruption in the that the provisions of the Equity Rule to the prospectus delivery requirements calculation or wide dissemination of a 4000 Series that permit the listing of under the Securities Act of 1933, as Required Value for a Derivative securities will not be operative until the amended (the ‘‘Securities Act’’), unless Securities Product, will immediately Exchange files a proposed rule change a UTP Derivative Security is the subject halt trading in that product on the under Section 19(b)(2) under the Act to of an order by the Commission Exchange. If the Required Value adopt listing fees for the Exchange and exempting the product from certain continues not to be calculated or widely such proposed rule change is approved prospectus delivery requirements under disseminated at the commencement of by the Commission. The rule is similar Section 24(d) of the Investment trading on the Exchange on the next in effect to Rule 14.1(a) of the BATS Company Act of 1940 (the ‘‘1940 Act’’) business day, the Exchange shall not Exchange. and the product is not otherwise subject commence trading of the product on In addition, the Exchange also to prospectus delivery requirements that day. If an interruption in the proposes to amend its rules to reflect under the Securities Act. The Exchange calculation or wide dissemination of the certain requirements for trading will inform its Members of the Required Value continues, the Exchange products on the Exchange pursuant to application of these provisions to a may resume trading in the Derivative UTP that have been established in particular UTP Derivative Security Securities Product only if calculation various new product proposals governed by the 1940 Act by means of and wide dissemination of the Required previously approved by the an information circular. Value resumes or trading in such Commission. The Exchange is amending The Exchange is amending Equity product resumes on the listing market. Equity Rule 4420 to provide that it may Rule 4120(b) to more fully address trading halts in UTP Derivative The Exchange is also amending extend UTP to any security that is an Equity Rule 4630, which governs the NMS Stock (as defined in Rule 600 of Securities traded on the Exchange pursuant to UTP. As currently in effect, activities of registered market makers in Regulation NMS) that is listed on Commodity-Related Securities. A another national securities exchange. Rule 4120(b) provides for trading halts of ‘‘Derivative Securities Products,’’ ‘‘Commodity-Related Security’’ is Any such security will be subject to all which are defined as a series of Portfolio defined to mean a security that is issued of the Exchange’s trading rules Depository Receipts, Index Fund Shares, by a trust, partnership, commodity pool applicable to NMS Stocks, unless Managed Fund Shares, Trust Issued or similar entity that invests, directly or otherwise noted, including the Receipts, Commodity-Related through another entity, in any provisions of Equity Rules 4120, 4420, Securities, or securities representing combination of commodities, futures 4630, and new Rule 4421 described interests in unit investment trusts or contracts, options on futures contracts, below. The Exchange will file with the investment companies. Although this forward contracts, commodity swaps, or Commission a Form 19b–4(e) with definition covers a wide range of other related derivatives, or the value of respect to any such security that is a products that would be considered UTP which is determined by the value of ‘‘new derivative securities product’’ as commodities, futures contracts, options 6 Derivative Securities, for the avoidance defined in Rule 19b–4(e) under the Act of doubt, the Exchange is explicitly on futures contracts, forward contracts, (defined as a ‘‘UTP Derivative amending the definition to include all commodity swaps, or other related Security’’). In addition, any new UTP Derivative Securities. The current derivatives. A ‘‘commodity’’ is defined derivative securities product traded on rule also contains a definition of in Section 1(a)(4) of the Commodity the Exchange will be subject to the ‘‘Required Value’’ and provides for Exchange Act, a definition that includes criteria described below. trading halts in certain circumstances currencies. As amended, the rule Proposed Equity Rule 4421(a)(2) where a Required Value is not being provides that a registered market maker provides that the Exchange will disseminated. Currently, ‘‘Required in a Commodity-Related Security is distribute an information circular prior Value’’ is defined to mean ‘‘(i) the value prohibited from acting or registering as to the commencement of trading in a of any index or any commodity-related a market maker in any commodities, UTP Derivative Security, which value underlying a Derivative Security futures contracts, options on futures generally will include the same Product and (ii) the indicative contracts, forward contracts, commodity information as the information circular optimized portfolio value, intraday swaps, or other related derivatives provided by the listing exchange, indicative value, or other comparable underlying such Commodity-Related including: (1) The special risks of estimate of the value of a share of a Security. The rule further provides that trading the UTP Derivative Security; (2) Derivative Securities Product updated a member acting as a registered market the Rules of the Exchange that will regularly during the trading day.’’ The maker in a Commodity-Related Security apply to the UTP Derivative Security, Exchange proposes to amend the must file with the Exchange’s including Equity Rule 2310, the definition to also include ‘‘(iii) a net Regulation Department in a manner Exchange’s suitability rule; (3) asset value in the case of a Derivative prescribed by such Department and information about the dissemination of Securities Product for which a net asset keep current a list identifying all the value of the underlying assets or value is disseminated, and (iv) a accounts for trading in commodities, indexes; and (4) the applicable trading ‘disclosed portfolio’ in the case of a futures contracts, options on futures hours for the UTP Derivative Security Derivative Securities Product that is a contracts, forward contracts, commodity and risks of trading during the series of managed fund shares or swaps, or other related derivatives Exchange’s pre-market session (8 a.m. to actively managed exchange-traded underlying such Commodity-Related 9:30 a.m.) and post-market session (4 funds for which a disclosed portfolio is Security, in which the market maker p.m. to 7 p.m.) due to the lack of disseminated.’’ holds an interest, over which it may calculation or dissemination of the exercise investment discretion, or in 7 A Member is any registered broker-dealer that which it shares in the profits and losses. 6 17 CFR 240.19b–4(e). has been admitted to membership in the Exchange. No market maker shall trade in, or

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exercise investment discretion with The proposed rule change also provides interest; (ii) impose any significant respect to, such underlying that the Exchange will enter into a burden on competition; and (iii) become commodities, futures contracts, options comprehensive surveillance sharing operative for 30 days from the date on on futures contracts, forward contracts, agreement (‘‘CSSA’’) with a market which it was filed, or such shorter time commodity swaps, or other related trading components of the index or as the Commission may designate, it has derivatives, in an account in which a portfolio on which the UTP Derivative become effective pursuant to Section market maker, directly or indirectly, Security is based to the same extent as 19(b)(3)(A) of the Act 10 and Rule 19b– controls trading activities, or has an the listing exchange’s rules require the 4(f)(6) thereunder.11 interest in the profits or losses thereof, listing market to enter into a CSSA with The Exchange has asked the that has not been reported as required such market. Commission to waive the 30-day by the Rule. Finally, the Exchange is amending operative delay. The Commission In addition, a member acting as a provisions of Equity Rule 4120 and 4630 believes that such waiver is consistent registered market maker in a that stipulate that the Exchange will file with the protection of investors and the Commodity-Related Security is separate proposals under Section public interest because such waiver obligated to establish adequate 19(b)(2) of the Act for each issue of should benefit investors by creating, information barriers when such market Managed Fund Shares or Commodity- without undue delay, additional maker engages in communications to Based Securities that it trades on a UTP competition in the trading of UTP other departments within the same firm basis. Because the new rules being Derivative Securities, subject to or the firm’s affiliates that involve adopted by the Exchange consolidate consistent and reasonable standards. trading in commodities, futures the requirements for trading such Waiver of the waiting period will also contracts, options on futures contracts, securities that have been established in allow prompt clarification of the status forward contracts, commodity swaps, or new product proposals previously of the Exchange as a listing venue by other related derivatives underlying approved by the Commission, separate specifying that the Exchange’s listing such Commodity-Related Security. The proposals under Section 19(b)(2) of the standards shall not be operative for member acting as a registered market Act are no longer required for trading primary listings until the Exchange maker in a Commodity-Related Security these securities. adopts listing fees. The proposed rule shall make available to the Exchange’s change is modeled closely after similar Regulation Department such books, 2. Statutory Basis rules of other national securities records or other information pertaining The Exchange believes that the exchanges 12 and does not raise any to transactions by such entity or proposed rule change is consistent with novel or significant regulatory issues. registered or non-registered employee the provisions of Section 6 of the Act,8 Therefore, the Commission designates affiliated with such entity for its or their in general and with Section 6(b)(5) of the proposed rule change as operative own accounts for trading commodities, the Act,9 in particular, in that it would upon filing.13 futures contracts, options on futures promote just and equitable principles of At any time within 60 days of the contracts, forward contracts, commodity trade, remove impediments to, and filing of the proposed rule change the swaps, or other related derivatives perfect the mechanism of, a free and Commission may summarily abrogate underlying such Commodity-Related open market and a national market such rule change if it appears to the Security, as may be requested by the system, and, in general, protect Commission that such action is Regulation Department. Finally, in investors and the public interest by necessary or appropriate in the public connection with trading a Commodity- providing for the trading of securities, interest, for the protection of investors, Related Security or commodities, including UTP Derivative Securities, on or otherwise in furtherance of the futures contracts, options on futures the Exchange pursuant to UTP, subject purposes of the Act. contracts, forward contracts, commodity to consistent and reasonable standards. IV. Solicitation of Comments swaps, or other related derivatives underlying a Commodity-Related B. Self-Regulatory Organization’s Interested persons are invited to Security, the member acting as a market Statement on Burden on Competition submit written data, views, and maker in a Commodity-Related Security The Exchange does not believe that arguments concerning the foregoing, shall not use any material nonpublic the proposed rule change will result in including whether the proposed rule information received from any person any burden on competition that is not change, is consistent with the Act. associated with the member or necessary or appropriate in furtherance Comments may be submitted by any of the following methods: employee of such person regarding of the purposes of the Act. trading by such person or employee in the commodities, futures contracts, C. Self-Regulatory Organization’s 10 15 U.S.C. 78s(b)(3)(A). 11 options on futures contracts, forward Statement on Comments on the 17 CFR 240.19b–4(f)(6). In addition, as required Proposed Rule Change Received From under Rule 19b–4(f)(6)(iii), the Exchange provided contracts, commodity swaps, or other the Commission with written notice of its intent to related derivatives underlying such Members, Participants, or Others file the proposed rule change, along with a brief Commodity-Related Security. Written comments on the proposed description and text of the proposed rule change, The Exchange represents that its at least five days prior to the filing of the proposed rule change were neither solicited nor rule change. surveillance procedures for UTP received. 12 See, e.g., NSX Rule 15.9 and Securities Derivative Securities traded on the Exchange Act Release No. 57448 (March 6, 2008), Exchange will be similar to the III. Date of Effectiveness of the 73 FR 13597 (March 13, 2008) (SR–NSX–2008–05); procedures used for equity securities Proposed Rule Change and Timing for ISE Rule 2101 and Securities Exchange Act Release Commission Action No. 57387 (February 27, 2008), 73 FR 11965 (March traded on the Exchange and will 5, 2008) (SR–ISE–2007–99); BATS Rule 14.1 and incorporate and rely upon existing Because the foregoing proposed rule Securities Exchange Act Release No. 58623 Exchange surveillance procedures. The change does not: (i) Significantly affect (September 23, 2008), 73 FR 57169 (October 1, Exchange will closely monitor activity 2008) (SR–BATS–2008–004). the protection of investors or the public 13 in UTP Derivative Securities traded on For purposes only of waiving the operative date of this proposal, the Commission has considered the Exchange pursuant to UTP to deter 8 15 U.S.C. 78f. the rule’s impact on efficiency, competition, and any potential improper trading activity. 9 15 U.S.C. 78f(b)(5). capital formation. See 15 U.S.C. 78c(f).

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Electronic Comments SECURITIES AND EXCHANGE to OATS information, it does not believe such data should be used for • COMMISSION Use the Commission’s Internet non-regulatory purposes unless the comment form (http://www.sec.gov/ [Release No. 34–59266; File No. SR– NASDAQ–2008–016] data is made available to other market rules/sro.shtml); or participants on the same terms under • Send an e-mail to rule- Self-Regulatory Organizations; The which it is provided to Nasdaq.6 [email protected]. Please include File NASDAQ Stock Market LLC; Order —Nasdaq has failed to provide a Number SR–BX–2009–001 on the Approving Proposed Rule Change To detailed discussion of the data or subject line. Create the Nasdaq Market Pathfinders analytics to be included in the Service and Establish Fees for the Service. SIFMA stated that several Paper Comments Service firms have expressed concern with the proposal’s potential to • Send paper comments in triplicate January 16, 2009. compromise the confidentiality of the to Elizabeth M. Murphy, Secretary, transacting party’s trading strategies Securities and Exchange Commission, I. Introduction and Description of the Proposal or provide misinformation as to a 100 F Street, NE., Washington, DC transacting party. 20549–1090. On June 27, 2008, The NASDAQ —SIFMA questions whether the Service Stock Market LLC (‘‘Nasdaq’’) filed with All submissions should refer to File will provide a means to reverse the Securities and Exchange engineer the algorithms and strategies Number SR–BX–2009–001. This file Commission (‘‘Commission’’), pursuant number should be included on the Nasdaq members have created, or to Section 19(b)(1) of the Securities whether the impact on such subject line if e-mail is used. To help the 1 Exchange Act of 1934 (‘‘Act’’) and Rule algorithms and strategies will be such Commission process and review your 19b–4 thereunder,2 a proposed rule comments more efficiently, please use as to render them useless. change that would establish the Nasdaq —SIFMA also raised a procedural only one method. The Commission will Market Pathfinders Service (‘‘Service’’) concern, stating that Nasdaq is post all comments on the Commission’s and establish fees for the Service. The proposing to create a proprietary Internet Web site (http://www.sec.gov/ Service will allow subscribers to view a product that uses data its members are rules/sro.shtml). Copies of the real time data product that tracks the required to submit without submission, all subsequent aggregated market activity of certain compensation; no other exchange or amendments, all written statements market participants who are market data vendor can replicate this with respect to the proposed rule aggressively buying and/or selling. product because necessary elements change that are filed with the Nasdaq proposes to offer new are not available to anyone but Commission, and all written subscribers a 30-day waiver of the user Nasdaq; and no cost data is provided communications relating to the fees for the Service. After the conclusion to allow an opportunity to determine proposed rule change between the of the waiver period, subscribers may if the fees are fair and reasonable. Commission and any person, other than avail themselves of three different those that may be withheld from the subscription options at varying prices. III. Nasdaq’s Response to the Comment The proposed rule change was Letter public in accordance with the published in the Federal Register on provisions of 5 U.S.C. 552, will be In response to the SIFMA Letter, July 17, 2008.3 The Commission available for inspection and copying in Nasdaq made the following points: received one comment on the proposal.4 the Commission’s Public Reference Nasdaq responded to the comment letter —SIFMA inaccurately claims that Room on official business days between on September 18, 2008.5 The Nasdaq is collecting data in its the hours of 10 a.m. and 3 p.m. Copies Commission is approving the proposed capacity as a regulatory body and of such filing also will be available for rule change. using it for commercial purposes, inspection and copying at the principal stating that the Service does not use office of the Exchange. All comments II. Summary of Comment Letter OATS information, but instead relies received will be posted without change; The commenter suggests that the on trade information sent directly and the Commission does not edit personal Commission cannot approve the only from the Nasdaq Matching identifying information from proposed rule change for the following Engine. submissions. You should submit only reasons: —The Service will not operate in a information that you wish to make —Nasdaq is proposing to make manner that permits users to available publicly. commercial use of data supplied to it distinguish between short and long in Nasdaq’s capacity as a regulatory sales; the Service will not All submissions should refer to File compromise the confidentiality of the Number SR–BX–2009–001 and should body, despite the Commission’s previous statement that, with regard transacting party’s trading strategies, be submitted on or before February 17, nor provide misinformation as to a 2009. 1 15 U.S.C. 78s(b)(1). transacting party because there are For the Commission, by the Division of 2 17 CFR 240.19b–4. filters in place to prevent this from Trading and Markets, pursuant to delegated 3 See Securities Exchange Act Release No. 58145 occurring. authority.14 (July 11, 2008), 73 FR 41143. —The Service will not provide a means 4 See August 7, 2008 letter from Ira D. Florence E. Harmon, to reverse engineer the algorithms and Hammerman, Senior Managing Director and strategies Nasdaq members have Deputy Secretary. General Counsel, Securities Industry and Financial Markets Association (‘‘SIFMA’’), to Florence created, nor will it affect those [FR Doc. E9–1671 Filed 1–26–09; 8:45 am] Harmon, Acting Secretary, Commission (‘‘SIFMA BILLING CODE 8011–01–P Letter’’). 6 SIFMA Letter at 2, quoting the Commission’s 5 See September 18, 2008 letter from Jeffrey S. order approving Nasdaq’s exchange application. See Davis, Deputy General Counsel and Vice President, Securities Exchange Act Release No. 53128 (January Nasdaq, to Florence Harmon, Acting Secretary, 13, 2006), 71 FR 3550 (January 23, 2006) (File No. 14 17 CFR 200.30–3(a)(12). Commission (‘‘Nasdaq Letter’’). 10–131), in text following footnote 136.

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algorithms and strategies in such a Commission does not believe that the by the self-regulatory organization. The way as to render them useless. Pathfinder Service will allow reverse Commission is publishing this notice to —The Service is a sentiment indicator engineering of the algorithms and solicit comments on the proposed rule that would provide users with an strategies created by Nasdaq members; change from interested persons. indication of how a specific type of Nasdaq has explained the various ways I. Self-Regulatory Organization’s market participant feels about certain the information is filtered, and has Statement of the Terms of Substance of securities, making available to the stated that such filtering will prevent the Proposed Rule Change public information that is sometimes this from occurring. referred to as ‘‘the word on the street’’ It is therefore ordered, pursuant to The Exchange proposes to amend or as compiled from order flow on the Section 19(b)(2) of the Act 10, that the eliminate several of its rules in order to trading desks of large broker-dealers. proposed rule change (SR–NASDAQ– remove unnecessary rule text related to —Nasdaq believes that it has provided 2008–016) be, and it hereby is, terms or systems that are now obsolete. adequate justification for the fees. approved. The text of the proposed rule change is For the Commission, by the Division of attached to the proposed rule change as IV. Discussion and Commission Exhibit 5. A copy of this filing is Findings Trading and Markets, pursuant to delegated authority.11 available on the Exchange’s Web site at The Commission has reviewed Florence E. Harmon, http://www.nyse.com, at the Exchange’s carefully the proposed rule change, the Deputy Secretary. principal office and at the Commission’s Public Reference Room. comment letter, and Nasdaq’s response [FR Doc. E9–1674 Filed 1–26–09; 8:45 am] to the comment letter, and finds that the BILLING CODE 8011–01–P II. Self-Regulatory Organization’s proposed rule change is consistent with Statement of the Purpose of, and the requirements of the Act and the Statutory Basis for, the Proposed Rule rules and regulations thereunder SECURITIES AND EXCHANGE Change applicable to a national securities COMMISSION exchange 7 and, in particular, Section In its filing with the Commission, the 6(b)(4) of the Act,8 which requires, [Release No. 34–59264; File No. SR– self-regulatory organization included NYSEArca–2009–02] among other things, that Nasdaq’s rules statements concerning the purpose of, and basis for, the proposed rule change provide for the equitable allocation of Self-Regulatory Organizations; Notice reasonable dues, fees and other charges and discussed any comments it received of Filing of and Immediate on the proposed rule change. The text among members and issuers and other Effectiveness of Proposed Rule persons using any facility or system of those statements may be examined at Change by NYSE Arca, Inc. To Amend the places specified in Item IV below. which Nasdaq operates or controls, and or Eliminate Unnecessary Rule Text that it not unfairly discriminate between The Exchange has prepared summaries, customers, issuers, brokers or dealers. January 16, 2009. set forth in sections A, B, and C below, The Commission believes that the Pursuant to Section 19(b)(1) 1 of the of the most significant parts of such proposed rule change is consistent with Securities Exchange Act of 1934 (the statements. these statutory standards. ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 A. Self-Regulatory Organization’s Nasdaq has represented that the notice is hereby given that, on January Statement of the Purpose of, and the Service is a voluntary one, and that the 8, 2009, NYSE Arca, Inc. (‘‘NYSE Arca’’ Statutory Basis for, the Proposed Rule information provided to subscribers is or the ‘‘Exchange’’) filed with the Change not comprised of data that broker- Securities and Exchange Commission dealers are obligated to provide to (the ‘‘Commission’’) the proposed rule 1. Purpose Nasdaq for regulatory purposes because change as described in Items I and II The purpose of this filing by NYSE of Nasdaq’s status as a self-regulatory below, which Items have been prepared Arca is to correct certain NYSE Arca organization. Additionally, broker- cross-references and remove obsolete dealers do not need the Service to market data. See Securities Exchange Act Release and unnecessary rule text. By abolishing Nos. 59039 (December 2, 2008), 73 FR 74770 these out-dated references and perform their duties, so the decision to (December 9, 2008) (SR–NYSEArca–2006–21) and purchase the Service is truly voluntary 55011 (December 27, 2006) (order granting petition correcting cross-references, the and dependent upon each broker- for review of SR–NYSEArca–2006–21). In its order Exchange is not changing or altering any dealer’s business model. Finally, issued in connection with the NetCoalition petition, obligation, rights, policies or practices the Commission stated that ‘‘reliance on because the Service is voluntary, competitive forces is the most appropriate and enumerated within its rules. Nasdaq has met the statutory standard effective means to assess whether the terms for the The specific proposed changes are by pricing the Service according to free distribution of non-core data are equitable, fair and discussed in further detail below. market principles; indeed, if Nasdaq reasonable, and not unreasonably discriminatory.’’ • 73 FR at 74781–82. As such, the ‘‘existence of Rule 5.3(g). Criteria for Underlying priced the Service too high, broker- significant competition provides a substantial basis Securities: The Exchange is changing the dealers could simply opt not to for finding that the terms of an exchange’s fee numbering within the rule because two purchase the Service. The Commission proposal are equitable, fair, reasonable, and not separate rule filings were approved at believes that Nasdaq’s fees for the unreasonably or unfairly discriminatory.’’ Id. at different times which affected the numbering 74782. If an exchange ‘‘was subject to significant within the rule.4 Service are both reasonable and competitive forces in setting the terms of a 9 equitably allocated. Additionally, the proposal,’’ a proposal will be approved unless the 4 Commission determines that ‘‘there is a substantial See SR–NYSEArca–2008–108, Securities Exchange Act Release No. 34–59004 [sic] 7 In approving this proposed rule change, the countervailing basis to find that the terms nevertheless fail to meet an applicable requirement (November 24, 2008) 73 FR 207 [sic] (October 24, Commission has considered the proposed rule’s 2008) [sic] (filing seeking approval for listing and impact on efficiency, competition, and capital of the Exchange Act or the rules thereunder.’’ Id. at 74781. trading of options on Managed Fund Shares) and formation. 15 U.S.C. 78c(f). SR–NYSEArca–2008–66, Securities [sic] Act 10 15 U.S.C. 78s(b)(2). 8 15 U.S.C. 78f(b)(4). Release No. 34–59055 [sic] (December 4, 2008) 73 11 9 The proposal meets the criteria, formulated by 17 CFR 200.30–3(a)(12). FR 238 [sic] (December 10, 2008) (filing seeking the Commission in connection with the petition 1 15 U.S.C.78s(b)(1). approval for Listing and Trading Options on Shares filed by NetCoalition, for approval of proposed rule 2 15 U.S.C. 78a. of the iShares COMEX Gold Trust and the iShares changes concerning the distribution of non-core 3 17 CFR 240.19b–4. Silver Trust).

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• Rule 6.20(a). Time Synchronization: The 19(b)(3)(A)(iii) of the Act 7 and Rule or otherwise in furtherance of the Exchange is changing the rule reference from 19b–4(f)(6) thereunder.8 Because the purposes of the Act. Rule 4.25 to Rule 11.18. • proposed rule change does not: (i) Rule 6.34. Trading by OTP Holders and Significantly affect the protection of IV. Solicitation of Comments OTP Firms on the Floor: The Exchange is eliminating the references to Rule 6.38 and investors or the public interest; (ii) Interested persons are invited to Rule 6.52(a) in Commentary .01 as those impose any significant burden on submit written data, views and rules are obsolete and no longer exist. competition; and (iii) become operative arguments concerning the foregoing, • Rule 6.48(c). Discretionary Transaction: prior to 30 days from the date on which including whether the proposed rule The Exchange is changing the rule reference it was filed, or such shorter time as the change is consistent with the Act. from Rule 6.39 to Rule 6.84. Commission may designate, if Comments may be submitted by any of • Rule 6.75(f)(1). Priority and Order consistent with the protection of the following methods: Allocation Procedures—Open Outcry: The investors and the public interest, the Exchange is eliminating the phrase related to proposed rule change has become ‘‘Exchange officer’’ as this now obsolete. Electronic Comments • Rule 6.78(e)(1)(E). Transactions Off the effective pursuant to Section 19(b)(3)(A) 9 • Use the Commission’s Internet Exchange: The Exchange is changing the rule of the Act and Rule 19b–4(f)(6)(iii) reference from Rule 8.103 to Rule 5.33. thereunder.10 comment form (http://www.sec.gov/ • Rule 6.78. Transaction Off the Exchange. A proposed rule change filed under rules/sro.shtml); or Commentary: The Exchange is removing the Rule 19b–4(f)(6) 11 normally does not • Send an e-mail to rule- Rule 7.9 Meaning of Premium Bids and become operative prior to 30 days after [email protected]. Please include File Offers, Index Options reference as this rule the date of the filing. However, pursuant Number SR–NYSEArca–2009–02 on the is now obsolete and no longer exists. to Rule 19b–4(f)(6)(iii),12 the subject line. 2. Statutory Basis Commission may designate a shorter time if such action is consistent with the Paper Comments The Exchange believes that the protection of investors and the public • proposed rule change is consistent with interest. The Exchange has asked the Send paper comments in triplicate Section 6(b) of the Securities Exchange to Elizabeth M. Murphy, Secretary, 5 Commission to waive the 30-day Act of 1934 (the ‘‘Act’’), in general, and operative delay so that the proposal may Securities and Exchange Commission, furthers the objectives of Section 6(b)(5) 100 F Street, NE., Washington, DC 6 become operative immediately upon of the Act, in particular, because it is filing. The Exchange believes the waiver 20549–1090. designed to prevent fraudulent and of this period will allow it to manipulative acts and practices, to All submissions should refer to File immediately remove outdated and Number SR–NYSEArca–2009–02. This promote just and equitable principles of obsolete references and terms contained trade, to foster cooperation and file number should be included on the in Exchange rules without delay. The subject line if e-mail is used. To help the coordination with persons engaged in Commission has determined that facilitating transactions in securities, Commission process and review your waiving the 30-day operative delay of comments more efficiently, please use and to remove impediments to and the Exchange’s proposal is consistent perfect the mechanism of a free and only one method. The Commission will with the protection of investors and the post all comments on the Commission’s open market and a national market public interest because such waiver will system, and, in general, to protect Internet Web site (http://www.sec.gov/ allow the Exchange to promptly remove rules/sro.shtml). Copies of the investors and the public interest. The obsolete references and terms contained submission, all subsequent Exchange believes that the proposed in its rules, thereby avoiding further amendments, all written statements rule change will clarify the rule cross- potential confusion and ensuring that with respect to the proposed rule references and eliminate unnecessary the rule text of the Exchange is change that are filed with the confusion in its rule structure. accurate.13 Therefore, the Commission Commission, and all written B. Self-Regulatory Organization’s designates the proposal as operative communications relating to the Statement on Burden on Competition upon filing. At any time within 60 days of the filing of the proposed rule change, proposed rule change between the The Exchange does not believe that the Commission may summarily Commission and any person, other than the proposed rule change will impose abrogate such rule change if it appears those that may be withheld from the any burden on competition that is not to the Commission that such action is public in accordance with the necessary or appropriate in furtherance necessary or appropriate in the public provisions of 5 U.S.C. 552, will be of the purposes of the Act. interest, for the protection of investors, available for inspection and copying in C. Self-Regulatory Organization’s the Commission’s Public Reference Statement on Comments on the 7 15 U.S.C. 78s(b)(3)(A)(iii). Room on official business days between Proposed Rule Change Received From 8 17 CFR 240.19b–4(f)(6). the hours of 10 a.m. and 3 p.m. Copies Members, Participants, or Others 9 15 U.S.C. 78s(b)(3)(A). of such filing also will be available for 10 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– inspection and copying at the principal No written comments were solicited 4(f)(6)(iii) requires the Exchange to give the office of the Exchange. All comments Commission written notice of the Exchange’s intent or received with respect to the proposed received will be posted without change; rule change. to file the proposed rule change along with a brief description and text of the proposed rule change, the Commission does not edit personal III. Date of Effectiveness of the at least five business days prior to the date of filing identifying information from of the proposed rule change, or such shorter time submissions. You should submit only Proposed Rule Change and Timing for as designated by the Commission. The Exchange Commission Action has satisfied this requirement. information that you wish to make The Exchange has filed the proposed 11 17 CFR 240.19b–4(f)(6). available publicly. All submissions 12 rule change pursuant to Section 17 CFR 240.19b–4(f)(6)(iii). should refer to File Number SR– 13 For purposes only of waiving the 30-day NYSEArca–2009–02 and should be operative delay, the Commission has considered the submitted on or before February 17, 5 15 U.S.C. 78f(b). proposed rule’s impact on efficiency, competition, 6 15 U.S.C. 78f(b)(5). and capital formation. See 15 U.S.C. 78c(f). 2009.

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For the Commission, by the Division of Criminal Justice Act of 1964, within the UNITED STATES SENTENCING Trading and Markets, pursuant to delegated federal criminal justice system; (2) has COMMISSION 14 authority. significant experience with federal Florence E. Harmon, sentencing or post-conviction issues Sentencing Guidelines for United Deputy Secretary. related to criminal sentences; and (3) is States Courts [FR Doc. E9–1672 Filed 1–26–09; 8:45 am] in good standing of the highest court of AGENCY: United States Sentencing BILLING CODE 8011–01–P the jurisdiction or jurisdictions in Commission. which he or she is admitted to practice. ACTION: Notice of proposed amendments Additionally, to be eligible to serve as to sentencing guidelines, policy UNITED STATES SENTENCING a circuit member, the individual’s statements, and commentary. Request COMMISSION primary place of business or a for public comment, including public substantial portion of his or her practice Sentencing Guidelines for United comment regarding retroactive States Courts must be in the circuit concerned. Each application of any of the proposed voting member is appointed by the amendments. Notice of public hearing. AGENCY: United States Sentencing Commission. The Commission hereby Commission. invites any individual who is eligible to SUMMARY: Pursuant to section 994(a), ACTION: Notice of period during which be appointed to the initial voting (o), and (p) of title 28, United States individuals may apply to be appointed membership of the Practitioners Code, the United States Sentencing Commission is considering to the voting membership of the Advisory Group to apply. Applications promulgating certain amendments to the Practitioners Advisory Group; request should be received by the Commission for applications. sentencing guidelines, policy not later than March 30, 2009. statements, and commentary. This Applications may be sent to Michael SUMMARY: The Practitioners Advisory notice sets forth the proposed Group of the United States Sentencing Courlander at the address listed below. amendments and, for each proposed Commission is a standing advisory DATES: Applications for the initial amendment, a synopsis of the issues group of the United States Sentencing voting membership of the Practitioners addressed by that amendment. This Commission pursuant to 28 U.S.C. 995 Advisory Group should be received not notice also sets forth a number of issues and Rule 5.4 of the Commission’s Rules later than March 30, 2009. for comment, some of which are set of Practice and Procedure. Having forth together with the proposed decided to adopt a formal charter for the ADDRESSES: Send applications to: amendments; some of which are set Practitioners Advisory Group, the United States Sentencing Commission, forth independent of any proposed United States Sentencing Commission is One Columbus Circle, NE., Suite 2–500, amendment; and one of which reconstituting the voting membership of South Lobby, Washington, DC 20002– (regarding retroactive application of the advisory group under that charter. 8002, Attention: Public Affairs. proposed amendments) is set forth in The purpose of the advisory group is (1) the SUPPLEMENTARY INFORMATION portion FOR FURTHER INFORMATION CONTACT: To assist the Commission in carrying of this notice. Michael Courlander, Public Affairs out its statutory responsibilities under The proposed amendments and issues 28 U.S.C. 994(o); (2) to provide to the Officer, Telephone: (202) 502–4597. for comment in this notice are as Commission its views on the SUPPLEMENTARY INFORMATION: Section follows: (1) A proposed amendment in Commission’s activities and work, 995(a)(1) of title 28, United States Code, response to the Identity Theft including proposed priorities and authorizes the Commission to establish Restitution and Enforcement Act of amendments; (3) to disseminate to general policies and promulgate rules 2008, title II of Public Law 110–326, defense attorneys, and to other and regulations as necessary for the including proposed changes to § 2B1.1 professionals in the defense community, Commission to carry out the purposes of (Larceny, Embezzlement, and Other information regarding federal the Sentencing Reform Act of 1984. Forms of Theft; Offenses Involving sentencing issues; and (4) to perform Having adopted a formal charter for the Stolen Property; Property Damage or other related functions as the Practitioners Advisory Group, the Destruction; Fraud and Deceit; Forgery; Offenses Involving Altered or Commission requests. Under the United States Sentencing Commission is charter, the advisory group will consist Counterfeit Instruments Other than reconstituting the voting membership of of not more than 17 voting members, Counterfeit Bearer Obligations of the the Practitioners Advisory Group under each of whom may serve not more than United States), § 2H3.1 (Interception of two consecutive three-year terms. Of that charter. The Commission invites Communications; Eavesdropping; those 17 voting members, one shall be any individual who is eligible to be Disclosure of Certain Private or Chair, one shall be Vice Chair, 12 shall appointed to the initial voting Protected Information), and § 3B1.3 be circuit members (one for each federal membership of the Practitioners (Abuse of Position of Trust or Use of judicial circuit other than the Federal Advisory Group to apply. Special Skill), and issues for comment Circuit), and three shall be at-large regarding the guidelines’ treatment of Authority: 28 U.S.C. 994(a), (o), (p), 995; members. To be eligible to serve as a offenses involving fraud, identity theft, USSC Rules of Practice and Procedure 5.2, voting member, an individual must be computers, and communications; (2) a 5.4. an attorney who (1) Devotes a proposed amendment in response to the substantial portion of his or her Ricardo H. Hinojosa, Ryan Haight Online Pharmacy professional work to advocating the Acting Chair. Consumer Protection Act of 2008, interests of privately represented [FR Doc. E9–1636 Filed 1–26–09; 8:45 am] Public Law 110–465, including individuals, or of individuals proposed changes to § 2D1.1 (Unlawful BILLING CODE 2210–40–P represented by private practitioners Manufacturing, Importing, Exporting, or through appointment under the Trafficking (Including Possession with Intent to Commit These Offenses); 14 17 CFR 200.30–3(a)(12). Attempt or Conspiracy) and § 2D3.1

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(Regulatory Offenses Involving proposed amendment in response to a text within a specific offense Registration Numbers; Unlawful circuit conflict regarding the guidelines’ characteristic or application note means Advertising Relating to Schedule I treatment of counterfeiting offenses that the Commission specifically invites Substances; Attempt or Conspiracy), involving ‘‘bleached notes’’, including a comment on whether the proposed and issues for comment regarding the proposed change to § 2B5.1 (Offenses provision is appropriate. Second, the guidelines’ treatment of Schedule III, IV, Involving Counterfeit Bearer Obligations Commission has highlighted certain and V controlled substance offenses; (3) of the United States); and (10) a issues for comment and invites a proposed amendment in response to proposed amendment in response to suggestions on how the Commission the Drug Trafficking Vessel Interdiction certain technical issues that have arisen should respond to those issues. Act of 2008, Public Law 110–407, in the guidelines. The Commission also requests public including a proposed change to § 2D1.1 DATES: (1) Written Public Comment.— comment regarding whether the (Unlawful Manufacturing, Importing, Written public comment regarding the Commission should specify for Exporting, or Trafficking (Including proposed amendments and issues for retroactive application to previously Possession with Intent to Commit These comment set forth in this notice, sentenced defendants any of the Offenses); Attempt or Conspiracy) and a including public comment regarding proposed amendments published in this proposed new guideline for offenses retroactive application of any of the notice. The Commission requests involving operating a submersible vessel proposed amendments, should be comment regarding which, if any, of the or semi-submersible vessel without received by the Commission not later proposed amendments that may result nationality, and issues for comment than March 30, 2009. in a lower guideline range should be regarding the guidelines’ treatment of (2) Public Hearing.—The Commission made retroactive to previously such offenses; (4) an issue for comment plans to hold a public hearing regarding sentenced defendants pursuant to in response to the Court Security the proposed amendments and issues § 1B1.10 (Reduction in Term of Improvement Act of 2007, Public Law for comment set forth in this notice. Imprisonment as a Result of Amended 110–177, regarding the guidelines’ Further information regarding the Guideline Range). treatment of homicide, assault, and public hearing, including requirements Additional information pertaining to threat offenses; (5) an issue for comment for testifying and providing written the proposed amendments described in in response to the William Wilberforce testimony, as well as the location, time, this notice may be accessed through the Trafficking Victims Protection and scope of the hearing, will be Commission’s Web site at http:// Reauthorization Act of 2008, Public Law provided by the Commission on its Web www.ussc.gov. 110–457, regarding the guidelines’ site at http://www.ussc.gov. Authority: 28 U.S.C. 994(a), (o), (p), (x); treatment of alien harboring and human ADDRESSES: Public comment should be USSC Rules of Practice and Procedure, Rule trafficking offenses; (6) a proposed sent to: United States Sentencing 4.4. amendment in response to Commission, One Columbus Circle, NE., Ricardo H. Hinojosa, Suite 2–500, Washington, DC 20002– miscellaneous issues arising from Acting Chair. legislation recently enacted and other 8002, Attention: Public Affairs. miscellaneous guideline application FOR FURTHER INFORMATION CONTACT: 1. Identity Theft issues, including proposed changes to Michael Courlander, Public Affairs Synopsis of Proposed Amendment: the guidelines’ treatment of offenses Officer, Telephone: (202) 502–4590. This proposed amendment addresses involving contempt, consumer product SUPPLEMENTARY INFORMATION: The the Identity Theft Restitution and safety, interest rate limitations, domestic United States Sentencing Commission is Enforcement Act of 2008 (the ‘‘Act’’), violence, child soldiers, veterans’ grave an independent agency in the judicial Title II of Public Law 110–326, and markers, child pornography, firearms, branch of the United States other related issues arising from case threats, and copyright infringement and Government. The Commission law. The Act contains a directive to the the guidelines’ treatment of probation promulgates sentencing guidelines and Commission at section 209. Section and supervised release, and related policy statements for federal courts 209(a) of the Act directs the issues for comment; (7) a proposed pursuant to 28 U.S.C. 994(a). The Commission to—review its guidelines amendment to § 2A3.2 (Criminal Sexual Commission also periodically reviews and policy statements applicable to Abuse of a Minor Under the Age of and revises previously promulgated persons convicted of offenses under Sixteen Years (Statutory Rape) or guidelines pursuant to 28 U.S.C. 994(o) sections 1028, 1028A, 1030, 2511, and Attempt to Commit Such Acts) and and submits guideline amendments to 2701 of title 18, United States Code, and § 2G1.3 (Promoting a Commercial Sex the Congress not later than the first day any other relevant provisions of law, in Act or Prohibited Sexual Conduct with of May each year pursuant to 28 U.S.C. order to reflect the intent of Congress a Minor; Transportation of Minors to 994(p). that such penalties be increased in Engage in a Commercial Sex Act or The proposed amendments in this comparison to those currently provided Prohibited Sexual Conduct; Travel to notice are presented in one of two by such guidelines and policy Engage in Commercial Sex Act or formats. First, some of the amendments statements. Prohibited Sexual Conduct with a are proposed as specific revisions to a The offenses that are the subject of the Minor; Sex Trafficking of Children; Use guideline or commentary. Bracketed text directive in section 209 of the Act, and of Interstate Facilities to Transport within a proposed amendment indicates the guidelines to which they are Information about a Minor) in response a heightened interest on the referenced, are as follows: to a circuit conflict regarding Commission’s part in comment and (1) 18 U.S.C. 1028 (fraud and related application of the undue influence suggestions regarding alternative policy activity in connection with enhancement in those guidelines, and a choices; for example, a proposed identification documents, related issue for comment; (8) a enhancement of [2][4][6] levels indicates authentication features, and proposed amendment to § 3C1.3 that the Commission is considering, and information) makes it unlawful to (Commission of Offense While on invites comment on, alternative policy engage in fraud and related activity in Release) in response to an application choices regarding the appropriate level connection with ‘‘identification issue regarding that guideline; (9) a of enhancement. Similarly, bracketed documents’’ (e.g., government-issued

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documents such as drivers’ licenses) or involving valuable information, an financial institution or a federal agency), ‘‘authentication features’’ (i.e., features offense for purposes of commercial without authority and with intent to used on such documents to determine advantage or financial gain, or an extort. A violator is subject to a fine whether such documents are authentic, offense in furtherance of another crime under title 18, United States Code, and such as watermarks or holograms). A or tort), or 10 years (for a repeat imprisonment of up to 5 years (for a first violator is subject to a fine under title offender). offense) or 10 years (for a repeat 18, United States Code, and Offenses under 18 U.S.C. 1030(a)(2) offender). imprisonment. The statutory maximum are referenced in the Statutory Index to Offenses under 18 U.S.C. 1030(a)(7) term of imprisonment varies from 1 year § 2B1.1 (Theft, Property Destruction, are referenced in the Statutory Index to to 30 years, depending on the and Fraud). § 2B3.2 (Extortion by Force or Threat of circumstances of the offense. For (C) 18 U.S.C. 1030(a)(3) makes it Injury or Serious Damage). example, the statute provides unlawful to access, without authority, a (H) 18 U.S.C. 1030(b) makes it imprisonment up to 30 years (if nonpublic computer of a federal agency. unlawful to conspire to commit, or terrorism is involved); 20 years (if a A violator is subject to a fine under title attempt to commit, a section 1030(a) drug trafficking crime or a crime of 18, United States Code, and offense. A violator is subject to the same violence is involved, or if the violator is imprisonment of up to 1 year (for a first penalty as for the section 1030(a) a repeat offender); and 15 years, 5 years, offense) or 10 years (for a repeat offense. and 1 year, in other specified offender). Offenses under 18 U.S.C. 1030(b) are circumstances. Offenses under 18 U.S.C. 1030(a)(3) referenced in the Statutory Index to Offenses under 18 U.S.C. 1028 are are referenced in the Statutory Index to § 2X1.1 (Attempt, Solicitation, or referenced in Appendix A of the § 2B2.3 (Trespass). Conspiracy). Guidelines Manual (Statutory Index) to (D) 18 U.S.C. 1030(a)(4) makes it (4) 18 U.S.C. 2511 (interception and §§ 2B1.1 (Theft, Property Destruction, unlawful to access a ‘‘protected disclosure of wire, oral, or electronic and Fraud), 2L2.1 (Trafficking in a computer’’ (i.e., a computer of a communications prohibited) makes it Document Relating to Naturalization), financial institution or a federal agency) unlawful to intercept or disclose any and 2L2.2 (Fraudulently Acquiring without authority and, by means of wire, oral, or electronic communication. Documents Relating to Naturalization). doing so, further an intended fraud and A violator is subject to a fine under title (2) 18 U.S.C. 1028A (aggravated obtain a thing of value. A violator is 18, United States Code, and identity theft) makes it unlawful to subject to a fine under title 18, United imprisonment of up to 5 years. transfer, possess, or use a ‘‘means of States Code, and imprisonment of up to Offenses under 18 U.S.C. 2511 are identification’’ (i.e., a name or number 5 years (for a first offense) or 10 years referenced in the Statutory Index to used to identify a specific individual, (for a repeat offender). §§ 2B5.3 (Criminal Infringement of such as a social security number) of Offenses under 18 U.S.C. 1030(a)(4) Copyright or Trademark) and 2H3.1 another person during and in relation to are referenced in the Statutory Index to (Interception of Communications; another felony (such as a fraud or an § 2B1.1 (Theft, Property Destruction, Eavesdropping; Disclosure of Certain immigration violation). A violator is and Fraud). Private or Protected Information). subject to a mandatory consecutive term (E) 18 U.S.C. 1030(a)(5) makes it (5) 18 U.S.C. 2701 (unlawful access to of imprisonment of 2 years or, if the unlawful to use a computer to cause stored communications) makes it other felony was a terrorism offense, 5 damage to a ‘‘protected computer’’ (i.e., unlawful to access, without authority, a years. a computer of a financial institution or facility through which an electronic Offenses under 18 U.S.C. 1028A are a federal agency). A violator is subject communication service is provided and referenced in Appendix A (Statutory to a fine under title 18, United States obtain, alter, or prevent authorized Index) to § 2B1.6 (Aggravated Identity Code, and imprisonment of up to 1 year, access to a wire or electronic Theft). 5 years, 10 years, 20 years, or life, communication stored in that facility. A (3) 18 U.S.C. 1030 (fraud and related depending on the circumstances. violator is subject to a fine under title activity in connection with computers) Offenses under 18 U.S.C. 1030(a)(5) 18, United States Code, and provides for several offenses as follows: are referenced in the Statutory Index to imprisonment. If the offense is (A) 18 U.S.C. 1030(a)(1) makes it § 2B1.1 (Theft, Property Destruction, committed for commercial advantage, unlawful to retain national security and Fraud). malicious damage, or commercial gain, information after having obtained it by (F) 18 U.S.C. 1030(a)(6) makes it or in furtherance of a crime or tort, the computer without authority, or to unlawful to traffic in any password or maximum term of imprisonment is 5 disclose such information to a person similar information through which a years (for a first offender) or 10 years not entitled to receive it. A violator is computer may be accessed without (for a repeat offender); otherwise, the subject to a fine under title 18, United authorization, if the trafficking affects maximum term of imprisonment is 1 States Code, and imprisonment up to 10 interstate or foreign commerce or if the year (for a first offender) or 5 years (for years (for a first offense) or 20 years (for computer is used by or for a federal a repeat offender). a repeat offender). agency. A violator is subject to a fine Offenses under 18 U.S.C. 2701 are Offenses under 18 U.S.C. 1030(a)(1) under title 18, United States Code, and referenced in the Statutory Index to are referenced in the Statutory Index to imprisonment of up to 1 year (for a first § 2B1.1 (Theft, Property Destruction, § 2M3.2 (Gathering National Defense offense) or 10 years (for a repeat and Fraud). Information). offender). Section 209(b) of the Act requires (B) 18 U.S.C. 1030(a)(2) makes it Offenses under 18 U.S.C. 1030(a)(6) that, in determining the appropriate unlawful to obtain by computer, are referenced in the Statutory Index to sentence for the above referenced without authority, information of a § 2B1.1 (Theft, Property Destruction, crimes, the Commission ‘‘shall consider financial institution or of a federal and Fraud). the extent to which the current agency. A violator is subject to a fine (G) 18 U.S.C. 1030(a)(7) makes it guidelines and policy statements may or under title 18, United States Code, and unlawful to threaten to cause damage to, may not adequately account for the imprisonment of up to 1 year (for a first or obtain information from, a ‘‘protected following factors in order to create an offense), 5 years (for an offense computer’’ (i.e., a computer of a effective deterrent to computer crime

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and the theft or misuse of personally that might justify exceptions to the the defendant was in the business of identifiable data’’: generally applicable sentencing ranges; receiving and selling stolen property, (1) The level of sophistication and (3) Make any conforming changes to which Application Note 5 provides is to planning involved in such offense. the sentencing guidelines; and be determined in part on the regularity (2) Whether such offense was (4) Assure that the guidelines and sophistication of the defendant’s committed for purpose of commercial adequately meet the purposes of activities. advantage or private financial benefit. sentencing as set forth in section Is the factor adequately addressed by (3) The potential and actual loss 3553(a)(2) of title 18, United States these provisions? Should the resulting from the offense including— Code. Commission increase the amount, or the (A) The value of information obtained The proposed amendment and issues scope, of these enhancements, or of the from a protected computer, regardless of for comment address the factors set minimum offense level, or any whether the owner was deprived of use forth in section 209(b) of the Act, and combination of those? Should the of the information; and other related issues arising under the Commission amend other guidelines to (B) Where the information obtained Act and under case law, in the following which these offenses are referenced to constitutes a trade secret or other manner: address this factor, such as by adding proprietary information, the cost the comparable enhancements, minimum victim incurred developing or (A) Level of Sophistication and Planning Involved in the Offense offense levels, or both? compiling the information. 2. The Commission requests comment (4) Whether the defendant acted with Synopsis of Proposed Amendment: regarding whether § 3B1.3 (Abuse of intent to cause either physical or The proposed amendment responds to Position of Trust or Use of Special Skill) property harm in committing the subsection (b)(1) of the directive, which should apply to a person who has self- offense. concerns the level of sophistication trained computer skills. Does the (5) The extent to which the offense involved in the offense, by amending guideline adequately address such a violated the privacy rights of the commentary in § 2B1.1 relating to person? Should the guideline include individuals. fraud offenses that involve sophisticated language that unequivocally includes (6) The effect of the offense upon the means. Specifically, the proposed such a person, or should it include operations of an agency of the United amendment responds to a concern about language that unequivocally excludes States Government, or of a State or local whether, in a case involving computers, such a person? government. the defendant’s use of any technology or (7) Whether the offense involved a software to conceal the identity or (B) Whether the Offense Was Committed computer used by the United States geographic location of the perpetrator for Purpose of Commercial Advantage Government, a State, or a local qualifies as ‘‘especially complex or or Private Financial Benefit government in furtherance of national especially intricate offense conduct Issue for Comment: defense, national security, or the pertaining to the execution or 1. The Commission requests comment administration of justice. concealment of an offense’’ within the regarding the factor described in section (8) Whether the offense was intended meaning of the sophisticated means 209(b)(2) of the Act (whether the offense to, or had the effect of, significantly enhancement in § 2B1.1(b)(9) and was committed for purpose of interfering with or disrupting a critical Application Note 8(B) of that guideline. commercial advantage or private infrastructure. The proposed amendment adds this financial benefit). The guidelines (9) Whether the offense was intended conduct to the list in Application Note to, or had the effect of, creating a threat currently address this factor as follows: 8(B) of examples of conduct that (1) Section 2H3.1 provides a 3-level to public health or safety, causing injury ordinarily indicates sophisticated to any person, or causing death. enhancement at subsection (b)(1)(B) if means. the purpose of an offense under 18 (10) Whether the defendant Two issues for comment are also U.S.C. 2511 was to obtain direct or purposefully involved a juvenile in the included. commission of the offense. Proposed Amendment: indirect commercial advantage or (11) Whether the defendant’s intent to The Commentary to § 2B1.1 captioned economic gain, and a cross reference at cause damage or intent to obtain ‘‘Application Notes’’ is amended in subsection (c)(1) that applies if the personal information should be Note 8(B) by adding at the end the purpose of the offense was to facilitate disaggregated and considered separately following: another offense. from the other factors set forth in USSG ‘‘In a scheme involving computers, (2) Section 2B1.5(b)(4) provides a 2- 2B1.1(b)(14) [currently § 2B1.1(b)(15)]. using any technology or software to level enhancement if the offense was (12) Whether the term ‘‘victim’’ as conceal the identity or geographic committed for pecuniary gain or used in USSG 2B1.1, should include location of the perpetrator ordinarily otherwise involved a commercial individuals whose privacy was violated indicates sophisticated means.’’. purpose. as a result of the offense in addition to Issues for Comment: (3) Sections 2B1.1(b)(1), 2B2.3(b)(3), individuals who suffered monetary 1. The Commission requests comment and 2B5.3(b)(1) provide enhancements harm as a result of the offense. regarding the factor described in section based on the monetary amounts (13) Whether the defendant disclosed 209(b)(1) of the Act (the level of involved in the offense. personal information obtained during sophistication and planning involved in Is the factor adequately addressed by the commission of the offense. the offense). The guidelines currently these provisions? Should the Section 209(c) of the Act requires that address this factor as follows: Commission increase the amount, or the in responding to the directive, the (1) Section 2B1.1(b)(9) contains a 2- scope, of these enhancements, or the Commission: level enhancement, and a minimum scope of the cross reference? Should the (1) Assure reasonable consistency offense level of 12, if the offense Commission amend other guidelines to with other relevant directives and with involved sophisticated means. which these offenses are referenced to other sentencing guidelines; (2) Section 2B1.1(b)(4) contains a 2- address this factor, such as by adding (2) Account for any additional level enhancement if the offense comparable enhancements or cross aggravating or mitigating circumstances involved receiving stolen property and references?

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(C) The Potential and Actual Loss reduction that resulted from the offense may not be treated as a ‘‘victim,’’ for Resulting From the Offense Including in the value of that information.’’.] purposes of § 2B1.1. (A) the Value of Information Obtained Issues for Comment: Five circuit courts have addressed the From a Protected Computer, Regardless 1. The Commission requests comment regarding the factor described in section issue of whether an individual who is of Whether the Owner Was Deprived of fully reimbursed for his or her Use of the Information; and (B) Where 209(b)(3) of the Act (the potential and temporary financial loss by a third party the Information Obtained Constitutes a actual loss resulting from the offense is a ‘‘victim’’ for purposes of Trade Secret or Other Proprietary including (A) the value of information Information, the Cost the Victim obtained from a protected computer, § 2B1.1(b)(2). The Fifth Circuit in Incurred Developing or Compiling the regardless of whether the owner was United States v. Conner, 537 F.3d 480, Information deprived of use of the information; and 489 (5th Cir. 2008), and the Sixth (B) where the information obtained Circuit in United States v. Yagar, 404 Synopsis of Proposed Amendment: constitutes a trade secret or other F.3d 967, 971 (6th Cir. 2005), have held The proposed amendment responds to proprietary information, the cost the that individuals who have been fully subsection (b)(3) of the directive by victim incurred developing or reimbursed for temporary financial revising § 2B1.1 (Theft, Property compiling the information). The losses by a third party are not ‘‘victims’’ Destruction, and Fraud). Specifically, it guidelines currently address this factor within the meaning of § 2B1.1(b)(2). addresses two types of information: as follows: Although the Second Circuit in United information that the victim retains but (1) Sections 2B1.1(b)(1), 2B2.3(b)(3), States v. Abiodun, 536 F.3d 162, 168 (2d that is copied by the defendant, and and 2B5.3(b)(1) provide enhancements information that constitutes a trade Cir.), cert. denied, lS. Ct. l, 2008 WL based on the monetary amounts 4619522 (2008), and the Ninth Circuit in secret or other proprietary information involved in the offense. of the victim. Two options are (2) Section 2B1.1, Application Note United States v. Pham, 545 F.3d 712, presented. Option 1 adds to the rule of 19(A)(iv), provides an upward departure 721 (9th Cir. 2008), have agreed with the construction for cases under 18 if the offense created a risk of reasoning of these courts, they have U.S.C.1030 (Fraud and related activity substantial loss beyond the loss further held that individuals who were in connection with computers) determined for purposes of fully reimbursed for their financial regarding pecuniary harm in § 2B1.1(b)(1). losses by third parties may be deemed Application Note 3(A)(v)(III), specifying (3) Section 2B1.1, Application Note victims for purposes of § 2B1.1(b)(2) so that any reduction in the value of 19(A)(v), provides an upward departure long as they suffered an adverse effect, proprietary information that resulted if, in a case involving stolen information measurable in monetary terms, as a from the offense should be included in from a ‘‘protected computer,’’ the result of the defendant’s conduct (e.g., the loss calculation. Option 2 adds a defendant sought the stolen information the costs associated with obtaining provision in Application Note 3(C), to further a broader criminal purpose. reimbursements from banks or credit specifying that, if the fair market value Is the factor adequately addressed by card companies). The Eleventh Circuit of copied information is unavailable or these provisions? Should the in United States v. Lee, 427 F.3d 881, insufficient, the court may consider the Commission increase the amount, or the 895 (11th Cir. 2005), did not agree. cost the victim incurred in originally scope, of these enhancements? Should While acknowledging that the facts of developing the information or the the Commission amend other guidelines its case were significantly different in reduction in the value of the to which these offenses are referenced to that the monetary losses were neither information that resulted from the address this factor, such as by adding short-lived nor immediately reimbursed offense. comparable enhancements? Should by third parties, the Lee court held that Four issues for comment are also these upward departure provisions be the operative time for determining included. incorporated as enhancements in the Proposed Amendment: guidelines to which these offenses are whether someone is a victim is the time [Option 1: referenced? of the offense, irrespective of any The Commentary to § 2B1.1 captioned 2. Should the definition of ‘‘loss’’ in subsequent remedial action. ‘‘Application Notes’’ is amended in § 2B1.1 be amended to provide greater Should the Commission amend the Note 3(A)(v)(III) by striking ‘‘, and’’ after guidance to the court on how to guidelines to address this circumstance ‘‘prior to the offense’’ and inserting a estimate loss in cases involving and, if so, how? semicolon; and by inserting after information obtained from a protected 4. The Commission requests comment ‘‘service’’ the following: computer without depriving the owner regarding whether § 3B1.3 (Abuse of ‘‘; and any reduction in the value of of the use of the information, or Position of Trust or Use of Special Skill) proprietary information (e.g., trade information obtained that constitutes a secrets) that resulted from the offense’’.] trade secret or other proprietary should apply to a person who is an [Option 2: information? For such cases, should officer, employee, or insider of a The Commentary to § 2B1.1 captioned § 2B1.1 include a special rule for business who participates in an offense ‘‘Application Notes’’ is amended in including and quantifying (or providing involving proprietary information (e.g., Note 3(C)(i) by inserting ‘‘copied,’’ after a stipulated amount for) the loss, such trade secrets) of that business. Does the ‘‘taken,’’. as the special rule in Application Note guideline adequately address such a The Commentary to § 2B1.1 captioned 3(F)(i) relating to credit cards? person? Should the guideline include ‘‘Application Notes’’ is amended in 3. The Commission requests comment language that unequivocally includes Note 3(C) by redesignating clauses (ii) regarding whether § 2B1.1 adequately such a person, or should it include through (v) as (iii) through (vi); and by accounts for a case in which an language that unequivocally excludes inserting after clause (i) the following individual suffers pecuniary harm, but such a person? new clause: the pecuniary harm is immediately ‘‘(ii) In the case of proprietary reimbursed by a third party. In such a information (e.g., trade secrets), the cost case, the pecuniary harm may not be of developing that information or the treated as ‘‘loss,’’ and the individual

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(D) Whether the Defendant Acted With presented. Option 1 creates a new conduct the defendant is accountable Intent To Cause Either Physical or specific offense characteristic in § 2H3.1 under § 1B1.3 (Relevant Conduct). Property Harm in Committing the with three alternative enhancements if ‘Personal information’ means Offense the offense involved the personal sensitive or private information information or means of identification involving an identifiable individual Issue for Comment of specified numbers of individuals. (including such information in the 1. The Commission requests comment Specifically, it provides an possession of a third party), including regarding the factor described in section enhancement of [2] levels for offenses (i) medical records; (ii) wills; (iii) 209(b)(4) of the Act (whether the involving the personal information or diaries; (iv) private correspondence, defendant acted with intent to cause means of identification of [10]–[50] or including e-mail; (v) financial records; either physical or property harm in more individuals; an enhancement of [4] (vi) photographs of a sensitive or private committing the offense). The guidelines levels for [50]–[250] or more nature; or (vii) similar information.’’. currently address this factor as follows: individuals; and an enhancement of [6] [Option 2: (1) Section 2B1.1(b)(13) provides a 2- levels for [250]–[1,000] or more The Commentary to § 2H3.1 captioned level enhancement if the offense individuals. The graduated levels ‘‘Application Notes’’ is amended in involved the conscious or reckless risk ensure incremental punishment for Note 5(i) by inserting ‘‘personal of death or serious bodily injury, or increasingly serious conduct. Option 2 information, means of identification,’’ possession of a dangerous weapon in amends Application Note 5 to § 2H3.1, after ‘‘involved’’; and by inserting a connection with the offense. suggesting that an upward departure comma before ‘‘or tax’’.] (2) Section 2B1.1(c) provides a cross may be warranted not only in a case in The Commentary to § 2B1.1 captioned reference under which the court applies which the offense involved confidential ‘‘Application Notes’’ is amended in a firearms or explosives guideline if phone records information or tax return Note 13(A) in the paragraph that begins firearms or explosives are involved. information of a substantial number of ‘‘ ‘Personal information’ ’’ by inserting (3) Section 2H3.1(c) provides a cross individuals (as the application note ‘‘involving an identifiable individual’’ reference under which the court applies currently provides), but also in a case in after ‘‘private information’’. another offense guideline if the purpose which the offense involved personal Issue for Comment: was to facilitate another offense. information or means of identification 1. The Commission requests comment (4) Section 2B1.1, Application Note of a substantial number of individuals. 19, provides an upward departure if the regarding the factor described in section The proposed amendment defines the offense caused or risked substantial 209(b)(5) of the Act (the extent to which term ‘‘personal information’’, for non-monetary harm, such as physical the offense violated the privacy rights of purposes of § 2H3.1, in the same manner harm or property harm. individuals). In many cases, non- as the term ‘‘personal information’’ is (5) Section 2H3.1, Application Note 5, monetary harm (such as a violation of defined for purposes of § 2B1.1(b)(15). provides an upward departure if the privacy rights) may be difficult or The proposed amendment clarifies, for offense caused or risked substantial impossible to quantify. See, e.g., purposes of both guidelines, that non-monetary harm, such as physical § 2B1.1, comment. (backg’d.). For that information is ‘‘personal information’’ harm or property harm. reason, non-monetary harm is typically (6) Section 5K2.5 (Property Damage or only if it involves an identifiable accounted for by the guidelines through Loss) provides an upward departure if individual. a minimum offense level or an upward the offense caused property damage or An issue for comment is also departure. The guidelines currently loss not taken into account by the included. address this factor as follows: guidelines. Proposed Amendment: (1) Section 2B1.1, Application Note Is the factor adequately addressed by [Option 1: 19, provides an upward departure if the these provisions? If not, should the Section 2H3.1(b) is amended by offense resulted in a substantial Commission increase the amount, or the adding at the end the following: invasion of a privacy interest. It also scope, of these enhancements, or the ‘‘(3) (Apply the greatest) If the provides an upward departure if, in a scope of the cross reference or departure defendant is convicted under 18 U.S.C. case involving access devices or provisions? Should the Commission § 2511 and the offense involved unlawfully produced or unlawfully amend other guidelines to which these personal information or means of obtained means of identification, (i) the offenses are referenced to address this identification of— offense caused substantial harm to the factor, such as by adding comparable (A) [10]–[50] or more individuals, victim’s reputation or credit record, or enhancements or cross references? increase by [2] levels; the victim suffered a substantial Alternatively, should these upward (B) [50]–[250] or more individuals, inconvenience related to repairing the departure provisions be incorporated as increase by [4] levels; or victim’s reputation or a damaged credit enhancements in the guidelines to (C) [250]–[1,000] or more individuals, record; (ii) an individual whose means which these offenses are referenced? increase by [6] levels.’’.] of identification the defendant used to The Commentary to § 2H3.1 captioned obtain unlawful means of identification (E) The Extent to Which the Offense ‘‘Application Notes’’ is amended in is erroneously arrested or denied a job Violated the Privacy Rights of Note 4 by striking ‘‘subsection (b)(2)(B)’’ because an arrest record has been made Individuals and inserting ‘‘this guideline’’; and by in that individual’s name; or (iii) the Synopsis of Proposed Amendment: adding after the paragraph that begins defendant produced or obtained The proposed amendment responds to ‘‘ ‘Interactive computer service’ ’’ the numerous means of identification with subsection (b)(5) of the directive (the following: respect to one individual and essentially extent to which the offense violated the ‘‘ ‘Means of identification’ has the assumed that individual’s identity. privacy rights of individuals) by meaning given that term in 18 U.S.C. (2) Section 2H3.1, Application Note 5, revising § 2H3.1 (Interception of 1028(d)(7), except that such means of provides an upward departure if the Communications; Eavesdropping; identification shall be of an actual (i.e., offense involved private information or Disclosure of Certain Private or not fictitious) individual, other than the resulted in a substantial invasion of a Protected Information). Two options are defendant or a person for whose privacy interest.

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(3) Section 2B1.1(b)(15)(A) provides a guidelines currently address this factor involved a computer system used to 2-level enhancement if an offense under as follows: maintain or operate a critical 18 U.S.C. 1030 involved an intent to (1) Section 2B1.1 provides a 2-level infrastructure, and a 6-level obtain personal information, and enhancement at subsection (b)(15)(A)(i) enhancement (and a minimum offense § 2H3.1(b)(2)(B) provides a 10-level if an offense under 18 U.S.C. 1030 level of 24) at subsection (b)(15)(A)(iii) enhancement if an offense under 18 involved a computer system used by or if an offense under section 1030 caused U.S.C. 119 involved the use of a for a government entity in furtherance of a substantial disruption of a critical computer to make restricted personal the administration of justice, national infrastructure. information about a covered person defense, or national security. (2) Section 2B2.3(b)(1) provides a 2- publicly available. (2) Section 2B2.3(b)(1) provides a 2- level enhancement if a trespass occurred Is the factor adequately addressed level enhancement if a trespass occurred on a computer system used to maintain through these provisions? If not, should on a computer system used by or for a or operate a critical infrastructure. the Commission increase the amount, or government entity in furtherance of the (3) Section 2B3.2(b)(3)(B) provides a the scope, of these enhancements? administration of justice, national 3-level enhancement if the offense Should the Commission amend other defense, or national security. involved preparation to carry out a guidelines to which these offenses are (3) Section 2B3.2(b)(3)(B) provides a threat of damage to such a computer referenced to address this factor, such as 3-level enhancement if the offense system. by adding comparable enhancements? involved preparation to carry out a (4) Section 2B1.1, Application Note Should these upward departure threat of damage to a computer system 19, provides an upward departure in a provisions be incorporated as used by or for a government entity in case in which subsection (b)(15)(A)(iii) enhancements in the guidelines to furtherance of the administration of applies and the disruption to the critical which these offenses are referenced? justice, national defense, or national infrastructure is so substantial as to security. have a debilitating impact on national (F) The Effect of the Offense Upon the (4) Section 2B1.1, Application Note security, national economic security, or Operations of an Agency of the United 19, provides an upward departure in a national public health or safety. States Government, or of a State or case in which subsection (b)(15)(A)(iii) (5) Section 5K2.14 (Public Welfare) Local Government applies and the disruption to the critical provides an upward departure if Issue for Comment: infrastructure is so substantial as to national security, public health, or 1. The Commission requests comment have a debilitating impact on national safety was significantly endangered. Is the factor adequately addressed regarding the factor described in section security, national economic security, or through these provisions? Should the 209(b)(6) of the Act (the effect of the national public health or safety. Commission increase the amount, or the offense upon the operations of an (5) Section 5K2.7 (Disruption of scope, of these enhancements (or of the agency of the United States Government Function) provides an minimum offense level)? Should the Government, or of a State or local upward departure if the defendant’s Commission amend other guidelines to government). The guidelines currently conduct resulted in a significant which these offenses are referenced to address this factor as follows: disruption of a governmental function. (6) Section 5K2.14 (Public Welfare) address this factor, such as by adding (1) Section 5K2.7 (Disruption of provides an upward departure if comparable enhancements (or minimum Government Function) provides an national security, public health, or offense levels)? Should these upward upward departure if the defendant’s safety was significantly endangered. departure provisions be incorporated as conduct resulted in a significant Is the factor adequately addressed enhancements in the guidelines to disruption of a governmental function. through these provisions? Should the which these offenses are referenced? (2) Section 5K2.14 (Public Welfare) Commission increase the amount, or the provides an upward departure if scope, of these enhancements? Should (I) Whether the Offense Was Intended national security, public health, or the Commission amend other guidelines to, or Had the Effect of, Creating a safety was significantly endangered. to which these offenses are referenced to Threat to Public Health or Safety, Is the factor adequately addressed address this factor, such as by adding Causing Injury to any Person, or through these upward departure comparable enhancements? Should Causing Death provisions? Alternatively, should these these upward departure provisions be Issue for Comment: upward departure provisions be incorporated as enhancements in the 1. The Commission requests comment incorporated as enhancements in the guidelines to which these offenses are regarding the factor described in section guidelines to which these offenses are referenced? 209(b)(9) of the Act (whether the offense referenced? was intended to, or had the effect of, (H) Whether the Offense Was Intended creating a threat to public health or (G) Whether the Offense Involved a to, or Had the Effect of, Significantly Computer Used by the United States safety, causing injury to any person, or Interfering With or Disrupting a Critical causing death). The guidelines currently Government, a State, or a Local Infrastructure Government in Furtherance of National address this factor as follows: Defense, National Security, or the Issue for Comment: (1) Section 2B1.1(b)(13) provides a 2- Administration of Justice 1. The Commission requests comment level enhancement, and a minimum regarding the factor described in section offense level of 14, if the offense Issue for Comment: 209(b)(8) of the Act (whether the offense involved the conscious or reckless risk 1. The Commission requests comment was intended to, or had the effect of, of death or serious bodily injury. regarding the factor described in section significantly interfering with or (2) Section 2B3.2(b)(3)(B) provides a 209(b)(7) of the Act (whether the offense disrupting a critical infrastructure). The 3-level enhancement if the offense involved a computer used by the United guidelines currently address this factor involved preparation to carry out a States Government, a State, or a local as follows: threat of serious bodily injury, and government in furtherance of national (1) Section 2B1.1 provides a 2-level § 2B3.2(b)(4) provides an enhancement defense, national security, or the enhancement at subsection (b)(15)(A)(i) if the victim sustained bodily injury, administration of justice). The if an offense under 18 U.S.C. 1030 with the amount of the enhancement

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ranging from 2 to 6 levels according to 209(b)(11) of the Act (whether the resulted in a substantial invasion of the seriousness of the injury. defendant’s intent to cause damage or privacy interest. (3) Section 2B5.3(b)(5) provides a 2- intent to obtain personal information Is the factor adequately addressed level enhancement, and a minimum should be disaggregated and considered through these upward departure offense level of 13, if the offense separately from the other factors set provisions? Alternatively, should these involved the conscious or reckless risk forth in § 2B1.1(b)(15)). upward departure provisions be For example, subsection (b)(15) of serious bodily injury. incorporated as enhancements in the (4) Section 2B1.1, Application Note currently applies only to offenses under guidelines to which these offenses are 19, provides an upward departure if the 18 U.S.C. 1030. Should the intent to referenced? offense caused or risked substantial cause damage or intent to obtain non-monetary harm, or in a case in personal information be disaggregated The definition of ‘‘victim’’ in § 2B1.1, which subsection (b)(15)(A)(iii) applies only within the context of 18 U.S.C. Application Note 1, currently applies and the disruption to the critical 1030 cases? Should the defendant’s only to a person who sustained any part infrastructure is so substantial as to intent to cause damage or intent to of the ‘‘actual loss’’ or to an individual have a debilitating impact on national obtain personal information be a factor who sustained bodily injury. Should the security, national economic security, or that applies to other offenses as well? Commission modify that definition to also apply to an individual whose national public health or safety. (L) Whether the Term ‘‘Victim’’ as Used (5) Section 5K2.14 (Public Welfare) privacy was violated? If so, what in § 2B1.1 Should Include Individuals standard should be used to determine provides an upward departure if Whose Privacy Was Violated as a Result national security, public health, or of the Offense in Addition to Individuals whether an individual’s privacy was safety was significantly endangered. Who Suffered Monetary Harm as a violated? Should the guidelines seek to Is the factor adequately addressed Result of the Offense quantify the loss of such an individual, through these provisions? If not, should for purposes of the loss table in the Commission increase the amount, or Issue for Comment: subsection (b)(1)? If so, what standard the scope, of these enhancements (or 1. The Commission requests comment would be used to quantify the loss? For minimum offense levels)? Should the regarding the factor described in section example, in a case in which a computer- Commission amend other guidelines to 209(b)(12) of the Act (whether the term related invasion of privacy occurs, address this factor, such as by adding ‘‘victim’’ as used in § 2B1.1 should should the guidelines include a special comparable enhancements (or minimum include individuals whose privacy was rule for including and quantifying (or offense levels)? Should these upward violated as a result of the offense in providing a stipulated amount for) the departure provisions be incorporated as addition to individuals who suffered loss, such as the special rule in enhancements in the guidelines to monetary harm as a result of the Application Note 3(F)(i) relating to which these offenses are referenced? offense). In many cases, non-monetary credit cards? If the Commission were to harm (such as a violation of privacy (J) Whether the Defendant Purposefully revise the applicability of § 2B1.1 to rights) may be difficult or impossible to individuals whose privacy was violated, Involved a Juvenile in the Commission quantify. See, e.g., § 2B1.1, comment. of the Offense should the Commission do so for all (backg’d.). For that reason, non- offenses under § 2B1.1, or only for Issue for Comment: monetary harm is typically accounted certain categories of cases, such as cases 1. The Commission requests comment for by the guidelines through a involving identity theft, cases involving regarding the factor described in section minimum offense level or an upward computers, or cases involving violations 209(b)(10) of the Act (whether the departure. of certain specified statutes? defendant purposefully involved a The guidelines currently address this juvenile in the commission of the factor as follows: Should the definition of ‘‘reasonably offense). The guidelines currently (1) Section 2B1.1, Application Note foreseeable pecuniary harm’’ in § 2B1.1 address this factor in § 3B1.4 (Using a 19, provides an upward departure if the be amended to expressly include such Minor to Commit a Crime), which offense resulted in a substantial harm as the reasonably foreseeable costs provides a 2-level adjustment if the invasion of a privacy interest. It also to the victim of correcting business, defendant used or attempted to use a provides an upward departure if, in a financial, and government records that minor to commit the offense or assist in case involving access devices or erroneously indicate the victim’s avoiding detection of, or apprehension unlawfully produced or unlawfully responsibility for particular transactions for, the offense. obtained means of identification, (i) the or applications; the reasonably Is the factor adequately addressed by offense caused substantial harm to the foreseeable costs of repairing any this adjustment? Should the victim’s reputation or credit record, or computer data, program, system, or Commission increase the amount, or the the victim suffered a substantial information that was altered or impaired scope, of this adjustment? Should the inconvenience related to repairing the in connection with the offense; and the Commission amend other guidelines to victim’s reputation or a damaged credit value of the time reasonably spent by address this factor, such as by adding record; (ii) an individual whose means the victim in an attempt to remediate enhancements comparable to this of identification the defendant used to the intended or actual harm incurred by adjustment? obtain unlawful means of identification the victim from the offense? Should the is erroneously arrested or denied a job Commission make such a change only (K) Whether the Defendant’s Intent To because an arrest record has been made for identity theft cases, such as by Cause Damage or Intent To Obtain in that individual’s name; or (iii) the amending § 2B1.1, Application Note Personal Information Should Be defendant produced or obtained 3(A)(v), to provide a special rule for Disaggregated and Considered numerous means of identification with identity theft cases? Alternatively, Separately From the Other Factors Set respect to one individual and essentially should the Commission make such a Forth in § 2B1.1(b)(15) assumed that individual’s identity. change for all cases under § 2B1.1, such Issue for Comment: (2) Section 2H3.1, Application Note 5, as by amending Application Note 1. The Commission requests comment provides an upward departure if the 3(A)(iv), or for some other category of regarding the factor described in section offense involved private information, or cases?

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(M) Whether the Defendant Disclosed wire, oral, or electronic communications The Commentary to § 2B1.1 captioned Personal Information Obtained During prohibited), and 2701 (unlawful access ‘‘Application Notes’’ is amended in the Commission of the Offense to stored communications), and any Note 19(B) by inserting ‘‘(A)’’ after (15)’’. The Commentary to § 3B1.3 captioned Issue for Comment: other relevant provisions of law, in ‘‘Application Notes’’ is amended in 1. The Commission requests comment order to reflect the intent of Congress Note 2(B) by inserting ‘‘, transfer, or regarding the factor described in section that such penalties be increased in issue’’ after ‘‘obtain’’. 209(b)(13) of the Act (whether the comparison to those currently provided by such guidelines and policy defendant disclosed personal 2. Online Pharmacy statements. Section 209(b) of the Act information obtained during the directed the Commission, in Synopsis of Proposed Amendment: commission of the offense). The determining the appropriate sentence This proposed amendment addresses guidelines currently address this factor for those offenses, to ‘‘consider the changes made by the Ryan Haight as follows: extent to which the current guidelines Online Pharmacy Consumer Protection (1) Section 2B1.1, Application Note and policy statements may or may not Act of 2008, Public Law 110–465 (the 19, provides an upward departure if the adequately account for the following ‘‘Act’’). The Act amends the Controlled offense resulted in a substantial factors in order to create an effective Substances Act (21 U.S.C. 801 et seq.) to invasion of a privacy interest. deterrent to computer crime and the create two new offenses involving (2) Section 2H3.1, Application Note 5, theft or misuse of personally identifiable controlled substances. The first is 21 provides an upward departure if the data’’, and provided a list of factors. U.S.C. 841(h) (Offenses Involving offense involved private information or Other than the specific factors set forth Dispensing of Controlled Substances by resulted in a substantial invasion of a in section 209(b), which are addressed Means of the Internet), which prohibits privacy interest. more specifically in the issues for the delivery, distribution, or dispensing (3) Section 2B1.1(b)(15)(A) provides a comment set forth above, are there of controlled substances over the 2-level enhancement if an offense under aggravating or mitigating circumstances Internet without a valid prescription. 18 U.S.C.1030 involved an intent to existing in cases involving those The applicable statutory maximum term obtain personal information. offenses that might justify additional of imprisonment is determined based (4) Section 2H3.1(b)(2)(B) provides a amendments to the guidelines? upon the controlled substance being 10-level enhancement if an offense 2. Should the Commission create a distributed. The second new offense is under 18 U.S.C.119 (protection of new guideline specifically for identity 21 U.S.C. 843(c)(2)(A) (Prohibiting the individuals performing certain official theft cases? If so, what should the new Use of the Internet to Advertise for Sale duties) involved the use of a computer guideline provide? a Controlled Substance), which to make restricted personal information prohibits the use of the Internet to about a covered person publicly (O) Technical Amendments advertise for sale a controlled substance. available. Synopsis of Proposed Amendment: This offense has a statutory maximum Is the factor adequately addressed The proposed amendment makes two term of imprisonment of four years. through these provisions? Should the technical changes. First, it corrects In addition to the new offenses, the Commission increase the amount, or the several places in the Guidelines Manual Act increased the statutory maximum scope, of these enhancements? Should that erroneously refer to subsection terms of imprisonment for all Schedule the Commission amend other guidelines ‘‘(b)(15)(iii)’’ of § 2B1.1; the reference III controlled substance offenses (from 5 to which these offenses are referenced to should be to subsection (b)(15)(A)(iii). years to 10 years), for all Schedule IV address this factor, such as by adding Second, it clarifies Application Note controlled substance offenses (from 3 comparable enhancements? Should 2(B) of § 3B1.3 (Abuse of Position of years to 5 years), and for Schedule V these upward departure provisions be Trust or Use of Special Skill). There is controlled substance offenses if the incorporated as enhancements in the a concern that Application Note 2(B) is offense is committed after a prior drug guidelines to which these offenses are internally inconsistent in a case in conviction (from 2 years to 5 years). The referenced? which the defendant, as discussed in Act added a sentencing enhancement If the Commission were to amend the the example in Application Note 2(B)(i), for Schedule III controlled substance guidelines to more adequately address is an employee of a state motor vehicle offenses where ‘‘death or serious bodily this factor, what should constitute a department who knowingly issues injury results from the use of such ‘‘disclosure’’, and what should without proper authority a driver’s substance.’’ The Act also includes a constitute ‘‘personal information’’? license based on false, incomplete, or directive to the Commission that states: misleading information. Arguably, to The United States Sentencing (N) Other Issues Relating to the ‘‘obtain’’ or ‘‘use’’ a means of Commission, in determining whether to Directive Not Otherwise Addressed identification (the terms used in the first amend, or establish new, guidelines or Above sentence of Application Note 2(B)) does policy statements, to conform the Issues for Comment: not necessarily include to ‘‘issue’’ a Federal sentencing guidelines and 1. The Commission requests comment means of identification (the term used policy statements to this Act and the regarding section 209(a) of the Act, in the example in Application Note amendments made by this Act, should which directs the Commission to review 2(B)(i)). The proposed amendment not construe any change in the its guidelines and policy statements clarifies the first sentence of maximum penalty for a violation applicable to persons convicted of Application Note 2(B) so that it involving a controlled substance in a offenses under 18 U.S.C. 1028 (fraud expressly covers not only obtaining or particular schedule as being the sole and related activity in connection with using, but also issuing or transferring, a reason to amend, or establish a new, identification documents, means of identification. guideline or policy statement. authentication features, and Proposed Amendment: First, the proposed amendment information), 1028A (aggravated The Commentary to § 2B1.1 captioned provides three options for incorporating identity theft), 1030 (fraud and related ‘‘Application Notes’’ is amended in the new sentencing enhancement for activity in connection with computers), Note 13(B) by inserting ‘‘(A)’’ after cases involving Schedule III controlled 2511 (interception and disclosure of ‘‘(15)’’ each place it appears. substances where ‘‘death or serious

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bodily injury results from the use of Note 21 by striking ‘‘(11)’’ and inserting should revise the guidelines as they such substance.’’ The enhancement ‘‘(12)’’ each place it appears.] relate to Schedule IV substances, what carries a statutory maximum term of [Option 3: justifies doing so? imprisonment of 15 years. Option 1 The Commentary to § 2D1.1 captioned For example, under the Drug Quantity proposes a new alternative base offense ‘‘Application Notes is amended by Table in § 2D1.1, the maximum base level at § 2D1.1 (Unlawful adding at the end the following: offense level for an offense involving Manufacturing, Importing, Exporting, or ‘‘27. Upward Departure Provision.—If Schedule IV substances (except Trafficking (Including Possession with the defendant is convicted under 21 Flunitrazepam) is 12, which applies to Intent to Commit These Offenses); U.S.C.841(b)(1)(E) or 21 U.S.C.960(b)(5), 40,000 or more units of the substance Attempt or Conspiracy) of [12]–[34]. and the offense of conviction establishes concerned. Should the maximum base Option 2 proposes a new specific that death or serious bodily injury offense level be increased (or eliminated offense characteristic at § 2D1.1 that resulted from the use of the substance, entirely) so that in a case in which the provides an enhancement of [4]–[11] an upward departure may be number of units involved is more than levels; Option 2 also includes, as a sub- warranted.’’.] 40,000, a higher base offense level option, a minimum offense level of Section 2D3.1 is amended in the applies? If so, what higher base offense [12]–[34]. Option 3 proposes a new heading by striking ‘‘Schedule I’’ and levels are appropriate, and what number invited upward departure provision for inserting ‘‘Scheduled’’. of units should correspond to those § 2D1.1. Appendix A (Statutory Index) is higher base offense levels? amended by inserting after the line Second, the proposed amendment Under the Drug Equivalency Tables in referenced to 21 U.S.C. 841(g) the revises the title of § 2D3.1 (Regulatory § 2D1.1, 1 unit of a Schedule IV following: Offenses Involving Registration substance (except Flunitrazepam) is ‘‘21 U.S.C. 841(h) 2D1.1’’. Numbers; Unlawful Advertising Issues for Comment: equivalent to 0.0625 gm of marihuana. Relating to Schedule I Substances; 1. The Commission requests comment Should a different equivalency apply? If Attempt or Conspiracy) to reflect the regarding whether offenses involving so, what should that different new offense at 21 U.S.C.843(c)(2)(A) Schedule III substances are adequately equivalency be? For example, should (Prohibiting the Use of the Internet to addressed by the guidelines. The Ryan the Commission amend the Drug Advertise for Sale a Controlled Haight Online Pharmacy Consumer Equivalency Tables to provide that 1 Substance). The new offense is already Protection Act of 2008, Public Law 110– unit of a Schedule IV substance (except referenced in Appendix A (Statutory 465 (the ‘‘Act’’), increased the statutory Flunitrazepam) is equivalent to 0.125 Index) to § 2D3.1. maximum term of imprisonment for gm of marihuana? Third, the proposed amendment those offenses from 5 years to 10 years. 3. The Commission requests comment amends Appendix A (Statutory Index) Should the Commission revise the regarding whether offenses involving to refer the new offense at 21 U.S.C. guidelines to more adequately address Schedule V substances are adequately 841(h) (Offenses Involving Dispensing these offenses and, if so, how? If the addressed by the guidelines. For those of Controlled Substances by Means of Commission should revise the offenses, the Act did not increase the the Internet) to § 2D1.1. guidelines as they relate to Schedule III statutory maximum term of Several issues for comment are also substances, what justifies doing so? imprisonment for a first offense (which included. For example, under the Drug Quantity is 1 year), but did increase the statutory Proposed Amendment: Table in § 2D1.1, the maximum base maximum term of imprisonment if the [Option 1: offense level for an offense involving offense is committed after a prior drug Section 2D1.1(a) is amended by Schedule III substances (except conviction (from 2 years to 5 years). redesignating subdivision (3) as Ketamine) is 20, which applies to Should the Commission revise the subdivision (4); and by inserting after 40,000 or more units of the substance guidelines to more adequately address subdivision (2) the following new concerned. Should the maximum base these offenses and, if so, how? If the subdivision: offense level be increased (or eliminated Commission should revise the ‘‘(3)[12]–[34], if the defendant is entirely) so that in a case in which the guidelines as they relate to Schedule V convicted under 21 U.S.C. 841(b)(1)(E) number of units involved is more than substances, what justifies doing so? or 21 U.S.C. 960(b)(5), and the offense 40,000, a higher base offense level For example, under the Drug Quantity of conviction establishes that death or applies? If so, what higher base offense Table in § 2D1.1, the maximum base serious bodily injury resulted from the levels are appropriate, and what number offense level for an offense involving use of the substance; or’’.] of units should correspond to those Schedule V substances is 8, which [Option 2: higher base offense levels? applies to 40,000 or more units of the Section 2D1.1(b) is amended by Under the Drug Equivalency Tables in substance concerned. Should the redesignating subdivision (11) as § 2D1.1, 1 unit of a Schedule III maximum base offense level be subdivision (12); and by inserting after substance is equivalent to 1 gm of increased (or eliminated entirely) so that subdivision (10) the following new marihuana. Should a different in a case in which the number of units subdivision: equivalency apply? If so, what should involved is more than 40,000, a higher ‘‘(11) If the defendant is convicted that different equivalency be? base offense level applies? If so, what under 21 U.S.C. 841(b)(1)(E) or 21 2. The Commission requests comment higher base offense levels are U.S.C. 960(b)(5), and the offense of regarding whether offenses involving appropriate, and what number of units conviction establishes that death or Schedule IV substances are adequately should correspond to those higher base serious bodily injury resulted from the addressed by the guidelines. The Act offense levels? use of the substance, increase by [4]– increased the statutory maximum term Under the Drug Equivalency Tables in [11] levels. [If the resulting offense level of imprisonment for those offenses from § 2D1.1, 1 unit of a Schedule V is less than level [12]–[34], increase to 3 years to 5 years. Should the substance is equivalent to 0.00625 gm of level [12]–[34].]’’. Commission revise the guidelines to marihuana. Should a different The Commentary to § 2D1.1 captioned more adequately address these offenses equivalency apply? If so, what should ‘‘Application Notes’’ is amended in and, if so, how? If the Commission that different equivalency be?

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4. The Commission requests comment navigated into, through, or from waters subsection (b)(2) to apply if the regarding whether offenses involving beyond the outer limit of the territorial defendant used a submersible vessel or hydrocodone substances are adequately sea of a single country or a lateral limit semi-submersible vessel as described in addressed by the guidelines. Currently, of that country’s territorial sea with an 18 U.S.C. 2285. the guidelines do not distinguish adjacent country, with the intent to The proposed amendment also between hydrocodone substances and evade detection, shall be fined under provides a new guideline at § 2X7.2 other Schedule III substances (except this title, imprisoned not more than 15 (Submersible and Semi-Submersible Ketamine). The Act increased the years, or both.’’ Vessels) for the new offense at 18 U.S.C. statutory maximum term of Section 103 of the Act also directs the 2285, with a base offense level of [12]– imprisonment for all Schedule III Commission to promulgate or amend [34]. The proposed amendment also offenses, including hydrocodone the guidelines to provide for increased provides upward departure provisions offenses, from 5 years to 10 years. penalties for persons convicted of to account for certain aggravating factors Should hydrocodone be treated offenses under 18 U.S.C. 2285. In listed in the directive. differently than other Schedule III carrying out this directive, the Finally, the proposed amendment substances and, if so, how? If the Commission shall— provides a reference in Appendix A Commission should revise the (1) Ensure that the sentencing (Statutory Index) to index the new guidelines as they relate to guidelines and policy statements reflect offense to the new guideline. hydrocodone, what justifies doing so? the serious nature of the offense Three issues for comment are also For example, under the Drug Quantity described in section 2285 of title 18, included. Table in § 2D1.1, the maximum base United States Code, and the need for Proposed Amendment: offense level for an offense involving deterrence to prevent such offenses; Section 2D1.1(b)(2) is amended by Schedule III substances (except (2) Account for any aggravating or striking ‘‘or’’ after ‘‘substance,’’ and Ketamine) is 20, which corresponds to mitigating circumstances that might inserting ‘‘a submersible vessel or semi- 40,000 or more units of the substance justify exceptions, including— submersible vessel as described in 18 concerned. Should the maximum base (A) The use of a submersible vessel or U.S.C. 2285 was used, or (C)’’ after offense level be increased (or eliminated semi-submersible vessel described in ‘‘(B)’’. entirely) so that in a case in which the section 2285 of title 18, United States Chapter Two, Part X, Subpart 7 is number of units involved is more than Code, to facilitate other felonies; amended in the heading by adding at 40,000, a higher base offense level (B) The repeated use of a submersible the end ‘‘AND SUBMERSIBLE AND applies? If so, what higher base offense vessel or semi-submersible vessel SEMI-SUBMERSIBLE VESSELS’’. levels are appropriate, and what number described in section 2285 of title 18, Chapter Two, Part X, Subpart 7 is of units should correspond to those United States Code, to facilitate other amended by adding at the end the higher base offense levels? felonies, including whether such use is following new guideline and Under the Drug Equivalency Tables in part of an ongoing criminal organization accompanying commentary: § 2D1.1, 1 unit of a Schedule III or enterprise; substance, including hydrocodone, is (C) Whether the use of such a vessel ‘‘§ 2X7.2 Submersible and Semi- equivalent to 1 gm of marihuana. involves a pattern of continued and Submersible Vessels Should a different equivalency apply to flagrant violations of section 2285 of (a) Base Offense Level: [12]–[34] hydrocodone? If so, what should that title 18, United States Code; different equivalency be? Should the (D) Whether the persons operating or Commentary guidelines take into account (as is done embarking in a submersible vessel or Statutory Provision: 18 U.S.C. 2285. for oxycodone) the weight of the semi-submersible vessel willfully Application Note: hydrocodone itself (i.e. , the caused, attempted to cause, or permitted 1. Upward Departure Provisions.—An ‘‘hydrocodone actual’’), rather than the the destruction or damage of such vessel upward departure may be warranted in number of units of hydrocodone? If so, or failed to heave to when directed by any of the following cases: what base offense levels should apply, law enforcement officers; and (A) The offense involved a failure to and to what weights of hydrocodone (E) Circumstances for which the heave to when directed by a law actual should those base offense levels sentencing guidelines (and policy enforcement officer. correspond? For example, should the statements) provide sentencing (B) The offense involved an attempt to Commission amend the Drug enhancements; sink the vessel or the sinking of the Equivalency Tables to provide that 1 gm (3) Ensure reasonable consistency vessel. of hydrocodone actual is equivalent to with other relevant directives, other (C) The defendant engaged in a 1,675 gm of marihuana? sentencing guidelines and policy pattern of activity involving use of a statements, and statutory provisions; submersible vessel or semi-submersible 3. Submersible Vessels (4) Make any necessary and vessel described in 18 U.S.C. 2285 to Synopsis of Proposed Amendment: conforming changes to the sentencing facilitate other felonies. This proposed amendment implements guidelines and policy statements; and (D) The offense involved use of the the Drug Trafficking Vessel Interdiction (5) Ensure that the sentencing vessel as part of an ongoing criminal Act of 2008, Public Law 110–407 (the guidelines and policy statements organization or enterprise. ‘‘Act’’). The Act creates a new offense at adequately meet the purposes of Background: This guideline 18 U.S.C. 2285 (Operation of sentencing set forth in section 3553(a)(2) implements the directive to the Submersible Vessel or Semi- of title 18, United States Code. Commission in section 103 of Public Submersible Vessel Without The proposed amendment amends Law 110–407.’’. Nationality), which provides: ‘‘Whoever § 2D1.1 (Unlawful Manufacturing, Appendix A (Statutory Index) is knowingly operates, or attempts or Importing, Exporting, or Trafficking amended by inserting after the line conspires to operate, by any means, or (Including Possession with Intent to referenced to 18 U.S.C. 2284 the embarks in any submersible vessel or Commit these Offenses); Attempt or following: semi-submersible vessel that is without Conspiracy) by expanding the scope of ‘‘18 U.S.C. 2285 2X7.2’’. nationality and that is navigating or has the specific offense characteristic at Issues for Comment:

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1. The Commission requests comment account for this factor? Are there any certain officers or employees), and regarding whether it should reference other amendments to the guidelines that increased the statutory maximum terms the new offense at 18 U.S.C. 2285 should be made to account for cases in of imprisonment for assaults involving (Operation of Submersible Vessel or which the vessel is used as part of an physical contact or intent to commit Semi-submersible Vessel Without ongoing criminal organization or another felony (from 8 years to 10 Nationality) to § 2X5.1 (Other Felony enterprise? years), and for assaults resulting in Offenses), instead of promulgating a 3. The Commission requests comment serious bodily injury or assaults new guideline at § 2X7.2 (Submersible regarding whether, in a case sentenced involving the use of a dangerous and Semi-Submersible Vessels) for the under the proposed guideline, § 2X7.2 weapon (from 20 years to 30 years). new offense, as provided for by the (Submersible and Semi-Submersible Other statutory maximum terms of proposed amendment. Section 2X5.1 Vessels), and in which § 3B1.2 imprisonment include 20 years (for instructs the court to ‘‘apply the most (Mitigating Role) applies, it should assaults resulting in bodily injury) and analogous offense guideline’’ when an provide an alternative base offense 1 year (for simple assaults). ‘‘offense is a felony for which no level, downward adjustment, or Offenses involving assaults punished guideline expressly has been downward departure to reflect the lesser under 18 U.S.C.115(b)(1) are referenced promulgated.’’ In a case where ‘‘there is culpability of the defendant? in Appendix A (Statutory Index) to §§ 2A2.1 (Assault with Intent to Commit not a sufficiently analogous guideline’’, 4. Court Security § 2X5.1 provides that: Murder; Attempted Murder); 2A2.2 The provisions of 18 U.S.C. 3553 shall Issues for Comment: (Aggravated Assault), and 2A2.3 (Minor control, except that any guidelines and 1. The Court Security Improvement Assault). policy statements that can be applied Act of 2007, Public Law 110–177 (the (2) 18 U.S.C. 1112 (manslaughter) meaningfully in the absence of a ‘‘Act’’), creates two new federal makes it unlawful to kill a human being Chapter Two offense guideline shall offenses, increases the statutory without malice, either upon a sudden remain applicable. maximum penalty for a number of quarrel or heat of passion (‘‘voluntary If the Commission references section existing federal offenses, and contains a manslaughter’’) or in the commission of 2285 to § 2X5.1, is there further action directive to the Commission relating to an unlawful act not amounting to a the Commission should take to clarify threats made in violation of 18 U.S.C. felony or in the commission, in an how the guidelines apply in such cases? 115 that occur over the Internet. The unlawful manner or without due If so, what action? Commission responded to the two new caution and circumspection, of a lawful 2. Section 103 of the Drug Trafficking offenses created by the Act during the act which might produce death Vessel Interdiction Act of 2008, Public amendment cycle ending May 1, 2008 (‘‘involuntary manslaughter’’). The Act Law 110–407, directs the Commission to (see Amendment 718). The Commission increased the statutory maximum terms consider aggravating circumstances requests comment regarding what of imprisonment for voluntary such as the use of such vessels as part additional amendments may be manslaughter (from 10 years to 15 years) of an ongoing criminal organization or appropriate in light of the Act. The and for involuntary manslaughter (from enterprise. Accordingly, the increases in the statutory maximum 6 years to 8 years). Commission requests comment penalties provided by the Act raise Offenses under 18 U.S.C. 1112 are regarding how the proposed issues concerning a number of referenced in Appendix A (Statutory amendment’s new guideline at § 2X7.2 guidelines in Chapter Two, Part A, Index) to §§ 2A1.3 (Voluntary (Submersible and Semi-Submersible generally, and it may be necessary to Manslaughter) and 2A1.4 (Involuntary Vessels), or any other guideline to continue work on any or all of the Manslaughter). which offenses under 18 U.S.C. 2285 remaining issues raised by the Act (3) Subsection (a) of 18 U.S.C. 1512 (Operation of Submersible Vessel or beyond the amendment cycle ending (Tampering with a witness, victim, or an Semi-submersible Vessel Without May 1, 2009. informant), makes it unlawful to kill or Nationality) would be referenced, attempt to kill another person with should account for cases in which the A. Increases in Statutory Maximum intent to interfere in an official vessel is used as part of an ongoing Penalties proceeding. It also makes it unlawful to criminal organization or enterprise. The The existing federal offenses with use or threaten physical force, or Commission was informed at its public statutory maximum penalties increased attempt to do so, with intent to interfere briefing in November 2008 that the by the Act and the guidelines to which with an official proceeding. The Act construction of such a vessel costs one those offenses are referenced are as increased the statutory maximum terms million dollars or more and takes one follows: of imprisonment for the killing of year or more to complete, and that such (1) 18 U.S.C. 115 (Influencing, another under circumstances a vessel is intended to be used for a impeding, or retaliating against a constituting manslaughter (by reference single trip before being purposely sunk. Federal official by threatening or to 18 U.S.C.1112, from 10 years to 15 If so, this may indicate that the use of injuring a family member) makes it years); for attempted murder or the submersible or semi-submersible unlawful to, among other things, assault attempted use of physical force (from 20 vessel typically is part of an ongoing an individual who is a current or former years to 30 years); and for threat of use criminal organization or enterprise. federal official, or a family member of of physical force to prevent the Should the Commission account for this such an individual, with intent to attendance or testimony in an official factor in setting the base offense level? impede the individual in, or retaliate proceeding (from 10 years to 20 years). If so, should the Commission provide a against the individual for, the Offenses under section 1512(a) are specific offense characteristic or a performance of the individual’s official referenced in Appendix A (Statutory downward departure to account for a duties. Such an assault is punished Index) to §§ 2A1.1 (First Degree case in which an ongoing criminal under 18 U.S.C. 115(b)(1). The Act Murder), 2A1.2 (Second Degree organization or enterprise is not modified the penalty structure of these Murder), 2A1.3 (Voluntary involved? Alternatively, should the offenses. In doing so, the Act eliminated Manslaughter), 2A2.1 (Assault with Commission provide a specific offense the reference to 18 U.S.C. 111 Intent to Commit Murder; Attempted characteristic or an upward departure to (Assaulting, resisting, or impeding Murder), 2A2.2 (Aggravated Assault),

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2A2.3 (Minor Assault), and 2J1.2 or possible commission of any federal adequate as they apply to such offenses? (Obstruction of Justice). offense) and subsection (f) (which If not, what amendments to the (4) Section 1512(b) makes it unlawful makes it unlawful to conspire to commit guidelines should be made? to intimidate, threaten, or corruptly any offense under section 1513). persuade another person, or to engage in These other offenses under section C. Directive to the Commission misleading conduct toward another 1513 are also referenced in Appendix A Section 209 of the Act directs the person, with intent to interfere with an (Statutory Index) to § 2J1.2 (Obstruction Commission to review the guidelines as official proceeding. The Act increased of Justice). they apply to threats made in violation the statutory maximum term of Are the guidelines adequate as they of 18 U.S.C. 115 (Influencing, impeding, imprisonment for these offenses from 10 apply to such offenses? If not, what or retaliating against a Federal official years to 20 years. amendments to the guidelines should be by threatening or injuring a family Offenses under section 1512(b) are made to address the increases in member). Section 115 makes it unlawful referenced in Appendix A (Statutory statutory maximum penalties? to assault, kidnap, or murder an Index) to § 2J1.2 (Obstruction of Justice). As described in paragraph (7), above, individual who is a current or former (5) Section 1512(d) makes it unlawful Appendix A (Statutory Index) currently federal official, or a family member of to harass another person and thereby refers all offenses under section 1513 to such an individual, with intent to hinder, delay, prevent, or dissuade an § 2J1.2 (Obstruction of Justice) only. An impede the individual in, or retaliate arrest or prosecution, or the offense under section 1513 can involve against the individual for, the participation of a person in an official conduct such as killing, causing bodily performance of the individual’s official proceeding. The Act increased the injury, or threatening. Should the duties; section 115 also makes it statutory maximum term of Commission amend Appendix A unlawful to threaten such an assault, imprisonment for these offenses from 1 (Statutory Index) to refer offenses under kidnapping, or murder. Such a threat is year to 3 years. section 1513 to other guidelines, either punished under 18 U.S.C. 115(b)(4), Offenses under section 1512(d) are in addition to or in lieu of referencing which provides that a violator is subject referenced in Appendix A (Statutory them to § 2J1.2? If so, to which other to a fine under title 18, United States Index) to § 2J1.2 (Obstruction of Justice). guidelines? Alternatively, should the Code, and imprisonment of up to 6 (6) Subsection (a) of 18 U.S.C. 1513 Commission provide cross references in years (if an assault was threatened) or (Retaliating against a witness, victim, or § 2J1.2 that allow for an offense under up to 10 years (if a kidnapping or an informant) makes it unlawful to kill section 1513 to be sentenced under a murder was threatened). Offenses or attempt to kill another person with guideline other than § 2J1.2? involving threats made in violation of intent to retaliate against a person for 18 U.S.C. 115 are referenced in attending or testifying at an official B. Official Victims Appendix A of the Guidelines Manual proceeding or for providing information The Commission requests comment (Statutory Index) to § 2A6.1 to a law enforcement officer. The Act regarding cases in which an official is (Threatening or Harassing increased the statutory maximum terms the victim of an offense described Communications; Hoaxes; False Liens). of imprisonment for the killing of above. The circumstance of an official Section 209 specified that the another under circumstances victim is addressed in the guidelines as Commission should review those threats constituting manslaughter (by reference follows: made in violation of section 115 ‘‘that to 18 18 U.S.C. 1112, from 10 years to (1) Section 3A1.2 contains an occur over the Internet,’’ and 15 years) and for an attempt (from 20 adjustment if the victim was an ‘‘determine whether and by how much years to 30 years). Other statutory individual who is a current or former that circumstance should aggravate the penalties include death, or government officer or employee (or a punishment pursuant to section 994 of imprisonment for life, if the offense member of the immediate family of such title 28, United States Code.’’ Section involved the killing of another under an individual), and the offense was 209 further directed the Commission to circumstances constituting murder. motivated by such status. If the ‘‘take into consideration the number of Offenses under section 1513(a) are applicable guideline is from Chapter such threats made, the intended number referenced in Appendix A (Statutory Two, Part A (as is the case with of recipients of such threats, and Index) to § 2J1.2 (Obstruction of Justice). §§ 2A1.1, 2A1.2, 2A2.1, 2A2.2, 2A2.3), whether the initial senders of such (7) Section 1513(b) makes it unlawful the adjustment is 6 levels; otherwise (as threats were acting in an individual to cause bodily injury to another person with § 2J1.2), the adjustment is 3 levels. capacity or as part of a larger group.’’ or damage the tangible property of (2) Section 3A1.2, Application Note 5, With regard to threats made in another person (or threaten to do so) invites an upward departure if the violation of section 115 that occur over with intent to retaliate against a person official victim is an exceptionally high- the Internet, the guidelines do not for attending or testifying at an official level official. currently provide for the use of the proceeding or for providing information Do these provisions adequately Internet to be an aggravating to a law enforcement officer. The Act address the circumstance of an official circumstance. Should that circumstance increased the statutory maximum terms victim? If not, what amendments to the aggravate the punishment and, if so, by of imprisonment for such offenses from guidelines should be made? Should the how much? 10 years to 20 years. Commission increase the amount, or the Other factors specified in the directive Offenses under section 1513(b) are scope, of these provisions? Should the (i.e., (i) the number of threats made in referenced in Appendix A (Statutory upward departure provision be violation of section 115, (ii) the Index) to § 2J1.2 (Obstruction of Justice). incorporated as an enhancement in one intended number of recipients of such (8) Other offenses under section 1513 or more of the applicable guidelines threats, and (iii) whether the initial include subsection (e) (which makes it (e.g., §§ 2A1.1, 2A1.2, 2A2.1, 2A2.2, senders of such threats were acting in an unlawful to knowingly, with intent to 2A2.3, 2J1.2)? individual capacity or as part of a larger retaliate, take any action harmful to any The Commission also requests group), are currently addressed in the person for providing to a law comment on cases in which a non- guidelines as follows: enforcement officer any truthful official is the victim of an offense (1) Section 2A6.1(b)(2)(A) contains a information relating to the commission described above. Are the guidelines 2-level enhancement if the offense

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involved more than two threats. Section (1) The harboring was committed in resulting offense level of 14 to 16. 2A6.1, Application Note 1, provides furtherance of prostitution; and (Section 2L1.1 does not provide an that, in determining whether this (2) The defendant to be sentenced is enhancement for committing the enhancement applies, conduct that an organizer, leader, manager, or harboring in furtherance of occurred prior to the offense must be supervisor of the criminal activity. prostitution.) In comparison, a person ‘‘substantially and directly connected to Alien harboring is an offense under 8 convicted of promoting a commercial the offense, under the facts of the case U.S.C.1324(a) (bringing in and harboring sex act receives a base offense level of taken as a whole’’. certain aliens), which makes it unlawful 14 under § 2G1.1(a)(2) (if the offense did (2) Section 2A6.1, Application Note 4, to (among other things) harbor an illegal not involve a minor) or a base offense invites an upward departure if the alien. Offenses under section 1324(a) are level of 24 under § 2G1.3(a)(4) (if the offense involved substantially more referenced to § 2L1.1 (Smuggling, offense did involve a minor). In cases in than two threatening communications to Transporting, or Harboring an Unlawful which aggravating or mitigating the same victim, or if the offense Alien). In some circumstances, a person circumstances are present, the guideline involved multiple victims. who harbors an alien could also commit applicable to alien harboring, § 2L1.1, Are the factors in the directive an offense under 8 U.S.C. 1328 may conform with the guidelines relating to number of threats made and (importation of alien for immoral applicable to promoting a commercial intended number of recipients purpose), which makes it unlawful to sex act, §§ 2G1.1 and 2G1.3, to a greater adequately addressed through these (among other things) harbor an illegal or lesser degree. upward departures? If not, what alien for purposes of prostitution or any Are amendments needed to § 2L1.1, as amendments to the guidelines should be other immoral purpose. Offenses under it applies to a person convicted of alien made? Should these upward departure section 1328, however, are referenced harboring under the circumstances provisions be incorporated as not to § 2L1.1 but to the guidelines specified in the directive, to ensure enhancements in § 2A6.1? applicable to promoting a commercial conformity with §§ 2G1.1 and 2G1.3? In considering whether to amend the sex act, § 2G1.1 (Promoting a For example, should the Commission guidelines as they apply to offenses Commercial Sex Act or Prohibited provide a cross reference in § 2L1.1 to involving threats made in violation of Sexual Conduct with an Individual §§ 2G1.1 and 2G1.3 when the offense section 115, should the Commission Other than a Minor) and § 2G1.3 involves the circumstances specified in focus on whether to amend the (Promoting a Commercial Sex Act or the directive? Alternatively, should the guidelines with regard to offenses that Prohibited Sexual Conduct with a Commission provide one or more occur over the Internet (i.e., the category Minor; Transportation of Minors to specific offense characteristics in of offenses covered by the directive), or Engage in a Commercial Sex Act or § 2L1.1 to account for the circumstances should the Commission also consider Prohibited Sexual Conduct; Travel to specified in the directive, such as a whether to amend the guidelines with Engage in Commercial Sex Act or specific offense characteristic for regard to offenses that do not occur over Prohibited Sexual Conduct with a harboring committed in furtherance of the Internet? If the latter, what Minor; Sex Trafficking of Children; Use prostitution? Should the Commission amendments to the guidelines should be of Interstate Facilities to Transport provide a specific offense characteristic made? Information about a Minor). It is to those in § 2L1.1 to account for harboring in guidelines, §§ 2G1.1 and 2G1.3, that sex furtherance of prostitution when the 5. Trafficking trafficking offenses, such as 18 U.S.C. offense involves a minor? Should the Issues for Comment: 1591 and the offenses under chapter 117 Commission provide a specific offense 1. The William Wilberforce of title 18, United States Code (18 U.S.C. characteristic in § 2L1.1 that Trafficking Victims Protection 2421 et seq.) are referenced. incorporates the adjustment in § 3B1.1 Reauthorization Act of 2008, Public Law The Commission requests comment (Aggravating Role)? If the Commission 110–457 (the ‘‘Act’’), was signed into regarding whether (and, if so, how) the were to provide one or more such law on December 23, 2008. The Act guidelines should be amended to ensure specific offense characteristics, what creates two new federal offenses, conformity between the guidelines should the offense levels be? Are there amends a number of federal statutes, applicable to persons convicted of alien any other amendments that should be and contains a directive to the harboring (i.e., § 2L1.1) and the made to the guidelines as they apply to Commission relating to certain alien guidelines applicable to persons a person convicted of alien harboring harboring offenses. The Commission convicted of promoting a commercial under the circumstances specified in the requests comment regarding what sex act (i.e., §§ 2G1.1 and 2G1.3) if the directive? amendments to the guidelines may be alien harboring offense involves the B. New Offenses appropriate in light of the Act. Given circumstances specified in the directive the recency of enactment of the Act, it (i.e., the harboring was committed in The Act created two new offenses. may be necessary to continue work on furtherance of prostitution and the The first new offense, 18 U.S.C. 1593A any or all of the issues raised by the Act defendant is an organizer, leader, (benefiting financially from peonage, beyond the amendment cycle ending manager, or supervisor of the criminal slavery, and trafficking in persons), May 1, 2009. activity). makes it unlawful to knowingly benefit, In a case in which no aggravating or financially or by receiving anything of A. Directive to the Commission mitigating factors otherwise apply, a value, from participation in a venture Section 222(g) of the Act directs the person convicted of alien harboring that has engaged in any act in violation Commission to—review and, if under 8 U.S.C. 1324(a)(1)(A)(iii) under of section 1581(a), 1592, or 1595(a) of appropriate, amend the sentencing the circumstances specified in the title 18, United States Code, knowing or guidelines and policy statements directive receives a base offense level of in reckless disregard of the fact that the applicable to persons convicted of alien 12 under § 2L1.1(a)(3) and an upward venture has engaged in such violation. harboring to ensure conformity with the adjustment of two, three, or four levels A violator is subject to a fine under title sentencing guidelines applicable to under § 3B1.1 (Aggravating Role) for 18, United States Code, and persons convicted of promoting a being an organizer, leader, manager, or imprisonment in the same manner as a commercial sex act if— supervisor of the criminal activity, for a completed violation of such section.

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The second new offense, 18 U.S.C. Material; Custodian Permitting Minor to miscellaneous guideline application 1351 (fraud in foreign labor contracting), Engage in Sexually Explicit Conduct; issues. makes it unlawful to knowingly and Advertisement for Minors to Engage in Part A of the proposed amendment with intent to defraud recruit, solicit or Production), and § 2G1.3 (Promoting a amends Appendix A (Statutory Index) hire a person outside the United States Commercial Sex Act or Prohibited to include offenses created or amended for purposes of employment in the Sexual Conduct with a Minor; by the Housing and Economic Recovery United States by means of materially Transportation of Minors to Engage in a Act of 2008 (Pub. L. 110–289). The new false or fraudulent pretenses, Commercial Sex Act or Prohibited offense at 12 U.S.C. 4636b is referenced representations or promises regarding Sexual Conduct; Travel to Engage in to § 2B1.1 (Larceny, Embezzlement, and that employment. A violator is subject Commercial Sex Act or Prohibited Other Forms of Theft; Offenses to a fine under title 18, United States Sexual Conduct with a Minor; Sex Involving Stolen Property; Property Code, and imprisonment of up to 5 Trafficking of Children; Use of Interstate Damage or Destruction; Fraud and years. Facilities to Transport Information Deceit; Forgery; Offenses Involving Should the Commission amend about a Minor). Altered or Counterfeit Instruments Appendix A (Statutory Index) to refer (F) 18 U.S.C. 1592 (unlawful conduct Other than Counterfeit Bearer these new offenses to one or more with respect to documents in Obligations of the United States); as a guidelines and, if so, which ones? furtherance of trafficking, peonage, conforming change, the similar existing Should offenses under section 1593A be slavery, involuntary servitude, or forced offense at 12 U.S.C. 1818(j) is also referred to § 2H4.1 (Peonage, labor), which is referenced in Appendix referenced to § 2B1.1. The new offense Involuntary Servitude, and Slave A (Statutory Index) to § 2H4.1 (Peonage, at 12 U.S.C. 4641 is referenced to § 2J1.1 Trade)? Should offenses under section Involuntary Servitude, and Slave (Contempt) and § 2J1.5 (Failure to 1351 be referred to § 2B1.1 (Theft, Trade). Appear by Material Witness); as Property Destruction, and Fraud), or to Are the guidelines adequate as they conforming changes, similar existing § 2H4.1 (Peonage, Involuntary apply to such offenses? Are there offenses (see 2 U.S.C. 192, 390; 7 U.S.C. Servitude, and Slave Trade)? Are there aggravating or mitigating circumstances 87f(e); 12 U.S.C. 1818(j), 1844(f), 2273, aggravating or mitigating circumstances existing in cases involving such offenses 3108(b)(6); 15 U.S.C. 78u(c), 80a–41(c), existing in cases involving those that might justify additional 80b–9(c), 717m(d); 16 U.S.C. 825f(c); 26 offenses that might justify additional amendments to the guidelines? If so, U.S.C. 7210; 33 U.S.C. 506, 1227(b); 42 amendments to the guidelines? If so, what amendments to the guidelines U.S.C. 3611; 47 U.S.C. 409(m); 49 U.S.C. what amendments to the guidelines should be made to address those 14909, 16104) are also referenced to should be made to address those circumstances? § 2J1.1 and § 2J1.5. circumstances? Among other things, the Act amended Part B of the proposed amendment these offenses by extending to these amends Appendix A (Statutory Index) C. Other Modifications to Chapter 77 offenses the obstruction provision of 18 to include offenses created or amended Subtitle C of title II of the Act U.S.C. 1581 (peonage; obstructing by the Consumer Product Safety amended various provisions in Chapter enforcement), under which a person Improvement Act of 2008 (Pub. L. 110– 77 (Peonage, Slavery, and Trafficking in who obstructs, interferes with, or 314). These offenses (see 15 U.S.C. 1192, Persons) of title 18, United States Code, prevents the enforcement of the section 1197(b), 1202(c), 1263, 2068) are in particular the following offenses: is subject to the same punishment as a referenced to § 2N2.1 (Violations of (A) 18 U.S.C. 1583 (enticement into person who commits the substantive Statutes and Regulations Dealing With slavery), which is referenced in offense. Are the guidelines adequate as Any Food, Drug, Biological Product, Appendix A (Statutory Index) to § 2H4.1 they apply to these offenses in a case Device, Cosmetic, or Agricultural (Peonage, Involuntary Servitude, and involving obstruction? Product). Technical and conforming Slave Trade). The Act also amended 18 U.S.C. 1589 changes are also made. (B) 18 U.S.C. 1584 (sale into and 1591 to provide that a person who Part C of the proposed amendment involuntary servitude), which is benefits financially from participating in amends Appendix A (Statutory Index) referenced in Appendix A (Statutory a venture involving trafficked labor is to include an offense created by the Index) to § 2H4.1 (Peonage, Involuntary subject to the same punishment as a Veterans’ Benefits Improvement Act of Servitude, and Slave Trade). person who commits the substantive 2008 (Pub. L. 110–389). The new offense (C) 18 U.S.C. 1589 (forced labor), offense. Are the guidelines adequate as at 50 U.S.C. App. § 527(e) is referenced which is referenced in Appendix A they apply to these offenses in a case to § 2X5.2 (Class A Misdemeanors (Not (Statutory Index) to § 2H4.1 (Peonage, involving these circumstances? Covered by Another Specific Involuntary Servitude, and Slave The Act also amended 18 U.S.C. 1594 Guideline)); as a conforming change, the Trade). (general provisions) to provide for similar existing offense at 10 U.S.C. (D) 18 U.S.C. 1590 (trafficking with conspiracy liability under these 987(f) is also referenced to § 2X5.2. respect to peonage, slavery, involuntary offenses. Are the guidelines adequate as Part D of the proposed amendment servitude, or forced labor), which is they apply to these offenses in a case amends Appendix A (Statutory Index) referenced in Appendix A (Statutory involving conspiracy? to include an offense created by the Index) to § 2H4.1 (Peonage, Involuntary Are there any other amendments to Violence Against Women and Servitude, and Slave Trade). the guidelines that should be made to Department of Justice Reauthorization (E) 18 U.S.C. 1591 (sex trafficking of address the amendments made by the Act of 2005 (Pub. L. 109–162). The new children or by force, fraud, or coercion), Act? offense at 18 U.S.C. 117 is referenced to which is referenced in Appendix A § 2A6.2 (Stalking or Domestic Violence). (Statutory Index) to §§ 2G1.1 (Promoting 6. Miscellaneous Part E of the proposed amendment a Commercial Sex Act or Prohibited Synopsis of Proposed Amendment: amends Appendix A (Statutory Index) Sexual Conduct with an Individual This proposed amendment is a multi- to include an offense created by the Other than a Minor), 2G2.1 (Sexually part amendment responding to Child Soldiers Accountability Act of Exploiting a Minor by Production of miscellaneous issues arising from 2008 (Pub. L. 110–340). The new offense Sexually Explicit Visual or Printed legislation recently enacted and other at 18 U.S.C. 2442 is referenced to

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§ 2H4.1 (Peonage, Involuntary ‘‘another felony offense’’ and ‘‘another by inserting after the line referenced Servitude, and Slave Trade). Technical offense’’, as defined in Application Note to 12 U.S.C. 631 the following: and conforming changes are also made. 14(C) of the firearms guideline, § 2K2.1 ‘‘12 U.S.C. 1818(j) 2B1.1 An issue for comment is also provided. (Unlawful Receipt, Possession, or 12 U.S.C. 1844(f) 2J1.1, 2J1.5 Part F of the proposed amendment Transportation of Firearms or 12 U.S.C. 2273 2J1.1, 2J1.5 makes changes throughout the Ammunition; Prohibited Transactions 12 U.S.C. 3108(b)(6) 2J1.1, 2J1.5 Guidelines Manual so that it accurately Involving Firearms or Ammunition). 12 U.S.C. 4636b 2B1.1 reflects the amendments made by the Those definitions were slightly revised 12 U.S.C. 4641 2J1.1, 2J1.5’’; Judicial Administration and Technical when they were placed into Application by inserting after the line referenced Amendments Act of 2008 (Pub. L. 110– Note 14(C) by Amendment 691 to 15 U.S.C. 78ff the following: 406) to the probation and supervised (effective November 1, 2006), and some ‘‘15 U.S.C. 78u(c) 2J1.1, 2J1.5 release statutes (18 U.S.C. 3563, 3583). confusion has arisen regarding whether 15 U.S.C. 80a–41(c) 2J1.1, 2J1.5’’; The changes include the addition of a the revisions were intended to have a by inserting after the line referenced new guideline for intermittent substantive effect. The technical change to 15 U.S.C. 80b–6 the following: confinement that parallels the statutory amends the terms to clarify that language, as well as technical and Amendment 691 was not intended to ‘‘15 U.S.C. 80b–9(c) 2J1.1, 2J1.5’’; conforming changes. have a substantive effect on those terms. by inserting after the line referenced Part G of the proposed amendment Part J of the proposed amendment to 15 U.S.C. 714m(c) the following: amends the enhancement relating to revises Appendix A (Statutory Index) so ‘‘15 U.S.C. 717m(d) 2J1.1, 2J1.5’’; property from a national cemetery or that the threat guideline, § 2A6.1 by inserting after the line referenced veterans’ memorial in subsection (b)(6) (Threatening or Harassing to 16 U.S.C. 773g the following: of § 2B1.1 (Larceny, Embezzlement, and Communications; Hoaxes; False Liens), ‘‘16 U.S.C. 825f(c) 2J1.1, 2J1.5’’; Other Forms of Theft; Offenses is included on the list of guidelines to in the line referenced to 26 U.S.C. Involving Stolen Property; Property which 18 U.S.C. 2280 and 2332a are 7210 by inserting ‘‘, 2J1.5’’ after ‘‘2J1.1’’; Damage or Destruction; Fraud and referenced. The proposed amendment in the line referenced to 33 U.S.C. 506 Deceit; Forgery; Offenses Involving ensures that in a case in which an Altered or Counterfeit Instruments by inserting ‘‘, 2J1.5’’ after ‘‘2J1.1’’; offense under one of those statutes is Other than Counterfeit Bearer in the line referenced to 33 U.S.C. committed by threat, the court has the Obligations of the United States) so that 1227(b) by inserting ‘‘, 2J1.5’’ after option of determining that § 2A6.1 is the it also covers trafficking in such ‘‘2J1.1’’; most analogous offense guideline. property, and makes a conforming in the line referenced to 42 U.S.C. change to the commentary. This part Part K of the proposed amendment 3611(f) by inserting ‘‘, 2J1.5’’ after responds to the directive to the amends the enhancement relating to ‘‘2J1.1’’; Commission in the Let Our Veterans serious bodily injury in subsection (b)(5) by inserting after the line referenced Rest in Peace Act of 2008 (Pub. L. 110– of § 2B5.3 (Criminal Infringement of to 47 U.S.C. 223(b)(1)(A) the following: Copyright or Trademark) so that it 384). ‘‘47 U.S.C. 409(m) 2J1.1, 2J1.5’’; parallels the corresponding Part H of the proposed amendment in the line referenced to 49 U.S.C. makes changes to the child pornography enhancement for serious bodily injury in § 2B1.1 (Larceny, Embezzlement, and 14909 by inserting ‘‘, 2J1.5’’ after guidelines, § 2G2.1 and § 2G2.2, so that ‘‘2J1.1’’; they accurately reflect the amendments Other Forms of Theft; Offenses Involving Stolen Property; Property and in the line referenced to 49 U.S.C. made to the child pornography statutes 16104 by inserting ‘‘, 2J1.5’’ after (18 U.S.C. 2251 et seq.) by the Effective Damage or Destruction; Fraud and Deceit; Forgery; Offenses Involving ‘‘2J1.1’’. Child Pornography Prosecution Act of Part B (Consumer Product Safety 2007 (Pub. L. 110–358) and the Altered or Counterfeit Instruments Other than Counterfeit Bearer Improvement Act of 2008): PROTECT Our Children Act of 2008 Chapter Two, Part N is amended in (Pub. L. 110–401). The changes relate Obligations of the United States). This part responds to statutory amendments the heading by inserting ‘‘CONSUMER primarily to cases where child PRODUCTS,’’ after ‘‘PRODUCTS,’’. pornography is transmitted over the made by the Prioritizing Resources and Organization for Intellectual Property Chapter Two, Part N, Subpart 2 is Internet. Under the proposed amended in the heading by striking amendment, where the guidelines refer Act of 2008 (Pub. L. 110–403). ‘‘AND’’; and by inserting ‘‘, AND to the purpose of producing a visual An issue for comment is also included CONSUMER PRODUCTS’’ after depiction, they will also refer to the regarding whether the guidelines are ‘‘PRODUCTS’’. purpose of transmitting a live visual adequate as they apply to subsection Section 2N2.1 is amended in the depiction; where the guidelines refer to (a)(7) of 18 U.S.C. 2252A, a new offense heading by striking ‘‘or’’ after possessing material, they will also refer created by the PROTECT Our Children ‘‘Cosmetic,’’ and by inserting ‘‘, or to accessing with intent to view the Act of 2008 (Pub. L. 110–401). Consumer Product’’ at the end. Proposed Amendment: material. As a conforming change, this Appendix A (Statutory Index) is part also amends the child pornography Part A (Housing and Economic amended by inserting after the line guidelines so that the term Recovery Act of 2008): referenced to ‘‘15 U.S.C. 1176’’ the ‘‘distribution’’ includes ‘‘transmission’’, Appendix A (Statutory Index) is following: and the term ‘‘material’’ includes any amended by inserting before the line ‘‘15 U.S.C. 1192 2N2.1 visual depiction, as now defined by 18 referenced to 2 U.S.C. 437g(d) the 15 U.S.C. 1197(b) 2N2.1 U.S.C. 2256 (i.e., to include data which following: is capable of conversion into a visual 15 U.S.C. 1202(c) 2N2.1 ‘‘2 U.S.C. 192 2J1.1, 2J1.5 15 U.S.C. 1263 2N2.1’’; image that has been transmitted by any 2 U.S.C. 390 2J1.1, 2J1.5’’; means, whether or not stored in a and by inserting after the line permanent format). by inserting after the line referenced referenced to 15 U.S.C. § 1990(c) the Part I of the proposed amendment to 7 U.S.C. 87b the following: following: makes a technical change to the terms ‘‘7 U.S.C. 87f(e) 2J1.1, 2J1.5’’; ‘‘15 U.S.C. 2068 2N2.1’’

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Part C (Veterans’ Benefits Part F (Judicial Administration and accordance with 18 U.S.C. 3583(e)(2) Improvement Act of 2008): Technical Amendments Act of 2008): and only when facilities are available. Appendix A (Statutory Index) is Section 5B1.3 is amended in See 18 U.S.C. 3583(d).’’. amended by inserting after the line subsection (a)(2) by striking ‘‘, (B) give Chapter Seven, Part A is amended in referenced to 8 U.S.C. notice’’ and all that follows through ‘‘or Subpart 2(b) in the second paragraph by 1375a(d)(3)(C),(d)(5)(B) the following: area,’’ and inserting ‘‘or (B) work in striking ‘‘With the exception’’ and all ‘‘10 U.S.C. 987(f) 2X5.2’’; community service, unless the court has that follows through ‘‘probation, the’’ and by inserting after the line imposed a fine, or’’; and by striking the and inserting ‘‘The’’; and by striking the referenced to 50 U.S.C. 783(c) the paragraph that begins ‘‘Note: Section paragraph that begins ‘‘Note: Section following: 3563(a)(2)’’. 3583(d)’’ and the paragraph that begins Section 5B1.3(e)(1) is amended by ‘‘However,’’. ‘‘50 U.S.C. App. § 527(e)2X5.2’’. adding at the end ‘‘See § 5F1.1 The Commentary to § 7B1.3 captioned Part D (Violence Against Women and (Community Confinement).’’. ‘‘Application Notes’’ is amended by Department of Justice Reauthorization Section 5B1.3(e)(6) is amended by striking Note 5 and inserting the Act of 2005): adding at the end ‘‘See § 5F1.8 following: Appendix A (Statutory Index) is (Intermittent Confinement).’’. ‘‘5. Intermittent confinement is amended by inserting after the line Section 5C1.1 is amended by striking authorized as a condition of probation referenced to 18 U.S.C. 115(b)(3) the the asterisk each place it appears. only during the first year of the term of following: The Commentary to § 5C1.1 captioned probation, see 18 U.S.C. 3563(b)(10), ‘‘Application Notes’’ is amended by ‘‘18 U.S.C. 117 2A6.2’’. and as a condition of supervised release striking the asterisk each place it Part E (Child Soldiers Accountability only during the first year of supervised appears; and by striking the paragraph Act of 2008): release, see 18 U.S.C. 3583(d). See that begins ‘‘Note: Section 3583(d)’’ and Chapter Two, Part H, Subpart 4 is § 5F1.8 (Intermittent Confinement).’’. the paragraph that begins ‘‘However,’’. amended in the heading by striking Section 8D1.3 is amended by striking ‘‘AND’’ after ‘‘SERVITUDE,’’ and by Section 5D1.3(e)(1) is amended by striking the asterisk; and by striking the subsection (b) and inserting the inserting ‘‘, AND CHILD SOLDIERS’’ at following: the end. paragraph that begins ‘‘Note: Section 3583(d)’’ and the paragraph that begins ‘‘(b) Pursuant to 18 U.S.C. 3563(a)(2), Section 2H4.1 is amended in the if a sentence of probation is imposed for heading by striking ‘‘and’’ after ‘‘However,’’. Section 5D1.3(e) is amended by a felony, the court shall impose as a ‘‘Servitude,’’ and by inserting ‘‘, and condition of probation at least one of the Child Soldiers’’ at the end. adding at the end the following paragraph: following: (1) Restitution or (2) The Commentary to § 2H4.1 captioned community service, unless the court has ‘‘Statutory Provisions’’ is amended by ‘‘(6) Intermittent Confinement imposed a fine, or unless the court finds inserting ‘‘, 2442’’ after ‘‘1592’’. Intermittent confinement (custody for on the record that extraordinary The Commentary to § 2H4.1 captioned intervals of time) may be ordered as a circumstances exist that would make ‘‘Application Notes’’ is amended in condition of supervised release during such condition plainly unreasonable, in Note 1 by inserting as the last paragraph the first year of supervised release. See which event the court shall impose one the following: § 5F1.8 (Intermittent Confinement).’’. or more other conditions set forth in 18 ‘‘ ‘Involuntary servitude’ includes Section 5F1.1 is amended by striking U.S.C. 3563(b).’’. forced labor, slavery, and service as a the asterisk; and by striking the child soldier.’’. Part G (Let Our Veterans Rest in Peace paragraph that begins ‘‘Note: Section Appendix A (Statutory Index) is Act of 2008): 3583(d)’’ and the paragraph that begins amended by inserting after the line Section 2B1.1(b)(6) is amended by ‘‘However,’’. referenced to 18 U.S.C. 2425 the striking ‘‘or’’ after ‘‘damage to,’’; and by Chapter Five, Part F is amending by following: inserting ‘‘or trafficking in,’’ after adding at the end the following new ‘‘destruction of,’’. ‘‘18 U.S.C. 2442 2H4.1’’. guideline and accompanying The Commentary to § 2B1.1 captioned Issue for Comment: commentary: 1. The Commission requests comment ‘‘Background’’ is amended in the regarding whether it should amend ‘‘§ 5F1.8. Intermittent Confinement paragraph that begins ‘‘Subsection (b)(6)’’ by inserting at the end before the Appendix A (Statutory Index) to Intermittent confinement may be period the following: ‘‘and the directive reference the new offense at 18 U.S.C. imposed as a condition of probation or to the Commission in section 3 of Public 2242 to 2H4.1 (Peonage, Involuntary supervised release. Servitude, and Slave Trade) or to one or Law 110–384’’. more other guidelines. Does § 2H4.1, or Commentary Part H (PROTECT Our Children Act of one or more other guidelines, Application Notes: 2008 and Effective Child Pornography adequately address offenses under 18 1. ‘Intermittent confinement’ means Prosecution Act of 2007): U.S.C. 2242 and, if not, what remaining in the custody of the Bureau Section 2G2.1(b)(6) is amended by aggravating or mitigating circumstances of Prisons during nights, weekends, or inserting ‘‘or for the purpose of existing in those cases might justify other intervals of time, totaling no more transmitting such material live’’ after additional amendments to the than the lesser of one year or the term ‘‘explicit material’’. guidelines? Alternatively, should the of imprisonment authorized for the The Commentary to § 2G2.1 captioned Commission defer action in response to offense, during the first year of the term ‘‘Application Notes’’ is amended in the new offense at 18 U.S.C. 2242 this of probation or supervised release. See Note 1 in the paragraph that begins amendment cycle, undertake a broader 18 U.S.C. 3563(b)(10). ‘‘ ‘Distribution’’ ’ by inserting review of the guidelines pertaining to 2. Intermittent confinement shall be ‘‘transmission,’’ after ‘‘production,’’; and human rights offenses generally, and imposed as a condition of supervised by inserting after the paragraph that include responding to the new offense release only for a violation of a begins ‘‘ ‘Interactive computer service’ ’’ as part of that broader review? condition of supervised release in the following paragraph:

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‘‘ ‘Material’ includes a visual by striking ‘‘13’’ and inserting ‘‘14’’ each reflect the less serious nature of an depiction, as defined in 18 U.S.C. place it appears. offense involving the production of § 2256.’’. Issue for Comment: child pornography that is an adapted or The Commentary to § 2G2.1 captioned 1. The Commission requests comment modified depiction of an identifiable ‘‘Application Notes’’ is amended in regarding whether the guidelines are minor compared to other offenses Note 4 by inserting ‘‘or for the purpose adequate as they apply to subsection involving the production of child of transmitting such material live’’ after (a)(7) of 18 U.S.C. 2252A, a new offense pornography covered by that guideline? ‘‘explicit material’’ each place it created by the PROTECT Our Children Alternatively, should the Commission appears; and in Note 4(B) by striking Act of 2008 (Pub. L. 110–401). The new create a new guideline for offenses ‘‘purpose’’ after ‘‘for such’’ and inserting offense at subsection (a)(7) makes it under subsection (a)(7)? unlawful to knowingly produce with ‘‘purposes’’. 7. Influencing a Minor Section 2G2.2(b)(6) is amended by intent to distribute, or to knowingly inserting ‘‘or for accessing with intent to distribute, ‘‘child pornography that is an Synopsis of Proposed Amendment: view the material,’’ after ‘‘material,’’. adapted or modified depiction of an This proposed amendment addresses a Section 2G2.2(c)(1) is amended by identifiable minor.’’ A violator is subject circuit conflict regarding the undue inserting ‘‘or for the purpose of to a fine under title 18, United States influence enhancement at transmitting a live visual depiction of Code, and imprisonment up to 15 years. § 2A3.2(b)(2)(B)(ii) (Criminal Sexual such conduct’’ after ‘‘such conduct’’. Under Appendix A (Statutory Index), Abuse of a Minor Under the Age of The Commentary to § 2G2.2 captioned all offenses under 18 U.S.C. 2252A are Sixteen Year (Statutory Rape) or ‘‘Application Notes’’ is amended in referenced to the child pornography Attempt to Commit Such Acts) and at Note 1 in the paragraph that begins trafficking, receipt, and possession § 2G1.3(b)(2)(B) (Promoting a ‘‘‘Distribution’’’ by inserting guideline, § 2G2.2 (Trafficking in Commercial Sex Act or Prohibited ‘‘transmission,’’ after ‘‘production,’’; by Material Involving the Sexual Sexual Conduct with a Minor; inserting after the paragraph that begins Exploitation of a Minor; Receiving, Transportation of Minors to Engage in a ‘‘‘Interactive computer service’’’ the Transporting, Shipping, Soliciting, or Commercial Sex Act or Prohibited following: Advertising Material Involving the Sexual Conduct; Travel to Engage in ‘‘‘Material’ includes a visual Sexual Exploitation of a Minor; Commercial Sex Act or Prohibited depiction, as defined in 18 U.S.C. Possessing Material Involving the Sexual Conduct with a Minor; Sex 2256.’’ and Sexual Exploitation of a Minor with Trafficking of Children; Use of Interstate in the paragraph that begins ‘‘Sexual Intent to Traffic; Possessing Material Facilities to Transport Information abuse or exploitation’’ by inserting Involving the Sexual Exploitation of a about a Minor). The undue influence ‘‘accessing with intent to view,’’ after Minor). enhancement provides for an increase in ‘‘possession,’’. Is § 2G2.2 the guideline to which the defendant’s offense level (four levels The Commentary to § 2G2.2 captioned offenses under subsection (a)(7) should in § 2A3.2 and two levels in § 2G1.3) if ‘‘Application Notes’’ is amended in be referenced? Alternatively, should the ‘‘a participant otherwise unduly Note 2 by inserting ‘‘access with intent Commission amend Appendix A influenced the minor to engage in to view,’’ after ‘‘possess,’’. (Statutory Index) to refer offenses under prohibited sexual conduct.’’ In both The Commentary to § 2G2.2 captioned subsection (a)(7) to a guideline or guidelines, commentary states that in ‘‘Application Notes’’ is amended in guidelines other than § 2G2.2 and, if so, determining whether the undue Note 4(B)(ii) by striking ‘‘recording’’ and which ones? Should the Commission influence enhancement applies, ‘‘the inserting ‘‘visual depiction’’ each place amend the guidelines (such as by court should closely consider the facts it appears. amending Appendix A or by providing of the case to determine whether a The Commentary to § 2G2.2 captioned cross references) so that an offense participant’s influence over the minor ‘‘Application Notes’’ is amended in under subsection (a)(7) that involves compromised the voluntariness of the Note 5(A) by inserting ‘‘or for the distribution is referred to one guideline minor’s behavior.’’ The commentary purpose of transmitting live any visual (e.g., § 2G2.2), and an offense under also provides for a rebuttable depiction of such conduct’’ after ‘‘such subsection (a)(7) that involves presumption of undue influence ‘‘[i]n a conduct’’. production is referred to another case in which a participant is at least 10 Part I (Clarification of § 2K2.1, guideline (e.g., the child pornography years older than the minor.’’ Application Note 14(C)): production guideline, § 2G2.1 (Sexually In both guideline provisions, the term The Commentary to § 2K2.1 captioned Exploiting a Minor by Production of ‘‘minor’’ includes ‘‘an individual, ‘‘Application Notes’’ is amended in Sexually Explicit Visual or Printed whether fictitious or not, who a law Note 14(C) by striking ‘‘the’’ before Material; Custodian Permitting Minor to enforcement officer represented to a ‘‘explosive’’ and inserting ‘‘an’’ each Engage in Sexually Explicit Conduct; participant * * * could be provided for place it appears. Advertisement for Minors to Engage in the purposes of engaging in sexually Part J (Treatment of 18 U.S.C. 2280, Production))? Whether offenses under explicit conduct’’ or ‘‘an undercover law 2332a in Statutory Index): subsection (a)(7) are referenced to enforcement officer who represented to Appendix A (Statutory Index) is § 2G2.2 or to one or more other a participant that the officer had not amended in the line referenced to 18 guidelines, are there aggravating or attained’’ the age of majority. U.S.C. § 2280 by inserting ‘‘2A6.1,’’ after mitigating circumstances existing in Three circuits have three different ‘‘2A4.1,’’; and cases involving those offenses that approaches regarding the application of in the line referenced to 18 U.S.C. might justify additional amendments to the undue influence enhancement in 2332a by inserting ‘‘2A6.1,’’ before the guidelines? If so, how should the cases in which the ‘‘minor’’ is actually ‘‘2K1.4’’. guidelines be amended to address those an undercover law enforcement officer. Part K (Prioritizing Resources and circumstances? For example, if an The Eleventh Circuit, in United States v. Organization for Intellectual Property offense under subsection (a)(7) that Root, 296 F.3d 1222 (11th Cir. 2002), Act of 2008): involves production is referred to held that, according to the terms of Section 2B5.3(b)(5) is amended by § 2G2.1, should the Commission provide § 2A3.2, the undue influence inserting ‘‘death or’’ after ‘‘risk of’’; and a downward adjustment in § 2G2.1 to enhancement can apply even when the

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victim is an undercover law commentary regarding the undue in the paragraph that begins ‘‘In a enforcement officer. In such a case, the influence enhancement in §§ 2A3.2 and case’’ by striking ‘‘, for purposes of’’ and Eleventh Circuit held, the focus is on 2G1.3 to provide that the enhancement all that follows through ‘‘sexual the defendant’s conduct, not on the fact does not apply in a case of attempted conduct’’ and inserting ‘‘that subsection that the victim’s will was not actually sexual conduct. Like Option Two, (b)(2)(B)(ii) applies’’; overborne. The Eleventh Circuit is also Option Three amends the commentary and by adding at the end as the last the only circuit that has addressed this regarding the undue influence paragraph the following: issue in the context of § 2G1.3. See enhancement in §§ 2A3.2 and 2G1.3 to ‘‘Subsection (b)(2)(B)(ii) does not United States v. Vance, 494 F.3d 985 provide that the enhancement does not apply in a case in which the only (11th Cir. 2007) (holding that apply in a case involving only an ‘minor’ (as defined in Application Note § 2G1.3(b)(2)(B) applies where the minor undercover law enforcement officer. 1) involved in the offense is an is fictitious, and stating that ‘‘the focus All three options include a technical undercover law enforcement officer.’’.] is on the defendant’s intent, not whether amendment to the background of The Commentary to § 2A3.2 captioned the victim is real or fictitious’’). § 2A3.2. ‘‘Background’’ is amended by striking The Seventh Circuit reached a One issue for comment is also ‘‘two-level’’ and inserting ‘‘four-level’’ different result in United States v. included. each place it appears. Mitchell, 353 F.3d 552 (7th Cir. 2003), Proposed Amendment: [Option 1: holding that ‘‘the plain language of [Option 1: The Commentary to § 2G1.3 captioned [§ 2A3.2] cannot apply in the case of an The Commentary to § 2A3.2 captioned ‘‘Application Notes’’ is amended in attempt where the victim is an ‘‘Application Notes’’ is amended in Note 3(B) in the paragraph that begins undercover police officer.’’ The Seventh Note 3(B) in the paragraph that begins ‘‘Undue Influence’’ by adding at the end Circuit also stated that its reading of the ‘‘Undue Influence’’ by adding at the end the following: guideline concluded that ‘‘the the following: ‘‘Subsection (b)(2)(B) does not require enhancement cannot apply [in any case] ‘‘Subsection (b)(2)(B)(ii) does not that the participant engage in prohibited where the offender and victim have not require that the participant engage in sexual conduct with the minor.’’; engaged in illicit sexual conduct.’’ Id. at prohibited sexual conduct with the in the paragraph that begins ‘‘In a 559. minor.’’; case’’ by striking ‘‘, for purposes of’’ and The Sixth Circuit, in United States v. in the paragraph that begins ‘‘In a all that follows through ‘‘sexual Chriswell, 401 F.3d 459 (6th Cir. 2005), case’’ by striking ‘‘, for purposes of’’ and conduct’’ and inserting ‘‘that subsection all that follows through ‘‘sexual took a third approach. The Sixth Circuit (b)(2)(B) applies’’; agreed in part with the Seventh Circuit, conduct’’ and inserting ‘‘that subsection and by adding at the end as the last holding that ‘‘§ 2A3.2(b)(2)(B) is not (b)(2)(B)(ii) applies’’; paragraph the following: and by adding at the end as the last applicable in cases where the victim is ‘‘Subsection (b)(2)(B) can apply in a an undercover agent representing paragraph the following: ‘‘Subsection (b)(2)(B)(ii) can apply in case in which the only ‘minor’ (as himself to be a child under the age of a case in which the only ‘minor’ (as defined in Application Note 1) involved sixteen.’’ Id. at 469. Unlike the Seventh defined in Application Note 1) involved in the offense is an undercover law Circuit, however, the Sixth Circuit in the offense is an undercover law enforcement officer.’’.] concluded that the enhancement can enforcement officer.’’.] [Option 2: apply in other instances of attempted [Option 2: The Commentary to § 2G1.3 captioned sexual conduct. The Commentary to § 2A3.2 captioned ‘‘Application Notes’’ is amended in The three proposed options reflect the ‘‘Application Notes’’ is amended in Note 3(B) in the paragraph that begins three different interpretations of the Note 3(B) in the paragraph that begins ‘‘Undue Influence’’ by adding at the end enhancement by the Eleventh, Sixth, ‘‘Undue Influence’’ by adding at the end the following: and Seventh Circuits. Option One the following: ‘‘Subsection (b)(2)(B) does not require reflects the Eleventh Circuit’s approach ‘‘Subsection (b)(2)(B)(ii) does not that the participant engage in prohibited by amending the commentary regarding require that the participant engage in sexual conduct with the minor.’’; the undue influence enhancement in prohibited sexual conduct with the in the paragraph that begins ‘‘In a §§ 2A3.2 and 2G1.3 to provide that the minor.’’; case’’ by striking ‘‘, for purposes of’’ and enhancement can apply in a case of in the paragraph that begins ‘‘In a all that follows through ‘‘sexual attempted sexual conduct. Option One case’’ by striking ‘‘, for purposes of’’ and conduct’’ and inserting ‘‘that subsection further amends the commentary to all that follows through ‘‘sexual (b)(2)(B) applies’’; provide that the undue influence conduct’’ and inserting ‘‘that subsection and by adding at the end as the last enhancement can apply in a case (b)(2)(B)(ii) applies’’; paragraph the following: involving only an undercover law and by adding at the end as the last ‘‘Subsection (b)(2)(B) does not apply enforcement officer. paragraph the following: in a case in which the only ‘minor’ (as Option Two reflects the Sixth ‘‘Subsection (b)(2)(B)(ii) does not defined in Application Note 1) involved Circuit’s approach. It amends the apply in a case in which the only in the offense is an undercover law commentary regarding the undue ‘minor’ (as defined in Application Note enforcement officer.’’.] influence enhancement in §§ 2A3.2 and 1) involved in the offense is an [Option 3: 2G1.3 to provide that the enhancement undercover law enforcement officer.’’.] The Commentary to § 2G1.3 captioned can apply in a case of attempted sexual [Option 3: ‘‘Application Notes’’ is amended in conduct. Option Two further amends The Commentary to § 2A3.2 captioned Note 3(B) in the paragraph that begins the commentary to provide that the ‘‘Application Notes’’ is amended in ‘‘Undue Influence’’ by adding at the end undue influence enhancement does not Note 3(B) in the paragraph that begins the following: apply in a case involving only an ‘‘Undue Influence’’ by adding at the end ‘‘Subsection (b)(2)(B) requires that the undercover law enforcement officer. the following: participant engage in prohibited sexual Option Three reflects the Seventh ‘‘Subsection (b)(2)(B)(ii) requires that conduct with the minor.’’; Circuit’s approach. Contrary to Options the participant engage in prohibited in the paragraph that begins ‘‘In a One and Two, Option Three amends the sexual conduct with the minor.’’; case’’ by striking ‘‘, for purposes of’’ and

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all that follows through ‘‘sexual attributable to the underlying offense adjustment provided’’; and by adding at conduct’’ and inserting ‘‘that subsection and the sentence attributable to the the end as the last sentence the (b)(2)(B) applies’’; enhancement.’’ following: and by adding at the end as the last The Second and Seventh Circuits ‘‘Similarly, if the applicable adjusted paragraph the following: have held that, according to the terms of guideline range is 30–37 months and the ‘‘Subsection (b)(2)(B) does not apply Application Note 2 to § 2J1.7 (now court determines a ‘total punishment’ of in a case in which the only ‘minor’ (as Application Note 1 to § 3C1.3), a 30 months is appropriate, a sentence of defined in Application Note 1) involved sentencing court cannot apportion to the 24 months for the underlying offense in the offense is an undercover law underlying offense more than the plus 6 months under 18 U.S.C. 3147 enforcement officer.’’.] maximum of the guideline range absent would satisfy this requirement.’’. Issue for Comment: the three-level enhancement. See United 9. Counterfeiting and ‘‘Bleached Notes’’ 1. The Commission seeks comment States v. Confredo, 528 F.3d 143 (2d Cir. regarding the current application of the 2008); United States v. Stevens, 66 F.3d Synopsis of Proposed Amendment: undue influence enhancements in both 431 (2d Cir. 1995); United States v. The proposed amendment clarifies § 2A3.2 and § 2G1.3. In 2004, the Wilson, 966 F.2d 243 (7th Cir. 1992). guideline application issues regarding Commission created § 2G1.3 specifically The Second Circuit has stated that the the sentencing of counterfeiting offenses to address offenses under chapter 117 of example the Commission provides in involving ‘‘bleached notes.’’ Bleached title 18, United States Code, that involve the Application Note does not abide by notes are genuine United States minors. See USSG App. C, Amendment their interpretation of the rule: ‘‘The currency stripped of its original image 664 (Nov. 2004). Prior to the creation of commentary example begins with a total through the use of solvents or other § 2G1.3, chapter 117 offenses, primarily range of 30–37 months. In all criminal chemicals and then reprinted to appear 18 U.S.C. 2422 (Coercion and history categories, if the § 2J1.7 three- to be notes of higher denomination than Enticement) and 2423 (Transportation of level enhancement is deleted from the intended by the Treasury. Circuit courts Minors), were sentenced under § 2A3.2 guideline level at which a 30–37 month have resolved differently the question of either by direct reference from sentence is imposed, the permissible whether offenses involving bleached Appendix A, or through a cross range provided for the reduced sentence notes should be sentenced under reference from § 2G1.1. The creation of would be 21–27 months.’’ Stevens, at § 2B5.1 (Offenses Involving Counterfeit a new guideline for chapter 117 cases 435–36. The example states that a Bearer Obligations of the United States) was ‘‘intended to address more properly ‘‘apportioned’’ sentence for the or § 2B1.1 (Larceny, Embezzlement, and appropriately the issues specific to these underlying offense would be 30 months. Other Forms of Theft; Offenses offenses. In addition, the removal of This is outside the guideline range for Involving Stolen Property; Property these cases from § 2A3.2 permit[ted] the that offense. Damage or Destruction; Fraud and Commission to more appropriately Under ordinary guideline application Deceit; Forgery; Offenses Involving tailor [§ 2A3.2] to actual statutory rape principles, however, only one guideline Altered or Counterfeit Instruments cases.’’ USSG App. C, Amendment 664 range applies to a defendant who Other than Counterfeit Bearer (Nov. 2004). committed an offense while on release Obligations of the United States). The Commission requests comment and is subject to the enhancement at 18 Compare, United States v. regarding the application of the undue U.S.C. 3147. See § 1B1.1 (instructing the Schreckengost, 384 F.3d 922 (7th Cir. influence enhancements in the two sentencing court to, in this order: (1) 2004) (holding that bleached notes guidelines at issue. Should the Determine the offense guideline should be sentenced under § 2B1.1); Commission amend the enhancement in applicable to the offense of conviction United States v. Inclema, 363 F.3d 1177 either guideline in any way? If so, what (the underlying offense); (2) determine (11th Cir. 2004) (same); with United changes should the Commission make? the base offense level, specific offense States v. Dison, 2008 WL 351935 (W.D. Should, for example, the Commission characteristics, and follow other La. Feb 8, 2008) (applying § 2B5.1 in a more narrowly tailor the enhancement instructions in Chapter Two; (3) apply case involving bleached notes); United in § 2A3.2 to reflect the offense conduct adjustments from Chapter Three; and, States v. Vice, 2008 WL 113970 (W. D. typical in cases now being sentenced ultimately, (4) ‘‘[d]etermine the La. Jan. 3, 2008) (same). The proposed under § 2A3.2? If so, how? guideline range in Part A of Chapter amendment resolves this circuit conflict Five that corresponds to the offense and responds to concerns expressed by 8. Commission of Offense While on federal judges and members of Congress Release level and criminal history category determined above’’). concerning the guidelines pertaining to Synopsis of Proposed Amendment: The proposed amendment clarifies offenses involving bleached notes. This proposed amendment clarifies that the court determines the applicable The definition of the term Application Note 1 in § 3C1.3 guideline range as in any other case. At ‘‘counterfeit’’ in Application Note 3 of (Commission of Offense While on that point, the court determines an § 2B5.1 has been cited by courts as the Release). Section 3C1.3 (formerly appropriate ‘‘total punishment’’ from basis for declining to apply § 2B5.1 to § 2J1.7, (see Appendix C to the within that applicable guideline range, offenses involving bleached notes. Guidelines Manual, Amendment 684) and then divides the total sentence ‘‘Counterfeit’’ is defined to mean ‘‘an provides for a three-level adjustment if between the underlying offense and the instrument that purports to be genuine the defendant is subject to the statutory § 3147 enhancement as the court but is not, because it has been falsely enhancement found at 18 U.S.C. 3147— considers appropriate. made or manufactured in its entirety.’’ that is, if the defendant has committed Proposed Amendment: Application Note 3 further provides that the underlying offense while on release. The Commentary to § 3C1.3 captioned ‘‘[o]ffenses involving genuine Application Note 1 to § 3C1.3 states ‘‘Application Notes’’ is amended in instruments that have been altered are that, in order to comply with the Note 1 by striking ‘‘as adjusted’’ and covered under § 2B1.1 (Theft, Property statute’s requirement that a consecutive inserting ‘‘including, as in any other Destruction, and Fraud).’’ Under this sentence be imposed, the sentencing case in which a Chapter Three definition, courts have had to consider court must ‘‘divide the sentence on the adjustment applies (see § 1B1.1 whether a bleached note should be judgment form between the sentence (Application Instructions)), the considered falsely made or

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manufactured in its entirety (and Appendix A (Statutory Index) is Second, it makes technical changes in therefore sentenced under § 2B5.1) or an amended in the line referenced to 18 § 2G2.2, Statutory Provisions, to address altered note (and therefore sentenced U.S.C. 474A by striking ‘‘2B1.1,’’; and in the fact that offenses under section under § 2B1.1). the line referenced to 18 U.S.C. § 476 by 2252A(g) are now covered by § 2G2.6, The proposed amendment resolves striking ‘‘2B1.1,’’. while offenses under section 2252A(a) this issue to provide that offenses 10. Technical and (b) continue to be covered by involving bleached notes are to be § 2G2.2. Third, it makes similar sentenced under § 2B5.1. Specifically, Synopsis of Proposed Amendment: technical changes in § 2G2.2, the proposed amendment deletes This proposed amendment is a multi- Application Note 1, to address this fact. Application Note 3 and revises the part amendment that makes various Fourth, it makes a technical change in definition of ‘‘counterfeit’’ to more technical and conforming changes to the § 2G2.3, Commentary, to address the closely parallel relevant counterfeiting guidelines. fact that the statutory minimum statutes, for example 18 U.S.C. 471 Part A of the proposed amendment sentence for a defendant convicted (Obligations or securities of the United addresses several cases in which the under 18 U.S.C. 2251A is now 30 years States) and 472 (Uttering counterfeit guidelines refer to another guideline, or imprisonment. Fifth, it makes technical obligations or securities). As a clerical to a statute or rule, but the reference has changes in § 2G3.1, subsection (c)(1), to change, the definition is moved from become incorrect or obsolete. First, the address the fact that § 2G2.4 no longer Application Note 3 to Application Note proposed amendment makes technical exists, having been consolidated into 1. changes in § 1B1.8 (Use of Certain § 2G2.2 effective November 1, 2004. The proposed amendment also Information) to address the fact that Sixth, it makes a technical change in amends the enhancement at subsection provisions that had been contained in Appendix A (Statutory Index) to address (b)(2)(B) to cover a case in which the subsection (e)(6) of Rule 11 of the the fact that the offenses that had been Federal Rules of Criminal Procedure are defendant controlled or possessed contained in subsections (c)(1)(A) and now contained in subsection (f) of that genuine United States currency paper (c)(1)(B) of 18 U.S.C. 2251 are now rule. Second, it makes a technical from which the ink or other distinctive contained in subsections (d)(1)(A) and change in § 2J1.1 (Contempt), counterfeit deterrent has been (d)(1)(B) of that section. As a Application Note 3, to address the fact completely or partially removed. conforming change, it also provides the that the provision that had been In addition, the proposed amendment appropriate reference for the offense contained in subsection (b)(7)(C) of amends Appendix A (Statutory Index) that is now contained in subsection (c) § 2B1.1 (Theft, Property Destruction, by striking the alternative reference to of that section. Seventh, it makes a and Fraud) is now contained in § 2B1.1 for two offenses that do not technical change in Appendix A involve elements of fraud. subsection (b)(8)(C) of that guideline. Third, it makes a technical change in (Statutory Index) to address the fact that Specifically, the amendment deletes offenses under section 2252A(g) are now alternative reference to § 2B1.1 for § 4B1.2 (Definitions of Terms used in Section 4B1.1), Application Note 1, covered by § 2G2.6, while offenses offenses under 18 U.S.C. 474A under section 2252A(a) and (b) continue (Deterrents to counterfeiting of fourth paragraph, to address the fact that the offense that had been contained in to be covered by § 2G2.2. obligations and securities) and 476 Proposed Amendment: (Taking impressions of tools used for subsection (d)(1) of 21 U.S.C. 841 is now Part A (Technical Issues With Respect obligations or securities). As a result, contained in subsection (c)(1) of that to References to Guidelines, Statutes, these offenses would be referenced section. Fourth, it makes technical and Rules): solely to § 2B5.1. A conforming change changes in § 5C1.2 (Limitation on The Commentary to § 1B1.8 captioned is made to delete these offenses from the Applicability of Statutory Minimum ‘‘Application Notes’’ is amended in list of statutory provisions in § 2B1.1. Sentences in Certain Cases), Application Proposed Amendment: Note 8, to address the fact that Note 3 by striking ‘‘(e)(6) Section 2B5.1(b)(2)(B) is amended by subsections (c)(1) and (c)(3) of Rule 32 (Inadmissibility of Pleas,’’ and inserting inserting ‘‘(ii) genuine United States of the Federal Rules of Criminal ‘‘(f) (Admissibility or Inadmissibility of currency paper from which the ink or Procedure are now contained in a Plea,’’. other distinctive counterfeit deterrent subsections (f) and (i) of that rule. Fifth, The Commentary to § 2J1.1 captioned has been completely or partially it makes a technical change in § 5D1.2 ‘‘Application Notes’’ is amended in removed;’’ after ‘‘paper;’’ and by striking (Term of Supervised Release), Note 3 by striking ‘‘(7)’’ and inserting ‘‘or (ii)’’ and inserting ‘‘or (iii)’’. Commentary, to address the fact that the ‘‘(8)’’. The Commentary to § 2B5.1 captioned provision that had been contained in The Commentary to § 4B1.2 captioned ‘‘Application Notes’’ is amended in subsection (b) of § 5D1.2 is now ‘‘Application Notes’’ is amended in Note 1 by inserting after the paragraph contained in subsection (c) of that Note 1 in the paragraph that begins that begins ‘‘Definitions.—’’ the guideline. Sixth, it makes a technical ‘‘Unlawfully possessing a listed’’ by following: change in Appendix A (Statutory Index) striking ‘‘(d)’’ and inserting ‘‘(c)’’. ‘‘ ‘Counterfeit’ refers to an instrument to address the fact that the offense that The Commentary to § 5C1.2 captioned that has been falsely made, had been contained at subsection (f) of ‘‘Application Notes’’ is amended in manufactured, or altered. For example, 42 U.S.C. 3611 is now contained in Note 8 by striking ‘‘(c)(1), (3)’’ and an instrument that has been falsely subsection (c) of that section. inserting ‘‘(f), (i)’’. made or manufactured in its entirety is Part B of the proposed amendment The Commentary to § 5D1.2 captioned ‘counterfeit’, as is a genuine instrument resolves certain technical issues that ‘‘Background’’ is amended by striking that has been falsely altered (such as a have arisen in the Guidelines Manual ‘‘(b)’’ and inserting ‘‘(c)’’. genuine $5 bill that has been altered to with respect to child pornography Appendix A (Statutory Index) is appear to be a genuine $100 bill).’’. offenses. First, the proposed amendment amended in the line referenced to 42 The Commentary to § 2B5.1 captioned makes technical changes in § 2G2.1, U.S.C. 3611(f) by striking ‘‘(f)’’ and ‘‘Application Notes’’ is amended by Statutory Provisions, to address the fact inserting ‘‘(c)’’. striking Note 3 in its entirety and by that only some, not all, offenses under Part B (Technical Issues With Respect redesignating Note 4 as Note 3. 18 U.S.C. 2251 are referenced to § 2G2.1. to Child Pornography Offenses):

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The Commentary to § 2G2.1 captioned Disbursement Center, 14925 Kingsport FOR FURTHER INFORMATION CONTACT: A. ‘‘Statutory Provisions’’ is amended by Road, Fort Worth, TX 76155. Escobar, Office of Disaster Assistance, inserting ‘‘(a)–(c), 2251(d)(1)(B)’’ after FOR FURTHER INFORMATION CONTACT: A. U.S. Small Business Administration, ‘‘2251’’. Escobar, Office of Disaster Assistance, 409 3rd Street, SW., Suite 6050, The Commentary to § 2G2.2 captioned U.S. Small Business Administration, Washington, DC 20416. ‘‘Statutory Provisions’’ is amended by 409 3rd Street, SW., Suite 6050, SUPPLEMENTARY INFORMATION: Notice is inserting ‘‘(a)–(b)’’ after ‘‘2252A’’. Washington, DC 20416. hereby given that as a result of the The Commentary to § 2G2.2 captioned SUPPLEMENTARY INFORMATION: Notice is President’s major disaster declaration on ‘‘Application Notes’’ is amended in hereby given that as a result of the 01/14/2009, Private Non-Profit Note 1 in the last paragraph by inserting Administrator’s EIDL declaration, organizations that provide essential ‘‘(a)–(c), § 2251(d)(1)(B)’’ after ‘‘2251’’. applications for economic injury services of governmental nature may file The Commentary to § 2G2.3 captioned disaster loans may be filed at the disaster loan applications at the address ‘‘Background’’ is amended by striking address listed above or other locally listed above or other locally announced ‘‘twenty’’ and inserting ‘‘thirty’’. announced locations. locations. Section 2G3.1(c)(1) is amended by The following areas have been The following areas have been inserting ‘‘Soliciting,’’ after ‘‘Shipping,’’; determined to be adversely affected by determined to be adversely affected by by striking ‘‘Traffic) or § 2G2.4 the disaster: the disaster: (Possession of Materials Depicting a Primary Counties: Franklin, Greene, Primary Counties: Minor Engaged in Sexually Explicit Hamilton, Montgomery. Bennington, Windham. Conduct), as appropriate.’’ and inserting Contiguous Counties: The Interest Rates are: ‘‘Traffic; Possessing Material Involving Ohio: Butler, Clark, Clermont, the Sexual Exploitation of a Minor).’’. Clinton, Darke, Delaware, Fairfield, Percent Appendix A (Statutory Index) is Fayette, Licking, Madison, Miami, amended by inserting after the line Pickaway, Preble, Union, Warren. Other (Including Non-Profit Orga- referenced to 18 U.S.C. 2251(a),(b) the Indiana: Dearborn, Franklin. nizations) with Credit Available following: Kentucky: Boone, Campbell, Kenton. Elsewhere ...... 4.500 Businesses and Non-Profit Orga- ‘‘18 U.S.C. 2251(c) 2G2.2’’; The Interest Rate is: 4.000. nizations without Credit Avail- in the line referenced to 18 U.S.C. The number assigned to this disaster able Elsewhere ...... 4.000 2251(c)(1)(A) by striking ‘‘(c)’’ and for economic injury is 116380. The States which received an EIDL inserting ‘‘(d)’’; The number assigned to this disaster Declaration # are Ohio, Indiana, in the line referenced to 18 U.S.C. for physical damage is 11634B and for Kentucky. 2251(c)(1)(B) by striking ‘‘(c)’’ and economic injury is 11635B. inserting ‘‘(d)’’; (Catalog of Federal Domestic Assistance (Catalog of Federal Domestic Assistance in the line referenced to 18 U.S.C. Number 59002) Numbers 59002 and 59008) 2252A by inserting ‘‘(a), (b)’’ after Dated: January 16, 2009. ‘‘2252A’’; Sandy K. Baruah, Dated: January 16, 2009. and by inserting before the line Acting Administrator. Herbert L. Mitchell, referenced to 18 U.S.C.2252B the [FR Doc. E9–1710 Filed 1–26–09; 8:45 am] Associate Administrator for Disaster following: Assistance. BILLING CODE 8025–01–P ‘‘18 U.S.C. 2252A(g) 2G2.6’’. [FR Doc. E9–1708 Filed 1–26–09; 8:45 am] [FR Doc. E9–1642 Filed 1–26–09; 8:45 am] BILLING CODE 8025–01–P BILLING CODE 2210–40–P SMALL BUSINESS ADMINISTRATION [Disaster Declaration # 11634 and # 11635] SOCIAL SECURITY ADMINISTRATION Vermont Disaster # VT–00012 SMALL BUSINESS ADMINISTRATION [Docket No. SSA–2009–0001] [Disaster Declaration # 11638] AGENCY: U.S. Small Business Administration. Occupational Information Development Ohio Disaster # OH–00019 Declaration ACTION: Notice. Advisory Panel Meeting of Economic Injury AGENCY: SUMMARY: This is a Notice of the Social Security Administration. AGENCY: U.S. Small Business Presidential declaration of a major ACTION: Notice of Inaugural Meeting; Administration. disaster for Public Assistance Only for Correction notice. ACTION: Notice. the State of Vermont (FEMA—1816— SUMMARY: The Social Security DR), dated 01/14/2009. SUMMARY: This is a notice of an Incident: Severe Winter Storm. Administration published in the Economic Injury Disaster Loan (EIDL) Incident Period: 12/11/2008 through Federal Register of January 21, 2009, a declaration for the State of Ohio, dated 12/18/2008. document announcing the dates and times of the Notice of Inaugural Meeting 01/16/2009. DATES: Effective Date: 01/14/2009. Incident: Category One Hurricane Physical Loan Application Deadline of the Occupational Information Force Winds. Date: 03/16/2009 Development Advisory Panel Meeting. Incident Period: 09/14/2008. Economic Injury (EIDL) Loan This notice serves to correct the Effective Date: 01/16/2009. Application Deadline Date: 10/14/2009 beginning time for the meeting on February 23, 2009. The meeting will EIDL Loan Application Deadline Date: ADDRESSES: Submit completed loan 10/16/2009. applications to: U.S. Small Business begin at 9 a.m. ADDRESSES: Submit completed loan Administration, Processing And DATES: Effective on January 27, 2009. applications to: U.S. Small Business Disbursement Center, 14925 Kingsport FOR FURTHER INFORMATION CONTACT: Administration, Processing and Road, Fort Worth, TX 76155. Debra Tidwell Peters, 410–965–9617.

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SUPPLEMENTARY INFORMATION: The Social basin; (3) adoption of a revised 6. Project Sponsor and Facility: Citrus Security Administration published a Comprehensive Plan for management of Energy (North Branch Susquehanna document in the Federal Register of the Susquehanna Basin’s water River), Washington Township, January 21, 2009, (74 FR 3666), resources; (4) adoption of a final Wyoming County, Pa. Surface water announcing the Inaugural Meeting of rulemaking action regarding gas well withdrawal of up to 0.499 mgd. the Occupational Information development in the Marcellus and Utica 7. Project Sponsor and Facility: Development Advisory Panel Meeting. shale formations; (5) adoption of a Dillsburg Area Authority, Franklin On February 23, 2009, the correct resolution emphasizing the importance Township, York County, Pa. beginning time is 9 a.m. of the basin’s stream gaging network and Groundwater withdrawal of 0.022 mgd urging federal funding for the Debra Tidwell-Peters, from Well 1. Susquehanna Flood Forecast and 8. Project Sponsor and Facility: Designated Federal Officer, Occupational Warning System in the amount of $2.4 Information Development Advisory Panel. Dillsburg Area Authority, Franklin million; (6) approval/ratification of Township, York County, Pa. [FR Doc. E9–1733 Filed 1–26–09; 8:45 am] several grants and contracts related to Groundwater withdrawal of 0.101 mgd BILLING CODE 4191–02–P water resources management; (7) from Well 3. acceptance of the Fiscal Year 2008 9. Project Sponsor and Facility: Annual Independent Audit Report; (8) EXCO-North Coast Energy, Inc. SUSQUEHANNA RIVER BASIN approval of an expenditure of $500,000 (unnamed tributary to Sandy Run), COMMISSION from the Commission’s Water Burnside Township, Centre County, Pa. Management Fund for the completion of Surface water withdrawal of up to 0.300 Notice of Actions Taken at December the Whitney Point Lake Section 1135 4, 2008, Meeting mgd. Project Modification; and (9) approval of 10. Project Sponsor and Facility: AGENCY: Susquehanna River Basin an expenditure of $65,000 for the Fortuna Energy Inc. (Towanda Creek), Commission. replacement of the Commission’s three Franklin Township, Bradford County, ACTION: Notice of Commission actions. main computer servers. The Pa. Surface water withdrawal of up to Commission also heard counsel’s report 0.250 mgd. SUMMARY: At its regular business on legal matters affecting the 11. Project Sponsor and Facility: J–W meeting on December 4, 2008, in Bel Commission. Operating Company (for operations in Air, Maryland, the Commission held a The Commission also convened a Cameron, Clearfield, and Elk Counties, public hearing as part of its regular public hearing and took the following Pa.). Consumptive water use of up to business meeting. At the public hearing, actions: 4.500 mgd from various surface water the Commission: (1) Approved and Public Hearing—Projects Approved sources and the following public water tabled certain water resources projects; 1. Project Sponsor and Facility: supplier: Emporium Water Company. (2) denied a request for extension of an 12. Project Sponsor: J–W Operating emergency certificate issued on October Chesapeake Appalachia, LLC (for operations in Chemung and Tioga Company (Driftwood Branch— 30, 2008; and (3) adopted a revised fee Sinnemahoning Creek), Lumber schedule to take effect on January 1, Counties, N.Y., and Bradford, Sullivan, Susquehanna, Tioga, Wayne, and Township, Cameron County, Pa. Surface 2009. Details concerning these and other water withdrawal of up to 0.245 mgd. matters addressed at the public hearing Wyoming Counties, Pa.). Consumptive water use of up to 7.500 mgd from 13. Project Sponsor: KBK–HR and business meeting are contained in Associates LLC. Project Facility: Honey the Supplementary Information section various surface water sources and the following previously approved public Run Golf Club, Dover Township, York of this notice. County, Pa. Consumptive water use of DATES: December 4, 2008. water suppliers: Towanda Municipal Authority, Aqua Pennsylvania, Inc.— up to 0.382 mgd. ADDRESSES: Susquehanna River Basin Susquehanna Division, Canton Borough 14. Project Sponsor: KBK–HR Commission, 1721 N. Front Street, Associates LLC. Project Facility: Honey Harrisburg, PA 17102–2391. Authority, and Borough of Troy. 2. Project Sponsor and Facility: Chief Run Golf Club, Dover Township, York FOR FURTHER INFORMATION CONTACT: Oil & Gas LLC (for operations in County, Pa. Surface water withdrawal of Richard A. Cairo, General Counsel, Clearfield County, Pa.). Consumptive up to 0.382 mgd from Honey Run. telephone: (717) 238–0423, ext. 306; fax: water use of up to 5.000 mgd from 15. Project Sponsor: KBK–HR (717) 238–2436; e-mail: [email protected]; various surface water sources and the Associates LLC. Project Facility: Honey or Stephanie L. Richardson, Secretary to following public water suppliers: BCI Run Golf Club, Dover Township, York the Commission, telephone: (717) 238– Municipal Authority and Jersey Shore County, Pa. Surface water withdrawal of 0423, ext. 304; fax: (717) 238–2436; e- Joint Water Authority. up to 1.440 mgd from Little Conewago mail: [email protected]. Regular 3. Project Sponsor and Facility: Chief Creek. mail inquiries may be sent to the above Oil & Gas LLC (Clearfield Creek), Boggs 16. Project Sponsor and Facility: New address. Township, Clearfield County, Pa. Oxford Foods, LLC, New Oxford SUPPLEMENTARY INFORMATION: In Surface water withdrawal of up to 2.000 Borough, Adams County, Pa. addition to the public hearing and its mgd. Consumptive water use of up to 0.380 related action items identified below, 4. Project Sponsor and Facility: Chief mgd and groundwater withdrawal of the following items were also presented Oil & Gas LLC (Pine Creek), Cummings 0.035 mgd from Well 1. or acted on at the business meeting: (1) Township, Lycoming County, Pa. 17. Project Sponsor and Facility: Rex A special presentation titled ‘‘Water for Surface water withdrawal of up to 0.099 Energy Corporation (Upper Little Maryland’s Future: What We Must Do mgd. Surveyor Run), Girard Township, Today’’ by Maryland Member Dr. Robert 5. Project Sponsor and Facility: Citrus Clearfield County, Pa. Surface water Summers; (2) a report on the present Energy (for operations in Wyoming withdrawal of up to 0.400 mgd. hydrologic conditions of the basin County, Pa.). Consumptive water use of 18. Project Sponsor and Facility: Rex indicating below normal levels of up to 5.000 mgd from various surface Energy Corporation (Lower Little precipitation and stream flow across the water sources. Surveyor Run), Girard Township,

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Clearfield County, Pa. Surface water operations on the lower Susquehanna SUMMARY: The Susquehanna River Basin withdrawal of up to 0.400 mgd. River, including the addition of a Commission published a document in 19. Project Sponsor: Sunbury second power station and associated the Federal Register of October 1, 2008, Generation LP. Project Facility: Sunbury infrastructure. concerning notice of project review Generation Facility, Monroe Township 4. Project Sponsor and Facility: Ultra actions taken at its September 11, 2008, and Shamokin Dam Borough, Snyder Resources (Elk Run), Gaines Township, meeting. The document contained County, Pa. Consumptive water use of Tioga County, Pa. Application for certain discrepancies in the originally up to 8.000 mgd and surface water surface water withdrawal of up to 0.020 published list. withdrawal of up to 354.000 mgd. mgd. ADDRESSES: Susquehanna River Basin 20. Project Sponsor and Facility: 5. Project Sponsor and Facility: Ultra Commission, 1721 N. Front Street, Turm Oil, Inc. (for operations in Resources (Pine Creek), Pike Township, Harrisburg, PA 17102–2391. Susquehanna County, Pa.). Potter County, Pa. Application for FOR FURTHER INFORMATION CONTACT: Consumptive water use of up to 5.000 surface water withdrawal of up to 0.430 Richard A. Cairo, General Counsel, mgd from various surface water sources mgd. telephone: (717) 238–0423, ext. 306; fax: and the following public water (717) 238–2436; e-mail: [email protected]; Public Hearing—Project Withdrawn suppliers: Dushore Water Authority and or Stephanie L. Richardson, Secretary to Towanda Municipal Authority. 1. Project Sponsor and Facility: the Commission, telephone: (717) 238– 21. Project Sponsor and Facility: EXCO-North Coast Energy, Inc. (for 0423, ext. 304; fax: (717) 238–2436; e- Turm Oil, Inc. (Deer Lick Creek), Rush operations in Centre County, Pa.). mail: [email protected]. Regular Township, Susquehanna County, Pa. Application for consumptive water use mail inquiries may be sent to the above Surface water withdrawal of up to 0.216 of up to 5.000 mgd from various water address. mgd. sources. 22. Project Sponsor and Facility: Correction Turm Oil, Inc. (East Branch Wyalusing Public Hearing—Extension of In the Federal Register of October 1, Creek), Rush Township, Susquehanna Emergency Certificate 2008, in FR Doc. 73–191, on page 57191, County, Pa. Surface water withdrawal of The Commission denied a request for in the first column, under up to 0.216 mgd. an extension of an Emergency SUPPLEMENTARY INFORMATION, correct the 23. Project Sponsor and Facility: Certificate previously issued to the ‘‘Public Hearing—Projects Approved’’ Turm Oil, Inc. (Elk Lake Stream), Rush following project: caption, and on page 57192, in the third Township, Susquehanna County, Pa. CAN DO, Inc., Hazle Township, column, correct the ‘‘Public Hearing— Surface water withdrawal of up to 0.216 Luzerne County, Pa.—Use of Site 14 Projects Tabled’’ caption to read: mgd. 24. Project Sponsor and Facility: Test Well to serve Humbolt Industrial Public Hearing—Projects Approved Turm Oil, Inc. (Main Branch Wyalusing Park. 1. Project Sponsor and Facility: East Creek), Rush Township, Susquehanna Public Hearing—Project Fee Schedule Resources, Inc. (Seeley Creek), Town of County, Pa. Surface water withdrawal of Southport, Chemung County, N.Y. up to 0.216 mgd. The Commission adopted a revised Surface water withdrawal of up to 0.036 25. Project Sponsor and Facility: Ultra fee schedule to take effect on January 1, mgd. Resources (for operations in Tioga and 2009. As mandated by the Commission 2. Project Sponsor and Facility: Potter Counties, Pa.). Consumptive in 2005, the revised schedule Chesapeake Appalachia, LLC (for water use of up to 4.990 mgd from a incorporates 10 percent categorical fee operations in Chemung and Tioga various surface water source. increases and a Consumer Price Index Counties, N.Y., and Bradford, 26. Project Sponsor and Facility: Ultra Adjustment. It also contains new Susquehanna, and Wyoming Counties, Resources (Cowanesque River), provisions for project fees applying to Pa.). Consumptive water use of up to Deerfield Township, Tioga County, Pa. large scale hydroelectric facilities, 2.075 mgd from various surface water Surface water withdrawal of up to 0.217 ‘‘Approvals by Rule’’ issued to gas well sources and the following public water mgd. development projects, and aquatic suppliers: Towanda Municipal surveys performed by SRBC staff in Authority, Aqua Pennsylvania, Inc.— Public Hearing—Projects Tabled connection with project approvals. Susquehanna Division, Canton Borough 1. Project Sponsor and Facility: J–W Authority: Pub. L. 91–575, 84 Stat. 1509 et Authority, Borough of Troy, and Village Operating Company (Abandoned Mine seq., 18 CFR Parts 806, 807, and 808. of Horseheads, N.Y. Pool), Shippen Township, Cameron Dated: January 9, 2009. 3. Project Sponsor and Facility: County, Pa. Application for surface Thomas W. Beauduy, Chesapeake Appalachia, LLC water withdrawal of up to 0.090 mgd. (Susquehanna River), Town of Tioga, Deputy Director. 2. Project Sponsor and Facility: J–W Tioga County, N.Y. Surface water Operating Company (Sterling Run), [FR Doc. E9–1637 Filed 1–26–09; 8:45 am] withdrawal of up to 0.999 mgd. Lumber Township, Cameron County, BILLING CODE 7040–01–P 4. Project Sponsor and Facility: Cabot Pa. Application for surface water Oil & Gas Corporation (for operations in withdrawal of up to 0.026 mgd. Susquehanna and Wyoming Counties, 3. Project Sponsor: PPL Holtwood, SUSQUEHANNA RIVER BASIN Pa.). Consumptive water use of up to LLC. Project Facility: Holtwood COMMISSION 3.575 mgd from various surface water Hydroelectric Station, Martic and Notice of Actions Taken at September sources and the following public water Conestoga Townships, Lancaster 11, 2008, Meeting; Correction suppliers: Tunkhannock Borough County, and Chanceford and Lower Municipal Authority, Pennsylvania Chanceford Townships, York County, AGENCY: Susquehanna River Basin American Water Company—Montrose Pa. Applications for amendment to Commission. System, and Meshoppen Borough existing FERC license (FERC Project No. ACTION: Notice of Commission Actions; Council. 1881) and for redevelopment of the 5. Project Sponsor and Facility: Cabot correction. project with modification of its Oil & Gas Corporation (Susquehanna

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River), Great Bend Borough, 18. Project Sponsor and Facility: water suppliers: Jersey Shore Joint Susquehanna County, Pa. Surface water Pennsylvania General Energy Company, Water Authority, Williamsport withdrawal of up to 0.720 mgd. LLC (East Fork of Sinnemahoning Municipal Water Authority, City of Lock 6. Project Sponsor and Facility: Creek—Horton), East Fork Township, Haven Water Department, Borough of Chesapeake Appalachia, LLC Potter County, Pa. Surface water Bellefonte, Borough of Montoursville, (Susquehanna River), Athens Township, withdrawal of up to 0.008 mgd. Milesburg Water System, and Towanda Bradford County, Pa. Surface water 19. Project Sponsor and Facility: Municipal Authority. withdrawal of up to 0.999 mgd. Chesapeake Appalachia, LLC 29. Project Sponsor and Facility: 7. Project Sponsor and Facility: (Susquehanna River), Mehoopany Range Resources—Appalachia, LLC Chesapeake Appalachia, LLC Township, Wyoming County, Pa. (Lycoming Creek-2), Lewis Township, (Susquehanna River), Oakland Surface water withdrawal of up to 0.999 Lycoming County, Pa. Surface water Township, Susquehanna County, Pa. mgd. withdrawal of up to 0.200 mgd. Surface water withdrawal of up to 0.999 20. Project Sponsor and Facility: 30. Project Sponsor and Facility: mgd. Pennsylvania General Energy Company, Range Resources—Appalachia, LLC 8. Project Sponsor and Facility: Cabot LLC (First Fork of Sinnemahoning (Lycoming Creek-1), Hepburn Oil & Gas Corporation (Susquehanna Creek—Costello), Sylvania Township, Township, Lycoming County, Pa. River), Susquehanna Depot Borough, Potter County, Pa. Surface water Surface water withdrawal of up to 0.200 Susquehanna County, Pa. Surface water withdrawal of up to 0.107 mgd. mgd. withdrawal of up to 0.720 mgd. 21. Project Sponsor and Facility: 31. Project Sponsor and Facility: Chief 9. Project Sponsor and Facility: Pennsylvania General Energy Company, Oil & Gas, LLC (for operations in Fortuna Energy Inc. (Susquehanna LLC (East Fork of Sinnemahoning Lycoming County, Pa.). Consumptive River), Sheshequin Township, Bradford Creek—East Fork), East Fork Township, water use of up to 5.000 mgd from County, Pa. Surface water withdrawal of Potter County, Pa. Surface water various surface water sources and the up to 0.250 mgd. withdrawal of up to 0.025 mgd. following public water suppliers: Jersey 10. Project Sponsor and Facility: East 22. Project Sponsor and Facility: Shore Joint Water Authority, Resources, Inc. (Crooked Creek), Pennsylvania General Energy Company, Williamsport Municipal Water Middlebury Township, Tioga County, LLC (East Fork of Sinnemahoning Authority, Borough of Montoursville, Pa. Surface water withdrawal of up to Creek—Purdy), Wharton Township, and Towanda Municipal Authority. 0.036 mgd. Potter County, Pa. Surface water 32. Project Sponsor and Facility: Chief 11. Project Sponsor and Facility: Chief withdrawal of up to 0.027 mgd. Oil & Gas, LLC (Muncy Creek-2), Penn 23. Project Sponsor and Facility: Oil & Gas, LLC (for operations in Township, Lycoming County, Pa. Cabot Oil & Gas Corporation Bradford County, Pa.). Consumptive use Surface water withdrawal of up to 0.099 (Susquehanna River), Tunkhannock of water of up to 5.000 mgd. mgd. Township, Wyoming County, Pa. 33. Project Sponsor and Facility: Chief 12. Project Sponsor and Facility: Surface water withdrawal of up to 0.720 Oil & Gas, LLC (Larrys Creek), Mifflin Chesapeake Appalachia, LLC mgd. Township, Lycoming County, Pa. (Susquehanna River), Wysox Township, 24. Project Sponsor and Facility: Surface water withdrawal of up to 0.086 Bradford County, Pa. Surface water Pennsylvania General Energy Company, mgd. withdrawal of up to 0.999 mgd. LLC (First Fork of Sinnemahoning 34. Project Sponsor and Facility: Chief 13. Project Sponsor and Facility: Creek—Mahon), Wharton Township, Oil & Gas, LLC (Muncy Creek-1), Picture Cabot Oil & Gas Corporation (Martins Potter County, Pa. Surface water Rocks Borough, Lycoming County, Pa. Creek), Lathrop Township, withdrawal of up to 0.231 mgd. Surface water withdrawal of up to 0.099 Susquehanna County, Pa. Surface water 25. Project Sponsor and Facility: mgd. withdrawal of up to 0.074 mgd. Cabot Oil & Gas Corporation (Bowmans 35. Project Sponsor and Facility: Chief 14. Project Sponsor and Facility: Creek), Eaton Township, Wyoming Oil & Gas, LLC (Loyalsock Creek), Cabot Oil & Gas Corporation County, Pa. Surface water withdrawal of Montoursville Borough, Lycoming (Tunkhannock Creek), Lenox Township, up to 0.290 mgd. County, Pa. Surface water withdrawal of Susquehanna County, Pa. Surface water 26. Project Sponsor and Facility: PEI up to 0.099 mgd. withdrawal of up to 0.250 mgd. Power Corporation, Borough of 36. Project Sponsor and Facility: 15. Project Sponsor and Facility: Archbald, Lackawanna County, Pa. Range Resources—Appalachia, LLC Cabot Oil & Gas Corporation Consumptive water use and surface (West Branch Susquehanna River), (Meshoppen Creek-2), Lemon water withdrawal approval (Docket No. Colebrook Township, Lycoming County, Township, Wyoming County, Pa. 20010406) for addition of up to 0.530 Pa. Surface water withdrawal of up to Surface water withdrawal of up to 0.054 mgd from a public water supplier as a 0.200 mgd. mgd. secondary supply source, and 37. Project Sponsor and Facility: Rex 16. Project Sponsor and Facility: settlement of an outstanding compliance Energy Corporation (for operations in Cabot Oil & Gas Corporation matter. Centre and Clearfield Counties, Pa.). (Meshoppen Creek-1), Lemon 27. Project Sponsor and Facility: Consumptive water use of up to 5.000 Township, Wyoming County, Pa. Neptune Industries, Inc. (Lackawanna mgd from various surface water sources Surface water withdrawal of up to 0.054 River), Borough of Archbald, and the following public water supplier: mgd. Lackawanna County, Pa. Surface water Clearfield Municipal Authority. 17. Project Sponsor and Facility: withdrawal of up to 0.499 mgd. 38. Project Sponsor and Facility: Rex Pennsylvania General Energy Company, 28. Project Sponsor and Facility: Energy Corporation (West Branch LLC (operations in Potter and McKean Range Resources—Appalachia, LLC (for Susquehanna River), Goshen Township, Counties, Pa.). Consumptive water use operations in Bradford, Centre, Clinton, Clearfield County, Pa. Surface water of up to 4.900 mgd from various surface Lycoming, Sullivan, and Tioga withdrawal of up to 2.160 mgd. water sources and the following public Counties, Pa.). Consumptive water use 39. Project Sponsor and Facility: water suppliers: Galeton Borough of up to 5.000 mgd from various surface Range Resources—Appalachia, LLC Authority and Austin Borough Water. water sources and the following public (Beech Creek), Snow Shoe Township,

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Centre County, Pa. Surface water Public Hearing—Projects Tabled program will be approved or withdrawal of up to 0.200 mgd. 1. Project Sponsor and Facility: Chief disapproved on or before July 13, 2009. 40. Project Sponsor and Facility: Rex Oil & Gas, LLC (Sugar Creek), West DATES: Effective Date: Energy Corporation (Moshannon Creek), Burlington Township, Bradford County, The effective date of the FAAs Snow Shoe Township, Centre County, Pa. Application for surface water determination on the Noise Exposure Pa. Surface water withdrawal of up to withdrawal of up to 0.053 mgd. Maps and of the start of its review of the 2.000 mgd. 2. Project Sponsor and Facility: associated Noise Compatibility Program 41. Project Sponsor and Facility: Rex Fortuna Energy Inc. (Sugar Creek), West is January 14, 2009. The public Energy Corporation (Moshannon Creek Burlington Township, Bradford County, comment period ends March 15, 2009. Outfall), Rush Township, Centre Pa. Application for surface water FOR FURTHER INFORMATION CONTACT: Ms. County, Pa. Surface water withdrawal of withdrawal of up to 0.033 mgd. Lindy McDowell, Federal Aviation up to 1.584 mgd. 3. Project Sponsor and Facility: Administration, Orlando Airports 42. Project Sponsor and Facility: Rex Fortuna Energy Inc. (Towanda Creek), District Office, 5950 Hazeltine National Energy Corporation (Moshannon Franklin Township, Bradford County, Drive, Suite 400, Orlando, Florida Creek—Peale), Rush Township, Centre Pa. Application for surface water 32822, 407–812–6331. Comments on the County, Pa. Surface water withdrawal of withdrawal of up to 0.093 mgd. proposed Noise Compatibility Program up to 1.440 mgd. 4. Project Sponsor and Facility: Chief should also be submitted to the above 43. Project Sponsor: Suez Energy Oil & Gas, LLC (Pine Creek), Cummings office. North America, Inc. Project Facility: Township, Lycoming County, Pa. SUPPLEMENTARY INFORMATION: This Viking Energy of Northumberland, Point Application for surface water Notice announces that the FAA finds Township, Northumberland County, Pa. withdrawal of up to 0.099 mgd. that the Noise Exposure Maps submitted Groundwater withdrawal of 0.391 mgd 5. Project Sponsor and Facility: Rex for Destin-Ft. Walton Beach Airport are and consumptive water use of up to Energy Corporation (Upper Little in compliance with applicable 0.387 mgd. Surveyor Run), Girard Township, requirements of Part 150, effective 44. Project Sponsor: New Enterprise Clearfield County, Pa. Application for January 14, 2009. Further, FAA is Stone & Lime Co., Inc. Project Facility: surface water withdrawal of up to 0.400 reviewing a proposed Noise Tyrone Quarry, Warriors Mark mgd. Compatibility Program for that Airport Township, Huntingdon County, and 6. Project Sponsor and Facility: Rex which will be approved or disapproved Snyder Township, Blair County, Pa. Energy Corporation (Lower Little on or before July 13, 2009. This notice Consumptive water use of up to 0.294 Surveyor Run), Girard Township, also announces the availability of this mgd; groundwater withdrawals of 0.095 Clearfield County, Pa. Application for Program for public review and mgd from Well 1, 0.006 mgd from Well surface water withdrawal of up to 0.400 comment. 2, 0.050 mgd from Well 3, 0.010 mgd mgd. Under 49 U.S.C., Section 47503 (the from Well 4, and 0.0003 mgd from Well Authority: Public Law 91–575, 84 Stat. Aviation Safety and Noise Abatement 5; and surface water withdrawals of up 1509 et seq., 18 CFR Parts 806, 807, and 808. Act, (the Act), an airport operator may to 0.200 mgd from Logan Spring Run Dated: January 9, 2009. submit to the FAA Noise Exposure and up to 0.216 mgd from the Little Thomas W. Beauduy, Maps which meet applicable regulations Juanita River. and which depict non-compatible land Deputy Director. 45. Project Sponsor and Facility: uses as of the date of submission of such Papetti’s Hygrade Egg Products, Inc., [FR Doc. E9–1630 Filed 1–26–09; 8:45 am] maps, a description of projected aircraft d.b.a. Michael Foods Egg Products Co., BILLING CODE 7040–01–P operations, and the ways in which such Upper Mahantango Township, operations will affect such maps. The Schuylkill County, Pa. Consumptive Act requires such maps to be developed water use of up to 0.225 mgd; DEPARTMENT OF TRANSPORTATION in consultation with interested and groundwater withdrawals of 0.266 mgd affected parties in the local community, Federal Aviation Administration from Well 1, 0.079 mgd from Well 2, government agencies, and persons using and 0.350 mgd from Well 3; and a total Noise Exposure Map Notice; Receipt of the airport. system withdrawal limit of 0.350 mgd. Noise Compatibility Program and An airport operator who has 46. Project Sponsor: Old Castle Request for Review; Destin-Ft. Walton submitted Noise Exposure Maps that are Materials, Inc. Project Facility: Pennsy Beach Airport Destin, FL found by FAA to be in compliance with Supply, Inc.—Hummelstown Quarry, the requirements of Part 150, South Hanover Township, Dauphin AGENCY: Federal Aviation promulgated pursuant to the Act, may County, Pa. Surface water withdrawal of Administration, DOT. submit a Noise Compatibility Program up to 29.000 mgd. SUMMARY: The Federal Aviation for FAA approval which sets forth the 47. Project Sponsor and Facility: Dart Administration (FAA) announces its measures the operator has taken or Container Corporation of Pennsylvania, determination that the Noise Exposure proposes to take to reduce existing non- Upper Leacock Township, Lancaster Maps submitted by Okaloosa County for compatible uses and prevent the County, Pa. Groundwater withdrawals Destin-Ft. Walton Beach Airport under introduction of additional non- of 0.144 mgd from Well 4 and 0.058 the provisions of 49 U.S.C. 47501 et seq. compatible uses. mgd from Well 12; and a total system (Aviation Safety and Noise Abatement Okaloosa County submitted to the withdrawal limit of 0.367 mgd. Act) and 14 CFR Part 150 are in FAA on September 5, 2008, Noise 48. Project Sponsor: East Berlin Area compliance with applicable Exposure Maps, descriptions and other Joint Authority. Project Facility: requirements. The FAA also announces documentation that were produced Buttercup Farms, Hamilton Township, that it is reviewing a proposed Noise during the Destin-Ft. Walton Beach Adams County, Pa. Groundwater Compatibility Program that was Airport Destin/Ft. Walton Beach withdrawals (30-day averages) of 0.130 submitted for Destin-Ft. Walton Beach Airport, FAR Part 150 Noise mgd from Well TW–1 and 0.029 mgd under Part 150 in conjunction with the Compatibility Study conducted between from Well TW–2. Noise Exposure Map, and that this June 2004 and July 2008. It was

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requested that the FAA review this contours onto the map depicting DEPARTMENT OF TRANSPORTATION material as the Noise Exposure Maps, as properties on the surface rests described in Section 47503 of the Act, exclusively with the airport operator Federal Highway Administration and that the noise mitigation measures, that submitted those maps, or with Environmental Impact Statement: Los to be implemented jointly by the airport those public agencies and planning Angeles County, CA and surrounding communities, be agencies with which consultation is approved as a Noise Compatibility required under Section 47503 of the AGENCY: Federal Highway Program under Section 47504 of the Act. Act. The FAA has relied on the Administration (FHWA), DOT. The FAA has completed its review of certification by the airport operator, ACTION: Notice of intent. the Noise Exposure Maps and related under Section 150.21 of Part 150, that descriptions submitted by Okaloosa SUMMARY: The FHWA, on behalf of the County. The specific documentation the statutorily required consultation has been accomplished. California Department of Transportation determined to constitute the Noise (Caltrans), is issuing this notice to Exposure Maps includes: Table 3–4, The FAA has formally received the advise the public that a draft 2008 FAR Part 150 Forecasts; Table 4– Noise Compatibility Program for Destin- Environmental Impact Statement (EIS) 3, Operational Fleet Mix; Table 4–4, Ft. Walton Beach Airport, also effective will be prepared for the proposed New 2008 Average Daily Operations; Table on January 14, 2009. Preliminary review State Route 138 project in Los Angeles 4–5, 2013 Average Daily Operations; of the submitted material indicates that County, California. Table 4–6, Flight Track Utilization; it conforms to the requirements for the FOR FURTHER INFORMATION CONTACT: Figure 4–2, 2008/2013 Flight Tracks submittal of Noise Compatibility Ronald Kosinski, Deputy District Runway 14; 2008/2013 Flight Tracks Programs, but that further review will be Director, California Department of Runway 32; 2008/2013 Flight Tracks necessary prior to approval or Transportation District 7 Division of Touch-and-Go; Figure 4–5, 2008 Official disapproval of the program. The formal Environmental Planning, 100 South Noise Exposure Map; Figure 4–6, 2013 review period, limited by law to a Main Street, Mail Stop 16A, Los Official Noise Exposure Map; Table 4– maximum of 180 days, will be Angeles, CA 90012. 9, 2008 Noise Exposure in the Airport Environs; Figure 4–7, 2008 Incompatible completed on or before July 13, 2009. SUPPLEMENTARY INFORMATION: Effective Land Uses; Table 4–10, 2013 Noise The FAA’s detailed evaluation will be July 1, 2007, the FHWA assigned, and Exposure in the Airport Environs; and, conducted under the provisions of Part Caltrans assumed, environmental Figure 4–8, 2013 Incompatible Land 150, Section 150.33. The primary responsibilities for this project pursuant Uses. The FAA has determined that considerations in the evaluation process to 23 U.S.C. 327. Caltrans as the these maps for Destin-Ft. Walton Beach are whether the proposed measures may delegated National Policy Act (NEPA) Airport are in compliance with reduce the level of aviation safety, lead agency will prepare a draft Environmental Impact Statement on a applicable requirements. This create an undue burden on interstate or proposal to construct a new freeway/ determination is effective on January 14, foreign commerce, or be reasonably expressway within the City of Palmdale, 2009. FAA’s determination on the consistent with obtaining the goal of airport operator’s Noise Exposure Maps Los Angeles County, California. The reducing existing non-compatible land proposed alignment follows the existing is limited to a finding that the maps uses and preventing the introduction of were developed in accordance with the Avenue P–8 corridor from State Route additional non-compatible land uses. procedures contained in Appendix A of 14 to 100th Street for a distance of 14 CFR Part 150. Such determination Interested persons are invited to approximately 10 miles. This is part of does not constitute approval of the comment on the proposed program with a larger overall plan to construct a new airport operator’s data, information or specific reference to these factors. All freeway/expressway between SR–14 in plans, or a commitment to approve a comments, other than those properly Los Angeles County and I–15 in San Noise Compatibility Program or to fund addressed to local land use authorities, Bernardino County. the implementation of that Program. will be considered by the FAA to the Improvements to this corridor are If questions arise concerning the extent practicable. Copies of the Noise considered necessary to provide for the precise relationship of specific Exposure Maps, the FAA’s evaluation of existing and projected traffic demand properties to noise exposure contours the maps, and the proposed Noise attributed to large-scale growth and depicted on a Noise Exposure Map Compatibility Program are available for increasing developments in the northern portion of Los Angeles County, submitted under Section 47503 of the examination at the following locations: especially in the cities of Palmdale and Act, it should be noted that the FAA is Federal Aviation Administration, not involved in any way in determining Lancaster. In addition, insufficient Orlando Airports District Office, 5950 the relative locations of specific regional access both to and from the Hazeltine National Drive, Suite 400, properties with regard to the depicted Palmdale Airport constrains the noise exposure contours, or in Orlando, Florida 32822. likelihood of future airport expansion. interpreting the Noise Exposure Maps to Questions may be directed to the The Southern California Association of resolve questions concerning, for individual named above under the Governments (SCAG) has identified the example, which properties should be heading, FOR FURTHER INFORMATION Palmdale Airport as the key component covered by the provisions of Section CONTACT. in the regional airport system and states 47506 of the Act. These functions are that by 2025, the airport will play an Issued in Orlando, Florida, January 14, inseparable from the ultimate land use 2009. important role in servicing the Northern control and planning responsibilities of Los Angeles Region as this area local government. These local W. Dean Stringer, continues to experience growth. responsibilities are not changed in any Manager, Orlando Airports District Office. Alternatives under consideration way under Part 150 or through FAA’s [FR Doc. E9–1531 Filed 1–26–09; 8:45 am] include (1) ‘‘No-Build’’; (2) Constructing review of Noise Exposure Maps. BILLING CODE 4910–13–M a new 4-lane east-west State Route 138 Therefore, the responsibility for the (SR–138) from State Route 14 (SR–14) to detailed overlaying of noise exposure 50th Street, and then transitioning to a

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4-lane expressway up to 100th Street; Comments or questions concerning this program, Treasury would like to track and (3) Constructing a freeway/ proposed action and the draft EIS how the capital is being used, and expressway similar in scope to should be directed to Caltrans at the whether these capital injections are Alternative 2 except for the portion address provided above. having the desired effect of ensuring between 15th Street and 70th Street (Catalog of Federal Domestic Assistance liquidity within the banking system and where the alignment shifts south by Program Number 20.205, Highway Planning thereby increasing lending activity. The approximately 2190 feet. For this and Construction. The regulations Treasury will be conducting evaluations segment the centerline alignment would implementing Executive Order 12372 using quarterly Call Report data follow the original easement granted by regarding intergovernmental consultation on supplied by these financial institutions Los Angeles World Airport (LAWA). Federal programs and activities apply to this to their primary regulator. However, in Incorporated into and studied with the program.) order to have a more frequent and various build alternatives will be design Issued on: January 21, 2009. timely snapshot of the current lending variations of grade and alignment. Cindy Vigue, environment, Treasury is requesting the It is anticipated that this new Director, State Programs, Federal Highway ability to conduct a monthly survey of freeway/expressway would be Administration, Sacramento, California. the 20 largest institutions by loans constructed on six to eight feet of fill [FR Doc. E9–1685 Filed 1–26–09; 8:45 am] outstanding in order to supplement the material. In areas prone to flooding, the BILLING CODE 4910–22–P quarterly analysis. fill material (vertical profiles) would Respondents: Businesses and other increase to avoid flooding problems. for-profit institutions. Culverts, ditches, and viaducts would DEPARTMENT OF THE TREASURY Estimated Total Reporting Burden: also be constructed when necessary to 12,000 hours. avoid floodwaters and washes. For Submission for OMB Review; Clearance Officer: Suzanne Tosini, alternatives 2 and 3, viaducts are Comment Request Treasury Office of Financial Stability, proposed from approximately Division 1801 L Street, NW., Washington, DC Street to 10th Street and at Little Rock January 16, 2009. 20220, (202) 927–9627. Wash. Alternatives 2 and 3 also include The Department of the Treasury has a proposal to close the existing partial submitted the following public Robert Dahl, interchange at SR–14 and Rancho Vista information collection requirement(s) to Treasury PRA Clearance Officer. Blvd. and modifying the existing partial OMB for emergency review, and it has [FR Doc. E9–1628 Filed 1–26–09; 8:45 am] interchange at SR–14 and 10th Street been approved under the Paperwork BILLING CODE 4810–35–P West to a full interchange. Reduction Act of 1995, Public Law 104– It is anticipated that the proposed 13. To allow interested persons to project may require the following comment on this information collection, DEPARTMENT OF THE TREASURY federal approvals and permits: a the Department is publishing this notice Biological Opinion from the United and plans to submit a request for a Submission for OMB Review; States Fish and Wildlife Service, three-year extension of OMB’s approval. Comment Request approval of a PM10 and PM2.5 Hot Spot Copies of the submission(s) may be January 16, 2009. Analysis by the Conformity Working obtained by calling the Treasury Bureau Group for transportation conformity Clearance Officer listed. Comments The Department of the Treasury will determination under the Clean Air Act, regarding this information collection submit the following public information Section 401, 402 and 404 permits under should be addressed to the OMB collection requirement(s) to OMB for the Clean Water Act, and a Farmland reviewer listed and to the Treasury review and clearance under the Conversion Impact Rating under the Department Clearance Officer, Paperwork Reduction Act of 1995, Farmland Protection Policy Act. Department of the Treasury, Room Public Law 104–13 on or after the date Letters describing the proposed action 11020, 1750 Pennsylvania Avenue, of publication of this notice. Copies of and soliciting comments will be sent to NW., Washington, DC 20220. the submission(s) may be obtained by calling the Treasury Bureau Clearance appropriate Federal, State and local DATES: Written comments should be Officer listed. Comments regarding this agencies, Participating Agencies, Tribal received on or before March 30, 2009 to information collection should be governments, and to private be assured of consideration. organizations and citizens who have addressed to the OMB reviewer listed previously expressed or are known to Office of Financial Stability and to the Treasury Department have an interest in this proposal. NEPA OMB Number: 1505–0210. Clearance Officer, Department of the requires the lead agency to conduct an Type of Review: Extension. Treasury, Room 11000, 1750 early and open process for determining Title: Troubled Assets Relief Program Pennsylvania Avenue, NW., the scope of issues to be addressed and (TARP) Capital Purchase Program (CPP) Washington, DC 20220. for identifying the significant issues Monthly Survey. DATES: Written comments should be related to a proposed action. In Description: Authorized under the received on or before February 26, 2009 compliance with NEPA, a formal Emergency Economic Stabilization Act to be assured of consideration. scoping meeting will be held in the City (EESA) of 2008 (Pub. L. 110–343), the Alcohol and Tobacco Tax and Trade of Palmdale on February 10, 2009 at the Department of the Treasury has Bureau (TTB) Palmdale Cultural Center, located at implemented several aspects of the 38350 N. Sierra Highway, Palmdale, CA Troubled Asset Relief Program. Among OMB Number: 1513–0026. 93550. Public notice will be given of the these components is a voluntary Capital Type of Review: Revision. time and place of the meeting. Purchase Program (CPP) under which Form: TTB F 5620.7. To ensure that the full range of issues the Department may purchase Title: Claim for Drawback of Tax on related to this proposed action are qualifying capital in U.S. banking Tobacco Products, Cigarette Papers, and addressed and all significant issues organizations. The Treasury invested Cigarette Tubes. identified, comments and suggestions capital through this program in over 250 Description: TTB F 5620.7 documents are invited from all interested parties. financial institutions. As part of this taxpaid tobacco products, cigarette

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papers, and cigarette tubes that were Description: The Federal Alcohol Executive Office Building, Washington, exported to a foreign country, Puerto Administration Act requires the labeling DC 20503. Rico, or Virgin Islands. This form is of alcohol beverages and designates the Celina Elphage, used by taxpayers to claim drawback for Treasury Department to oversee tax paid on exported products. compliance with regulations. This form Treasury PRA Clearance Officer. Respondents: Businesses or other for- is completed by the regulated industry [FR Doc. E9–1632 Filed 1–26–09; 8:45 am] profits. members and submitted to TTB as an BILLING CODE 4810–31–P Estimated Total Burden Hours: 144 application to label their products. TTB hours. oversees label applications to prevent OMB Number: 1513–0042. consumer deception and to deter DEPARTMENT OF THE TREASURY Type of Review: Revision. falsification of unfair advertising Form: TTB F 5110.30. practices on alcohol beverages. United States Mint Title: Drawback on Distilled Spirits Respondents: Businesses or other for- Exported. Notification of United States Mint profits. Description: TTB F 5110.30 is used by Silver Eagle Bullion Coin Premium persons who export distilled spirits and Estimated Total Burden Hours: 67,265 Increase wish to claim a drawback of taxes hours. ACTION: Notification of United States already paid in the United States (U.S.). OMB Number: 1513–0002. The form describes the claimant, spirits Mint Silver Eagle Bullion Coin Premium for tax purposes, amount of tax to be Type of Review: Extension. Increase. refunded, and a certification by the U.S. Form: TTB F 5000.9. SUMMARY: The United States Mint is Government agent attesting to Title: Personnel Questionnaire— increasing the premium charged to exportation. Alcohol and Tobacco Products Authorized Purchasers for American Respondents: Businesses or other for- Eagle Silver Bullion Coins, a program profits. Description: The information listed on Estimated Total Burden Hours: 10,000 TTB F 5000.9, Personnel authorized under 31 U.S.C. 5112(e). hours. Questionnaire—Alcohol and Tobacco Because of the recent price increase Products, enables TTB to determine for the premium for raw materials silver, OMB Number: 1513–0035. the United States Mint will increase the Type of Review: Extension. whether or not an applicant for an Form: TTB F 5220.3. alcohol or tobacco permit meets the premium charged to Authorized Title: Inventory—Export Warehouse minimum qualifications. The form Purchasers for American Eagle Silver Proprietor. identifies the individual, residence, Bullion Coins, from $1.40 to $1.50 per Description: TTB F 5220.3 is used by business background, financial sources coin, for all orders accepted on or after export warehouse proprietors to record for the business and criminal record. February 9, 2009. inventories that are required by law and Respondents: Businesses or other for- FOR FURTHER INFORMATION CONTACT: B.B. regulations. profits. Craig, Associate Director for Sales and Respondents: Businesses or other for- Estimated Total Burden Hours: 10,000 Marketing; United States Mint; 801 profits. hours. Ninth Street, NW.; Washington, DC Estimated Total Burden Hours: 50 20220; or call 202–354–7500. Clearance Officer: Frank Foote (202) hours. Authority: 31 U.S.C. 5112(e)–(f) & 9701. OMB Number: 1513–0020. 927–9347, Alcohol and Tobacco Tax Dated: January 22, 2009. Type of Review: Revision. and Trade Bureau, Room 200 East, 1310 Form: TTB F 5100.31. G. Street, NW., Washington, DC 20005. Edmund C. Moy, Title: Application for and OMB Reviewer: Alexander T. Hunt Director, United States Mint Certification/Exemption of Label/Bottle (202) 395–7316, Office of Management [FR Doc. E9–1684 Filed 1–26–09; 8:45 am] Approval. and Budget, Room 10235, New BILLING CODE 4810–37–P

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Part II

Department of Housing and Urban Development 24 CFR Parts 5, 92, and 908 Refinement of Income and Rent Determination Requirements in Public and Assisted Housing Programs; Final Rule

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DEPARTMENT OF HOUSING AND and 1437f), section 202 of the Housing and project-based rental assistance URBAN DEVELOPMENT Act of 1959 (12 U.S.C. 1701q), sections programs. 221(d)(3), 221(d)(5), and 236 of the For more detail on the proposed 24 CFR Parts 5, 92, and 908 National Housing Act (12 U.S.C. revisions to HUD’s public and assisted [Docket No. FR–4998–F–02] 1715l(d) and 1715z–1), section 811 of housing program regulations, please see the Cranston-Gonzalez National the preamble of the June 19, 2007, RIN 2501–AD16 Affordable Housing Act (42 U.S.C. proposed rule. 8013), and section 101 of the Housing Refinement of Income and Rent and Urban Development Act of 1965 (12 III. This Final Rule; Changes to the June Determination Requirements in Public U.S.C. 1701s) authorize HUD to provide 19, 2007, Proposed Rule and Assisted Housing Programs; Final financial assistance in the form of rent In response to public comments, Rule subsidies for participants in HUD’s discussed in section IV of this preamble, AGENCY: Office of the Secretary, HUD. public and assisted housing programs. and following further consideration of ACTION: Final rule. The regulations implementing this several aspects of the proposed rule, authority are located in parts 5, 236, and HUD has made certain changes at this SUMMARY: This final rule revises HUD’s 891 of Title 24 of the Code of Federal final rule stage. This section of the public and assisted housing program Regulations. preamble highlights some of the more regulations to implement the upfront As part of the procedures for significant changes. income verification (UIV) process and to determining proper rent subsidies, 1. Social Security Numbers of require the use of HUD’s Enterprise PHAs and O/As must conduct income participants. The final rule provides Income Verification (EIV) system by verifications for applicants and that each participant whose initial public housing agencies (PHAs), and participants in covered HUD programs. determination of eligibility was before multifamily housing owners and As a condition for obtaining financial the effective date of the final rule must management agents (O/As), when assistance, HUD requires the disclosure submit their Social Security Number at verifying the employment and income and verification of Social Security the next interim or regularly scheduled of program participants at the time of all Numbers, Employer Identification reexamination or recertification. Numbers, and citizenship or eligible reexaminations or recertifications. This 2. Social Security Numbers of new immigration status. With few final rule will ensure that deficiencies household members. The final rule exceptions, HUD cannot make financial in public and assisted housing rental provides that if the participant’s assistance available to applicants and determinations are identified and cured. household adds a new member, participants who do not have eligible This final rule is consistent with HUD’s including a child or children, the status with respect to citizenship or who comprehensive strategy under the participant must submit the new have noncitizen immigration status. Rental Housing Integrity Improvement member’s Social Security Number at the However, temporary deferrals of Project (RHIIP) initiative to reduce the time of the request for assistance or at number and dollar amount of errors in financial assistance termination may be allowable in limited circumstances. the time of processing the interim HUD’s rental assistance programs. This reexamination/recertification of family final rule follows publication of a June In addition to these eligibility requirements, HUD requires the composition. 19, 2007, proposed rule, and makes 3. Waiting list position retained certain changes at this final rule stage in determination of annual and adjusted income of applicants and participants despite failure to provide Social response to public comment and further who apply for or receive assistance in Security Number. The final rule has consideration of certain issues by HUD. the public and assisted housing been revised to allow applicants who DATES: Effective Date: March 30, 2009. programs. In part, ‘‘annual income’’ cannot provide Social Security Numbers FOR FURTHER INFORMATION CONTACT: For means all income amounts that a family for all family members to retain their Office of Public and Indian Housing anticipates to receive in the 12-month place on the waiting list for the programs, contact Nicole Faison, period following admission or a program; however, all members of the Director of the Office of Public Housing participant’s reexamination or household must provide appropriate Programs, Department of Housing and recertification effective date. documentation of his or her Social Urban Development, 451 Seventh Street, Furthermore, PHAs and O/As are Security Number before the household SW., Room 4226, Washington, DC required to electronically submit family is admitted into the program. The final 20410, telephone number 202–708– characteristics data to HUD through rule removes the proposed rule language 0744. For Office of Housing Programs, certain forms. permitting the applicant to participate contact Gail Williamson, Director of the in the program, provided it submits to Housing Assistance Policy Division, II. The June 19, 2007, Proposed Rule the processing entity appropriate Department of Housing and Urban On June 19, 2007, at 72 FR 33844, documentation within 60 days from the Development, 451 Seventh Street, SW., HUD published for public comment a date of admission into the program. Room 6138, Washington, DC 20410, proposed rule to revise HUD’s public HUD recognizes, however, that telephone number 202–402–2473. and assisted housing program homeless persons face additional (These are not toll-free numbers.) regulations, by requiring PHAs and challenges in obtaining appropriate Persons with hearing or speech O/As to conduct UIV of participants in documentation of their Social Security impairments may access these numbers assistance programs through the use of Number. Thus, in this final rule, HUD through TTY by calling the toll-free HUD’s EIV system. The purpose of the has created an exception for applicants Federal Information Relay Service at proposed regulatory amendments was to receiving assistance under the section 8 800–877–8339. address HUD’s priority of reducing Moderate Rehabilitation Single Room SUPPLEMENTARY INFORMATION: errors, including overpayment of Occupancy Program for Homeless subsidy to PHAs and O/As, caused by Individuals. Such applicants have 90 I. Background incorrect income determinations and days after admission into the program to Sections 6 and 8 of the United States rent calculations in HUD’s public provide appropriate documentation, Housing Act of 1937 (42 U.S.C. 1437d housing program, and in tenant-based with discretion given to the processing

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entity to extend this period for an affordable housing advocacy implement two sets of potentially additional 90 days. associations; and immigration policy conflicting changes within a short time 4. Removal of pro-rata rental groups. frame. assistance provisions. The proposal to The following provides a summary of HUD Response: The purpose of this prorate rental assistance for family the significant issues raised by the rulemaking is to strengthen income and members who do not have Social public commenters on the June 19, rent integrity, thereby reducing Security Numbers was not adopted by 2007, proposed rule, and HUD’s overpayments. To delay issuance of the the final rule. response to those issues. final rule would delay significant 5. Required use of HUD’s EIV system. A. General Comments reductions in the level of improper The final rule requires PHAs and O/As payments within HUD’s rental to implement and use HUD’s EIV system Comment: Three commenters, assistance programs. for verifying income of current although generally in support of HUD’s participants only. For multifamily goal of reducing errors in the calculation B. Comments Specific to Proposed housing O/As, implementation of the of rental subsidy, wrote that the Amendments to § 5.216 use of EIV will commence 6 months proposed rule would result in increased Comment: Two commenters after the effective date of this final rule administrative burdens and questioned HUD’s authority under to allow them additional time to become requirements on PHAs and O/As. section 165 of the Housing and as familiar with using the EIV system as Examples of increased administrative Community Development Act of 1987 their PHA counterparts and to prepare burdens include: Changes in software, (42 U.S.C. 3543) to deny housing for the full implementation of EIV. The model leases, and training; increases in assistance to an otherwise eligible public may view the System of Records document collection responsibilities by individual or household because the notice and Privacy Impact Assessment PHAs, individuals, and households; and individual has not been assigned a for the EIV system at http:// extensive revisions to current operating Social Security Number. The www.hud.gov/offices/cio/privacy/ procedures. commenters also wrote that the changes documents/fed_reg_sornotice_eiv.pdf HUD Response: HUD is sympathetic to § 5.216 in the proposed rule to concerns regarding the administrative and http://www.hud.gov/offices/cio/ contradict HUD’s previous burdens imposed by its regulations, and privacy/pia/eiv.pdf, respectively. interpretation of 42 U.S.C. 3543, in strives to minimize such burdens in the 6. Required verification of U.S. which HUD required the disclosure only development of new regulatory policy. citizenship or nationality. The final rule of assigned Social Security Numbers. HUD does not agree with the requires that the responsible entity HUD Response: HUD has not revised commenters that the regulatory changes obtain verification of the signed the rule in response to these comments. will increase administrative burden. declaration of U.S. Citizenship or U.S. HUD has determined that the legal Rather, the final rule will, in many nationality. authority exists to deny housing instances, reduce the administrative 7. Discretion to use either actual past assistance to individuals and income or projected future income. The requirements for PHAs and O/As. For example, the income verification households who have failed to disclose final rule gives PHAs and O/As his or her Social Security Number. HUD discretion to use either actual past processes will be reduced with the use of the EIV system. PHAs and O/As in believes this regulatory change is income or projected future income for essential to assuring the financial purposes of calculating annual income. many instances will not be required to obtain written verification of integrity of its rental assistance 8. Calculation of annual income programs. under the HOME program. The final employment, wages, unemployment compensation, and Social Security Typically, individuals who are U.S. rule requires participating jurisdictions citizens or who are in this country in the HOME Investment Partnerships benefits from third-party income sources, so long as the PHA or O/A legally possess a Social Security Act Program (HOME Program) to Number. Based on HUD’s analysis of determine the time period for obtains and maintains documentation of EIV system consultation/usage. PHAs participant data in its public and Indian calculating a family’s annual income in housing (PIH) programs, there are accordance with § 5.609. However, and O/As may accept tenant-provided documentation, and this documentation 290,043 individuals who have invalid participating jurisdictions may continue 1 will meet HUD’s requirement for Social Security Numbers and 54,612 to use one of the three definitions of individuals who have not disclosed a ‘‘annual income’’ permitted by obtaining third-party verification when supplemented by the EIV income report Social Security Number. Thus, 344,655 § 92.203(b). individuals out of a total of 7,570,271 9. Other technical changes. In and/or, for PHAs, the EIV individual individuals (nationwide), or 5 percent of addition to the changes described above, control number, in the tenant file. individuals, may not have disclosed an HUD has taken the opportunity afforded Comment: Two commenters urged accurate and complete Social Security by the final rule to make other HUD to delay development of the final Number. To prevent fraud and abuse nonsubstantive, technical, changes to rule until the future of the section 8 within HUD rental assistance programs, the regulatory language for purposes of Voucher Reform Act (SEVRA, H.R. HUD is seeking to terminate assistance clarity and organization. 1851) in Congress is clear. SEVRA would make several major policy and to those individuals who have not IV. Discussion of Public Comments procedural changes to HUD’s housing disclosed a valid Social Security Received on the June 19, 2007, assistance programs. The commenters Number. Proposed Rule suggested that HUD consider holding off 1 The Social Security Administration (SSA) has The public comment period for the on rulemaking until it is clear what will determined that 38,269 of these individuals have an June 19, 2007, proposed rule closed on happen legislatively, or that HUD limit invalid Social Security Number (SSN). Some of August 20, 2007. HUD received 34 the changes in the regulation to the bare these errors may be attributed to PHA data entry public comments. HUD received public minimum of what it believes is errors. Through its internal HUD pre-screening process, HUD has determined that the PHA- comments from a variety of sources, necessary, in order to minimize the reported SSN for the remaining 251,774 individuals including: Individuals; PHAs; national disruption and costs that would is invalid because the reported number does not PHA and redevelopment organizations; otherwise result from having to meet SSA standards as a valid SSN.

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Based on HUD’s analysis of Until the family members have been housing assistance to applicants, the participant data in its Office of Housing determined to have eligible status (i.e., commenters expressed concern that the programs, there are 29,074 individuals their applications are no longer final rule would exclude such mixed out of a total 2,186,268 individuals pending), they are not authorized under families from housing assistance nationwide who have invalid Social the regulations to receive rental programs, even using a prorated Security Numbers (the Social Security assistance. Such individuals may be assistance structure. Number for 1,542 of these individuals is eligible for a temporary deferral of HUD Response: The final rule has invalid because the reported number termination of assistance—i.e., been revised to allow applicants who does not meet the standards of the temporary deferral of eviction. Proration cannot provide Social Security Numbers Social Security Administration (SSA) as of rental assistance, however, is not an for all family members to be admitted to a valid Social Security Number, and the option if the family member(s) do/does the waiting list; however, the head of remaining 27,532 are individuals who not have eligible status, since there household must disclose his or her have not disclosed a Social Security would be no assistance to prorate. Social Security Number. In addition, all Number). Thus, 1.3 percent of Comment: Three commenters urged members of the household must individuals may not have an accurate HUD to permit a phase-in period for the disclose his or her Social Security and complete Social Security Number. required disclosure and verification of Number before the household is To prevent fraud and abuse within Social Security Numbers, especially for admitted to assisted housing. HUD’s multifamily rental assistance children under 6 years of age who do Comment: Four commenters wrote programs, HUD is seeking to terminate not have Social Security Numbers or that the language concerning proration assistance to those individuals who cards. One commenter suggested a 2- of assistance in § 5.218 and the interplay have not disclosed a valid Social year implementation period, in order to between the assistance provisions in Security Number. It should be noted provide for adequate notification of § 5.216 and § 5.218 was confusing. For that HUD’s use of Social Security participants. example, proposed § 5.216 would Numbers is for the purpose of ensuring HUD Response: Based on HUD’s require the disclosure of Social Security that limited federal resources serve as analysis of participant data, there are a Numbers and verification and many eligible individuals and families small number of children under the age documentation for all household as possible. As previously publicized in of 6 without a Social Security Number. members. However, proposed § 5.218 its Federal Register notices, HUD has The proposed rule provided for a phase- would permit ‘‘mixed participant implemented appropriate privacy in period of not more than one year. households’’ to receive prorated housing safeguards to protect each Social Upon the effective date of the final rule, assistance when the ineligible person is Security Number collected and utilized PHAs and O/As must notify the affected residing in the unit. for identity and income-matching households of this policy. As of August HUD Response: HUD agrees with this purposes. The public should be assured 21, 2008, there are approximately comment, and has revised § 5.218 to of HUD’s commitment to safeguarding 62,246 individuals under the age of 6 remove references to proration of individuals’ private information. who would be impacted by the final assistance, and references to mixed Comment: One commenter wrote that rule. In the Office of Housing’s families. HUD’s proposal to prorate assistance for programs, as of September 9, 2008, there Comment: One commenter agreed that households in which one or more are 21,083 individuals under the age of proration of assistance can be members do not have an assigned Social 6 who will now be required to have a appropriate where some, but not all, Security Number is at cross-purposes Social Security Number as a result of household members provide Social with current statutory (42 U.S.C. 1436a) the final rule. Based on the minimal Security Numbers with appropriate and regulatory (24 CFR 5.518(b)) amount of time it takes to apply for and documentation and verification. authorities that permit a temporary receive a Social Security Number and However, the commenter also suggested deferral of full assistance to households card, it is in the best interest of HUD to that PHAs and owners should inquire who have a refugee or asylum limit the phase-in period to no more into whether there may be extenuating application pending final adjudication. than one year. circumstances that warrant other, more HUD Response: As noted above in Comment: One commenter suggested appropriate, relief. this preamble, HUD has, upon that, if applicants for housing assistance HUD Response: The final rule reconsideration, decided not to make must disclose their Social Security provides ample time for affected parties final the provisions of the proposed rule Number at the time of application, the to disclose and submit adequate regarding the proration of assistance same procedure should apply to new documentation of his or her SSN, and based upon failure to submit a Social household members seeking to become references to proration have been Security Number. participants, rather than forcing them to removed. HUD must comply with the wait until the next interim or regularly Comment: One commenter suggested provisions of 42 U.S.C. 1436a, which scheduled examination. that the final rule should more clearly provide restrictions on use of assisted HUD Response: HUD agrees with this give PHAs the right to deny housing by non-resident aliens. Eligible comment, and has incorporated this participation in the assisted housing for financial assistance under this suggestion into the final rule. programs unless and until all Social statute are U.S. residents who are Security Numbers have been submitted refugees (or aliens who are lawfully C. Comments Specific to Proposed and documented for each household present in this country pursuant to Amendments to § 5.218 member. admission under section 207 of the Comment: Four commenters raised HUD Response: HUD has not revised Immigration and Nationality Act (8 the issue about the effect of proposed the rule in response to these comments. U.S.C. 1157)), and aliens who are revisions to § 5.218 on ‘‘mixed The change suggested by the commenter granted asylum under section 208 of families,’’ defined as those households might have the unintended consequence this statute (8 U.S.C. 1158). Aliens in that have a member who is unable to of creating vacancies or homelessness as these groups are covered under 24 CFR obtain documentation of a Social a result of current participants not 5.500. These individuals would have Security Number. Because proposed having a Social Security Number. The Social Security Numbers. § 5.218 does not allow for proration of intent of the final rule is to notify

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affected families and require a specified portions of the data available in the EIV with using the National Directory of time frame to submit the Social Security system to be made readily accessible to New Hires (NDNH) data, which has Numbers. multifamily property owners and been available to O/As only since contract agents who administer HUD’s January 2008. D. Comments Specific to Proposed multifamily housing programs. The Amendments to § 5.233 E. Comments Specific to Proposed commenter noted that, although HUD Amendments to § 5.508 Comment: Many commenters and PHA representatives may have expressed concerns over the proposed direct access to wage, employment, and Comment: One commenter suggested mandated use of upfront income Social Security income data, such that section 8 housing assistance be verification techniques, either through access by multifamily owners or agents available only to U.S. citizens and legal use of HUD systems (such as the EIV should be granted only after notice-and- immigrants. The commenter also system) or by implementing direct comment rulemaking. suggested that if applicants for housing computer matching agreements with a HUD Response: HUD has not revised assistance cannot provide the required federal, state, or local government the rule in response to this comment. documentation, they should be denied agency or a private agency. The Sections 453(j)(7)(E)(iv)(I) and (II) of the assistance immediately whether or not commenters specifically noted current Social Security Act (42 U.S.C. chapter 7) they have legal family residing in this problems with the EIV system, such as: authorize HUD to disclose information country. The significant lag time in the provision from the computer-matching program to HUD Response: The regulations at 24 of income data, especially for new a private owner, a management agent, CFR part 5, subpart E, implement the applicants; a restriction on the use of and a contract administrator after requirements of section 214 of the income data older than 12 months; and appropriate safeguards have been put in Housing and Community Development the inability to verify certain types of place. Act of 1980 (42 U.S.C. 1436a(a)). Section income through EIV, including asset Comment: One commenter expressed 214(a) provides that notwithstanding information, self-employment income, concern about the ability to share tenant any other applicable provision of law, and other government assistance. The or participant EIV data with affected the Secretary may not make financial commenters wrote that HUD should tenants or participants, even when an assistance available for any alien unless perfect the EIV system, including adverse action is being taken against the that alien is a resident of the United addressing the aforementioned tenant or participant based on the EIV States and one of seven categories of problems, before mandating its use. data. The commenter suggests that HUD eligible aliens. Pursuant to section HUD Response: HUD has taken steps add the following language to § 5.233, 214(b)(1), ‘‘financial assistance’’ to enhance the performance of its EIV which is currently found in HUD includes ‘‘assistance made available system. Improvement of the EIV system Handbook 4350.3, REV–1, CHG–2: ‘‘The pursuant to the United States Housing is an ongoing process, and HUD applicant’s or tenant’s file should be Act of 1937.’’ Section 214(b)(2) provides welcomes comments and suggestions available for review by the applicant or that: from PHAs and O/As on possible future tenant upon request or by a third party If the eligibility for financial assistance of changes to the system. As noted above who provides signed authorization for at least one member of a family has been in this preamble, the final rule requires access from the applicant or tenant.’’ affirmatively established under the program use of the EIV system for verifying HUD Response: HUD has not revised of financial assistance and under this section, income sources maintained in the EIV the rule in response to this comment. In and the eligibility of one or more family system of current participants only. The accordance with the Federal Privacy Act members has not been affirmatively use of the EIV system will be required (5 U.S.C. 552a), including HUD’s established under this section, any financial assistance made available to that family by to ensure that participants have regulations implementing the Federal the applicable Secretary shall be prorated, disclosed all income sources that are Privacy Act at 24 CFR part 16, and 24 based on the number of individuals in the verifiable through HUD computer- CFR 5.236(b)(3)(ii), the PHA and O/A family for whom eligibility has been matching programs. are authorized to: (1) Provide the tenant affirmatively established under the program Comment: Two commenters wrote with information obtained from a of financial assistance and under this section, that mandating UIV use would be cost- computer-matching program; and (2) as compared with the total number of prohibitive. One commenter wrote that verify such information with the tenant. individuals who are members of the family. small PHAs will not have the Comment: Three commenters A ‘‘mixed family’’ is defined under the administrative funds necessary to pay discussed the proposed language in regulations (24 CFR 5.504), to mean a for computer-matching agreements with § 5.233(b) involving penalties, including family whose members include those other agencies. One commenter sanctions, for noncompliance with the with citizenship or eligible immigration requested that § 5.233 not be applied to mandated use of UIV techniques. The status, and those without citizenship or programs administered or sponsored by commenters expressed concern about eligible immigration status. nonprofit housing agencies. By what the commenters perceived to be Comment: Three commenters wrote requiring the use of a particular vendor open-ended or undefined penalties for that the requirements for proof of or software, HUD would be increasing noncompliance. The commenters wrote citizenship are extremely burdensome costs for small nonprofit housing that safe harbor provisions, including a to residents already participating in the providers, and rents are not sufficient to reasonable implementation period, program (particularly those who may be support these additional costs. should be included in the final rule. elderly or disabled, have limited English HUD Response: HUD is sympathetic HUD Response: HUD has not revised proficiency, or who are victims of to the cost concerns raised by the the rule in response to these comments. domestic violence, dating violence, commenters and has revised the rule to Ninety-eight percent of all active PHAs stalking, or sexual assault) and to PHAs address this issue. Specifically, the final already have access to EIV. The final and owners who must verify such rule requires PHAs and O/As to use rule provides for a 6-month transition citizenship status. Two commenters HUD’s EIV system, which HUD provides period before use of the EIV system suggested that, by requiring proof of to program administrators at no cost. becomes mandatory for multifamily citizenship, HUD is taking away the Comment: One commenter suggested housing. This transition period will PHAs’ discretion in establishing that there is no statutory authority for allow for O/As to become more familiar program standards.

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HUD Response: Verification of HUD Response: HUD has not revised level). PHAs and O/As may use actual citizenship status is statutorily required. the rule in response to these comments. past annual income from EIV, so long as Further, the majority of participants and As noted in the response to the the tenant does not dispute the income applicants already have the necessary preceding comments, HUD may issue information and current tenant- proof of citizenship or eligible administrative guidance at a later date provided documentation or third-party noncitizen status. HUD also provides to assist affected parties in complying verification does not suggest higher program administrators use of the with the new regulatory requirements. income in the next 12 months. Systemic Alien Verification for Comment: Several commenters wrote F. Comments Specific to Proposed that although the rationale for using past Entitlements (SAVE) system to assist in Amendments to § 5.518 the verification of non-U.S. citizens’ income is that it is a known amount, immigration status. Comment: One commenter suggested anticipated future income more Comment: Three commenters raised that, instead of eliminating temporary accurately reflects what applicants and questions regarding the meaning of deferrals of termination of assistance for participants are receiving when they are ‘‘eligible immigration status’’ and the families with noncitizen members, such seeking housing assistance. One type of documentation, including temporary deferrals should be commenter suggested that PHAs or submission of documentation expanded. Because obtaining the owners look at the previous year’s tax electronically, that would be acceptable necessary documentation for all family return to determine ‘‘annual income.’’ in meeting the requirements of § 5.508. members can be time-consuming and HUD Response: As noted in the The commenters requested that HUD expensive, the commenter wrote that preceding response, the final rule gives clarify ‘‘eligible immigration status’’ to the proposed revisions would be a the PHA or O/A the discretion to use ensure that immigrant victims of further constraint on noncitizens and either actual past income or projected domestic violence and Cuban/Haitian cause temporary homelessness. future income to minimize errors in the HUD Response: HUD must ensure that immigrants are eligible for federal reexamination/recertification system. all individuals in the program are housing assistance. Moreover, the The use of information from the eligible. Only those individuals who commenters urged HUD to clarify that previous year’s tax returns is not an need to be verified would incur the cost the list of documents in § 5.508(b) is an effective method of determining annual of obtaining documentation. In addition, illustrative, rather than exhaustive, list, income because tenants may not file tax the PHA or O/A may at its discretion returns. since many types of documents serve to extend the time period to obtain Comment: Four commenters wrote establish eligible, non-citizen status. documentation, which may enhance the that the change in the ‘‘annual income’’ HUD Response: Any immigrant who individuals’ ability to afford the definition would increase the is lawfully in this country and meets expense. The 18-month deferral period administrative workload and the other program eligibility requirements is was a sufficient length of time and has complexity of verifying actual income eligible to participate in HUD’s rental long since elapsed. With the exception received, and that PHAs would lose assistance programs. HUD’s list of of refugees and persons seeking asylum, money and would need increased acceptable documents for eligible families with temporary deferral of operating subsidy while complying with immigration status will reflect those termination of assistance with the new requirements. One commenter documents referenced by the noncitizen members should no longer suggested that HUD provide grants to Department of Homeland Security be receiving housing assistance. PHAs that are earmarked for (Bureau of Immigration and Customs implementing investigative and G. Comments Specific to Proposed Enforcement), as prescribed in HUD paralegal staffing to combat program Amendments to § 5.609 administrative instruction and fraud and abuse. guidance. Comment: Several commenters wrote HUD Response: The final rule gives Comment: Two commenters suggested that, because HUD’s EIV system does the PHA or O/A the discretion to use that HUD establish time frames for the not capture ‘‘actual time’’ data, the either actual past income or projected tenant to obtain and provide the proposal in § 5.609 to amend the current future income. PHAs and O/As may use necessary citizenship documentation, definition of annual income, from actual past annual income from EIV, so and for PHAs to implement the anticipated ‘‘future income’’ to ‘‘actual long as the tenant does not dispute the documentation requirement. income,’’ is not compatible with the income information and current tenant- HUD Response: HUD has not revised method of collecting individuals’ actual provided documentation, or third-party the rule in response to these comments. income. The commenters suggested that verification does not suggest higher However, HUD may issue until such time as the EIV system can income in the next 12 months. administrative guidance as questions be used to verify current income, the Comment: Two commenters focused arise regarding implementation of this definition of annual income should not on the new requirement in § 5.609(b) for final rule, or as HUD may otherwise be changed. One commenter suggested PHAs to ‘‘annualize the income data to determine is necessary, to assist affected that HUD permit PHAs to rely on EIV determine the family’s income for the parties in complying with the new data for the purpose of determining 12-month period.’’ One commenter regulatory requirements. annual income, unless it possesses asked HUD to clarify what it meant by Comment: One commenter stated that credible information that such data are ‘‘annualize the income data.’’ One the current regulations governing not accurate. commenter urged HUD to strike this assistance to non-citizens are very HUD Response: The final rule gives new requirement and consider issuing difficult to interpret, and that the the PHA or O/A the discretion to use guidance that encourages sponsors to proposed revisions at § 5.508 do not either actual past income or projected use newer information if it reflects improve the clarity. The commenter future income to minimize possible substantial changes in household suggests that HUD rewrite the errors in the reexamination/ income. regulations at 24 CFR part 5, subpart E, recertification system (for example, HUD Response: ‘‘Annualize the Restrictions on Assistance to where a tenant quits a job before income data’’ means to convert periodic Noncitizens, to make them easier to reexamination/recertification and income to an annual amount. For understand and follow. assistance is calculated at a higher example, if the PHA or O/A determines

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that the tenant’s monthly income is to mandate interim reporting or minimize the occurrence of tenant $500, this amount should be multiplied adjustment of rent for increases in income manipulation and ensure that by 12 to compute an annual amount of income that occur in between annual re- participants pay their fair share of rent. $6,000. Again, the final rule provides certifications. The commenter urged It should be noted that the EIV system, the PHA or O/A with the discretion to HUD to clarify that the proposal is not as well as income information derived use either actual past income or intended as a substantive change to from the Social Security earnings projected future income to minimize interim reporting and rent adjustment statement (use SSA form–7004 available errors in the reexamination/ requirements, and that PHAs and at http://www.ssa.gov to obtain this recertification system. PHAs and O/As owners should follow their existing information) can provide the PHA and may use actual past annual income from policies or HUD guidance regarding O/A with historical annual earned EIV, so long as the tenant does not when interim reporting or rent income of a participant. HUD recognizes dispute the income information and adjustment is required for increases in that there are atypical situations in current tenant-provided documentation, income. which an individual’s income may or third-party verification does not HUD Response: The final rule does fluctuate as a result of seasonal and suggest higher income in the next 12 not mandate interim reexaminations, sporadic employment, or in which a months. but gives the PHA the discretion to participant intentionally discontinues Comment: One commenter asked determine annual income using actual employment prior to an interim or HUD to clarify whether income past annual income or projected future annual reexamination or recertification, generated from assets should be income based on current income. The in order to minimize his or her considered as income from the previous PHA has discretion in developing contribution to rent, thus avoiding the 12 months or as ‘‘anticipated future interim increase reexamination policies; imposition of a higher rental subsidy on income.’’ however, O/As do not. While these the individual’s family. PHAs and O/As HUD Response: The regulation for types of policies are helpful in reducing are encouraged to utilize income determination of income from assets is income reporting errors, HUD does not information provided by HUD and not being changed, and references the require PHAs to adopt interim increase available from other federal, state, and 12-month period in § 5.609(a)(2), which reexamination policies. O/As must local agencies, as well as from private is the 12-month period following continue to follow existing policies for sector entities (such as The Work admission or recertification effective conducting interim recertifications. Number) to improve the integrity of date. Accordingly, income from assets is Comment: One commenter suggested income, or lack of income, reported by ‘‘anticipated future income.’’ that HUD allow PHAs to accept families. Comment: One commenter requested recertifications of income performed by that HUD provide guidance and other federal, state, or local government H. Comments Specific to Proposed standards for PHAs and owners to entities for purposes of determining the Amendments to § 92.203 follow when dealing with ‘‘atypical annual income of applicant households Comment: One commenter wrote that income situations,’’ such as: A loss of and recertifications of participant the income determination under the employment, waiting periods for Social households. HOME program should be based on the Security income, welfare payments, zero HUD Response: HUD has not revised prior 12-month period, because income, and self-employment. the rule in response to this comment. ‘‘anything else is too confusing and the HUD Response: The PHA’s interim Third-party recertifications for other HOME Program is confusing enough as policy and multifamily housing’s benefits from other federal, state or local it is.’’ interim policy defines how the PHA or entities may not be effective due to the HUD Response: HUD has changed the O/A will deal with atypical income different program requirements in proposed rule to require participating situations. HUD encourages PHAs and determining eligibility. jurisdictions to calculate a family’s O/As to implement policies that will Comment: One commenter suggested annual income based on the actual minimize unwarranted zero or that HUD give PHAs the discretion to income being received at the time the minimum rents. rely on (or to reject) evidence of recent participating jurisdiction determines the Comment: One commenter wrote that income changes when determining family is income eligible, projected HUD should ensure that proposed annual income. The commenter wrote forward for a 12-month period. § 5.609(a) properly follows the statutory that some program participants have However, if the participating definition of ‘‘income’’ at 42 U.S.C. been known to manipulate their income jurisdiction is unable to determine 1437a(b)(4) and thus exclude ‘‘any temporarily before annual annual income using current amounts not actually received by the recertifications, in order to reduce their information because the family reports family.’’ The commenter also requested rent obligation. little to no income or because income that HUD make all necessary technical HUD Response: HUD does support fluctuates, the participating jurisdiction changes in the regulation to account for PHA and O/A discretion in accepting or may average past actual income incorrect cross-references. rejecting changes in family income. PIH received or earned within the last 12 HUD Response: The current published guidance in 2004, PIH Notice months before the determination date to regulatory definition makes reference to 2004–01 (located at http:// calculate annual income. This provides the term of income ‘‘anticipated to be www.hud.gov/offices/pih/), which the participating jurisdiction with the received.’’ The proposed rule removes requires the tenant to provide discretion needed to respond to a the term anticipated, which results in acceptable documentation to the PHA. variety of family situations. counting only income, received by the Multifamily housing has guidance in Comment: One commenter wrote that family. This change is consistent with Chapter 7 of Handbook 4350.3 REV–1. the proposed requirements in § 92.203 the statutory definition of the term Furthermore, this final rule allows the are a duplication of effort because, ‘‘income,’’ and HUD has not revised the PHA and O/A the flexibility and absent an accessible and constantly rule in response to this comment. discretion to use either actual past updated source of income data for the Comment: One commenter wrote that annual income or projected future previous 12 months, participating some PHAs and owners may income based on current income. This jurisdictions must contact employers or misinterpret the language in § 5.609(b) flexibility will enable PHAs and O/As to review paycheck stubs to verify such

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income, which must then be verified to what is on file at the PHA. Previous gross transfers among HUD-assisted determine if the income is different PHA audits have in some instances tenants would be above the $100 from the previous 12 months. The revealed significant disparities between million annual threshold. The majority commenter also recommended that the actual PHA transaction and the of the financial and economic impact of HUD amend the HOME regulations to transaction transmitted to HUD via the the final rule would result from the permit subrecipients and developers Public and Indian Housing Information implementation and use of upfront using HOME funds to perform income Center (PIC) system. verification of income to ensure truthful determinations on behalf of the HOME Comment: Two commenters opposed and correct reporting and recording of participating jurisdiction. the change to require paper copies of tenants’ income. The anticipated HUD Response: HUD has changed the each Form HUD–50058 in the tenant’s impacts of this rule are discussed more rule to require participating file. The commenters wrote that such a fully in the regulatory impact analysis jurisdictions to calculate a family’s requirement would impose that accompanies this rule. annual income based on the actual administrative burden and additional It should be noted that the income being received at the time the expense for PHAs and staff. Moreover, implementation of this final rule would participating jurisdiction determines the the commenters wrote that the improve the integrity of HUD’s rental family is income eligible, projected information is readily available assistance programs and would result in forward for a 12-month period. electronically. One commenter some transfer. However, it may not However, the final rule also gives suggested that PHAs be required to keep necessarily lead to a reduction in program administrators the discretion to only the most recent 2 years of form subsidy needs and could in fact lead to use a family’s past actual income when HUD–50058, and to maintain the file for a needed increase in the program the program administrator is unable to 3 years after move-out. funding to maintain the number of project the family’s annual income HUD Response: The rule does not households served by the programs. The based on current verified income require paper copies of the form HUD– EIV system is already available and information. This is most useful in 50058. The PHA has discretion to being used by program administrators. situations where it is difficult for the determine how they will maintain the Therefore, this final rule would not participating jurisdiction to accurately form HUD–50058. PHAs are encouraged impose significant additional costs. determine a family’s projected annual to retain electronic copies of the form. Assuming the rule is 100 percent income due to fluctuations in the effective in eliminating earned income- family’s income or because the family V. Findings and Certifications based rent errors, if no over-subsidized reports little or no income. Executive Order 12866, Regulatory tenants left the program in response to Subrecipients are nonprofit Planning and Review rent increases based on correct organizations and public agencies that determination of earned income, then are under contract with the participating The Office of Management and Budget the net transfer to new tenants would be jurisdiction to administer HOME (OMB) reviewed this rule under about $480 million per year, resulting in programs on the participating Executive Order 12866 (‘‘entitled approximately 92,284 new tenants jurisdiction’s behalf. The HOME Regulatory Planning and Review’’). This served (assuming an average total regulations already permit subrecipients rule was determined to be economically subsidy per tenant of $5,091 per year). to perform income determinations for significant under E.O. 12866, and a At the other extreme, if all households the participating jurisdiction. However, regulatory impact analysis has been who were over-subsidized due to developers are not under contract to prepared for this rule. earned-income error left HUD-assisted perform the functions of the At both the proposed rule and this housing in response to rent corrections participating jurisdiction and are not final rule stage, HUD determined that under the rule, the transfer to new permitted to perform those functions implementation of the regulations tenants would amount to approximately independent of the participating proposed and now promulgated through $1,715,667,000 per year, resulting in jurisdiction. While these entities cannot this final rule could result in transfers about 337,000 new tenants served, perform income determinations, they of funding to and among stakeholders of assuming the same average subsidy can collect income documentation for more than $100 million per year. costs. the participating jurisdiction to review. Findings from an ongoing HUD study Notwithstanding, it is not realistic to As such, no further changes to 24 CFR indicate that the gross transfer resulting expect the rule to be 100 percent part 92 are required at this time. from eliminating all the under- and effective, since there is no realistic basis over-payments of rents is approximately for assessing a range of effectiveness I. Comments Specific to Proposed $925 million ($584 million in rent away from a range of $0 to $480 million. Amendments to § 908.101 subsidy overpayment and $341 million There is also no basis for assessing the Comment: One commenter suggested in rent subsidy underpayment). Of these primary estimate. For all of these that HUD strike the proposed language amounts, about $138 million in rent reasons, $1.715 million would represent in § 908.101 requiring sponsors to retain subsidy overpayment and $17 million in the high estimate (assuming 100 percent form HUD–50058 during the term of rent subsidy underpayment are effectiveness and 100 percent of existing each assisted lease and for at least 3 attributable to errors in earned income tenants leave replaced by 337,000 new years thereafter. The commenter argued reported to, or recorded by, program tenants) and $0 would represent the low that PHAs should not be required to administrators, as determined by the estimate, assuming 0 percent maintain such form in the files, and that study interviewers. In addition, income effectiveness. compliance with standards in state law matches with the National Directory of The docket file, which includes the and imposed by audit requirements are New Hires (NDNH) reports an regulatory impact analysis, is available sufficient to protect HUD’s interests. additional $359 million in rent for public inspection in the Regulations HUD Response: HUD is requiring the underpayment due to tenants’ failure to Division, Office of General Counsel, PHA to maintain the form HUD–50058 report income to program administrators Department of Housing and Urban in its tenant’s files (either electronically and the study interviewers. If the rule Development, 451 Seventh Street, SW., or paper) to ensure that information succeeds in reducing gross errors found Room 10276, Washington, DC 20410– transmitted to HUD is consistent with in the study by at least 20 percent, the 0500. Due to security measures at the

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HUD Headquarters building, please Accordingly, the undersigned certifies Congressional Review of Final Rules schedule an appointment to review the that this rule will not have a significant This rule constitutes a ‘‘major rule’’ as docket file by calling the Regulations economic impact on a substantial defined in the Congressional Review Division at 202–708–3055 (this is not a number of small entities. Act (5 U.S.C. Chapter 8). This rule toll-free number). Persons with hearing Environmental Impact therefore has a 60-day delayed effective or speech impairments may access this date and will be submitted to the number through TTY by calling the toll- This final rule involves external Congress in accordance with the free Federal Information Relay Service administrative requirements or requirements of the Congressional at 800–877–8339. Additionally, the procedures that are related to income Review Act. Economic Analysis prepared for this limits and exclusions with regard to rule is also available for public eligibility for or calculation of HUD Catalog of Federal Domestic Assistance inspection at the same location and on housing assistance or rental assistance. The Catalog of Federal Domestic HUD’s Web site at http://www.hud.gov. Such requirements or procedures do not Assistance numbers applicable to the constitute a development decision that Regulatory Flexibility Act programs affected by this rule are affects the physical condition of specific 14.103, 14.135, 14.149, 14.157, 14.181, The Regulatory Flexibility Act (RFA) project areas or building sites. 14.195, 14.850, and 14.871. (5 U.S.C. 601 et seq.) generally requires Accordingly, under 24 CFR 50.19(c)(6), List of Subjects an agency to conduct a regulatory this final rule is categorically excluded flexibility analysis of any rule subject to from environmental review under the 24 CFR Part 5 notice and comment rulemaking National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). Administrative practice and requirements, unless the agency certifies procedure, Aged, Claims, Crime, that the rule will not have a significant Paperwork Reduction Act Government contracts, Grant economic impact on a substantial programs—housing and community The information collection number of small entities. This final rule development, Individuals with requirements in this final rule have been is concerned with those entities that are disabilities, Intergovernmental relations, approved by the Office of Management responsible for making eligibility Loan programs—housing and and Budget (OMB) under the Paperwork determinations and conducting income community development, Low and Reduction Act of 1995 (44 U.S.C. 3501– reexaminations or recertifications under moderate income housing, Mortgage 3520) and assigned OMB Control sections 3 and 5 of the United States insurance, Penalties, Pets, Public Numbers 2577–0220 and 2502–0204. In Housing Act of 1937 and tenant-based housing, Rent subsidies, Reporting and accordance with the Paperwork and project-based housing assistance recordkeeping requirements, Social Reduction Act, HUD may not conduct or under section 8 of the United States Security, Unemployment compensation, sponsor, and a person is not required to Housing Act of 1937. Specifically, the Wages. final rule strengthens HUD’s internal respond to, a collection of information, controls, refines regulations where unless the collection displays a 24 CFR Part 92 unclear, and requires the use of HUD’s currently valid OMB Control Number. Administrative practice and EIV system to verify the employment Executive Order 13132, Federalism procedure, Grant programs—housing and income of existing participants. The and community development, Low and U.S. Housing Act of 1937 defines a Executive Order 13132 (entitled moderate income housing, small PHA as a PHA that administers ‘‘Federalism’’) prohibits, to the extent Manufactured homes, Rent subsidies, 250 or fewer public housing units and practicable and permitted by law, an Reporting and recordkeeping irrespective of the number of vouchers agency from promulgating a regulation requirements. that the PHA administers. HUD uses that has federalism implications and this number of units to also measure either imposes substantial direct 24 CFR Part 908 small multifamily housing compliance costs on state and local Computer technology, Grant developments. With fewer units to governments and is not required by programs—housing and community administer, there are fewer families for statute, or preempts state law, unless the development, Rent subsidies, Reporting whom income verification is needed. relevant requirements of section 6 of the and recordkeeping requirements. Nonetheless, regardless of the number of Executive Order are met. This final rule ■ Accordingly, for the reasons described units or families to administer, income does not have federalism implications in the preamble, HUD amends 24 CFR verification processes are reduced with and does not impose substantial direct parts 5, 92, and 908 to read as follows: the use of the EIV system. Public compliance costs on state and local housing and multifamily housing governments or preempt state law PART 5—GENERAL HUD PROGRAM administrators are relieved of the within the meaning of the Executive REQUIREMENTS; WAIVERS burden of obtaining written verification Order. ■ 1. The authority citation for part 5 of employment, wages, unemployment Unfunded Mandates Reform Act compensation, and Social Security continues to read as follows: benefits from third-party income Title II of the Unfunded Mandates Authority: 42 U.S.C. 1437a, 1437c, 1437d, sources, which is time consuming. Reform Act of 1995 (2 U.S.C. 1531– 1437f, 1437n, 3535(d), and Sec. 327, Pub. L. Additionally, PHAs, large and small, are 1538) (UMRA) establishes requirements 109–115, 119 Stat. 2936. already familiar with and have begun for federal agencies to assess the effects ■ 2. Revise § 5.216 to read as follows: using EIV. The final rule provides an of their regulatory actions on state, additional 6 months for administrators local, and tribal governments, and on § 5.216 Disclosure and verification of of multifamily housing developments, the private sector. This final rule would Social Security Number (SSN) and large or small, to transition to EIV. not impose any federal mandate on any Employer Identification Numbers (EIN). Therefore, this final rule will not have state, local, or tribal government, or on (a) Disclosure required of assistance a significant economic impact on a the private sector, within the meaning of applicants. Each assistance applicant substantial number of small entities. UMRA. must submit the following information

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to the processing entity when the of family composition that includes the program, the assistance applicant may assistance applicant’s eligibility under new member(s): retain its place on the waiting list for the the program involved is being (A) The complete and accurate SSN program, but cannot become a determined: assigned to each new member; and participant until it can provide: (1) The complete and accurate SSN (B) The documentation referred to in (i) The complete and accurate SSN assigned to the assistance applicant and paragraph (f)(1) of this section to verify assigned to each member of the to each member of the assistance the SSN for each new member. household; and applicant’s household; and (ii) If the participant or any member (ii) The documentation referred to in (2) The documentation referred to in of the participant’s household has a paragraph (f)(1) of this section to verify paragraph (f)(1) of this section to verify previously undisclosed SSN, or has the SSN of each such member. each such SSN. been assigned a new SSN, the (2) For applicants receiving assistance (b) Disclosure required of individual participant must submit the following to pursuant to the section 8 Moderate owner applicants. Each individual the processing entity at the next interim Rehabilitation Single Room Occupancy owner applicant must submit the or regularly scheduled reexamination of (SRO) Program for Homeless Individuals following information to the processing family composition or income, or other under subpart H of part 882 of this title, entity when the individual owner recertification: the documentation in paragraph (g)(1) of applicant’s eligibility under the program (A) The complete and accurate SSN this section must be provided to the involved is being determined: assigned to the participant or household processing entity within 90 days from (1) The complete and accurate SSN member involved; and the date of admission into the program, assigned to the individual owner (B) The documentation referred to in except that the processing entity may, at applicant and to each member of the paragraph (f)(1) of this section to verify its discretion, extend this period for an individual owner applicant’s household the SSN of each such individual. additional 90 days. who will be obligated to pay the debt (iii) Additional SSN disclosure and (h) Rejection of documentation. The evidenced by the mortgage or loan verification requirements, including the processing entity may reject documents; and nature of the disclosure, the verification documentation referred to in paragraph (2) The documentation referred to in required, and the time and manner for (f) of this section only for such reasons paragraph (f)(1) of this section to verify making the disclosure and verification, as HUD may prescribe in applicable each such SSN. may be specified in administrative administrative instructions. (c) Disclosure required of certain instructions by: (i) Information on SSNs and EINs. (1) officials of entity applicants. Each (A) HUD; and Information regarding SSNs and SSN officer, director, principal stockholder, (B) In the case of the public housing cards may be obtained by visiting the or other official of an entity applicant program or the programs under 24 CFR IRS.gov Web site or calling the IRS toll- must submit the following information parts 882 and 982, the PHA. free Business and Specialty Tax Line at to the processing entity when the entity (e) Disclosure required of entity 800–829–4933. applicant’s eligibility under the program applicants. Each entity applicant must (2) Information regarding EINs may be involved is being determined: submit the following information to the obtained by contacting the local office of (1) The complete and accurate SSN processing entity when the entity the IRS or consulting the appropriate assigned to each such individual; and applicant’s eligibility under the program IRS publications. (2) The documentation referred to in involved is being determined: ■ 3. Amend § 5.218 by revising paragraph (f)(1) of this section to verify (1) Any complete and accurate EIN paragraph (a), the introductory text of each SSN. assigned to the entity applicant; and paragraph (b), and paragraph (c) to read (d) Disclosure required of (2) The documentation referred to in as follows: participants. (1) Initial disclosure. Each paragraph (f)(2) of this section to verify participant whose initial determination the EIN. § 5.218 Penalties for failing to disclose and of eligibility under the program (f) Required documentation. (1) Social verify Social Security and Employer involved was begun before March 30, Security Numbers. The documentation Identification Numbers. 2009 must submit the following necessary to verify the SSN of an (a) Denial of eligibility of assistance information to the processing entity at individual who is required to disclose applicants and individual owner the next interim or regularly scheduled his or her SSN under paragraphs (a) applicants. The processing entity must reexamination of family composition or through (d) of this section is a valid SSN deny the eligibility of an assistance income, or other recertification for the card issued by the Social Security applicant or individual owner applicant program involved: Administration (SSA), or such other in accordance with the provisions (i) The complete and accurate SSN evidence of the SSN as HUD may governing the program involved, if the assigned to the participant and to each prescribe in administrative instructions. assistance or individual owner member of the participant’s household; (2) Employer Identification Numbers. applicant does not meet the applicable and The documentation necessary to verify SSN disclosure, documentation, and (ii) The documentation referred to in any EIN of an entity applicant that is verification requirements as specified in paragraph (f)(1) of this section to verify required to disclose its EIN under § 5.216. each such SSN. paragraph (e) of this section is the (b) Denial of eligibility of entity (2) Subsequent disclosure. Once a official, written communication from applicants. The processing entity must participant has disclosed and the the IRS assigning the EIN to the entity deny the eligibility of an entity processing entity has verified every applicant, or such other evidence of the applicant in accordance with the SSN, the following rules apply: EIN as HUD may prescribe in provisions governing the program (i) When a participant requests to add administrative instructions. involved; if: a new household member, the (g) Effect on assistance applicants. (1) * * * * * participant must submit that SSN to the Except as provided in paragraph (g)(2) (c) Termination of assistance or processing entity at the time of the of this section, if the processing entity termination of tenancy of participants. request or at the time of processing the determines that the assistance applicant The processing entity must terminate interim reexamination or recertification is otherwise eligible to participate in a the assistance or terminate the tenancy,

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or both, of a participant, in accordance § 5.508 Submission of evidence of affordable housing. Other affordable with the provisions governing the citizenship or eligible immigration status. housing is used in the context of program involved, if the participant * * * * * transition of an ineligible family from a does not meet the applicable SSN (b) * * * rent level that reflects HUD assistance to disclosure, documentation, and (1) For U.S. citizens or U.S. nationals, a rent level that is unassisted; the term verification requirements specified in the evidence consists of a signed ‘‘affordable housing’’ refers to housing § 5.216. declaration of U.S. citizenship or U.S. that is not substandard; that is of * * * * * nationality. The responsible entity must appropriate size for the family; and that ■ obtain verification of the declaration by can be rented for an amount not 4. Add a new § 5.233 to read as requiring presentation of a U.S. follows: exceeding the amount that the family passport, U.S. birth certificate, pays for rent, including utilities, plus 25 § 5.233 Mandated use of HUD’s Enterprise Employment Authorization card, percent. Income Verification (EIV) System. Temporary Resident card, or other (2) Housing-covered programs: (a) Programs subject to this section appropriate documentation, as provided Conditions for granting temporary and requirements. (1) The requirements by section 214. deferral of termination of assistance. of this section apply to entities (2) For noncitizens, adequate The responsible entity shall grant a administering assistance under: evidence consists of: temporary deferral of termination of (i) Public housing; (i) A signed declaration of eligible assistance to a mixed family if the (ii) Section 8 Housing Choice Voucher immigration status; and family is assisted under a Housing- (ii) One of the Section 214 documents (HCV) program under 24 CFR part 982; covered program and the family was listed in § 5.508(b)(1) and referred to in (iii) Moderate Rehabilitation under 24 receiving assistance under a Section § 5.510. CFR part 882; 214-covered program on June 19, 1995, (iv) Project-based voucher program * * * * * and the family includes a refugee under under 24 CFR part 983; ■ 6. Amend § 5.516 by revising section 207 of the Immigration and (v) Project-based Section 8 programs paragraph (c) to read as follows: Nationality Act or an individual seeking asylum under section 208 of the under 24 CFR parts 880, 883, 884, 886, § 5.516 Availability of preservation and 891; assistance to mixed families and other Immigration and Nationality Act. (vi) Section 202 of the National families. * * * * * Housing Act of 1959 (12 U.S.C. 1701q); ■ * * * * * 8. Amend § 5.609 as follows: (vii) Section 811 of the Cranston- (c) Assistance available to other ■ a. Revise paragraph (a); Gonzalez National Affordable Housing families in occupancy. In accordance ■ b. Remove existing paragraph (d); ■ Act (42 U.S.C. 8013); with § 5.518, temporary deferral of c. Redesignate existing paragraphs (b) (viii) Sections 221(d)(3) and 236 of the termination of assistance may be and (c) as paragraphs (d) and (e), National Housing Act (12 U.S.C. respectively; available to families receiving assistance ■ 1715l(d)(3) and 1715z–1); and under a section 214-covered program on d. In newly designated paragraph (ix) Rent Supplement program under June 19, 1995, and who either include (d)(3), revise the reference to ‘‘paragraph section 101 of the Housing and Urban a refugee under section 207 of the (b)(2) of this section’’ to read ‘‘paragraph Development Act of 1965 (12 U.S.C. Immigration and Nationality Act, or an (d)(2) of this section’’; ■ e. In newly designated paragraph 1701s). individual seeking asylum under (d)(4), revise the parenthetical reading (2) Processing entities must use section 208 of the Immigration and ‘‘(except as provided in paragraph HUD’s EIV system as a third-party Nationality Act. source to verify tenant employment and (c)(14) of this section)’’ to read ‘‘(except income information during mandatory * * * * * as provided in paragraph (e)(14) of this reexaminations or recertifications of ■ 7. Amend § 5.518 by revising section)’’; family composition and income, in paragraph (b), removing paragraph (c), ■ f. In newly designated paragraph accordance with § 5.236. and redesignating existing paragraph (d) (d)(5) revise the reference to ‘‘paragraph (b) Penalties for noncompliance. as paragraph (c) to read as follows: (c)(3) of this section’’ to read ‘‘paragraph Failure to use the EIV system may result (e)(3) of this section’’; § 5.518 Types of preservation assistance ■ in the imposition of remedial actions as available to mixed families and other g. In newly designated paragraph outlined in 24 CFR 84.62, except as families. (d)(6)(B), revise the reference to ‘‘paragraph (c) of this section’’ to read provided in paragraph (b) of this * * * * * ‘‘paragraph (e) of this section’’; section. For multifamily owners and (b) Temporary deferral of termination ■ h. In newly designated paragraph management agents, failure to use the of assistance. (1) Eligibility of temporary (d)(8), revise the reference to ‘‘paragraph EIV system may result in the imposition deferral of termination of assistance: If (c)(7) of this section’’ to read ‘‘paragraph of sanctions and/or the assessment of a family was receiving assistance under disallowed costs associated with any (e)(7) of this section’’; a section 214-covered program on June ■ i. In newly designated paragraph resulting incorrect subsidy or tenant 19, 1995, and the family includes a rent calculations, or both. (e)(6), revise the reference to ‘‘paragraph refugee under section 207 of the (b)(9) of this section’’ to read ‘‘paragraph (c) Implementation Date for Immigration and Nationality Act or an Multifamily Owners and Management (d)(9) of this section’’; individual seeking asylum under ■ j. In newly designated paragraph Agents. For entities administering section 208 of the Immigration and (e)(17), revise the reference to ‘‘24 CFR assistance under paragraphs (a)(1)(v) Nationality Act, the family may be 5.609(c)’’ to read ‘‘24 CFR 5.609(e)’’; and through (a)(1)(ix) of this section, use of eligible for temporary deferral of ■ k. Add new paragraphs (b) and (c) to the EIV system is required commencing termination of assistance if necessary to read as follows: on September 30, 2009. permit the family additional time for the ■ 5. Amend § 5.508 by revising orderly transition of those family § 5.609 Annual income. paragraphs (b)(1), and (b)(2) to read as members with ineligible status, and any (a) Annual income means all follows: other family members involved, to other amounts, monetary or not, which:

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(1) Go to, or on behalf of, the family (c) Rejection of documentation. The HOME-assisted project shall not be head or spouse (even if temporarily processing entity may reject any income considered in calculating annual absent) or to any other family member; documentation for such reason as HUD income. and may prescribe in applicable * * * * * (2) Are based on, at the time of administrative instructions. admission, reexamination, or * * * * * PART 908—ELECTRONIC recertification: TRANSMISSION OF REQUIRED (i) Actual income being received PART 92—HOME INVESTMENT FAMILY DATA FOR PUBLIC HOUSING, (projected forward for a 12-month PARTNERSHIPS PROGRAM INDIAN HOUSING, AND THE SECTION period); or 8 RENTAL CERTIFICATE, RENTAL ■ (ii) Past actual income received or 9. The authority citation for part 92 VOUCHER, AND MODERATE earned within the last 12 months of the continues to read as follows: REHABILITATION PROGRAMS determination date, as HUD may Authority: 42 U.S.C. 3535(d) and 12701– prescribe in applicable administrative 12839. ■ 11. The authority citation for part 908 instructions when: ■ 10. Revise § 92.203(d)(1) to read as continues to read as follows: (A) The family reports little or no follows: income; and Authority: 42 U.S.C. 1437f, 3535d, 3543, (B) The processing entity is unable to § 92.203 Income determination. 3544, and 3608a. determine annual income due to * * * * * ■ 12. Revise § 908.101 to read as fluctuations in income (e.g., seasonal or (d)(1) The participating jurisdiction follows: cyclical income); must calculate the annual income of the (3) Which are not specifically family based on the actual income being § 908.101 Purpose. excluded in paragraph (e) of this received at the time the participating The purpose of this part is to require section. jurisdiction determines the family is Public Housing Agencies (PHAs) that (4) Annual income also means income eligible, projected forward for operate public housing, Indian housing, amounts derived (during the 12-month the 12-month period. If the participating or section 8 Rental Certificate, Housing period) from assets to which any jurisdiction is unable to determine Choice Voucher (HCV), Rental Voucher, member of the family has access. annual income using current and Moderate Rehabilitation programs (b) Historical amounts. If the information because the family reports to electronically submit certain data to processing entity is unable to determine little to no income or because income HUD for those programs. These annual income using current fluctuates, the participating jurisdiction electronically submitted data are information because the family reports may average past actual income required for HUD forms HUD–50058, little to no income or because income received or earned within the last 12 Family Report; and HUD–50058–FSS, fluctuates, the processing entity may months before the determination date to Family Self-Sufficiency Addendum. average past actual income received or calculate annual income. The Applicable program entities must retain earned within the last 12 months before participating jurisdiction may also form HUD–50058 during the term of the determination date to calculate request the family to provide each assisted lease, and for at least 3 annual income. The processing entity documentation of the current income, years thereafter, to support billings to may also request the family to provide and if the family can provide acceptable HUD and to permit an effective audit. documentation of current income. If the documentation dated either within the Electronic retention of form HUD–50058 family can provide acceptable 60-day period preceding the fulfills the retention requirement under documentation dated either within the determination date or the 60-day period this section. 60-day period preceding the following the request date, the determination date or the 60-day period processing entity may use this Dated: January 13, 2009. following the request date, the documentation to determine annual Roy A. Bernardi, processing entity may use this income. Annual income shall include Deputy Secretary. documentation to determine annual income from all family members. [FR Doc. E9–1248 Filed 1–26–09; 8:45 am] income. Income or asset enhancement from the BILLING CODE 4210–67–P

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Part III

Department of Commerce National Oceanic and Atmospheric Administration

50 CFR Part 216 Taking and Importing Marine Mammals; U.S. Navy’s Atlantic Fleet Active Sonar Training (AFAST); Final Rule

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DEPARTMENT OF COMMERCE information will not be reprinted here Summary of Request in its entirety; rather, all sections from On February 4, 2008, NMFS received National Oceanic and Atmospheric the proposed rule will be represented an application from the Navy requesting Administration herein and will contain either a authorization for the take of individuals summary of the material presented in of 40 species of marine mammals 50 CFR Part 216 the proposed rule or a note referencing incidental to upcoming Navy training the page(s) in the proposed rule where [Docket No. 080724897–81621–02] activities, maintenance, and research, the information may be found. Any development, testing, and evaluation RIN 0648–AW90 information that has changed since the (RDT&E) activities to be conducted proposed rule was published will be Taking and Importing Marine within the Atlantic Fleet Active Sonar addressed herein. Additionally, this Training (AFAST) Study Area, which Mammals; U.S. Navy’s Atlantic Fleet final rule contains a section that Active Sonar Training (AFAST) extends east from the Atlantic Coast of responds to the comments received the U.S. to 45° W. long. and south from during the public comment period. AGENCY: National Marine Fisheries the Atlantic and Gulf of Mexico Coasts Service (NMFS), National Oceanic and Background to approximately 23° N. lat., but not Atmospheric Administration (NOAA), encompassing the Bahamas (see Figure Commerce. Sections 101(a)(5)(A) and (D) of the 1–1 in the Navy’s Application), over the MMPA (16 U.S.C. 1361 et seq.) direct ACTION: Final rule. course of 5 years. These activities are the Secretary of Commerce (Secretary) military readiness activities under the SUMMARY: NMFS, upon application from to allow, upon request, the incidental, provisions of the NDAA. The Navy the U.S. Navy (Navy), is issuing but not intentional taking of marine states, and NMFS concurs, that these regulations to govern the unintentional mammals by U.S. citizens who engage military readiness activities may taking of marine mammals incidental to in a specified activity (other than incidentally take marine mammals activities conducted off the U.S. commercial fishing) during periods of present within the AFAST Study Area Atlantic Coast and in the Gulf of Mexico not more than five consecutive years by exposing them to sound from mid- for the period of January 2009 through each if certain findings are made and frequency or high frequency active January 2014. The Navy’s activities are regulations are issued or, if the taking is sonar (MFAS/HFAS) or to employment considered military readiness activities limited to harassment and of no more of the improved extended echo ranging pursuant to the Marine Mammal than 1 year, the Secretary shall issue a (IEER) system. The IEER consists of an Protection Act (MMPA), as amended by notice of proposed authorization for explosive source sonobuoy (AN/SSQ– the National Defense Authorization Act public review. 110A) and an air deployable active for Fiscal Year 2004 (NDAA). These Authorization shall be granted if receiver (ADAR) sonobuoy (AN/SSQ– regulations, which allow for the NMFS finds that the taking will have a 101). The Navy requested authorization issuance of ‘‘Letters of Authorization’’ negligible impact on the species or to take individuals of 40 species of (LOAs) for the incidental take of marine stock(s), will not have an unmitigable marine mammals by Level B mammals during the described activities adverse impact on the availability of the Harassment. Further, though they do not and specified timeframes, prescribe the species or stock(s) for subsistence uses, anticipate it to occur, the Navy requests permissible methods of taking and other and if the permissible methods of taking authorization to take, by injury or means of affecting the least practicable and requirements pertaining to the mortality, up to 10 beaked whales over adverse impact on marine mammal mitigation, monitoring and reporting of the course of the 5-yr regulations. species and their habitat, as well as such taking are set forth. Background of Navy Request requirements pertaining to the NMFS has defined ‘‘negligible monitoring and reporting of such taking. impact’’ in 50 CFR 216.103 as: The proposed rule contains a DATES: Effective January 22, 2009 description of the Navy’s mission, their An impact resulting from the specified responsibilities pursuant to Title 10 of through January 22, 2014. activity that cannot be reasonably expected the United States Code, and the specific ADDRESSES: A copy of the Navy’s to, and is not reasonably likely to, adversely purpose and need for the activities for application (which contains a list of the affect the species or stock through effects on which they requested incidental take references used in this document), annual rates of recruitment or survival. authorization. The description NMFS’ Record of Decision (ROD), and The NDAA (Pub. L. 108–136) contained in the proposed rule has not other documents cited herein may be removed the ‘‘small numbers’’ and changed (73 FR 60754). obtained by writing to Michael Payne, ‘‘specified geographical region’’ Chief, Permits, Conservation and limitations and amended the definition Description of the Specified Activities Education Division, Office of Protected of ‘‘harassment’’ as it applies to a The proposed rule contains a Resources, National Marine Fisheries ‘‘military readiness activity’’ to read as complete description of the Navy’s Service, 1315 East-West Highway, Silver follows (Section 3(18)(B) of the MMPA): specified activities that are covered by Spring, MD 20910–3225 or by telephone (i) Any act that injures or has the these final regulations, and for which via the contact listed here (see FOR significant potential to injure a marine the associated incidental take of marine FURTHER INFORMATION CONTACT ). mammal or marine mammal stock in the wild mammals will be authorized in the FOR FURTHER INFORMATION CONTACT: Jolie [Level A Harassment]; or related LOAs. The proposed rule Harrison, Office of Protected Resources, (ii) Any act that disturbs or is likely to describes the nature and number of both NMFS, (301) 713–2289, ext. 166. disturb a marine mammal or marine mammal the anti-submarine warfare (ASW) and stock in the wild by causing disruption of SUPPLEMENTARY INFORMATION: Extensive mine warfare training (MIW) exercises natural behavioral patterns, including, but Supplementary Information was not limited to, migration, surfacing, nursing, involving both mid- and high-frequency provided in the proposed rule for this breeding, feeding, or sheltering, to a point active sonar (MFAS and HFAS), as well activity, which was published in the where such behavioral patterns are as the IEER exercises involving small Federal Register on Tuesday, October abandoned or significantly altered [Level B explosive detonations. It also describes 14, 2008 (73 FR 60754). This Harassment]. the sound sources used (73 FR 60754,

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pages 60755–60762). The narrative AEER would use a new active sonobuoy be AEER instead of IEER. The small description of the action contained in (AN/SSQ–125) that utilizes a tonal (or a difference in the number of anticipated the proposed rule has not changed, with ping) vice impulsive (or explosive) marine mammal takes that will result the exception of the change from IEER sound source as a replacement for the from this change is indicated in the take to the Advanced Extended Echo AN/SSQ–110A. AEER will still use the table (Table 6), along with other minor Ranging (AEER) discussed below. ADAR sonobuoy as the systems receiver modifications. This small change in the Tables 1 and 2 summarize the sonar and and will be deployed by Maritime Patrol take numbers did not affect NMFS’ IEER exercise types used in these Aircraft. As AEER is introduced for analysis of and conclusions regarding training exercises and the hours of Fleet use, IEER will be removed. The the proposed action. sonar. same total number of buoys will be BILLING CODE 3510–22–P Navy is developing the AEER system deployed as were presented in the as a replacement to the IEER system. proposed rule, but a subset of them will

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BILLING CODE 3510–22–C

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AFAST Study Area below (73 FR 60754, pages 60762– to operational requirements, are likely 60764). to destroy, cause the loss of, or injure The AFAST proposed rule contains a The paragraph related to NMSs in the any sanctuary resource (for Stellwagen description of the AFAST Study Area proposed rule should be replaced with Bank National Marine Sanctuary, the along with a description of the areas in the following paragraph: threshold is ‘‘may’’ destroy, cause the which certain types of activities will The Navy will not conduct active loss of, or injure), the Navy would first occur. Table 3, included here, sonar activities within the Stellwagen consult with the Director, Office of summarizes the areas in which certain Bank, Monitor, Gray’s Reef, Flower National Marine Sanctuaries in exercise types will occur. This section Garden Banks, and Florida Keys accordance with 16 U.S.C. 1434(d). also contains a description of the North National Marine Sanctuaries and will Although activities in the Sanctuaries Atlantic right whale (NARW) critical avoid these sanctuaries by observing a are not planned or anticipated, NMFS’ habitat and the National Marine 5-km (2.7-NM) buffer. At all times, the analysis, for purposes of the MMPA Sanctuaries (NMS) within the AFAST Navy will conduct AFAST activities in Study Area. The description of the a manner that avoids to the maximum considers the effects on marine AFAST Study Area in the proposed rule extent practicable any adverse impacts mammals of the Navy’s conducting has not changed, with the exception of on sanctuary resources. In the event the activities in the biologically important the paragraph relating to the NMSs, Navy determines AFAST activities, due areas that occur in or near Sanctuaries.

Description of Marine Mammals in the the AFAST Study Area: The NARW, critical habitat, humpback whale Area of the Specified Activities humpback whale, sei whale, fin whale, feeding grounds in the northeast, and blue whale, and sperm whale. Manatees There are 43 marine mammal species sperm whale calving and nursing are managed by the U.S. Fish and with possible or confirmed occurrence grounds in the Mississippi Delta area. Wildlife Service and will not be in the AFAST Study Area. As indicated Last, the proposed rule includes a addressed further here. The proposed in Table 4, there are 36 cetacean species discussion of the methods used to rule contains a discussion of two (7 mysticetes and 29 odontocetes), six estimate marine mammal density in the species that are not considered further pinnipeds, and one sirenian (manatee). AFAST Study Area. The Description of in the analysis (beluga whales and Six marine mammal species listed as Marine Mammals in the Area of the ringed seals) because of their rarity in federally endangered under the Specified Activities section has not the AFAST Study Area. The proposed Endangered Species Act (ESA) and changed from what was in the proposed rule also contains a discussion of under the jurisdiction of NMFS occur in rule (73 FR 60754, pages 60766–60767). important areas, including NARW

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BILLING CODE 3510–22–C

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A Brief Background on Sound behaviorally mediated bubble growth) achieving the least practicable adverse The proposed rule contains a section that has been observed a limited number effect on marine mammals. NMFS that provides a brief background on the of times in certain circumstances (the determined that further discussion was principles of sound that are frequently specific events are also described). See necessary regarding: (1) General referred to in this rulemaking (73 FR 73 FR 60754, pages 60777–60781. The minimization of marine mammal 60754, pages 60767–60769). This information contained in Potential impacts; (2) minimization of impacts section also includes a discussion of the Effects of Specified Activities on Marine within the southeastern NARW critical functional hearing ranges of the Mammals section from the proposed habitat; and (3) the potential different groups of marine mammals (by rule has not changed, with the relationship between the operation of exception of the following sentence. On MFAS/HFAS and marine mammal frequency) as well as a discussion of the page 60779, NMFS said ‘‘Other species strandings. two main sound metrics used in NMFS (Stenella coeruleoalba, Kogia breviceps Any mitigation measure prescribed by analysis (sound pressure level (SPL) and and Balaenoptera acutorostrata) have NMFS should be known to accomplish, sound energy level (SEL)). The stranded, but in much lower numbers have a reasonable likelihood of information contained in the proposed and less consistently than beaked accomplishing (based on current rule has not changed. whales.’’ As a member of the public science), or contribute to the Potential Effects of Specified Activities pointed out, and as NMFS has accomplishment of one or more of the on Marine Mammals previously stated, there was no likely general goals listed below: association between the minke whale (a) Avoidance or minimization of With respect to the MMPA, NMFS’ injury or death of marine mammals effects assessment serves four primary and spotted dolphin strandings referred to here and the operation of MFAS. wherever possible (goals b, c, and d may purposes: (1) To prescribe the contribute to this goal). permissible methods of taking (i.e., Therefore, the sentence should read ‘‘Other species, such as Kogia breviceps, (b) A reduction in the numbers of Level B Harassment (behavioral have stranded in association with the marine mammals (total number or harassment), Level A Harassment operation of MFAS, but in much lower number at biologically important time (injury), or mortality, including an numbers and less consistently than or location) exposed to received levels identification of the number and types beaked whales.’’ of MFAS/HFAS, underwater of take that could occur by Level A or Later, in the Estimated Take of Marine detonations, or other activities expected B harassment or mortality) and to Mammals section, NMFS relates and to result in the take of marine mammals prescribe other means of affecting the quantifies the potential effects to marine (this goal may contribute to a, above, or least practicable adverse impact on such mammals from MFAS/HFAS and to reducing harassment takes only). species or stock and its habitat (i.e., underwater detonation of explosives (c) A reduction in the number of times mitigation); (2) to determine whether discussed here to the MMPA definitions (total number or number at biologically the specified activity will have a of Level A and Level B Harassment. important time or location) individuals negligible impact on the affected species NMFS has also considered the effects of would be exposed to received levels of or stocks of marine mammals (based on mortality on these species. MFAS/HFAS, underwater detonations, the likelihood that the activity will or other activities expected to result in Mitigation adversely affect the species or stock the take of marine mammals (this goal through effects on annual rates of In order to issue an incidental take may contribute to a, above, or to recruitment or survival); (3) to authorization (ITA) under Section reducing harassment takes only). determine whether the specified activity 101(a)(5)(A) of the MMPA, NMFS must (d) A reduction in the intensity of will have an unmitigable adverse impact prescribe regulations setting forth the exposures (either total number or on the availability of the species or ‘‘permissible methods of taking number at biologically important time stock(s) for subsistence uses (however, pursuant to such activity, and other or location) to received levels of MFAS/ there are no subsistence communities means of affecting the least practicable HFAS, underwater detonations, or other that would be affected in the AFAST adverse impact on such species or stock activities expected to result in the take Study Area, so this determination is and its habitat, paying particular of marine mammals (this goal may inapplicable for this rulemaking); and attention to rookeries, mating grounds, contribute to a, above, or to reducing the (4) to prescribe requirements pertaining and areas of similar significance.’’ The severity of harassment takes only). to monitoring and reporting. National Defense Authorization Act (e) A reduction in adverse effects to In the Potential Effects of Specified (NDAA) of 2004 amended the MMPA as marine mammal habitat, paying special Activities on Marine Mammals section it relates to military readiness activities attention to the food base, activities that of the proposed rule, NMFS included a and the incidental take authorization block or limit passage to or from qualitative discussion of the different process such that ‘‘least practicable biologically important areas, permanent ways that MFAS/HFAS and underwater adverse impact’’ shall include destruction of habitat, or temporary explosive detonations (IEER) may consideration of personnel safety, destruction/disturbance of habitat potentially affect marine mammals practicality of implementation, and during a biologically important time. (some of which NMFS would not impact on the effectiveness of the (f) For monitoring directly related to classify as harassment). See 73 FR ‘‘military readiness activity’’. The mitigation—an increase in the 60754, pages 60769–60781. Marine AFAST activities described in the probability of detecting marine mammals may experience direct proposed rule are considered military mammals, thus allowing for more physiological effects (such as threshold readiness activities. effective implementation of the shift), acoustic masking, impaired NMFS reviewed the Navy’s proposed mitigation (shut-down zone, etc.). communications, stress responses, and AFAST activities and the proposed NMFS worked with the Navy to behavioral disturbance. This section AFAST mitigation measures (which the identify potential additional practicable also included a discussion of some of Navy refers to as Protective Measures) and effective mitigation measures, the suggested explanations for the presented in the Navy’s application to which included a careful balancing of association between the use of MFAS determine whether the activities and the likely benefit of any particular and marine mammal strandings (such as mitigation measures were capable of measure to the marine mammals with

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the likely effect of that measure on the NARW), along with the Planning • Non-Auditory Biological Effects of personnel safety, practicality of Awareness Areas (PAAs), additional Sound on Marine Mammals, implementation, and impact on the minimization of impacts in the • Effects of Sound on the Marine ‘‘military-readiness activity.’’ NMFS and southeastern NARW critical habitat, and Environment, the Navy developed additional the Stranding Response Plan (and when • Sensors and Models for Marine mitigation measures that address the the Adaptive Management (see Adaptive Environmental Monitoring, • concerns mentioned above, including Management below) component is taken Effects of Sound on Hearing of the development of Planning Awareness Marine Animals, and into consideration) are adequate means • Areas (PAAs), additional minimization of effecting the least practicable adverse Passive Acoustic Detection, of impacts in the southeastern NARW impacts on marine mammal species or Classification, and Tracking of Marine critical habitat, and a Stranding stocks and their habitat, paying Mammals. Response Plan. particular attention to rookeries, mating The Navy has also developed the The Navy’s proposed mitigation grounds, and areas of similar technical reports referenced within this measures, as well as the Planning significance, while also considering document and the AFAST EIS, such as Awareness Areas (PAAs), additional personnel safety, practicality of the Marine Resource Assessments. minimization of impacts in the implementation, and impact on the Furthermore, research cruises by NMFS southeastern NARW critical habitat, and effectiveness of the military readiness and by academic institutions have Stranding Response Plan, which are activity. The justification for this received funding from the U.S. Navy. The Navy has sponsored several required under these regulations, were conclusion is discussed in the workshops to evaluate the current state described in detail in the proposed rule Mitigation Conclusion section of the of knowledge and potential for future (73 FR 60754, pages 60781–60789). The proposed rule (73 FR 60836, pages acoustic monitoring of marine Navy’s measures address personnel 60789–60790). The Mitigation mammals. The workshops brought training, lookout and watchstander Conclusion Section of the proposed rule together acoustic experts and marine responsibilities, operating procedures has not changed. for training activities using both MFAS/ biologists from the Navy and other HFAS and IEER, additional measures for Research and Conservation Measures research organizations to present data TORPEXs in the northeastern NARW for Marine Mammals and information on current acoustic monitoring research efforts and to critical habitat, and mitigation related to The Navy provides a significant evaluate the potential for incorporating vessel traffic and the NARW. No amount of funding and support for similar technology and methods on changes have been made to the marine research. The Navy provided instrumented ranges. However, acoustic mitigation measures described in the $26 million in Fiscal Year 2008 and detection, identification, localization, proposed rule, with the exception of plans for $22 million in Fiscal Year and tracking of individual animals still adding that night vision devices shall be 2009 to universities, research requires a significant amount of research available to all ship crews and air crews institutions, Federal laboratories, effort to be considered a reliable method for use as appropriate and making the private companies, and independent for marine mammal monitoring. The IEER mitigation applicable to the newly researchers around the world to study Navy supports research efforts on described AEER system as well. marine mammals. Over the past five acoustic monitoring and will continue Additionally, the definition for years the Navy has funded over $100 to investigate the feasibility of passive ‘‘Exhibiting Indicators of Distress’’, million in marine mammal research. acoustics as a potential mitigation and which was originally included in the The Navy sponsors seventy percent of codified text of the proposed rule, has monitoring tool. all U.S. research concerning the effects Overall, the Navy will continue to been removed in the final rule. The of human-generated sound on marine definition, which may be found in the fund ongoing marine mammal research, mammals and 50 percent of such and is planning to coordinate long term AFAST Stranding Response Plan, was research conducted worldwide. Major not included in the codified text monitoring/studies of marine mammals topics of Navy-supported research because it could potentially be modified on various established ranges and include the following: (pursuant to the adaptive management operating areas. The Navy will continue • Better understanding of marine component of the rule) based on new to research and contribute to university/ species distribution and important data. external research to improve the state of habitat areas, The final AFAST Stranding Response • the science regarding marine species Plan, which includes a shutdown Developing methods to detect and biology and acoustic effects. These protocol, a stranding investigation plan, monitor marine species before and efforts include mitigation and and a requirement for Navy and NMFS during training, monitoring programs; data sharing with • to implement a memorandum of Understanding the effects of sound NMFS and via the literature for research agreement (MOA) that will establish a on marine mammals, sea turtles, fish, and development efforts; and future framework whereby the Navy can (and and birds, and research as described previously. provide the Navy examples of how they • Developing tools to model and can best) assist NMFS with stranding estimate potential effects of sound. Long-Term Prospective Study investigations in certain circumstances, The Navy’s Office of Naval Research Apart from this final rule, NMFS, may be viewed at: http:// currently coordinates six programs that with input and assistance from the Navy www.nmfs.noaa.gov/pr/permits/ examine the marine environment and and several other agencies and entities, incidental.htm#applications. are devoted solely to studying the will perform a longitudinal Additionally, the mitigation measures effects of noise and/or the observational study of marine mammal are included in full in the codified text implementation of technology tools that strandings to systematically observe and of the regulations. will assist the Navy in studying and record the types of pathologies and NMFS has determined that the Navy’s tracking marine mammals. The six diseases and investigate the relationship proposed mitigation measures (which programs are as follows: with potential causal factors (e.g., sonar, include a suite of measures that • Environmental Consequences of seismic, weather). The proposed rule specifically address vessel transit and Underwater Sound, contained an outline of the proposed

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study (73 FR 60754, pages 60790– (f) A better understanding and record Data gathered in these studies will be 60791). No changes have been made to of the manner in which the authorized collected by qualified, professional the longitudinal study as described in entity complies with the incidental take marine mammal biologists that are the proposed rule. authorization. experts in their field. They will use a Monitoring Proposed Monitoring Plan for AFAST combination of the following methods Study Area to collect data: In order to issue an ITA for an • activity, Section 101(a)(5)(A) of the As NMFS indicated in the proposed Contracted vessel and aerial MMPA states that NMFS must set forth rule, the Navy has (with input from surveys. ‘‘requirements pertaining to the NMFS) fleshed out the details of and • Passive acoustics. monitoring and reporting of such made improvements to the AFAST • Marine mammal observers on Navy taking’’. The MMPA implementing Monitoring Plan. Additionally, NMFS ships. regulations at 50 CFR 216.104(a)(13) and the Navy have incorporated a indicate that requests for LOAs must recommendation from the public, which In the four proposed study designs include the suggested means of recommended the Navy hold a (all of which cover multiple years), the accomplishing the necessary monitoring workshop to discuss the Navy’s above methods will be used separately and reporting that will result in Monitoring Plan (see Monitoring or in combination to monitor marine increased knowledge of the species and Workshop section). The final AFAST mammals in different combinations of the level of taking or impacts on Monitoring Plan, which is summarized before, during, and after training populations of marine mammals that are below, may be viewed at http:// activities utilizing MFAS/HFAS. Table 7 expected to be present. www.nmfs.noaa.gov/pr/permits/ contains a summary of the Monitoring Monitoring measures prescribed by incidental.htm#applications. The Navy effort that is planned for each study in NMFS should accomplish one or more plans to implement all of the each year. of the following general goals: components of the Monitoring Plan: This monitoring plan has been (a) An increase in the probability of however, only the marine mammal designed to gather data on all species of detecting marine mammals, both within components (not the sea turtle marine mammals that are observed in the safety zone (thus allowing for more components) will be required by the the AFAST study area. The Plan effective implementation of the MMPA regulations and associated recognizes that deep-diving and cryptic mitigation) and in general to generate LOAs. species of marine mammals such as more data to contribute to the effects The Monitoring Plan for AFAST has beaked whales have a low probability of analyses. been designed as a collection of focused detection (Barlow and Gisiner, 2006). (b) An increase in our understanding ‘‘studies’’ (described fully in the AFAST Therefore, methods will be utilized to of how many marine mammals are Monitoring Plan) to gather data that will attempt to address this issue (e.g., likely to be exposed to levels of MFAS/ allow the Navy to address the following passive acoustic monitoring). HFAS (or explosives or other stimuli) questions: that we associate with specific adverse (a) Are marine mammals exposed to North Atlantic right whales will also effects, such as behavioral harassment, MFAS, especially at levels associated be given particular attention during TTS, or PTS. with adverse effects (i.e., based on monitoring in the AFAST study area, (c) An increase in our understanding NMFS’criteria for behavioral although monitoring methods will be of how marine mammals respond harassment, TTS, or PTS)? If so, at what the same for all species. Within the (behaviorally or physiologically) to levels are they exposed? AFAST study area, the Northwestern MFAS/HFAS (at specific received (b) If marine mammals are exposed to Atlantic provides unique breeding and levels), explosives, or other stimuli MFAS in the AFAST Study Area, do calving habitat for NARW, and as a expected to result in take and how they redistribute geographically as a result, critical habitat has been anticipated adverse effects on result of continued exposure? If so, how designated for one calving ground (off individuals (in different ways and to long does the redistribution last? Georgia and northern Florida) and two varying degrees) may impact the (c) If marine mammals are exposed to feeding areas (Cape Cod Bay and the population, species, or stock MFAS, what are their behavioral Great South Channel). Pursuant to the (specifically through effects on annual responses to various received levels? Monitoring Plan, NARWs will be given rates of recruitment or survival). (d) Is the Navy’s suite of mitigation particular attention in the form of focal (d) An increased knowledge of the measures for MFAS (e.g., measures follows (e.g. collect behavioral data affected species. agreed to by the Navy through using the Big Eyes binoculars, and (e) An increase in our understanding permitting) effective at avoiding TTS, observe the behavior of any animals that of the effectiveness of certain mitigation injury, and mortality of marine are seen) when observed. and monitoring measures. mammals? BILLING CODE 3510–22–P

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BILLING CODE 3510–22–C determining whether or how to modify review the monitoring results from the Monitoring Workshop monitoring techniques to more previous two years of monitoring effectively accomplish the goals of pursuant to the AFAST rule as well as During the public comment period on monitoring set forth earlier in the monitoring results from other Navy the AFAST proposed rule (as well as the document. NMFS and the Navy believe rules and LOAs (e.g., the Southern Hawaii Range Complex and Southern that this workshop concept is valuable California Range Complex (SOCAL), California Range Complex proposed in relation to all of the Range Complexes Hawaii Range Complex (HRC), and rules), NMFS received a comment and major training exercise rules and other rules). The Monitoring Workshop which, in consultation with the Navy, LOAs that NMFS is working on with the participants would provide their we have chosen to incorporate into the Navy at this time, and consequently this individual recommendations to the final rule (in a modified form). One single Monitoring Workshop will be Navy and NMFS on the monitoring commenter recommended that a included as a component of all of the plan(s) after also considering the current workshop or panel be convened to rules and LOAs that NMFS will be science (including Navy research and solicit input on the monitoring plan processing for the Navy in the next year development) and working within the from researchers, experts, and other or so. framework of available resources and interested parties. The AFAST proposed The Navy, with guidance and support feasibility of implementation. NMFS rule included an adaptive management from NMFS, will convene a Monitoring and the Navy would then analyze the component and both NMFS and the Workshop, including marine mammal input from the Monitoring Workshop Navy believe that a workshop would and acoustic experts as well as other participants and determine the best way provide a means for Navy and NMFS to interested parties, in 2011. The forward from a national perspective. consider input from participants in Monitoring Workshop participants will Subsequent to the Monitoring

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Workshop, modifications would be framework, instead of allocating based understanding of the effects of MFAS/ applied to monitoring plans as on maintaining an equal (or HFAS and explosives on marine appropriate. commensurate to effects) distribution of mammals is still in its relative infancy, monitoring effort across Range and yet the science in this field Integrated Comprehensive Monitoring complexes. For example, if careful continues to improve. These Program prioritization and planning through the circumstances make the inclusion of an In addition to the Monitoring Plan for ICMP (which would include a review of adaptive management component both AFAST, the Navy will complete the both past monitoring results and current valuable and necessary within the Integrated Comprehensive Monitoring scientific developments) were to show context of 5-year regulations for Program (ICMP) Plan by the end of that a large, intense monitoring effort in activities that have been associated with 2009. The ICMP will provide the Hawaii would likely provide extensive, marine mammal mortality in certain overarching coordination that will robust and much-needed data that could circumstances and locations (though not support compilation of data from be used to understand the effects of off the Atlantic Coast of the U.S.). The project-specific monitoring plans (e.g., sonar throughout different geographical use of adaptive management will give AFAST Monitoring Plan) as well as areas, it may be appropriate to have NMFS the ability to consider new data Navy funded research and development other Range Complexes dedicate money, from different sources to determine (in (R&D) studies. The ICMP will resources, or staff to the specific coordination with the Navy) on an coordinate the monitoring programs monitoring proposal identified as ‘‘high annual basis if mitigation or monitoring progress towards meeting its goals and priority’’ by the Navy and NMFS, in lieu measures should be modified or added develop a data management plan. The of focusing on smaller, lower priority (or deleted) if new data suggests that ICMP will be evaluated annually to projects divided throughout their home such modifications are appropriate (or provide a matrix for progress and goals Range Complexes. are not appropriate) for subsequent for the following year, and will make The ICMP will identify: annual LOAs. recommendations on adaptive • A means by which NMFS and the Following are some of the possible management for refinement and analysis Navy would jointly consider prior years sources of applicable data: of the monitoring methods. monitoring results and advancing • Results from the Navy’s monitoring The primary objectives of the ICMP science to determine if modifications from the previous year (either from are to: are needed in mitigation or monitoring AFAST or other locations). • Monitor and assess the effects of measures to better effect the goals laid • Findings of the Workshop that the Navy activities on protected species; out in the Mitigation and Monitoring Navy will convene in 2011 to analyze • Ensure that data collected at sections of the AFAST rule. monitoring results to date, review multiple locations is collected in a • Guidelines for prioritizing current science, and recommend manner that allows comparison between monitoring projects. modifications, as appropriate to the and among different geographic • If, as a result of the workshop and monitoring protocols to increase locations; similar to the example described in the monitoring effectiveness. • Assess the efficacy and practicality paragraph above, the Navy and NMFS • Compiled results of Navy funded of the monitoring and mitigation decide it is appropriate to restructure research and development (R&D) studies techniques; the monitoring plans for multiple ranges (presented pursuant to the ICMP, which • Add to the overall knowledge-base such that they are no longer evenly is discussed elsewhere in this of marine species and the effects of allocated (by rule), but rather focused on document). Navy activities on marine species. priority monitoring projects that are not • Results from specific stranding The ICMP will be used both as: (1) A necessarily tied to the geographic area investigations (either from AFAST or planning tool to focus Navy monitoring addressed in the rule, the ICMP will be other locations, and involving priorities (pursuant to ESA/MMPA modified to include a very clear and coincident MFAS/HFAS of explosives requirements) across Navy Range unclassified recordkeeping system that training or not involving coincident Complexes and Exercises; and (2) an will allow NMFS and the public to see use). • adaptive management tool, through the how each Range Complex/project is Results from the Long Term consolidation and analysis of the Navy’s contributing to all of the ongoing Prospective Study described above. • monitoring and watchstander data, as monitoring (resources, effort, money, Results from general marine well as new information from other etc.). mammal and sound research (funded by Navy programs (e.g., R&D), and other the Navy (described above) or appropriate newly published Past Monitoring in AFAST otherwise). information. The proposed rule contained a Mitigation measures could be In combination with the 2011 detailed review of the previous marine modified or added (or deleted) if new Monitoring Workshop and the adaptive mammal monitoring conducted in the data suggest that such modifications management component of the AFAST AFAST Study Area, which was would have (or do not have) a rule and the other planned Navy rules conducted in compliance with the terms reasonable likelihood of accomplishing (e.g. SOCAL and HRC), the ICMP could and conditions of multiple biological the goals of mitigation laid out in this potentially provide a framework for opinions issued for MFAS training final rule and if the measures are restructuring the monitoring plans and activities (73 FR 60754, pages 60791– practicable. NMFS would also allocating monitoring effort based on the 60798). No changes have been made to coordinate with the Navy to modify or value of particular specific monitoring the discussion contained in the add to (or delete) the existing proposals (in terms of the degree to proposed rule. monitoring requirements if the new data which results would likely contribute to suggest that the addition of (or deletion stated monitoring goals, as well the Adaptive Management of) a particular measure would more likely technical success of the The final regulations governing the effectively accomplish the goals of monitoring based on a review of past take of marine mammals incidental to monitoring laid out in this final rule. monitoring results) that have been Navy’s AFAST exercises contain an The reporting requirements associated developed through the ICMP adaptive management component. Our with this rule are designed to provide

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NMFS with monitoring data from the gathered, the marine mammal observers (including, for example, what type of previous year to allow NMFS to (MMOs) collecting marine mammal data surface vessel, i.e., FFG, DDG, or CG). consider the data and issue annual pursuant to the AFAST Monitoring Plan (vii) Length of time observers LOAs. NMFS and the Navy will meet shall, at a minimum, provide the same maintained visual contact with marine annually, prior to LOA issuance, to marine mammal observation data mammal(s). discuss the monitoring reports, Navy required in the MFAS/HFAS major (viii) Wave height (in feet). R&D developments, and current science Training Exercises section of the Annual (ix) Visibility. and whether mitigation or monitoring AFAST Exercise Report referenced (x) Sonar source in use (y/n). modifications are appropriate. below. (xi) Indication of whether animal is The AFAST Monitoring Plan Report <200yd, 200–500yd, 500–1000yd, 1000– Reporting may be provided to NMFS within a 2000yd, or >2000yd from sonar source In order to issue an ITA for an larger report that includes the required in (x) above. activity, Section 101(a)(5)(A) of the Monitoring Plan Reports from multiple (xiii) Mitigation Implementation— MMPA states that NMFS must set forth Range Complexes. Whether operation of sonar sensor was ‘‘requirements pertaining to the delayed, or sonar was powered or shut monitoring and reporting of such Annual AFAST Exercise Report down, and how long the delay was. taking’’. Effective reporting is critical to The Navy will submit an Annual (xiv) If source in use (x) is ensure compliance with the terms and AFAST Exercise Report on October 1 of hullmounted, true bearing of animal conditions of a LOA, and to provide every year (covering data gathered from ship, true direction of ship’s travel, NMFS and the Navy with data of the through August 1). This report shall and estimation of animal’s motion highest quality based on the required contain the subsections and information relative to ship (opening, closing, monitoring. indicated below. parallel) As NMFS noted in its proposed rule, (xv) Observed behavior— additional detail has been added to the MFAS/HFAS Major Training Exercises Watchstanders shall report, in plain reporting requirements since they were This section shall contain the language and without trying to outlined in the proposed rule. The following information for the following categorize in any way, the observed updated reporting requirements are all Coordinated and Strike Group exercises, behavior of the animals (such as animal included below. A subset of the which for simplicity will be referred to closing to bow ride, paralleling course/ information provided in the monitoring as major training exercises for reporting speed, floating on surface and not reports may be classified and not (MTERs): Southeastern ASW Integrated swimming, etc.) releasable to the public. Training Initiative (SEASWITI), (c) An evaluation (based on data NMFS will work with the Navy to Integrated ASW Course (IAC), gathered during all of the MTERs) of the develop tables that allow for efficient Composite Training Unit Exercises effectiveness of mitigation measures submission of the information required (COMPTUEX), and Joint Task Force designed to avoid exposing marine below. Exercises (JTFEX) conducted in AFAST: mammals to MFAS. This evaluation (a) Exercise Information (for each shall identify the specific observations General Notification of Injured or Dead that support any conclusions the Navy Marine Mammals MTER): (i) Exercise designator. reaches about the effectiveness of the Navy personnel will ensure that (ii) Date that exercise began and mitigation. NMFS (regional stranding coordinator) ended. ASW Summary is notified immediately (or as soon as (iii) Location. operational security allows) if an (iv) Number and types of active This section shall include the injured or dead marine mammal is sources used in the exercise. following information as summarized found during or shortly after, and in the (v) Number and types of passive from both MTERs and non-major vicinity of, any Navy training exercise acoustic sources used in exercise. training exercises: utilizing MFAS, HFAS, or underwater (vi) Number and types of vessels, (i) Total annual hours of each type of explosive detonations. The Navy will aircraft, etc., participating in exercise. sonar source (along with explanation of provide NMFS with species or (vii) Total hours of observation by how hours are calculated for sources description of the animal(s), the watchstanders. typically quantified in alternate way condition of the animal(s) (including (viii) Total hours of all active sonar (buoys, torpedoes, etc.)) carcass condition if the animal is dead), source operation. (iv) Cumulative Impact Report—To location, time of first discovery, (ix) Total hours of each active sonar the extent practicable, the Navy, in observed behaviors (if alive), and photo source (along with explanation of how coordination with NMFS, shall develop or video (if available). The Stranding hours are calculated for sources and implement a method of annually Response Plan contains more specific typically quantified in alternate way reporting non-major (i.e., other than reporting requirements for specific (buoys, torpedoes, etc.)). MTERs) training exercises utilizing hull- circumstances. (x) Wave height (high, low, and mounted sonar. The report shall present average during exercise). an annual (and seasonal, where Annual AFAST Monitoring Plan Report (b) Individual marine mammal practicable) depiction of non-major The Navy shall submit a report sighting info (for each sighting in each training exercises geographically across annually on October 1 describing the MTER): the AFAST Study Area. To the extent implementation and results (through (i) Location of sighting. practicable, this report will also include August 1 of the same year) of the (ii) Species (if not possible— the total number of sonar hours (from AFAST Monitoring Plan, described indication of whale/dolphin/pinniped). helicopter dipping sonar and object above. Data collection methods will be (iii) Number of individuals. detection exercises) conducted within standardized across range complexes to (iv) Calves observed (y/n). the southern NARW critical habitat plus allow for comparison in different (v) Initial Detection Sensor. 5 nm buffer area). The Navy shall geographic locations. Although (vi) Indication of specific type of include (in the AFAST annual report) a additional information will also be platform observation made from brief annual progress update on the

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status of the development of an effective information) if submitted within 3 concerns regarding the way that NMFS’ and unclassified method to report this months of receipt. These reports will be rule analyzed the potential impacts to information until an agreed-upon (with considered final after the Navy has right whales from sonar: NMFS) method has been developed and addressed NMFS’ comments or (a) As the only known calving ground, implemented. provided the requested information, or the southern critical habitat is very three months after the submittal of the important to the survival of the species Improved Extended Echo-Ranging draft if NMFS does not comment by and commenters were concerned about System (IEER)/Advanced Extended then. the level of Navy activity in critical Echo-Ranging System (AEER) Summary habitat and how it will affect right Comments and Responses This section shall include an annual whales. Some suggested that NMFS summary of the following IEER and On October 14, 2008 (73 FR 60754), should restrict Navy activity within AEER information: NMFS published a proposed rule in critical habitat. (i) Total number of IEER and AEER response to the Navy’s request to take (b) The specific impacts to and events conducted in AFAST Study Area marine mammals incidental to military responses of newborn right whale calves (ii) Total expended/detonated rounds readiness training, maintenance, and and their mothers are unknown and (buoys). RDT&E activities in the AFAST Study commenters are concerned about the (iii) Total number of self-scuttled Area and requested comments, effects of MFAS on this segment of the IEER rounds. information and suggestions concerning population. One commenter notes that the request. During the 30-day public NMFS has previously indicated that the Sonar Exercise Notification comment period, NMFS received ‘‘loss of even a single individual right The Navy shall submit to the NMFS comments from 6 private citizens and whale may contribute to the extinction Office of Protected Resources (specific Senator Benjamin Cardin, comments of the species,’’ and that ‘‘preventing the contact information to be provided in from the Marine Mammal Commission mortality of one adult female alters the LOA) either an electronic (preferably) or (MMC), comments from the Maine projected outcome.’’ 69 FR 30858. verbal report within fifteen calendar Department of Marine Resources and (c) The waters off of Gulf of Maine: days after the completion of any MTER the Georgia Department of Natural Cape Cod Bay, Great South Channel, indicating: Resources, and three sets of comments Bay of Fundy, and the Brown’s Bank (1) Location of the exercise. from non-governmental organizations, area are primary feeding grounds for the (2) Beginning and end dates of the including, the Natural Resources North Atlantic right whale (and other exercise. Defense Council (NRDC) (which large whale species) and commenters (3) Type of exercise. commented on behalf of The Humane are concerned about impacts. Some Society of the United States, the commenters recommended minimizing AFAST 5-Yr Comprehensive Report International Fund for Animal Welfare, activities in that area. The Navy shall submit to NMFS a Whale and Dolphin Conservation (d) One commenter stated that draft report that analyzes and Society, Cetacean Society International, although the Navy’s DEIS and NMFS’ summarizes all of the multi-year marine Pamlico Tar River Foundation, North Proposed Rule acknowledge that right mammal information gathered during Carolinians for Responsible Use of whales are expected to occur in the ASW and IEER exercises for which Sonar, League for Coastal Protection, AFAST area, the agencies arbitrarily annual reports are required (Annual and Ocean Futures Society and its conclude that no right whales will be AFAST Exercise Reports and AFAST founder Jean-Michel Cousteau), the injured by the thousands of hours of Monitoring Plan Reports). This report Cascadia Research Collective (CRC), and sonar training exercises per year will be submitted at the end of the the Ocean Mammal and Animal Welfare spanning the entire East Coast and Gulf fourth year of the rule (November 2012), Institutes. The comments are of Mexico. One commenter further covering activities that have occurred summarized and sorted into general asserts that right whales are hard to through June 1, 2012. topic areas and are addressed below. detect because they spend the majority Comprehensive National ASW Report Full copies of the comment letters may of their time below the surface and are be accessed at http:// often found alone or in pairs, which, By June 2014, the Navy shall submit www.regulations.gov. combined with rough weather reduces a draft National Report that analyzes, NMFS worked with the Navy to the probability of detection. Also, compares, and summarizes the active develop MMPA rules and LOAs for the female right whales with young calves sonar data gathered (through January 1, AFAST activities, SOCAL Range are less mobile than adult whales 2014) from the watchstanders and Complex, and HRC Range Complex. without young calves and may not be pursuant to the implementation of the Many of the issues raised in the public able to avoid sonar sources. Monitoring Plans for AFAST, SOCAL, comments for this rule were also raised (e) The commenters requested the HRC, the Mariana Islands Range for SOCAL and the HRC and NMFS clarification regarding why NMFS Complex, the Northwest Training Range considered many of the broader issues believes that ship strikes are unlikely. Complex, the Gulf of Alaska, and the in the context of all three of these Navy Commenters further state that the Navy East Coast Undersea Warfare Training actions when determining how to has been involved in ship strikes in the Range. address the comments. Responses to past (specifically, a female NARW and The Navy shall respond to NMFS public comments on the HRC and her near-term calf in the mid-Atlantic in comments and requests for additional SOCAL rules (addressing similar issues 2004.) information or clarification on the identified in the AFAST final rule) were Response: Following is NMFS’ AFAST Comprehensive Report, the also published in January 2009 and may response to the above comments: Comprehensive National ASW report, provide the public with additional (a) NMFS agrees that the southern the Annual AFAST Exercise Report, or detail, if needed. critical habitat for the North Atlantic the Annual AFAST Monitoring Plan right is very important to the survival of Report (or the multi-Range Complex North Atlantic Right Whales the species. The Navy intends to limit Annual Monitoring Plan Report, if that Comment 1: Several commenters had sonar use to a relatively small amount is how the Navy chooses to submit the the following general comments/ in the southern NARW critical habitat

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(see response to comment (1)(e) below). planning the limited sonar exercises out in a previous section 7 consultation As described in the proposed rule, outlined above and implementing the with NMFS (see 216.244(a)(1)(xxviii)). following are the details of the planned specific mitigation measures listed, the Approximately 2000 sonobuoys (with sonar usage in the vicinity of the Navy has minimized, to the extent 12 pings, spaced 30 seconds apart) southern critical habitat: practicable, the impacts to right whales would be used annually. Time and area ■ The Navy anticipates conducting in the southern critical habitat. NMFS restrictions are one of the most effective approximately 30 helicopter dipping discusses the practicability and benefits ways to reduce impacts to protected sonar maintenance events (< 1 hr) of time and area restrictions in the species. Based on the limited sonar annually in the NARW critical habitat Mitigation EA. exercises outlined above and because of (and approximately 84 helicopter (b) The potential impacts to mother- the specific mitigation measures listed, training exercises in the vicinity of the calf pairs from sonar are specifically NMFS believes that impacts to right critical habitat but in deeper waters at discussed in Potential Effects of whales and other large whales feeding least more than 5 nm seaward of the Specified Activities on Marine in important areas in the Northeast will critical habitat boundaries). This means Mammals section of the proposed rule. be minimal. NMFS discusses the that only a subset of those 30 activities However, as the commenter suggests, practicability and benefits of time and will occur in the critical habitat between the specific effects of MFAS on right area restrictions in the Mitigation EA. Nov 15 and April 15 (approximately 13 whales and their calves are not (d) NMFS’ rationale for why right if one assumes they are distributed discussed because NMFS does not whales will not be injured is not equally throughout the year, for possess data to draw any specific arbitrary. Although the Navy is example) and only a subset of the 84 conclusions regarding effects. As the proposing to conduct thousands of helicopter training exercises would commenter suggests, the loss of even hours (approximately 5,000 of hull- occur near the critical habitat between one right whale would have serious mounted) of MFAS operation (see Table Nov 15 and April 15 (approximately 34 effects on the population; however, as 1), several factors need to be considered. if one assumes they are distributed discussed in the proposed rule and For example, the AFAST Study Area equally throughout the year, for above, 20 instances of right whale comprises over 2,170,175 square example). Note that the source level of harassment are expected to occur within nautical miles, the exercises are spread a helicopter dipping sonar is the southern right whale critical habitat out over the course of a year, and there approximately 18 dB less than that of a (over the entire year, not just from are only approximately 350 right whales surface sonar source, which means that November to April) and none of these in the population (the number of whales the ensonified area is on the order of 65 are modeled to be at injurious levels. is germane because at the most basic times less (if spherical spreading is Additionally, this take estimate does not level the potential for injury is directly assumed). Additionally, the mitigation account for the mitigation measures based on the likelihood that the measures require that the Navy discussed in (a) above, which include ensonified area (above threshold) minimize helicopter dipping activities not approaching right whales within around the MFAS sound sources will in the critical habitat. closer than 500 yds and not conducting overlap with a right whale in space and ■ The Navy would conduct training within the vicinity of recently time—the fewer right whales there are, approximately 40 ship object detection sighted whales, when feasible. For these the less likely this is to happen.) The exercises (1–2 hours each) and 57 reasons and others (see Negligible model predicts 666 exposures to levels submarine object detection exercises (1– Impact section of proposed rule), NMFS above NMFS’ acoustic threshold for 2 hours each) annually while entering/ was able to determine that the Navy’s behavioral harassment, but less than the exiting port (within approximately 1 AFAST activities would have a level associated with PTS (or injury). mile of shore). This means that only a negligible impact on the species. Acknowledging that right whales may subset of those activities will occur (c) The Navy does not plan to conduct be somewhat harder to detect than other between Nov 15 and April 15, any major ASW training exercises using large whales, the Navy’s modeled takes, approximately 41 if one assumes they hull-mounted sonar in the Northeast. as discussed in the Negligible Impact are distributed equally throughout the All of the exercises in the Northeast will Analysis section of the proposed rule, year, for example. Additionally, consist of smaller scale unit-level do not take any mitigation measures or mitigation measures indicate that the exercises predominantly utilizing any likely marine mammal avoidance Navy shall reduce the time spent submarine sonar, active sonobuoys, and into consideration. Navy lookouts are conducting object detection exercises in torpedoes (see Table 3). In the specifically trained to detect anomalies the critical habitat, contact Northeast, the submarine object in the water around the ship and both FACSFACJAX to obtain latest whale detection exercises would occur the safety of Navy personnel and sightings in vicinity of critical habitat, primarily in the near-shore submarine success in the training exercise depend and (to the extent operationally feasible) transiting lanes exiting Groton, on the lookout being able to detect avoid conducting training in vicinity of Connecticut and Norfolk, Virginia objects (or marine mammals) effectively recently sighted whales. Ships are (neither of which are near the important around the ship. The response to required to maneuver to maintain at feeding areas the comment refers to). As Comment 2, below, explains more least 500 yds of separation from any indicated in the rule, in the Northeast specifically why injury is not expected. observed whale (consistent with safety the Navy is largely avoiding conducting (e) Regarding ship strikes, the Navy’s of ship). any training in the NARW critical EIS concluded that based on the ■ The Navy’s model predicted that habitat, with one exception: Torpedo implementation of Navy mitigation approximately 20 takes of right whales exercises (a maximum of 32 MK–48 measures, especially during times of by behavioral harassment would occur torpedo runs at 15 minutes each or up anticipated NARW occurrence, and the within the southern NARW critical to 24 lightweight MK–46 or MK–54 relatively low density of Navy ships in habitat (and no takes by injury or torpedoes) would occur in August the Study Area, the likelihood that a mortality). through December (when right whales vessel strike would occur is very low (as Time and area restrictions are one of are less likely to be present). However, NMFS indicated in the above comment, the most effective ways to reduce the Navy included extensive TORPEX the low abundance of NARWs also impacts to protected species. By mitigation measures that were worked supports this prediction). In addition to

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the standard operating procedures to whales to NMFS is part of their standard habitat. Separately, the Navy has reduce the likelihood of collisions, operating procedures. voluntarily developed and funded a which include: (1) Use of lookouts Comment 2: One commenter stated number of research plans that are trained to detect all objects on the that they disagree with NMFS’ designed to address technologies to surface of the water (including marine conclusion that predicted Level B reduce the impacts of active acoustic mammals); (2) reasonable and prudent harassment to right whales will likely sources on marine mammals (see actions to avoid the close interactions of not occur because ‘‘many animals will Research section). Navy assets and marine mammals; and likely avoid sonar sources’’ and ‘‘Navy Comment 4: One commenter states (3) maneuvering to keep away from any monitors would detect these animals that the Navy should engage in timely observed marine mammal, the Navy has prior to approach and implement sonar and regular reporting to NOAA, state issued extensive North Atlantic right power-down or shut-down’’ coastal management authorities, and the whale protective measures for all Fleet Response: NMFS did not predict that public to describe and verify use of Forces training activities (see Level B harassment of right whales is mitigation measures during testing and 216.244(a)(3)). These measures, which not likely to occur. As indicated in the training activities. were developed with input from NMFS, rule, NMFS’ LOA may authorize up to Response: The Navy will be required include additional training 666 Level B harassment takes of right to submit annual reports and the requirements, designated areas of whales. NMFS indicates that Level A unclassified portions of these reports caution (where caution includes speed Harassment (injury) and TTS (one type will be made available to the public or direction adjustments and avoidance of Level B Harassment) are unlikely to through a Federal Register document of known groups of right whales when occur because of: The distance from the announcing the issuance of subsequent feasible) and additional reporting source that an animal would need to LOAs. The reports will include a requirements. NMFS and the Navy approach (approximately 10 m for description of the mitigation measures believe that the required measures will injury and 275–500 m for TTS) to be implemented during major exercises allow the Navy to avoid colliding with exposed to levels associated with injury and will also include an evaluation of large whales during their specified or TTS; the fact that lookouts would the effectiveness of any mitigation activities. The Navy neither requested, detect them at that close distance; the measure implemented. nor did NMFS grant, authorization for fact that the Navy model (which does Comment 5: One commenter stated take of right whales from ship strikes not take mitigation or avoidance into that sighting information and other incidental to the specified activities. consideration) predicted that 0 right behavioral data (including records of Regarding the right whale strike in whales would be exposed to injurious breeding, feeding, interrupted or 2004, the commenter is most likely levels of sound and 7 right whales unusual behavior) obtained by the Navy referring to an event that took place on would be exposed to levels associated should be provided to NMFS and other November 17, 2004. On November 17 at with TTS, and; the fact that many (not interested organizations. about 10:30 am a Navy amphibious all) animals avoid sonar. Additionally, Response: Both the watchstanders, assault ship struck a large whale off the the Navy is capable of effectively who are engaged in the Navy activities Chesapeake Light House. A few hours monitoring a 1,000-meter safety zone and responsible for detecting marine later, around noon, a fisherman using night vision goggles, infrared mammals for mitigation contacted the Virginia Aquarium cameras, and passive acoustic implementation, and the marine stranding hotline and reported a live monitoring. mammal observers (MMOs) implementing the Monitoring Plan, are injured large whale with a fresh wound Monitoring and Reporting on the tail where the left fluke lobe was responsible for recording their missing. On November 24, a dead right Comment 3: One commenter stated: behavioral observations (the MMOs in whale was necropsied at Ocean Sands, ‘‘The Navy should establish a long-term greater detail) and then submitting them NC. The right whale was a pregnant research program, perhaps conducted by to NMFS in the required annual and female and the cause of death was NMFS or by an independent agent, on comprehensive reports. Upon determined to be blood loss owing to a the distribution, abundance, and finalization of the reports, NMFS will traumatic wound to the left fluke lobe, population structuring of protected make them available to the public via which was missing, and damage to species in the AFAST Study Area, with the NMFS Web site and through the surrounding tissue and bone. The the goal of supporting adaptive Federal Register. wound was consistent with that caused geographic avoidance of high-value Comment 6: Sightings of North by a ship strike. Neither NMFS, nor the habitat.’’ Another commenter suggests Atlantic right whales should be reported Navy can confirm or deny that the dead that the Navy should conduct research regardless of the time of year or location right whale necropsied on November 24 and development of technologies to to NMFS immediately. was the same whale struck by the Navy reduce the impacts of active acoustic Response: In the southeast Atlantic, on November 17. sources on marine mammals. the Navy requires that Ships, surfaced The USCG and Navy have standing Response: The MMPA does not subs, and aircraft shall report any orders to report sightings or collisions. require that recipients of an incidental NARW sightings to Fleet Area Control Although the NMFS ship strike database take authorization conduct research. and Surveillance Facility reflects a disproportionately high However, NMFS has incorporated an (FACSFACJAX), Jacksonville, by the number of ship strikes attributable to adaptive management component into quickest and most practicable means. USCG and Navy vessels over the years, the AFAST rule which allows for yearly The sighting report shall include the this is likely due to the high reporting review of Navy monitoring and current time, latitude/longitude, direction of rate by those agencies relative to other science that could influence (allow for movement and number and description mariners and vessels, rather than a the potential modification of) of whale (i.e., adult/calf). In the higher incidence of right whale ship monitoring and mitigation measures in northeast Atlantic, the Navy requires strikes by Federal agency vessels. These subsequent LOAs, if appropriate. NMFS’ that Ships, surfaced subs, and aircraft two Federal agencies are actively Mitigation EA specifically addresses shall report any NARW sightings (if the involved in large whale protection NMFS’ and the Navy’s consideration of whale is identifiable as a right whale) programs and reporting struck or dead geographic avoidance of high-value off the northeastern U.S. to Patrol and

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Reconnaissance Wing practicable and effective mitigation NMFS allow resumption of full (COMPATRECONWING). The report measures, which included a careful operations before the end of the 30- shall include the time of sighting, lat/ balancing of the likely benefit of any minute period (when the species can be long, direction of movement (if particular measure to the marine identified and is not a deep diver) or 60- apparent) and number and description mammals with the likely effect of that minute period (the species cannot be of the whale(s). Both FACSFACJAX and measure on personnel safety, determined or can be determined but is COMPATRECONWING then report the practicality of implementation, and a deep diver) only when the Navy has information to NMFS. Because there is impact on the ‘‘military-readiness good evidence that the marine mammal no NARW critical habitat in the mid- activity’’. NMFS developed an seen outside the safety zone is the same Atlantic region (area is not quite as Environmental Assessment (EA) that animal originally sighted within the critical as northeast and southeast) and analyzes a suite of possible mitigation zone. the whales are less concentrated when measures in regard to potential benefits Response: NMFS does not concur migrating through the mid-Atlantic, the for marine mammals (see goals of with the MMC that we should expand Navy does not require NARW reporting mitigation in the Mitigation section of the delay (until sonar can be restarted in the mid-Atlantic. this proposed rule) and practicability for after a shutdown due to a marine the Navy. That EA, which considered all Mitigation mammal sighting) to 60 minutes for of the measures recommended by these deep-diving species for the following Comment 7: One commenter asserts public comments, is currently available reasons: that NMFS’ analysis ignores or on the NMFS Web site (http:// • The ability of an animal to dive improperly discounts an array of www.nmfs.noaa.gov/pr/permits/ longer than 30 minutes does not mean options that have been considered and incidental.htm#applications) and has that it will always do so. Therefore, the imposed by other active sonar users, been relied upon to inform NMFS’ 60-minute delay would only potentially including avoidance of coastal waters, MMPA decision. add value in instances when animals high-value habitat, and complex Comment 8: NRDC recommends had remained under water for more than topography; the employment of a safety prescription of specific mitigation 30 minutes. zone more protective than the 1000-yard requirements for individual categories • Navy vessels typically move at 10– power-down and 200-yard shutdown (or sub-categories) of testing and 12 knots (5–6 m/sec) when operating accepted by NMFS; general passive training activities, in order to maximize active sonar and potentially much faster acoustic monitoring for whales; special mitigation given varying sets of when not. Fish et al. (2006) measured rules for surface ducting and low- operational needs. Also, the Navy speeds of 7 species of odontocetes and visibility conditions; monitoring and should require that other nations abide found that they ranged from 1.4–7.30 m/ shutdown procedures for sea turtles and by U.S. mitigation measures when sec. Even if a vessel was moving at the large schools of fish; and many others. training in the AFAST Study Area, slower typical speed associated with The commenter further provides a except where their own measures are active sonar use, an animal would need detailed list of 31 additional measures more stringent. that should be considered. Other Response: The Navy’s standard to be swimming near sustained commenters made additional protective measures include measures maximum speed for an hour in the recommendations of mitigation that are specific to certain categories of direction of the vessel’s course to stay measures that should be considered, activities. For example, different within the safety zone of the vessel. including, especially, time and area exclusion zones are utilized for hull- Increasing the typical speed associated closures in right whale calving grounds, mounted sonar and dipping sonar, and with active sonar use would further feeding grounds, and migration different range clearance procedures are narrow the circumstances in which the corridors. used for IEER sonobuoy exercises. 60-minute delay would add value. • Response: NMFS considered a wide Pursuant to the Navy’s 2000 Policy for Additionally, the times when range of mitigation options in our Environmental Compliance at Sea, the marine mammals are deep-diving (i.e., analysis, including those listed by the commander or officer in charge of a the times when they are under the water commenters. In order to issue an major exercise shall provide for longer periods of time) are the same incidental take authorization (ITA) participating foreign units with a times that a large portion of their motion under Section 101(a)(5)(A) of the description of the measures to protect is in the vertical direction, which means MMPA, NMFS must set forth the the environment required of similar U.S. that they are far less likely to keep pace ‘‘permissible methods of taking units as early as reasonable in the with a horizontally moving vessel. pursuant to such activity, and other exercise planning process and shall • Given that, the animal would need means of affecting the least practicable encourage them to comply. However, to have stayed in the immediate vicinity adverse impact on such species or stock foreign sovereign immune vessels may of the sound source for an hour and and its habitat, paying particular not be compelled to adopt such considering the maximum area that both attention to rookeries, mating grounds, mitigation measures. the vessel and the animal could cover in and areas of similar significance.’’ The Comment 9: The Marine Mammal an hour, it is improbable that this would National Defense Authorization Act Commission recommends that NMFS randomly occur. Moreover, considering (NDAA) of 2004 amended the MMPA as modify the Navy’s mitigation measures that many animals have been shown to it relates to military-readiness activities by requiring the Navy to delay avoid both acoustic sources and ships (which these Navy activities are) and resumption of full operational sonar use without acoustic sources, it is the incidental take authorization following a power-down or shutdown improbable that a deep-diving cetacean process such that ‘‘least practicable for 30 minutes if the sighted animal can (as opposed to a dolphin that might bow adverse impact’’ shall include be identified to the species level and the ride) would choose to remain in the consideration of personnel safety, species is not deep diving and 60 immediate vicinity of the source. NMFS practicality of implementation, and minutes if it cannot be identified or is believes that it is unlikely that a single impact on the effectiveness of the known to be a member of a deep-diving cetacean would remain in the safety ‘‘military readiness activity’’. NMFS species such as sperm and beaked zone of a Navy sound source for more worked with the Navy to identify whales. They further recommend that than 30 minutes.

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• Last, in many cases, the lookouts and the Navy will meet on an annual dB) to a diver standard that is based on are not able to differentiate species to basis to evaluate the Navy Reports (on received level (as are all of the levels the degree that would be necessary to both Navy lookout observations as well that are referenced by scientists in implement this measure. Plus, Navy as Monitoring Plan reporting) and other relation to marine mammal responses). operators have indicated that increasing new information (such as Navy R & D Of note, many odontocete species the number of mitigation decisions that developments or new science) to vocalizations have been recorded in the need to be made based on biological ascertain whether mitigation or field and the source levels estimated at information is more difficult for the monitoring modifications are above 210 dB, including sperm whales lookouts (because it is not their area of appropriate. (up to 236 dB), Blainville’s and Cuvier’s expertise). The MMOs conducting the beaked whales, bottlenose dolphins and Comment 10: The MMC recommends Monitoring pursuant to the Monitoring pantropical and Atlantic spotted that NMFS work with the Navy to Plan are professional marine mammal dolphins. The ability of the Navy’s validate the performance of Navy scientists and NMFS does not believe mitigation measures to avoid injury is lookouts, to conduct similar testing to that it is necessary to validate the discussed in the response to comment validate passive acoustic monitoring methods that they use for passive #2. methods, and to complete such tests acoustic monitoring. Currently, passive Additionally, the reference to 145 dB before the Navy proceeds with its acoustics are used by Navy operators to is incorrect. The Naval Sea Systems AFAST training operations. increase awareness of nearby marine Command Instruction (NAVSEAINST) Response: Navy lookouts are mammals, but are not used to directly 3150.2, ‘‘Safe Diving Distances from specifically trained to detect anomalies trigger mitigation measures. Therefore, Transmitting Sonar,’’ is the Navy’s in the water around the ship and both NMFS does not believe that a validation governing document for human divers the safety of Navy personnel and of those methods is necessary. in relation to mid-frequency active success in the training exercise depend Additionally, any systems used in the sonar systems. That instruction provides on the lookout being able to detect detection of marine mammals are the procedures for calculating safe distances objects (or marine mammals) effectively same systems used for enemy detection from active sonars. Such procedures are around the ship. NMFS has reviewed and NMFS is confidant that they are derived from experimental and the Navy’s After Action Reports from fully operational. NMFS acknowledges theoretical research conducted at the previous exercises and they show that the opportunity for improvement via the Naval Submarine Medical Research lookouts are detecting marine mammals, use of dedicated passive or active sonar Laboratory and the Naval Experimental and implementing sonar shutdowns as to detect marine mammals for Diving Unit. Inputs to those procedures required. That said, the AFAST mitigation implementation. However, include diver dress, type of sonar, and Monitoring Plan contains a study in current technology does not allow the distance from the sonar. The output is which Navy lookouts will be on watch Navy to detect, identify, and localize represented as a permissible exposure simultaneously with non-Navy marine marine mammals and transmit this limits (i.e., how long the diver can safely mammal observers and their detection information to operators real-time while stay at that exposure level). For rates will be compared. NMFS and the also not substantially reducing the example, a diver wearing a wetsuit Navy have developed (since the effectiveness of the fast-paced and without a hood has a permissible proposed rule) more rigorous reporting complicated exercises that the Navy exposure limit of 71 minutes at a requirements that should allow for more must conduct. The Navy is committed, distance of 1000 yds from the AN/SQS– meaningful comparisons between Navy however, to technological development 53 sonar. That same instruction advises lookouts, Navy MMOs, and peer- in the area of marine mammal that if the type of sonar is unknown, reviewed data, as well as meaningful protection and is currently funding comparisons between both occurrence multiple research projects towards this divers should start 1000 yds from the and behavior of marine mammals in the goal (see Research section). source and move closer (as needed) to presence and absence of sonar Comment 11: One commenter stated: the limits of diver comfort. If an operation. NMFS agrees that the review The Navy’s proposed mitigation interaction did occur, it is unlikely the of post-exercise reports is critical, and methods are woefully inadequate. If a active sonar activity would not be through the implementation of the more marine mammal is spotted and reported conducted close enough to a diver to rigorous reporting requirements that within 1,000 yards of the sonar dome trigger the permissible exposure limit. have been laid out in the final rule the sonar will not be stopped but will Assuming spherical spreading, the 1000 (versus the proposed rule) we should be be turned down by a mere 6 decibels yd distance equates to a receive level of able to reach well-supported (from the normal operating level of 235 approximately 175 dB. conclusions regarding the effects of db) to 229 decibels—still over 10 Of note, if spherical spreading is MFAS on marine mammals. million times more intense than the assumed, turning down the sonar by 6 Additionally, the regulations and Navy’s human diver standard of 145 dB reduces the radial distance to any subsequent authorization would require decibels and over a million times more particular received level by half, which the Navy to provide ‘‘an evaluation than the noise level received by the means that the ensonified area is (based on data gathered during all of the animals in the Bahamas incident of decreased by approximately 75 percent. major training exercises) of the 2000. Comment 12: One commenter stated: effectiveness of mitigation measures Response: In order to analyze ‘‘According to the Navy’s proposed designed to minimize the exposure of potential effects to marine mammals mitigation measures, the sonar will only marine mammals to mid-frequency from sound it is important to be shut down when an animal is spotted sonar. This evaluation shall identify the understand the difference between within 200 yards of the sonar dome. By specific observations that support any source level (the sound level about 1 the time the sonar has traveled that far, conclusions the Navy reaches about the meter from the sound source) and it will already have been ensonified for effectiveness of the mitigation included received level (the level that an animal many minutes with noise equivalent to in the authorization.’’ Last, the rule hears, which is largely based on how far that which caused the Bahamas whales contains an adaptive management it is from the source). The commenter is to strand and die. To shut off the sonar component that specifies that NMFS comparing source levels (235 and 229 when an animal is observed and

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reported at 200 yards will already be too must conduct. The Navy is committed, proposed rule for AFAST, NMFS late.’’ however, to technological development indicates that the TTS threshold for Response: The required powerdown in the area of marine mammal pinnipeds is 183 dB re 1 μPa2•s for and shutdown zones, if properly protection and is currently funding pinnipeds. NMFS does not explain the implemented, will avoid exposing multiple research projects towards this difference in thresholds. The marine mammals to levels associated goal (see Research section). commenter makes the same comment with injury and minimize the number of Acoustic Thresholds for TTS and PTS for the PTS thresholds (which are 20 dB marine mammals exposed to levels higher than the TTS thresholds). associated with TTS (see Mitigation Comment 14: One commenter asserts Response: As noted in the SOCAL conclusion section of proposed rule). that NMFS disregards data gained from proposed rule, the TTS thresholds are Sonar is not shutdown until or unless actual whale mortalities. The 183 dB re 1 FPa2•s for harbor seals (and an animal approaches within 200 yds, commenter cites to peer-reviewed closely related species), 204 dB re 1 However, if it is sighted at distances literature that indicates that sound μPa2•s for northern elephant seals (and greater than 200 yds, the sound will levels at the most likely locations of closely related species), and 206 dB re already have been reduced as a result of beaked whales beached in the Bahamas 1 μPa2•s for California sea lions (and either a 6-dB (1000 yds) or 10-dB (500 strandings run far lower than the Navy’s closely related species) (73 FR 60878). yds) powerdown, which will have threshold for injury here: approximately μ The commenter is correct, in the AFAST notably reduced the levels an animal is 150–160 dB re 1 Pa for 50–150 proposed rule, NMFS did not fully exposed to prior to entering the 200-yd seconds, over the course of the transit. explain that all of the pinniped species safety zone. Separately, as discussed in A further modeling effort, undertaken in that might be exposed to MFAS are NMFS’ response to comment #13, there part by the Office of Naval Research, the ‘‘closely related’’ to harbor seals (the commenter states, suggests that the is no way to know the levels that the thresholds for northern elephant seals mean exposure level of beaked whales, whales in the Bahamas were exposed to and California sea lions are not given their likely distribution in the that caused them to respond the way applicable because these species are not Bahamas’ Providence Channels and that they did. present in the AFAST Study Area). Comment 13: Several commenters averaging results from various Therefore, the 183 dB SEL is the were concerned that visual observation assumptions, may have been lower than pinniped threshold applied in AFAST. by lookouts would not be effective to 140 dB re 1 μPa. Last the commenter Accordingly, the AFAST final rule has detect marine mammals (especially suggests that when duration is factored been amended to clarify this issue and beaked whales, which are only at in, evidence would support a maximum be consistent with the SOCAL final rule. surface 8 percent of the time and for energy level (‘‘EL’’) threshold for serious The same answer applies to the which the chance of sighting has been injury on the order of 182 dB re 1 comment about PTS thresholds. calculated at about 2 percent, and μPa2•s, at least for beaked whales. especially in anything but calm Response: No one knows where the Comment 16: The Navy’s exclusive weather). They were further concerned beaked whales were when they were reliance on energy flux density as its that, therefore, mitigation would not be first exposed to MFAS in the Bahamas unit of analysis does not take other effectively implemented and the Navy or the duration of exposure for potentially relevant acoustic would not be able to avoid injuring individuals (in regards to maximum EL) characteristics into account. Reflecting marine mammals, as asserted by NMFS. and, therefore, we cannot accurately this uncertainty, the Navy should Response: As explained in the estimate the received level that triggered establish a dual threshold for marine proposed rule, injury of marine the response that ultimately led to the mammal injury. mammals is unlikely to occur because stranding. Therefore, NMFS is unable to Response: NMFS currently uses the an animal would need to approach to quantitatively utilize any data from this injury threshold recommended by within approximately 10 m of the event in the mathematical model Southall et al. (2007) for MFAS. source to be exposed to levels associated utilized to estimate the number of Specifically, NMFS uses the 215-dB SEL with injury (and animals are likely animals that will be ‘‘taken’’ incidental sound exposure level threshold (the avoiding both vessels and sound sources to the Navy’s proposed action. However, commenter refers to it as energy flux at that close distance) combined with NMFS does not disregard the data. The density level). Southall et al. (2007) the fact that lookouts would likely proposed rule includes a qualitative presents a dual threshold for injury, detect most marine mammals at that discussion of the Bahamas stranding which also includes a 230-dB peak close distance. NMFS acknowledges and four other strandings that NMFS pressure level threshold. NMFS that beaked whales are notably more and the Navy agree were likely discussed this issue with the Navy early difficult to detect: however, the Navy attributable to MFAS. These data in the MMPA process and determined model (which does not take mitigation illustrate a ‘‘worst case scenario’’ of the that the 215-dB SEL injury threshold or avoidance into consideration) range of potential effects from sonar and was the more conservative of the two predicted that 0 beaked whales would the analysis of these strandings supports thresholds (i.e., the 230-dB peak be exposed to injurious levels of sound. the Navy’s request for authorization to pressure threshold occurs much closer Nonetheless, NMFS acknowledges the take 10 individuals of several species by to the source than the 215-dB SEL opportunity for improvement via the mortality over the 5-yr period. threshold) and therefore it was not use of dedicated passive or active sonar Comment 15: One commenter notes necessary to consider the 230-dB peak to detect marine mammals for that in the SOCAL proposed rule, NMFS pressure threshold further. For example, mitigation implementation. However, sets its threshold for temporary hearing an animal will be within the 215-dB current technology does not allow the loss and behavioral effects, or SEL threshold and counted as a take Navy to detect, identify, and localize ‘‘temporary threshold shift’’ (‘‘TTS’’), at before it is exposed to the 230-dB marine mammals and transmit this 183 dB re 1 μPa2•s for harbor seals, 204 threshold. NMFS concurs with Southall information to operators real-time while dB re 1 μPa2•s for northern elephant et al. (2007), which asserts that for an also not substantially reducing the seals, and 206 dB re 1 FPa2•s for exposed individual, whichever criterion effectiveness of the fast-paced and California sea lions (73 FR. 60878). is exceeded first, the more complicated exercises that the Navy However, the commenter notes, in the precautionary of the two measures

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should be used as the operative injury • The sensitivity analysis reveals the simultaneously could potentially be criterion. importance of using as many datasets as greater than animals exposed to a single Comment 17: One commenter states possible. First, for historical reasons, source due to the fact that received that the calculation of PTS (which is there has been an emphasis on high level, both SPL and SEL, would be equated to the onset on injury) is based energy noise sources and the species slightly higher and because contextually on studies of TTS that, as discussed tolerant enough of noise to be observed it could be perceived as more below, are significantly limited. near them. Exclusion of the rarer threatening to an animal to receive Response: NMFS addressed this issue datasets demonstrating responses to low multiple stimuli coming from in response to comments 13 through 15. levels of noise biases the average potentially multiple directions at once parameter values, and hence (for example, marine mammals have Behavioral Harassment Threshold underestimates effects on sensitive been shown to respond more severely to Comment 18: The NRDC submitted a species. sources coming directly towards them, comprehensive critique of the risk • A similar mistake was made with vs. obliquely (Wartzok, 2004)). function (authored by Dr. David Bain), the right whale data. The level at which However, it is also worth noting that which NMFS has posted on our Web 100 percent of individuals responded according to information provided by site (http://www.nmfs.noaa.gov/pr/ was used as the value at which 50 the Navy, surface vessels do not permits/incidental.htm#applications). percent of individuals responded (B+K). typically operate closer than 10–20 NRDC summarized some general Likewise, the level at which 100 percent miles from another surface vessel (and limitations of the risk function and of killer whales responded to mid- greater distance is ideal), and other included a fairly detailed critique of the frequency sonar is less than the value sonar sources, such as dipping sonar specific structure of and parameters derived for B+K in the HRC SDEIS and sonobuoys, are almost always used (Dept. Navy 2008b). chosen for use in the model. Following • 20 or more miles away from the surface are some of the general topics addressed It is likely that biological B values vessel. This means that if the two most in the letter: should be in the range from just powerful sources were operating at the • detectable above ambient noise to 120 Factors that Dr. Bain thinks should μ closest distance they are likely to (10 be addressed by the model, such as dB re 1 Pa. The resulting mathematical miles), in the worst case scenario, social interactions and multiple sources. B value could be tens of dB lower, not animals that would have been exposed the 120 dB re 1 μPa proposed. For many • Critique of the datasets that NMFS to 150 dB SPL or less (taken from table species, risk may approach 100 percent used to populate the risk function 16 of the proposed rule) may be exposed in the range from 120–135 dB re 1 μPa, (described Level B Harasssment—Risk to slightly higher levels or to similar putting K in the 15–45 dB range. levels or less coming from multiple Function section of the proposed rule): • The A values do not seem well directions. (1) Controlled Laboratory Experiments supported by the data, and in any case, • with Odontocetes (SSC Dataset); (2) are likely to be misleading in social Underestimates of takes due to Mysticete Field Study (Nowacek et al., species as the risk function is likely to asymmetries in the number of 2004), and (3) Odontocet Field Data be asymmetrical with a disproportionate individuals affected when parameters (Haro Strait—USS Shoup). are underestimated and overestimated • number of individuals responding at Consideration of some datasets that low noise levels. Rather than one due to uncertainty: The commenter’s were considered by NMFS, but not used equation fitting all species well, point is acknowledged. When a in the risk function. sensitivity analysis is conducted and • parameters are likely to be species A critique of the parameters (A, B, typical. parameters are varied (both higher and and K) used in the risk function. • As realistic parameter values are lower values used)—the degree of • A sensitivity analysis of the lower than those employed in the HRC difference in take estimates is much parameters (i.e., takes were modeled SDEIS (Dept. Navy 2008b), AFAST DEIS greater when the parameter is adjusted while applying variable values for the (Dept. Navy 2008a) and related DEIS’s, in one direction than in the other, A, B, and K values). take numbers should be recalculated to which suggests the way that this Dr. Bain included a summary of his reflect the larger numbers of individuals generalized model incorporates concerns and an abbreviated version is likely to be taken. The difference uncertainty may not be conservative. included below. Additionally (and not between the parameter values estimated However, in all cases when the included in the summary), Dr. Bain here and those used in the SDEIS adjustment of the parameter in a certain suggested that the effect of multiple suggests takes were underestimated by direction results in a disproportionately sources may be both different and two orders of magnitude. (as compared to an adjustment in the greater than the effects of fewer sources Response: Many of the limitations other direction) large increase in the and provided supporting examples. outlined in Dr. Bain’s document were number of takes, it is because the model (comments that were in Dr. Bain’s raised by other commenters and are is now estimating that a larger summary, but have been addressed addressed elsewhere in this Comment percentage of animals will be taken at elsewhere in this Comment Response and Response Section and will not be greater distances from the source. This section are not included below): addressed again here. Below, NMFS risk function is based completely on the • In summary, development of a responds to the specific points received level of sound. As discussed in function that recognizes individual summarized above. the proposed rule, there are other variation is a step in the right direction. • The effects of multiple sources: contextual variables that are very • The selected equation is likely to Mathematically, the Navy’s exposure important to the way that an animal produce underestimates of takes due to model has already accounted for takes responds to a sound, such as nearness asymmetries in the number of of animals exposed to multiple sources of the source, relative movement individuals affected if parameters are in the number of estimated takes. NMFS (approaching or retreating), or the either underestimated or overestimated concurs with the commenter, however, animals familiarity with the source. due to uncertainty. Thus it will be in noting that the severity of responses Southall et al. (2007) indicates that the important to use the risk function in a of the small subset of animals that are presence of high-frequency components precautionary manner. actually exposed to multiple sources and a lack of reverberation (which are

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indicative of nearness) may be more exposures across taxa and to varied input from the public and intend to relevant acoustic cues of spatial sources are reviewed, NMFS believes consider it further as we move forward relationship than simply exposure level that 120 dB is an appropriate B value for and develop the Acoustic Guidelines. alone. In the AFAST activities, an a curve designed to predict responses Comment 19: One commenter animal exposed to between 120 and 130 that rise to the level of an MMPA expressed the concern that NMFS dB may be more than 75 nm from the harassment (not just any response). The blindly relies on TTS studies conducted sonar source. NMFS is not aware of any available data do not support the on 7 captive animals of two species (to data that describe the response of any commenter’s assertion that risk may the exclusion of copious data on marine mammals to sounds at that approach 100 percent in the range from animals in the wild) as a primary source distance, much less data that indicate 120–135 dB for many species. For of data for the behavioral harassment that an animal responded in a way we example, the Southall et al. (2007) threshold. The commenter further would classify as harassment at that summary of behavioral response data asserts that these studies (on highly distance. Because of this, NMFS does clearly shows, in almost every table (for trained animals that do not represent a not believe it is currently possible or all sound types), reports of events in normal range of variation within their appropriate to modify the model to which animals showed no observable own species, as they have been housed further address uncertainty if doing so response, or low-level responses NMFS in a noisy bay for most of their lives) results in the model predicting that would not likely consider harassment, have major deficiencies, which NMFS much larger numbers of animals will be in the 120 to 135-dB range. For the ignores by using the data. taken at great distances from the source species (the harbor porpoise) for which Response: As mentioned in comment when we have no data to suggest that the data do support that assertion, #18, the SSC Dataset (Controlled that would occur. which the Southall et al. (2007) paper Laboratory Experiments with • Using many datasets: NMFS has considers ‘‘particularly sensitive’’, Odontocetes) is not the primary source explained both in the rule, and then NMFS has implemented the use of a of data for the behavioral harassment again elsewhere in these comments, species-specific step function threshold threshold; rather, it is one of three why we chose the three datasets we did of 120 dB SPL. datasets (other two datasets are from to define the risk function. As Dr. Bain • The A value: Please see the second wild species exposed to noise in the points out, there are datasets that report bullet of this response for the first part field) treated equally in the marine mammal responses to lower of the answer. NMFS concurs with the determination of the K value (equates to levels of received sound. However, commenter that species-specific midpoint) of the behavioral risk because of the structure of the curve parameters would likely be ideal, function. NMFS recognizes that certain NMFS is using and what it predicts however there are not currently enough limitations may exist when one (Level B Harassment), we need datasets applicable data to support separate develops and applies a risk function to that show a response that we have curves for each species. We note, animals in the field based on captive determined qualifies as harassment (in though, that even with species-specific animal behavioral data. However, we addition to needing a source that is parameters, the context of the exposure note that for the SSC Dataset: (1) adequately representative of MFAS and will still likely result in a substantive Researchers had superior control over reliable specific received level variability of behavioral responses to the and ability to quantify noise exposure information), which many of the lower same received level by the same species. conditions; (2) behavioral patterns of level examples do not. • Recalculation: For the reasons exposed marine mammals were readily • 50 percent vs. 100 percent response: described in the bullets above in this observable and definable; and, (3) Dr. Bain asserts that two of the three response, NMFS disagrees with the fatiguing noise consisted of tonal noise datasets (Nowacek et al., 2004 and Haro commenter’s assertion that the exposures with frequencies contained in Strait—USS SHOUP) that NMFS uses to parameters used in the proposed rule the tactical mid-frequency sonar derive the 50 percent response and the EIS are unrealistic and that they bandwidth. NMFS does not ignore the probability in the risk function actually result in take estimates that are too deficiencies of these data, rather we report a 100 percent response at the small by two orders of magnitude. We weighed them against the value of the indicated received levels. For the Haro do not believe that a recalculation is data and compared the dataset to the Strait dataset, a range of estimated necessary. other available datasets and decided received levels at the closest approach The science in the field of marine that the SSC dataset was one of the three to the J Pod were estimated. Given that mammals and underwater sound is appropriate datasets to use in the neither the number of individual evolving relatively rapidly. NMFS is in development of the risk function. exposures or responses were available, the process of revisiting our acoustic Comment 20: One commenter stated the mean of this range was used as a criteria with the goal of developing a ‘‘NMFS excludes a substantial body of surrogate for the 50 percent response framework (Acoustic Guidelines) that research on wild animals (and some probability in the development of the allows for the regular and scientifically research on other experimental animals risk function. For the Nowacek data, valid incorporation of new data into our as well, within a behavioral NMFS used 139.2 dB, which is the acoustic criteria. We acknowledge that experimental protocol). Perhaps most mean of the received levels at which 5 this model has limitations, however, the glaringly, while the related DEIS of 6 animals showed a significant limitations are primarily based on the prepared for the Navy’s AFAST response to the signal. However, viewed lack of applicable quantitative data. We activities appears to acknowledge the another way, of 6 animals, one animal believe that the best available science strong sensitivity of harbor porpoises by did not respond to the signal and the has been used in the development of the setting an absolute take threshold of 120 other five responded at received levels criteria used in this and other dB (SPL)—a sensitivity that, as NMFS of 133 dB, 135 dB, 137 dB, 143 dB, and concurrent Navy rules and that this has noted, is reflected in numerous wild 148 dB, which means that 3 of the 6 behavioral harassment threshold far and captive animal studies—the animals (50 percent) showed a more accurately represents the number agencies improperly fail to include any significant response at 139.2 dB or less. of marine mammals that will be taken of these studies in their data set. The • 120 dB basement value: When the than the criteria used in the RIMPAC result is clear bias, for even if one broad array of data reported from 2006 authorization. We appreciate the assumes (for argument’s sake) that the

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SPAWAR data has value, NMFS has more likely to implement mitigation NMFS uses to estimate individual included a relatively insensitive species measures that avoid exposing the behavioral harassment events. in setting its general standard for marine animals to the higher levels received Quantitative data relating to long-term mammals while excluding a relatively within 1000 m of the source. behavioral impacts are limited, and sensitive one.’’ Comment 22: One commenter stated therefore NMFS’ assessment of long- Response: As explained in the Level ‘‘NMFS appears to have misused data term behavioral impacts is qualitative in B Harassment (Risk Function) section of garnered from the Haro Strait incident— nature (see Diel Cycle section in the proposed rule the risk function is one of only three data sets it considers— Negligible Impact Analysis section). based primarily on three datasets (SSC by including only those levels of sound NMFS’ analysis discusses the potential dataset, Nowacek et al. (2004), and Haro received by the ‘‘J’’ pod of killer whales significance of impacts that continue Strait—USS SHOUP) in which marine when the USS Shoup was at its closest more than 24 hours and/or are repeated mammals exposed to mid-frequency approach. These numbers represent the on subsequent days and, though it does sound sources were reported to respond maximum level at which the pod was not quantify those impacts, further in a manner that NMFS would classify harassed; in fact, the whales were indicates that these types of impacts are as Level B Harassment. NMFS reported to have broken off their not likely to occur because of the nature considered the ‘‘substantial body of foraging and to have engaged in of the Navy’s training activities and the research’’ that the commenter refers to significant avoidance behavior at far large area over which they are but was unable to find other datasets greater distances from the ship, where conducted. that were suitable in terms of all of the received levels would have been orders following: The equivalency of the sound of magnitude lower. We must insist that Effects Analysis source to MFAS, a reported behavioral NMFS provide the public with the Comment 24: One commenter stated: response that NMFS would definitively Navy’s propagation analysis for the Haro ‘‘NMFS does not properly account for consider Level B Harassment, and a Strait event, which it used in preparing reasonably foreseeable reverberation received level reported with high its 2005 Assessment of the incident.’’ effects (as in the Haro Strait incident), confidence. The SSC dataset is only one Response: For the specific application giving no indication that its modeling of three used and, in fact, the other 2 in the risk function for behavioral sufficiently represents areas in which datasets (which are from wild animals— harassment, NMFS used the levels of the risk of reverberation is greatest.’’ killer whales and North Atlantic right sound received by the ‘‘J’’ pod when the Response: The model does indirectly whales) both report behavioral USS Shoup was at its closest approach incorporate surface-ducting (surface responses at substantively lower levels because a review of the videotapes and reverberation), as conditions in the (i.e., the ‘‘relatively insensitive’’ species other materials by NMFS detailing the model are based on nominal conditions is not driving the values in the behavior of the animals in relation to calculated from a generalized digitalized function). the location of the Navy vessels showed monthly average. Though the model Comment 21: The risk function must that it was after the closest approach of does not directly consider take into account the social ecology of the vessel that the whales were observed reverberations, these effects are some marine mammal species. For responding in a manner that NMFS generally at received levels many orders species that travel in tight-knit groups, would classify as ‘‘harassed’’. Though of magnitude below those of direct an effect on certain individuals can animals were observed potentially exposures (as demonstrated in the Haro adversely influence the behavior of the responding to the source at greater Strait analysis associated with bottom whole. Should those individuals fall on distances, NMFS scientists believed that reverberation) and thus contribute the more sensitive end of the spectrum, the responses observed at greater essentially nothing to the cumulative the entire group or pod can suffer distances were notably less severe and SEL exposure and would not result in significant harm at levels below what would not rise to the level of MMPA the exposure of an animal to a higher the Navy would use as the mean. In harassment. Though the received levels SPL than the direct exposure, which is developing its ‘‘K’’ parameter, NMFS observed in relation to the lesser already considered by the model. must take into account the potential for responses could be used in some types Comment 25: One commenter states indirect effects. of analytical tools, the risk continuum that though the numbers of animals that Response: The risk function is specifically requires that we use the Navy predicts its proposal will intended to define the received level of received sound levels that are impact are worryingly high, they believe MFAS at which exposed marine representative of when MMPA them to be gross underestimates of the mammals will experience behavioral harassment likely occurred. The Navy’s real numbers of animals potentially at harassment. The issue the commenter report may be viewed at: http:// risk because of the thresholds the Navy raises is related to the Navy’s exposure www.acousticecology.org/docs/ is using to predict behavioral model—not the risk function. However, SHOUPNavyReport0204.pdf. disturbance and levels of deafness. The because of a lack of related data there Comment 23: One commenter asserts Navy is using 215 dB (re 1 μPa2-s) as the is no way to numerically address this that NMFS’ threshold is applied in such threshold above which it says issue in the model. Although the point a way as to preclude any assessment of permanent deafness (PTS) will occur the commenter raises could potentially long-term behavioral impacts on marine and 195 dB (re 1 μPa2-s) as the threshold apply, one could also assert that if mammals. It does not account, to any above which it says temporary deafness certain animals in a tight knit group degree, for the problem of repetition: the (TTS) will occur. Behavioral impacts are were less sensitive it would have the way that apparently insignificant predicted based on a dose response opposite effect on the group. impacts, such as subtle changes in dive function. Additionally, the modeling is based on times or vocalization patterns, can Response: Contrary to what the uniform marine mammal density become significant if experienced commenter states, in the Model (distributed evenly over the entire area repeatedly or over time. Overestmation section of the proposed of potential effect), which does not Response: NMFS’ threshold does not rule NMFS clearly explains why the consider the fact that marine mammals preclude any assessment of long-term authorized take numbers are likely appearing in pods will be easier to behavioral impacts on marine mammals. notably higher than the takes that will detect and therefore the Navy will be The threshold is a quantitative tool that actually occur.

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To clarify, PTS is not permanent population is impossible. Since most experiment, only one successful deafness, rather it is permanent species are pelagic, there is also no way playback experiment on a beaked whale threshold shift, which means that the to know the real number killed in a was achieved and in it a tagged hearing sensitivity has been particular event: not all injured animals Blainville’s beaked whale displayed a permanently reduced by a certain strand, and not all carcasses find their probable behavioral response at a amount, which could be a small amount way to a beach. There is even less received level of MFA sonar of 145 dB or a larger amount (the longer and known about non-lethal impacts, such re 1μPa [rms]. The precautionary higher level the exposure to the sound, as disruption of mother-calf bonds. principle should be applied and the the more likely PTS will be of a larger Response: The commenter is correct Navy should, at a minimum, curb its amount). Of note, reduced hearing that relatively little is known about activities around known areas of high sensitivity as a simple function of beaked whale population structure, marine mammal density and at times development and aging has been sizes, and trends off the east coast of the when marine animals are expected to be observed in marine mammals, as well as U.S. However, we do know that the present. humans and other taxa (Southall et al., Navy’s ASW exercises are spread Response: As the commenter notes, 2007), so we can infer that strategies throughout the AFAST Study Area (as the results from the first in the series of exist for coping with this condition to opposed to focused in an area of known behavioral response studies conducted some degree, though likely not without particular importance) and that the by NMFS and other scientists did show cost. There is no empirical evidence that Navy is utilizing Planning Awareness one beaked whale (Mesoplodon exposure to MFAS/HFAS can cause PTS Areas (in both exercise planning and densirostris) responding to an MFAS in any marine mammals; instead the implementation, where practicable) to playback. The BRS–07 Cruise report probability of PTS has been inferred limit takes of marine mammals indicates that the playback began when from studies of TTS. Similarly, TTS is (including beaked whales) in designated the tagged beaked whale was vocalizing not temporary deafness, rather a areas of high productivity and steep at depth (at the deepest part of a typical temporary reduction in hearing bathymetric contours, which are feeding dive), following a previous sensitivity. frequented by deep diving marine control with no sound exposure. The Comment 26: NMFS fails to include mammals like beaked whales (see whale appeared to stop clicking data from the July 2004 Hanalei Bay Planning Awareness Areas in proposed significantly earlier than usual, when event, in which 150–200 melon-headed rule). Comment responses 12 and 36 exposed to mid-frequency signals in the whales were embayed for more than 24 discuss the likelihood of beaked whales 130–140 dB (rms) range. After a few hours during the Navy’s Rim of the being injured by MFAS. Though not all more minutes of the playback, when the Pacific exercise. According to the dead or injured animals are expected to received level reached a maximum of Navy’s analysis, predicted mean end up on the shore (some may be eaten 140–150 dB, the whale ascended on the received levels (from mid-frequency or float out to sea), we would expect slow side of normal ascent rates with a sonar) inside and at the mouth of that if marine mammals were being longer than normal ascent, at which Hanalei Bay ranged from 137.9 dB to harmed by active sonar with any point the exposure was terminated. As 149.2 dB. NMFS’ failure to incorporate regularity, more evidence would have the commenter noted, the whale these numbers into its methodology as been detected over the 40-yr period that displayed a behavioral response: another data set is not justifiable. the Navy has been conducting sonar in However, further consideration by Response: NMFS’ investigation of the the area (30 of which, people have NMFS is necessary to determine if this Hanalei event concluded that there was actively been collecting stranding data). behavioral response qualifies as a insufficient evidence to determine Of note also, the MFAS use covered by behavioral harassment pursuant to the causality. There are a number of this rule is not an increase in the MMPA, and if so, how the information uncertainties about sonar exposure and amount of sonar conducted off the east should be factored into NMFS’ analysis. other potential contributing factors and coast and in the Gulf of Mexico (i.e., the The advanced modeling tool that the assumptions inherent to a amount of use is consistent with historic Navy uses to predict the take of marine reconstruction of events in which sonar effort). Last, the potential impacts to mammals incidental to any particular was the causative agent that simply cetacean mother-calf pairs from sonar activity takes weeks and sometimes preclude this determination. Because of are specifically discussed in Potential months to produce the take estimates. this, NMFS did not use the numbers Effects of Specified Activities on Marine NMFS worked at length, with input (137.9–149.2 dB) in our methodology. Mammals section of the proposed rule. from the Navy and from a panel of Additionally, even if NMFS had However, as the commenter suggests, marine mammal scientists, to develop concluded that MFAS were the the specific effects of MFAS on beaked and finalize the risk continuum for causative agent, insufficient evidence whales and their calves are not behavioral harassment. It took months exists regarding the received level when discussed because specific data do not for NMFS to finalize the risk continuum the animals responded (there is no exist. For the reasons listed here and and months for the Navy to calculate the information regarding where they were described in the Negligible Impact estimated takes based on the current when they would have first heard the Analysis section of the proposed rule, continuum. NMFS and the Navy are sound). NMFS has determined that the Navy’s working together to bring the Navy’s Comment 27: Two commenters noted action will have a negligible impact on AFAST activities into compliance under that little is known about most species beaked whales. the MMPA in advance of the expiration of beaked whales and most of that Comment 28: One commenter noted of the MMPA National Defense knowledge has come from carcasses, as that the Navy states that it is helping to Exemption, and it was necessary for sightings of live animals are generally fund (with NMFS) a series of controlled NMFS to continue moving forward (not rare. With few exceptions, there is exposure experiments on wild whales, wait for new data) in the MMPA process almost nothing known about beaked the first of which took place in the in order to complete the final rule in the whale population structure, sizes, or Bahamas in 2007. Yet preliminary needed timeframe to accomplish this. trends in the waters off the east coast of results from this experiment support a This is not to definitively say that this the U.S, so determining the impact of much lower threshold for behavioral new information will change the way the loss of a few individuals to the impacts than the Navy is using. In the that NMFS quantitatively analyzes

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effects. The interpretation of data evidence, gas bubble growth is the via the ingestion of toxins or interaction presented in the report notes that the causal mechanism most consistent with with the aforementioned expended results are from a single experiment and the observed injuries. NMFS’ argument materials and they did not request (nor that a greater sample size is needed to the contrary simply misrepresents the did NMFS grant) authorization for take before robust conclusions can be drawn. available literature.’’ of marine mammals via these methods. Also, the results from this study fall Response: The proposed rule Comment 32: The MMC recommends under the curve that NMFS is using for contained a detailed discussion of the that the Service work with the Navy to behavioral effects (though the low end many hypotheses involving both prepare a more thorough analysis of of the curve). That said, NMFS will acoustically-mediated and behaviorally- potential cumulative effects, the carefully consider these results and mediated bubble growth. NMFS measures that will be taken to avoid or subsequent BRS results in future concluded that there is not sufficient minimize them, and the basis for analyses. evidence to definitively say that any of concluding that those effects will be This final rule contains an adaptive these hypotheses accurately describe the negligible. They further note that the management component that requires a exact mechanism that leads from sonar DEIS, request for a letter of yearly review of monitoring reports and exposure to a stranding. Despite the authorization, and proposed rule, do not new science and allows for the many theories involving bubble describe how the effects of the Navy’s modification of mitigation and formation (both as a direct cause of operations and the effects of other monitoring measures, when appropriate. injury and an indirect cause of human activities (e.g., ship traffic, As noted in the response to comment stranding), Southall et al., (2007) commercial fishing) will be assessed #30, the Navy currently uses the summarizes that scientific disagreement and minimized to the extent necessary Planning Awareness Areas (designated or complete lack of information exists to avoid an excessive cumulative impact based on high productivity and steep regarding the following important on marine mammals. bathymetric contour areas) to limit points: (1) Received acoustical exposure Response: NMFS participated as a marine mammal impacts during both conditions for animals involved in cooperating agency in the development exercise planning and implementation. stranding events; (2) pathological of the Navy’s AFAST EIS and has Additional detail regarding the potential interpretation of observed lesions in adopted it to support our issuance of use of other specific mitigation stranded marine mammals; (3) acoustic incidental take regulations and LOAs. measures can be found in the Mitigation exposure conditions required to induce The FEIS contains a thorough analysis EA. such physical trauma directly; (4) of potential cumulative effects. Comment 29: NMFS’ and the Navy’s whether noise exposure may cause Throughout the FEIS, within the assessment glosses over stranding behavioral reactions (such as atypical separate resource sections, the Navy events associated with active sonar. diving behavior) that secondarily cause addresses different ways that they will Although NMFS briefly discusses bubble formation and tissue damage; minimize adverse effects. As an agency, stranding events (73 FR 60776–80), the and (5) the extent the post mortem NMFS understands the importance of Marine Mammal Protection Act requires artifacts introduced by decomposition cumulative effects, and we continually NMFS to fully consider the impacts of before sampling, handling, freezing, or look for ways to both better understand sonar on marine mammals to determine necropsy procedures affect and more effectively reduce cumulative there is no more than a negligible interpretation of observed lesions. effects/impacts on marine mammals and impact before issuing an incidental take Comment 31: One commenter stated other marine resources through statute authorization. that NMFS’ take estimates do not reflect implementation (ESA, NEPA, MSA, Response: NMFS disagrees. The other non-auditory physiological CZMA, etc.) and more directly through proposed rule contains a detailed impacts, such as from chronic exposure policy and other decisions, such as the discussion of stranding events (those during development, stress, and implementation of the Right Whale Ship that were merely coincident with MFAS exposure to toxic chemicals. Strike Reduction rule or the convening use, as well as those for which the Response: The commenter is correct of the Potential Application of Vessel- evidence suggests that MFAS exposure that the NMFS’ estimated take numbers Quieting Technology on Large was a contributing factor), a detailed do not reflect non-auditory Commercial Vessels meeting in May discussion of the multiple hypotheses physiological impacts because the 2007. However, the MMPA does not that describe how acoustically-mediated quantitative data necessary to address require that cumulative effects be or behaviorally-mediated bubble growth those factors in the Navy’s exposure factored into NMFS’ determination can lead to marine mammal strandings, model do not exist. However, NMFS whether to issue an incidental take as well as a comprehensive discussion acknowledges that a subset of the authorization under the MMPA. Rather, of the more general potential effects to animals that are taken by harassment the MMPA states that NMFS ‘‘shall marine mammals of MFAS exposure. will also likely experience non-auditory allow * * * the incidental taking * * * NMFS analyses fully considered the physiological effects (stress, etc.) and if the Secretary * * * finds that the impacts of MFAS use and other naval these effects are addressed in the total taking [meaning the taking NMFS exercises on marine mammals, which proposed rule (see Stress Responses authorizes] during each five-year (or allowed us to determine that the total section). Regarding toxins, the Navy did less) period concerned will have a taking during the five-year period from not expect AFAST activities to result in negligible impact.’’ the specified activities will have a the production of any toxic chemicals Comment 33: One commenter felt that negligible impact on the affected species that would affect marine mammals, the rule discounts the potential impacts or stocks. although the EIS did analyze the on beaked whales from AFAST based on Comment 30: One commenter states: potential impacts from torpedo assumptions that are unfounded. The ‘‘NMFS fails to take proper account of guidance wires, torpedo flex hoses, and first is that strandings are unlikely to published research on bubble growth in parachutes and find that no significant occur because events are not planned marine mammals, which separately impacts to marine mammals were likely ‘‘in a location having a constricted indicates the potential for injury and to result from those expended materials. channel less than 35 miles wide or with death at lower [received sound] levels. Therefore, the Navy determined that limited egress similar to the Bahamas According to the best available scientific marine mammals would not be taken (because none exist in the AFAST Study

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Area)’’. The commenter notes that marine mammals were being harmed by the sonar source within which an sonar-associated beaked whale active sonar with any regularity, more animal would need to approach to be mortalities have occurred in other areas evidence would have been detected over exposed to injurious levels (10 m), the (e.g. the Canary Islands in 2002 and the 40-yr period that the Navy has been small number of modeled exposures to 2004) where such bathymetry was not conducting sonar in the area (30 of injurious levels to a few species (of present, suggesting this as not a which, people have actively been relatively good detectibility: dolphins requisite characteristic for sonar- collecting stranding data). and pilot whales), the implementation influenced strandings. The second is the Comment 34: The MMC of mitigation measures, and the observation that unusual strandings recommended that NMFS work with the likelihood that most marine mammals have not been recorded to date in the Navy to provide in the final rule and EIS would avoid approaching the source at region is not an indication that a side-by-side comparison of the this distance are taken into mortalities have not occurred. Given methods each agency used to generate consideration, NMFS and the Navy that most species of cetaceans sink upon the sound exposure estimates so that believe that marine mammals will not death, and that most beaked whales reviewers can understand the process by be injured by sonar exposure. Therefore, occur in very deep water which would which they were derived and the NMFS has not authorized any Level A prevent decomposing carcasses from uncertainties associated with that Harassment, with the exception of the eventually refloating, it is highly process, and use that information to 10 beaked whales (by injury or unlikely that whales suffering mortal assess the risks to marine mammal mortality) over the course of the 5-yr injury at sea would have been detected. species and the adequacy of mitigation regulations, the reasons for which are This is especially true in offshore/island measures. The MMC also requested an explained in the Mortality section of the regions, where there is limited shoreline explanation of how NMFS ‘‘revised take proposed rule. These are the only throughout much of the operational estimates and proposed take quantitative adjustments NMFS has area, and much of it is steep or rocky authorization’’ ‘‘depict a more realistic made to the authorized takes from the and not conducive to holding moribund scenario than those adopted directly Navy’s modeled exposure results. NMFS individuals or carcasses. from the Navy’s acoustic analysis.’’ Last, has directly adopted the Navy’s Level B MMC notes that they have requested in Harassment exposures as modeled, Response: The rule does not discount the past that the Navy submit its sonar though we qualitatively explain in the the potential impacts on beaked whales exposure model for peer-review. proposed rule why we believe these from sonar. NMFS specifically Response: As indicated in the numbers may be an overestimate (see addresses the potential impacts to Estimates of Potential Marine Mammal Overestimation section). Additionally, beaked whales in the ‘‘Acoustically Exposures and Takes section of the although NMFS is not required to Mediated Bubble Growth’’, proposed rule, Appendix F of the identify the number of animals that will ‘‘Behaviorally Mediated Responses to Navy’s AFAST EIS clearly describes the be taken specifically by TTS versus MFAS That May Lead to Stranding’’, analytical procedures and provides the behavioral harassment (Level B ‘‘Stranding and Mortality’’, and data used to estimate the number of Harassment takes include both), we ‘‘Association Between Mass Stranding marine mammal exposures to NMFS have attempted to make more realistic Events and Exposure to MFAS’’ sections acoustic threshold levels in sufficient estimates by quantitatively refining the of the proposed rule. Specifically, in detail that the reviewers can understand Navy’s TTS estimates based on the same recognition of potential impacts to and verify the estimated risks. However, factors listed above for refining the beaked whales and the scientific reviewers would not be able to injury estimates (see the Species- uncertainty surrounding the exact reconstruct the process exactly because specific analysis section). The mechanisms that lead to strandings, the inherent to the overall exposure model authorized number of Level B Navy requested, and NMFS has is the CASS/GRAB submodel, the harassment takes remains the same as authorized, the mortality of 10 beaked specific details of which cannot be the number of exposures estimated by whales over the course of 5 years in the included in the EIS because the model the Navy’s model. unlikely event that a stranding occurs as is a Navy owned, restricted distribution Last, NMFS’ Office of Protected a result of Navy training exercises. model available only to U.S. Resources has funded a peer-review of Additionally, the commenter is Government Agencies and their the Navy’s exposure model to be misrepresenting a piece of text from the contractors. This high fidelity acoustic conducted by the Center for proposed rule—though NMFS points propagation model (CASS/GRAB) used Independent Experts. The results of this out that the five factors that contributed for marine mammal effects analysis is review are scheduled to be available at to the stranding in the Bahamas are not the same model used for the operational the end of January, 2009. all present in the AFAST Study Area, use of tactical sonar, and it is included Comment 35: One commenter asserts we do not say that that alone means in the Navy’s Oceanographic and that the Navy’s exposure model fails to strandings are unlikely to occur. We Atmospheric Master Library (OAML), consider the following important points: also further suggest that caution is which has a rigorous acceptance process • Possible synergistic effects of using recommended when any of the three for all databases, models and algorithms multiple sources in the same exercise, environmental factors are present prior to being accepted into OAML. or the combined effects of multiple (constricted channels, steep bathymetry, The Navy provides the numbers of exercises. or surface ducts) in the presence of estimated marine mammal exposures to • Indirect effects, such as the MFAS and beaked whales. Also, NMFS NMFS. These numbers (presented in the potential for mother-calf separation, that does not ever say that the fact that ‘‘Navy Modeled Exposure Estimates’’ can result from short-term disturbance. strandings have not been recorded to columns of Table 6) do not take into • In assuming animals are evenly date in the region is an indication that consideration any avoidance of vessels distributed—the magnifying effects of mortalities have not occurred. Rather, or sound sources by marine mammals or social structure, whereby impacts on a we say that though not all dead or the implementation of mitigation single animal within a pod, herd, or injured animals are expected to end up measures. As described in the other unit may affect the entire group. on the shore (some may be eaten or float Mitigation Conclusion section of the • In assuming that every whale out to sea), one might expect that if proposed rule, when the distance from encountered during subsequent

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exercises is essentially a new whale— and the different OPAREAS. Using a ‘‘counts’’ the most severe response. In the cumulative impacts on the breeding, uniform density is a form of averaging the example given by the commenter, feeding, and other activities of species and the commenter has provided no NMFS considers the overall possibility and stocks. support for why the model would of ship strikes resulting from Navy Response: Though the Navy’s model ‘‘overestimate’’ sometimes and activities, regardless of whether or not does not quantitatively consider the ‘‘dramatically underestimate’’ in others they would be preceded by a lesser points listed above (because the (all else being equal, a uniform response. quantitative data necessary to include distribution should do these two things General Opposition and Other those concepts in a mathematical model in equal amounts). do not currently exist), NMFS and the Beaked whale densities in the SE (and Comment 38: The Navy should avoid Navy have qualitatively addressed those seaward of the shelf break in the NE) fish spawning grounds and important concerns in their effects analyses in the were derived through the spatial model fish habitat. It should also avoid high- rule and in the Navy’s EIS. approach which took environmental value sea turtle habitat. Comment 36: NMFS’ (and the Navy’s) and habitat parameters into Response: These concerns are outside analysis of marine mammal distribution, consideration. These models were built of the purview of the MMPA. Impacts to habitat abundance, population structure using only shipboard survey data from fish spawning grounds and habitat are and ecology contains false, misleading 1998 through 2005 collected and dealt with pursuant to the Magnusson or outdated assumptions that tend to provided by NMFS. For areas in the NE Stevens Act (MSA) as it relates to both underestimate impacts on species shoreward of the shelf break, beaked Essential Fish Habitat (EFH). The Navy and to impede consideration of whale density was actually calculated determined that their activities would reasonable alternatives and mitigation by Palka (Palka, 2005) based on not adversely impact EFH; therefore, the measures. For example, outdated stock geographic strata provided by Navy. Navy determined that a consultation assessment data are used as the basis for These estimates were developed using under the MSA was not necessary. most density estimates. It also appears data from both shipboard and aerial Measures to reduce impacts to sea that NMFS and the Navy do not surveys conducted by the NEFSC. turtles are included in the terms and consider other sources of published Density data provided by Palka conditions of the biological opinion that literature. For a number of species, incorporated estimates of g(0) NMFS issued to the Navy (view at: uniform distribution was assumed when (correction factor that incorporates http://www.nmfs.noaa.gov/pr/permits/ calculating density and risk. Although sightability) as discussed in Palka 2005. incidental.htm#applications). the Navy and NMFS made repeated Comment 37: One commenter states Comment 39: One commenter assurances that this is a conservative that NMFS does not consider the suggested that no sonar testing should approach, it is not. Marine mammals potential for acute synergistic [indirect] be done in the waters of the Gulf and often concentrate in areas with greater effects from sonar training. For example, Atlantic because dead marine life from density of prey or more favorable the agency does not consider the greater these tests would go ashore and topography or currents for migration; susceptibility to vessel strike of animals endanger the tourism industry for the thus, assuming a uniform distribution that have been temporarily harassed or state. will overestimate presence in some disoriented. The absence of analysis is Response: NMFS is aware of 5 cases, areas and dramatically underestimate it particularly glaring in light of the 2004 worldwide, where science supports the in others. Nowacek et al. study, which indicates determination that MFAS was a Another commenter notes that the that mid-frequency sources provoke contributing factor in a marine mammal Navy’s analysis of acoustic impacts to surfacing and other behavior in North stranding. None of these strandings marine mammals is through modeling Atlantic right whales that increases the occurred on the Atlantic coast of the based on abundance estimates which risk of vessel strike. U.S. or in the Gulf of Mexico. were largely determined from aerial Response: In the proposed rule, Separately, potential adverse effects to surveys, a difficult way to count marine NMFS refers the reader to a conceptual the tourism industry are not required to mammals, especially relatively small framework that illustrates the variety of be addressed under the MMPA. animals and those that dive for avenues of effects that can result from Comment 40: The NRDC urged NMFS prolonged periods such as beaked sonar exposure, to include ‘‘risk prone to withdraw its proposed rule on whales—the very animals thought to be behavior’’ resulting somewhat indirectly AFAST and to revise the document most susceptible to anthropogenic ocean from attempting to avoid certain prior to its recirculation for public noise. received levels. Though we consider the comment. They suggested NMFS revisit Response: The most current stock potential for this type of interaction, its profoundly flawed analysis of assessment reports (Waring et al., 2007) NMFS does not include detailed environmental impacts and prescribe were used to calculate density analysis of potential indirect effects that mitigation measures that truly result in estimates. As summarized in the have not been empirically the least practicable adverse impact on proposed rule and described more fully demonstrated. Though Nowacek marine species. in the Navy’s FEIS, the Navy used the showed that right whales responded to Response: NMFS has addressed best data and methods available to a signal with mid-frequency specific comments related to the effects calculate density, including other components (not an actual MFAS analysis here and the mitigation literature as well as habitat modeling signal) in a way that appeared likely to measures in the Mitigation that considered bathymetry, distance put them at greater risk for ship strike, Environmental Assessment. We do not from shelf break, sea surface we do not have evidence that the believe that the analysis is flawed and temperature, and Chlorophyll A hypothesized sequence of behaviors has we believe that the prescribed measures concentration. All spatial models and actually led to a ship strike. will result in the least practicable density estimates were reviewed by Additionally, in general and if affected, adverse impacts on the affected species NMFS technical staff. The Navy’s model marine mammals may be affected by (or or stock. Therefore, NMFS does not utilizes uniform density, but it also respond to) sonar in more than one intend to withdraw its AFAST rule. divides the east coast into meaningful single way when exposed. However, Comment 41: A few commenters sections, such as on-shelf and off-shelf when analyzing impacts, NMFS expressed general opposition to Navy

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activities and NMFS’ issuance of an Potential Effects of Specified Activities in southern California, but not in the MMPA authorization, because of the on Marine Mammals section) to the AFAST Study Area). These paragraphs danger to marine mammals, and MMPA regulatory definitions of Level A and the summary below serve as a presented several reasons why MFAS and Level B Harassment and quantified clarification and response to the was not necessary. (estimated) the effects on marine commenter’s comment. Response: NMFS appreciates the mammals that could result from the NMFS’ TTS criteria (which indicate commenters’ concern for the marine specific activities that the Navy intends the received level at which onset TTS mammals that live in the area of the to conduct. The subsections of this (>6dB) is induced) for MFAS/HFAS are proposed activities. However, the analysis are discussed individually as follows: MMPA directs NMFS to issue an below. • Cetaceans—195 dB re 1 μPa2-s incidental take authorization if certain Definition of Harassment (based on mid-frequency cetaceans—no findings can be made. Under the published data exist on auditory effects MMPA, NMFS must make the decision The Definition of Harassment section of noise in low or high frequency of whether or not to issue an of the proposed rule contained the cetaceans (Southall et al. (2007)) authorization based on the proposed definitions of Level A and Level B • Harbor Seals (and closely related action that the applicant submits—the Harassments, and a discussion of which species, which include all of the species MMPA does not contain a mechanism of the previously discussed potential present in the AFAST Study Area)—183 for NMFS to question the need for the effects of MFAS/HFAS or explosive dB re 1 μPa2-s detonations fall into the categories of action that the applicant has proposed • Northern Elephant Seals (and Level A Harassment (permanent (unless the action is illegal). Similarly, closely related species)—204 dB re threshold shift (PTS), acoustically any U.S. citizen (including the Navy) 1 μPa2-s mediated bubble growth, behaviorally can request and receive an MMPA • California Sea Lions (and closely mediated bubble growth, and physical authorization as long as all of the related species)—206 dB re 1 μPa2-s necessary findings can be made. NMFS disruption of tissues resulting from NMFS uses the following acoustic has determined that the Navy’s AFAST explosive shock wave) or Level B criteria for injury (Level A Harassment): training activities will have a negligible Harassment (temporary threshold shift • Cetaceans—215 dB re 1 μPa2-s impact on the affected species or stocks (TTS), acoustic masking and (based on mid-frequency cetaceans—no and, therefore, we plan to issue the communication impairment, and published data exist on auditory effects requested MMPA authorization. behavioral disturbance rising to the level of harassment). See 73 FR 60754, of noise in low or high frequency Estimated Take of Marine Mammals cetaceans (Southall et al. (2007)) pages 60800–60801. No changes have • As mentioned previously, with been made to the discussion contained Harbor Seals (and closely related μ 2 respect to the MMPA, NMFS’ effects in this section of the proposed rule. species)—203 dB re 1 Pa -s assessments serve four primary • Northern Elephant Seals (and purposes: (1) To put forth the Acoustic Take Criteria closely related species)—224 dB re 1 permissible methods of taking (i.e., In the Acoustic Take Criteria section μPa2-s Level B Harassment (behavioral of the proposed rule, NMFS described • California Sea Lions (and closely harassment), Level A Harassment the development and application of the related species)—226 dB re 1 μPa2-s (injury), or mortality, including an acoustic criteria for both MFAS/HFAS For the behavioral harassment criteria identification of the number and types and explosive detonations (73 FR 60754, (for all species except harbor porpoises, of take that could occur by Level A or pages 60801–60807). No changes have below), NMFS uses acoustic risk B harassment or mortality) and to been made to the discussion contained functions developed by NMFS, with prescribe other means of effecting the in this section of the proposed rule, input from the Navy, to estimate the least practicable adverse impact on such with the exception of the issue probability of behavioral responses to species or stock and its habitat (i.e., discussed below. MFAS/HFAS (interpreted as the mitigation); (2) to determine whether NMFS received one public comment percentage of the exposed population) the specified activity will have a in which the commenter noted that the that NMFS would classify as harassment negligible impact on the affected species acoustic thresholds for TTS and PTS for for the purposes of the MMPA given or stocks of marine mammals (based on pinnipeds presented in NMFS’ AFAST exposure to specific received levels of the likelihood that the activity will proposed rule were different from those MFA sonar. For harbor porpoises, adversely affect the species or stock presented in NMFS’ Southern California currently available information suggests through effects on annual rates of Range Complex proposed rule. As noted a lower threshold level of response for recruitment or survival); (3) to in the updated summary of acoustic both captive and wild animals and, determine whether the specified activity thresholds for TTS and PTS below, therefore, NMFS uses a separate 120 dB will have an unmitigable adverse impact NMFS has established three separate re 1 μPa step function to estimate take on the availability of the species or TTS and PTS thresholds for pinnipeds by behavioral harassment (3 FR 60754, stock(s) for subsistence uses (however, based on which species are being pages 60802–60806). there are no subsistence communities considered. All of the pinnipeds that are Table 13 in the proposed rule that would be affected in the AFAST expected to be exposed to MFAS/HFAS summarizes the acoustic criteria for Study Area, so this determination is in the AFAST Study Area are more explosive detonations (73 FR 60754, inapplicable for AFAST); and (4) to closely related to harbor seals (see page 60807). prescribe requirements pertaining to below) and, therefore, only one of the Estimates of Potential Marine Mammal monitoring and reporting. three pinniped criteria is applicable in Exposures and Authorized Take In the Estimated Take of Marine AFAST. Mammals section of the proposed rule, In the proposed rule, NMFS only Information regarding the models NMFS related the potential effects to listed the single applicable threshold used, the assumptions used in the marine mammals from MFAS/HFAS without explaining that two other models, and the process of estimating and underwater detonation of pinniped TTS and PTS thresholds are take is available in the Navy’s EIS/OEIS explosives, i.e., IEER (discussed in the used for different taxa (that are present for AFAST. Estimating the take that will

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result from the proposed activities certain geographic areas and seasons if hours that the Navy will conduct. The entails the following general steps: data are available, are applied to the exact number of hours may vary from (1) In order to quantify the types of summed ZOIs for a particular training year to year, but will not exceed the 5- take described in previous sections that event to determine how many times year total indicated in Table 1 (by are predicted to result from the Navy’s individuals of each species are exposed multiplying the yearly estimate by 5) by specified activities, the Navy first uses to levels that exceed the applicable more than 10 percent. NMFS estimates a sound propagation model that predicts criteria for injury or harassment. that a 10-percent increase in sonar hours the volume of water that will be (4) Next, the criteria discussed in the would result in approximately a 10- ensonified to a range of levels of previous section are applied to the percent increase in the number of takes pressure and energy (of the metrics used estimated exposures to predict the (described in Table 6), and we have in the criteria) from MFAS/HFAS and number of exposures that exceed the considered this possibility and the effect explosive detonations based on several criteria, i.e., the number of takes by of this additional sonar use in our important pieces of information, Level B Harassment, Level A analysis. including: Harassment, and mortality. • Characteristics of the sound (5) Last, NMFS and the Navy consider Table 6 remains unchanged from sources; the mitigation measures and model- Table 11 in the proposed rule (73 FR • Sonar source characteristics; calculated estimates may be adjusted 60753, page 608090) with the exception include: source level (with horizontal based on a post-model assessment. For of minor modifications and one and vertical directivity corrections), example, in some cases the raw correction. The number of estimated source depth, center frequency, source modeled numbers of exposures to levels and authorized Level B behavioral takes directivity (horizontal/vertical beam predicted to result in Level A of beaked whales increased by a total of width and horizontal/vertical steer Harassment from exposure to sonar 2238 (no increase in modeled TTS direction), and ping spacing; might indicate that 1 fin whale would takes) because the Navy corrected a • Explosive source characteristics be exposed to levels of sonar anticipated calculation related to submarine include: The net explosive weight, the to result in PTS—however, a fin whale maintenance. When submarine sonar is type of explosive, and the detonation would need to be within approximately used in exercises, the source emits a depth; 10 m of the source vessel in order to be ping approximately once every 2 hours. • Transmission loss (in 36 exposed to these levels. Because of the However, when maintenance is being representative environmental provinces) mitigation measures (watchstanders and conducted, the source emits based on: Seasonal sound speed shutdown zone), size of fin whales, and approximately 60 pings an hour, which profiles; seabed geoacoustics; wind nature of fin whale behavior, it is highly will result in more modeled takes than speed; and acoustics. unlikely that a fin whale would be the sub used in an exercise. The Navy (2) The accumulated energy and exposed to those levels, and therefore originally calculated the submarine maximum received sound pressure level the Navy would not request sonar takes using the number of pings within the waters in which the sonar is authorization for Level A Harassment of from an exercise—this has since been operating is sampled over a two 1 fin whale. Table 11 contains the corrected. Of note, all of the indicated dimensional grid. The zone of influence Navy’s estimated take estimates. The take increase will occur during sub (ZOI) for a given threshold is estimated ‘‘takes’’ reported in the take table and maintenance, which occurs by summing the areas represented by proposed to be authorized are based on each grid point for which the threshold estimates of marine mammal exposures approximately 50% inshore (potentially is exceeded. For behavioral response, to levels above those indicated in the at a dock) and 50% at sea, but all of the percentage of animals likely to criteria. Every separate take does not which occurs with a single submarine, respond corresponding to the maximum necessarily represent a different not a group of sonar sources such as in received level is found, and the area of individual because some individual the large scale training exercises that the grid point is multiplied by that marine mammals may be exposed more have been associated with strandings in percentage to find the adjusted area. than once, either within one day and certain circumstances in approximately Those adjusted area are summed across one exercise, or on different days from 5 cases outside of U.S. waters. This all grid points to find the overall ZOI for different exercise types. change in the take numbers did not a particular source. (6) Last, the Navy’s specified activities change NMFS’ conclusions regarding (3) The densities of each marine have been described based on best the effects of the proposed action. mammal species, which are specific to estimates of the number of MFAS/HFAS BILLING CODE 3510–22–P

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BILLING CODE 3510–22–C

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Mortality disturbance of individuals can result in stocks for taking for subsistence uses, Evidence from five beaked whale population-level effects (for example: since there are no such uses in the strandings, all of which have taken pink-footed geese (Anser specified area. brachyrhynchus) in undisturbed habitat place outside of the AFAST Study Area, ESA and have occurred over approximately a gained body mass and had about a 46- percent reproductive success compared decade, suggests that the exposure of There are six marine mammal species with geese in disturbed habitat (being beaked whales to MFAS in the presence and six sea turtle species listed as consistently scared off the fields on of certain conditions (e.g., multiple threatened or endangered under the which they were foraging) which did units using tactical sonar, steep ESA with confirmed or possible not gain mass and had a 17-percent bathymetry, constricted channels, strong occurrence in the study area: Humpback reproductive success). A negligible surface ducts, etc.) may result in whale, NARW, sei whale, fin whale, impact finding is based on the lack of strandings, potentially leading to blue whale, sperm whale, loggerhead likely adverse effects on annual rates of mortality. Although these physical sea turtle, the green sea turtle, hawksbill recruitment or survival (i.e., population- factors believed to contribute to the sea turtle, leatherback sea turtle, olive level effects). An estimate of the number ridley sea turtle and the Kemp’s ridley likelihood of beaked whale strandings of Level B harassment takes, alone, is are not present on the Atlantic Coast of sea turtle. Pursuant to Section 7 of the not enough information on which to ESA, the Navy has consulted with the U.S. or in the Gulf of Mexico in the base an impact determination. In aggregate, scientific uncertainty exists NMFS on this action. NMFS has also addition to considering estimates of the consulted internally on the issuance of regarding what other factors, or number of marine mammals that might combination of factors, may contribute regulations under section 101(a)(5)(A) of be ‘‘taken’’ through behavioral the MMPA for this activity. In a to beaked whale strandings. harassment, NMFS must consider other Accordingly, to allow for scientific Biological Opinion (BiOp), NMFS factors, such as the likely nature of any concluded that the Navy’s activities in uncertainty regarding contributing responses (their intensity, duration, causes of beaked whale strandings and the AFAST Study Area and NMFS’ etc.), the context of any responses issuance of these regulations are not the exact behavioral or physiological (critical reproductive time or location, mechanisms that can lead to the likely to jeopardize the continued migration, etc.), or any of the other existence of threatened or endangered ultimate physical effects (stranding and/ variables mentioned in the first or death), the Navy has requested species or destroy or adversely modify paragraph (if known), as well as the any designated critical habitat. authorization for (and NMFS is number and nature of estimated Level A NMFS (the Endangered Species authorizing) take, by injury or mortality takes, the number of estimated Division) will also issue BiOps and of 10 beaked whales over the course of mortalities, and effects on habitat. associated incidental take statements the 5-yr regulations. Neither NMFS nor Generally speaking, and especially with (ITSs) to NMFS (the Permits, the Navy anticipates that marine other factors being equal, the Navy and Conservation, and Recreation Division) mammal strandings or mortality will NMFS anticipate more severe effects to exempt the take (under the ESA) that result from the operation of MFAS from takes resulting from exposure to during Navy exercises within the higher received levels (though this is in NMFS authorizes in the LOAs under the AFAST Study Area. no way a strictly linear relationship MMPA. Because of the difference between the statutes, it is possible that Effects on Marine Mammal Habitat throughout species, individuals, or circumstances) and less severe effects ESA analysis of the applicant’s action NMFS’ AFAST proposed rule from takes resulting from exposure to could produce a take estimate that is included a section that addressed the lower received levels. different from the takes requested by the effects of the Navy’s activities on Marine In the Analysis and Negligible Impact applicant (and analyzed for Mammal Habitat (73 FR 60754, page Determination section of the proposed authorization by NMFS under the 60810). The analysis preliminarily rule, NMFS addressed the issues MMPA process), despite the fact that the concluded that the Navy’s activities identified in the preceding paragraph in same proposed action (i.e., number of would have minimal effects on marine combination with additional detailed sonar hours and explosive detonations) mammal habitat. No changes have been analysis regarding the severity of the was being analyzed under each statute. made to the discussion contained in this anticipated effects, and including When this occurs, NMFS staff section of the proposed rule. species (or group)-specific discussions, coordinate to ensure that the most to determine that Navy training, conservative (lowest) number of takes is Analysis and Negligible Impact authorized. For the Navy’s proposed Determination maintenance, and RDT&E activities utilizing MFAS/HFAS and underwater AFAST training, coordination with the Pursuant to NMFS’ regulations detonations (IEER) will have a negligible Endangered Species Division indicates implementing the MMPA, an applicant impact on the marine mammal species that they will likely allow for a lower is required to estimate the number of and stocks present in the AFAST Study level of take of ESA-listed marine animals that will be ‘‘taken’’ by the Area. No changes have been made to the mammals than was requested by the specified activities (i.e., takes by discussion contained in this section of applicant (because their analysis harassment only, or takes by the proposed rule (73 FR 60754, pages indicates that fewer will be taken than harassment, injury, and/or death). This 60811–60823). estimated by the applicant). Therefore, estimate informs the analysis that NMFS the number of authorized takes in must perform to determine whether the Subsistence Harvest of Marine NMFS’ LOA(s) will reflect the lower activity will have a ‘‘negligible impact’’ Mammals take numbers from the ESA on the species or stock. Level B NMFS has determined that the consultation, though the specified (behavioral) harassment occurs at the issuance of these regulations and activities (i.e., number of sonar hours, level of the individual(s) and does not subsequent LOAs for Navy AFAST etc.) will remain the same. Alternately, assume any resulting population-level exercises would not have an these regulations indicate the maximum consequences, though there are known unmitigable adverse impact on the number of takes that may be authorized avenues through which behavioral availability of the affected species or under the MMPA.

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The ITS(s) issued for each LOA will Administration that this final rule, if The Navy is the entity subject to the contain implementing terms and adopted, would not have a significant regulations and has informed NMFS conditions to minimize the effect of the economic impact on a substantial that it is imperative that these measures marine mammal take authorized number of small entities. The be effective on or before January 23, through the 2009 LOA (and subsequent Regulatory Flexibility Act requires 2009. Finally, as recognized by the LOAs in 2010, 2011, 2012, and 2013). Federal agencies to prepare an analysis President and the United States With respect to listed marine mammals, of a rule’s impact on small entities Supreme Court, the AFAST exercises the terms and conditions of the ITSs whenever the agency is required to proposed to be conducted are of will be incorporated into the LOAs. publish a notice of proposed paramount interest to the United States. NEPA rulemaking. However, a Federal agency Any delay in the implementation of may certify, pursuant to 5 U.S.C. section these measures would raise serious NMFS participated as a cooperating 605(b), that the action will not have a national security implications. agency on the Navy’s Final significant economic impact on a Therefore, these measures will become Environmental Impact Statement (FEIS) substantial number of small entities. effective upon filing. for AFAST. NMFS subsequently The Navy is the entity that will be List of Subjects in 50 CFR Part 216 adopted the Navy’s EIS for the purpose affected by this rulemaking, not a small of complying with the MMPA. governmental jurisdiction, small Exports, Fish, Imports, Incidental Additionally, NMFS prepared an organization or small business, as take, Indians, Labeling, Marine Environmental Assessment (EA) that defined by the Regulatory Flexibility mammals, Navy, Penalties, Reporting tiered off the Navy’s FEIS. The EA Act. Any requirements imposed by a and recordkeeping requirements, analyzed the environmental effects of Letter of Authorization issued pursuant Seafood, Sonar, Transportation. several different mitigation alternatives to these regulations, and any monitoring Dated: January 16, 2009. for the issuance of the AFAST rule and or reporting requirements imposed by James Balsiger, subsequent LOAs. A finding of no these regulations, will be applicable significant impact was issued for the Acting Assistant Administrator for Fisheries, only to the Navy. Because this action, if National Marine Fisheries Service. mitigation EA on January 15, 2009. adopted, would directly affect the Navy ■ For reasons set forth in the preamble, Determination and not a small entity, NMFS concludes the action would not result in a 50 CFR Part 216 is amended as follows: Based on the analysis contained significant economic impact on a PART 216—REGULATIONS herein and in the proposed rule (and substantial number of small entities. other related documents) of the likely GOVERNING THE TAKING AND effects of the specified activity on The Assistant Administrator for IMPORTING OF MARINE MAMMALS marine mammals and their habitat and Fisheries has determined that there is good cause under the Administrative ■ 1. The authority citation for part 216 dependent upon the implementation of continues to read as follows: the mitigation measures, NMFS finds Procedure Act (5 U.S.C. 553(d)(3)) to that the total taking from Navy AFAST waive the 30-day delay in effective date Authority: 16 U.S.C. 1361 et seq. of the measures contained in the final training exercises utilizing MFAS/HFAS ■ rule. Since January 23, 2007, the Navy 2. Subpart V is added to part 216 to and underwater explosives (IEER) over read as follows: the 5 year period will have a negligible has been conducting military readiness impact on the affected species or stocks activities employing mid-frequency Subpart V—Taking and Importing and will not result in an unmitigable active sonar (MFAS) pursuant to a 2- Marine Mammals; U.S. Navy’s Atlantic adverse impact on the availability of year MMPA National Defense Fleet Active Sonar Training (AFAST) marine mammal species or stocks for Exemption (NDE). The NDE serves as a taking for subsistence uses because no bridge to long-term compliance with the Sec. subsistence uses exist in the AFAST MMPA while the Navy prepared its 216.240 Specified activity and specified Environmental Impact Statement and geographical region. Study Area. NMFS has issued 216.241 Effective dates and definitions. regulations for these exercises that pursued the necessary MMPA incidental take authorization for the 216.242 Permissible methods of taking. prescribe the means of effecting the least 216.243 Prohibitions. practicable adverse impact on marine AFAST exercises. The NDE will expire 216.244 Mitigation. mammals and their habitat and set forth on January 23, 2009, by which time it 216.245 Requirements for monitoring and requirements pertaining to the is imperative that the regulations and reporting. monitoring and reporting of that taking. the measures identified in a subsequent 216.246 Applications for Letters of LOA become effective. Any delay of Authorization. Classification these measures would result in either: 216.247 Letters of Authorization. This action does not contain a (1) A suspension of ongoing or planned 216.248 Renewal of Letters of Authorization collection of information requirement naval exercises, which would disrupt and Adaptive Management. vital sequential training and 216.249 Modifications to Letters of for purposes of the Paperwork Authorization. Reduction Act. certification processes essential to Pursuant to the procedures national security; or (2) the Navy’s non- Subpart V—Taking and Importing established to implement section 6 of compliance with the MMPA (should the Marine Mammals; U.S. Navy’s Atlantic Executive Order 12866, the Office of Navy conduct exercises without an Fleet Active Sonar Training (AFAST) Management and Budget has LOA), thereby resulting in the potential determined that this final rule is for unauthorized takes of marine § 216.240 Specified activity and specified significant. mammals upon expiration of the NDE. geographical region. Pursuant to the Regulatory Flexibility National security and NMFS’ and (a) Regulations in this subpart apply Act, the Chief Counsel for Regulation of Navy’s preference that the Navy be in only to the U.S. Navy for the taking of the Department of Commerce has compliance with the MMPA after marine mammals that occurs in the area certified to the Chief Counsel for January 23, 2009, dictate that these outlined in paragraph (b) of this section Advocacy of the Small Business measures go into effect immediately. and that occurs incidental to the

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activities described in paragraph (c) of (11) AN/SLQ–25 (NIXIE—towed (c) The incidental take of marine this section. countermeasure)—up to 1660 hours mammals under the activities identified (b) The taking of marine mammals by over the course of 5 years (an average of in § 216.240(c) is limited to the the Navy is only authorized if it occurs 332 hours per year). following species, by the identified within the AFAST Study Area, which (12) AN/BQS–15 (submarine method of take and the indicated extends east from the Atlantic Coast of navigation)—up to 2250 hours over the number of times: the U.S. to 45° W. long. and south from course of 5 years (an average of 450 (1) Level B Harassment (+/¥10 the Atlantic and Gulf of Mexico Coasts hours per year). percent of the number of takes indicated to approximately 23° N. lat., excluding (13) MK–1 or 2 or 3 or 4 (Submarine- below): the Bahamas (see Figure 1–1 in the fired Acoustic Device Countermeasure (i) Mysticetes: Navy’s Application). (ADC))—up to 1125 ADCs over the (A) North Atlantic right whale (c) The taking of marine mammals by course of 5 years (an average of 225 (Eubalaena glacialis)—3330 (an average the Navy is only authorized if it occurs ADCs per year). of 666 annually). incidental to the use of the following (14) Noise Acoustic Emitters (NAE— (B) Humpback whale (Megaptera mid-frequency active sonar (MFAS) Sub-fired countermeasure)—up to 635 novaeangliae)—21010 (an average of sources, high frequency active sonar NAEs over the course of 5 years (an 4202 annually). (HFAS) sources, or explosive sonobuoys average of 127 NAEs per year). (C) Minke whale (Balaenoptera for U.S. Navy anti-submarine warfare § 216.241 Effective dates and definitions. acutorostrata)—2075 (an average of 415 (ASW), mine warfare (MIW) training, (a) Regulations are effective January annually). maintenance, or research, development, 22, 2009 through January 22, 2014. (D) Sei whale (Balaenoptera testing, and evaluation (RDT&E) in the borealis)—5285 (an average of 1057 ¥ (b) The following definitions are amounts indicated below (+/ 10 utilized in these regulations: annually). percent): (1) Uncommon Stranding Event (E) Fin whale (Balaenoptera (1) AN/SQS–53 (hull-mounted (USE)—A stranding event that takes physalus)—4410 (an average of 882 sonar)—up to 16070 hours over the place during a major training exercise annually). course of 5 years (an average of 3214 (MTE) and involves any one of the (F) Bryde’s whale (Balaenoptera hours per year). following: edeni)—180 (an average of 36 annually). (2) AN/SQS–56 (hull-mounted (i) Two or more individuals of any (G) Blue whale (Balaenoptera sonar)—up to 8420 hours over the cetacean species (not including mother/ musculus)—4005 (an average of 801 course of 5 years (an average of 1684 calf pairs), unless of species of concern annually). hours per year). listed in § 216.241(b)(1)(ii) found dead (ii) Odontocetes: (3) AN/SQS–56 or 53 (hull mounted or live on shore within a 2-day period (A) Sperm whales (Physeter sonar in object detection mode)—up to and occurring within 30 miles of one macrocephalus)—48790 (an average of 1080 hours over the course of 5 years another. 9758 annually). (an average of 216 hours per year). (ii) A single individual or mother/calf (B) Pygmy or dwarf sperm whales (4) AN/BQQ–10 or 5 (submarine pair of any of the following marine (Kogia breviceps or Kogia sima)—21920 sonar)—up to 49880 pings over the mammals of concern: beaked whale of (an average of 4384 annually). course of 5 years (an average of 9976 any species, dwarf or pygmy sperm (C) Beaked Whales (Cuvier’s, True’s, pings per year) (an average of 1 ping per whales, melon-headed whales, pilot Gervais’, Sowerby’s, Blainville’s, two hours during training events, 60 whales, right whales, humpback whales, Northern bottlenose whale) (Ziphius pings per hour for maintenance). sperm whales, blue whales, fin whales, cavirostris, Mesoplodon mirus, M. (5) AN/AQS–22 or 13 (helicopter or sei whales. dipping sonar)—up to 14760 dips over europaeus, M. bidens, M. densirostris, (iii) A group of 2 or more cetaceans Hyperoodon ampullatus)—24535 (an the course of 5 years (an average of 2952 of any species exhibiting indicators of dips per year—10 pings per five-minute average of 4907 annually). distress as defined in § 216.241(b)(3). (D) Rough-toothed dolphin (Steno dip). (2) Shutdown—The cessation of bredanensis)—13540 (an average of (6) SSQ–62 (Directional Command MFAS/HFAS operation or detonation of 2708 annually). Activated Sonobuoy System (DICASS) explosives within 14 nm nm (Atlantic (E) Bottlenose dolphin (Tursiops sonobuoys)—up to 29265 sonobuoys Ocean) or 17 nm (Gulf of Mexico) of any truncatus)—3034010 (an average of over the course of 5 years (an average of live, in the water, animal involved in a 5853 sonobuoys per year). USE. 606802 annually). (7) MK–48 (heavyweight torpedoes)— (F) Pan-tropical dolphin (Stenella up to 160 torpedoes over the course of § 216.242 Permissible methods of taking. attenuata)—696530 (an average of 5 years (an average of 32 torpedoes per (a) Under Letters of Authorization 139306 annually). year). issued pursuant to §§ 216.106 and (G) Atlantic spotted dolphin (Stenella (8) MK–46 or 54 (lightweight 216.247, the Holder of the Letter of frontalis)—1881805 (an average of torpedoes)—up to 120 torpedoes over Authorization may incidentally, but not 376361 annually). the course of 5 years (an average of 24 intentionally, take marine mammals (H) Spinner dolphin (Stenella torpedoes per year). within the area described in longirostris)—105775 (an average of (9) AN/SSQ–110A (IEER explosive § 216.240(b), provided the activity is in 21155 annually). sonobuoy) and AN/SSQ–125 (AEER compliance with all terms, conditions, (I) Clymene dolphin (Stenella sonar sonobuoy)—up to 4360 and requirements of these regulations clymene)—232190 (an average of 46438 sonobuoys, between these 2 sources, and the appropriate Letter of annually). over the course of 5 years (an average of Authorization. (J) Striped dolphin (Stenella 872 buoys per year). (b) The activities identified in coeruleoalba)—873620 (an average of (10) AN/SQQ–32 (over the side mine- § 216.240(c) must be conducted in a 174274 annually). hunting sonar)—up to 22370 hours over manner that minimizes, to the greatest (K) Common dolphin (Delphinus the course of 5 years (an average of 4474 extent practicable, any adverse impacts spp.)—482300 (an average of 96460 hours per year). on marine mammals and their habitat. annually).

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(L) Fraser’s dolphin (Lagenodelphis § 216.244 Mitigation. lookouts should scan the water from the hosei)—1730 (an average of 346 (a) When conducting training ship to the horizon and be responsible annually). activities identified in § 216.240(c), the for all contacts in their sector. In (M) Risso’s dolphin (Grampus mitigation measures contained in the searching the assigned sector, the griseus)—470375 (an average of 94075 Letter of Authorization issued under lookout should always start at the annually). §§ 216.106 and 216.247 must be forward part of the sector and search aft (N) Atlantic white-sided dolphin implemented. These mitigation (toward the back). To search and scan, (Lagenorhynchus acutus)—103255 (an measures include, but are not limited to: the lookout should hold the binoculars average of 20651 annually). (1) Mitigation Measures for ASW and steady so the horizon is in the top third (O) White-beaked dophin MIW training: of the field of vision and direct the eyes (Lagenorhynchus albirostris)—17250 (an (i) All lookouts onboard platforms just below the horizon. The lookout average of 3450 annually). involved in ASW training events shall should scan for approximately five (P) Melon-headed whale review the NMFS-approved Marine seconds in as many small steps as (Peponocephala electra)—8270 (an Species Awareness Training (MSAT) possible across the field seen through average of 1654 annually). material prior to use of mid-frequency the binoculars. They should search the (Q) Pygmy killer whale (Feresa active sonar. entire sector in approximately five- attenuata)—1400 (an average of 280 (ii) All Commanding Officers, degree steps, pausing between steps for annually). Executive Officers, and officers standing approximately five seconds to scan the (R) False killer whale (Pseudorca watch on the Bridge shall review the field of view. At the end of the sector crassidens)—2690 (an average of 538 MSAT material prior to a training event search, the glasses should be lowered to annually). employing the use of mid- or high- allow the eyes to rest for a few seconds, (S) Killer whale (Orcinus orca)—2515 frequency active sonar. and then the lookout should search back (an average of 503 annually). (iii) Navy lookouts shall undertake across the sector with the naked eye. (T) Pilot whales (Short-finned pilot or extensive training in order to qualify as (xi) After sunset and prior to sunrise, long-finned) (Globicephala a watchstander in accordance with the lookouts shall employ Night Lookouts macrorynchus or G. melas)—636965 (an Lookout Training Handbook Techniques in accordance with the average of 127393 annually). (NAVEDTRA, 12968–D). Lookout Training Handbook. At night, (U) Harbor porpoise (Phocoena (iv) Lookout training shall include on- lookouts should not sweep the horizon phocoena)—767405 (an average of the-job instruction under the with their eyes because this method is 153481 annually). supervision of a qualified, experienced not effective when the vessel is moving. (iii) Pinnipeds: watchstander. Following successful Lookouts should scan the horizon in a (A) Gray seal (Halichoerus grypus)— completion of this supervised training series of movements that should allow 39295 (an average of 7859 annually). (B) Harbor seal (Phoca vitulina)— period, Lookouts shall complete the their eyes to come to periodic rests as 63295 (an average of 12659 annually). Personal Qualification Standard they scan the sector. When visually (C) Hooded seal (Cystophora program, certifying that they have searching at night, they should look a cristata)—78590 (an average of 15718 demonstrated the necessary skills (such little to one side and out of the corners annually). as detection and reporting of partially of their eyes, paying attention to the (D) Harp seal (Pagophilus submerged objects). things on the outer edges of their field groenlandica)—55010 (an average of (v) Lookouts shall be trained in the of vision. 11002 annually). most effective means to ensure quick (xii) Personnel on lookout shall be (2) Level A Harassment and/or and effective communication within the responsible for informing the Officer of mortality of no more than 10 beaked command structure in order to facilitate the Deck all objects or anomalies sighted whales (total), of any of the species implementation of mitigation measures in the water (regardless of the distance listed in § 216.242(c)(1)(ii)(C) over the if marine mammals are spotted. from the vessel) to the Officer of the course of the 5-year regulations. (vi) On the bridge of surface ships, Deck, since any object or disturbance there shall always be at least three (e.g., trash, periscope, surface § 216.243 Prohibitions. people on watch whose duties include disturbance, discoloration) in the water Notwithstanding takings observing the water surface around the may be indicative of a threat to the contemplated in § 218.92 and vessel. vessel and its crew or indicative of a authorized by a Letter of Authorization (vii) All surface ships participating in marine species that may need to be issued under §§ 216.106 and 216.247, ASW exercises shall, in addition to the avoided as warranted. no person in connection with the three personnel on watch noted (xiii) Commanding Officers shall activities described in § 216.240 may: previously, have at all times during the make use of marine mammal detection (a) Take any marine mammal not exercise at least two additional cues and information to limit specified in § 216.242(c); personnel on watch as lookouts. interaction with marine mammals to the (b) Take any marine mammal (viii) Personnel on lookout and maximum extent possible consistent specified in § 216.242(c) other than by officers on watch on the bridge shall with safety of the ship. incidental take as specified in have at least one set of binoculars (xiv) All personnel engaged in passive § 216.242(c)(1) and (2); available for each person to aid in the acoustic sonar operation (including (c) Take a marine mammal specified detection of marine mammals. aircraft, surface ships, or submarines) in § 216.242(c) if such taking results in (ix) On surface vessels equipped with shall monitor for marine mammal more than a negligible impact on the MFAS, pedestal mounted ‘‘Big Eye’’ (20 vocalizations and report the detection of species or stocks of such marine × 110) binoculars shall be present and any marine mammal to the appropriate mammal; or in good working order. watch station for dissemination and (d) Violate, or fail to comply with, the (x) Personnel on lookout shall employ appropriate action. terms, conditions, and requirements of visual search procedures employing a (xv) Units shall use training lookouts these regulations or a Letter of scanning methodology in accordance to survey for marine mammals prior to Authorization issued under §§ 216.106 with the Lookout Training Handbook commencement and during the use of and 216.247. (NAVEDTRA 12968–D). Surface active sonar.

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(xvi) During operations involving yards (1828 m) beyond the location of Reporting requirements shall be sonar, personnel shall utilize all the last detection. outlined in the test plans and available sensor and optical systems (D) If the need for power-down should procedures written for each individual (such as Night Vision Goggles) to aid in arise as detailed in ‘‘Safety Zones’’ in exercise, and shall be emphasized as the detection of marine mammals. paragraph (a)(1)(xx) of this section, part of pre-exercise briefings conducted (xvii) Navy aircraft participating in Navy shall follow the requirements as with all participants. exercises at sea shall conduct and though they were operating at 235 dB— (C) Observers shall receive NMFS- maintain, when operationally feasible the normal operating level (i.e., the first approved training in field identification, and safe, surveillance for marine power-down shall be to 229 dB, distribution, and relevant behaviors of mammals as long as it does not violate regardless of at what level above 235 marine mammals of the western north safety constraints or interfere with the sonar was being operated). Atlantic. Observers shall fill out accomplishment of primary operational (xxi) Prior to startup or restart of Standard Sighting Forms and the data duties. active sonar, operators shall check that shall be housed at the Naval Undersea (xviii) Aircraft with deployed the Safety Zone radius around the Warfare Center Division Newport sonobuoys shall use only the passive sound source is clear of marine (NUWCDIVNPT). Any sightings of capability of sonobuoys when marine mammals. North Atlantic right whales shall be mammals are detected within 200 yards (xxii) Sonar levels (generally)—The immediately communicated to the (182 m) of the sonobuoy. Navy shall operate sonar at the lowest Sighting Advisory System (SAS). All (xix) Marine mammal detections shall practicable level, not to exceed 235 dB, platforms shall have onboard a copy of: be reported immediately to assigned except as required to meet tactical (1) The Guide to Marine Mammals Aircraft Control Unit (if participating) training objectives. and Turtles of the U.S. Atlantic and Gulf for further dissemination to ships in the (xxiii) Helicopters shall observe/ of Mexico (Wynne and Schwartz 1999); (2) The NMFS Critical Sightings vicinity of the marine mammals. This survey the vicinity of an ASW Program placard; action shall occur when it is reasonable Operation for 10 minutes before the first deployment of active (dipping) sonar in (3) Right Whales, Guidelines to to conclude that the course of the ship Mariners placard. will likely close the distance between the water. (xxiv) Helicopters shall not dip their (D) In addition to the visual the ship and the detected marine sonar within 200 yards (183 m) of a surveillance discussed above, dedicated mammal. marine mammal and shall cease pinging aerial surveys shall be conducted (xx) Safety Zones—When marine if a marine mammal closes within 200 utilizing a fixed-wing aircraft. An mammals are detected by any means yards of the helicopter dipping sonar aircraft with an overhead wing (i.e., (aircraft, shipboard lookout, or (183 m) after pinging has begun. Cessna Skymaster or similar) shall be acoustically) the Navy shall ensure that (xxv) Submarine sonar operators shall used to facilitate a clear view of the test sonar transmission levels are limited to review detection indicators of close- area. Two trained observers, in addition at least 6 dB below normal operating aboard marine mammals prior to the to the pilot, shall be embarked on the levels if any detected marine mammals commencement of ASW training aircraft. Surveys shall be conducted at are within 1000 yards (914 m) of the activities involving active sonar. an approximate altitude of 1000 ft (305 sonar dome (the bow). (xxvi) Night vision devices shall be m) flying parallel track lines at a (A) Ships and submarines shall available to all ships and air crews, for separation of 1 nmi (1.85 km), or as continue to limit maximum use as appropriate. necessary to facilitate good visual transmission levels by this 6-dB factor (xxvii) Dolphin bowriding—If, after coverage of the sea surface. While until the marine mammal has been seen conducting an initial maneuver to avoid conducting surveillance, the aircraft to leave the area, has not been detected close quarters with dolphins, the ship shall maintain an approximate speed of for 30 minutes, or the vessel has concludes that dolphins are deliberately 100 knots (185 km/hr). Since factors that transited more than 2,000 yards (1828 closing in on the ship to ride the affect visibility are highly dependent on m) beyond the location of the last vessel’s bow wave, no further mitigation the specific time of day of the survey, detection. actions would be necessary because the flight operator will have the (B) Should a marine mammal be dolphins are out of the main flexibility to adjust the flight pattern to detected within or closing to inside 457 transmission axis of the active sonar reduce glare and improve visibility. The m (500 yd) of the sonar dome, active while in the shallow-wave area of the entire test site shall be surveyed sonar transmissions shall be limited to vessel bow. initially, but once preparations are being at least 10 dB below the equipment’s (xxviii) TORPEXs conducted in the made for an actual test launch, survey normal operating level. Ships and northeast North Atlantic right whale effort shall be concentrated over the submarines shall continue to limit critical habitat (as designated in 50 CFR vicinity of the individual test location. maximum ping levels by this 10-dB Part 226) shall implement the following Further, for approximately ten minutes factor until the marine mammal has measures. immediately prior to launch, the aircraft been seen to leave the area, has not been (A) All torpedo-firing operations shall shall racetrack back and forth between detected for 30 minutes, or the vessel take place during daylight hours. the launch vessel and the target vessel. has transited more than 2000 yards (B) During the conduct of each test, (E) Commencement of an individual (1828 m) beyond the location of the last visual surveys of the test area shall be torpedo test scenario shall not occur detection. conducted by all vessels and aircraft until observers from all vessels and (C) Should the marine mammal be involved in the exercise to detect the aircraft involved in the exercise have detected within or closing to inside 183 presence of marine mammals. reported to the Officer in Tactical m (200 yd) of the sonar dome, active Additionally, trained observers shall be Command (OTC) and the OTC has sonar transmissions shall cease. Sonar placed on the submarine, spotter declared that the range is clear of shall not resume until the marine aircraft, and the surface support vessel. marine mammals. Should marine mammal has been seen to leave the area, All participants shall report sightings of mammals be present within or seen has not been detected for 30 minutes, or any marine mammals, including moving toward the test area, the test the vessel has transited more than 2,000 negative reports, prior to torpedo firings. shall be either delayed or moved as

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required to avoid interference with the for unit level situational awareness (i.e., the USE and the potential need to animals. exercises other than COMPTUEX, implement shutdown procedures. (F) The TORPEX shall be suspended JTFEX, SEASWITI) and planning (2) Any shutdown in a given area if the Beaufort Sea State exceeds 3 or if purposes. shall remain in effect in that area until visibility precludes safe operations. (D) Helicopter Dipping Sonar—Unless NMFS advises the Navy that the (G) Vessel speeds: otherwise dictated by national security subject(s) of the USE at that area die or (1) During transit through the needs, the Navy shall minimize are euthanized, or that all live animals northeastern North Atlantic right whale helicopter dipping sonar activities involved in the USE at that area have critical habitat, surface vessels and within the southeastern areas of North left the area (either of their own volition submarines shall maintain a speed of no Atlantic right whale critical habitat (as or herded). more than 10 knots (19 km/hr) while not designated in 50 CFR part 226) from (3) If the Navy finds an injured or actively engaged in the exercise November 15–April 15. dead animal of any species other than procedures. (E) Object Detection Exercises—The North Atlantic right whale floating at (2) During TORPEX operations, a Navy shall implement the following sea during an MTE, the Navy shall firing vessel should, where feasible, not measures regarding object detection notify NMFS immediately or as soon as exceed 10 knots. When a submarine is activities in the southeastern areas of operational security considerations used as a target, vessel speeds should, the North Atlantic right whale critical allow. The Navy shall provide NMFS where feasible, not exceed 18 knots. habitat: with species or description of the However, on occasion, when surface (1) The Navy shall reduce the time animal(s), the condition of the animal(s) vessels are used as targets, the vessel spent conducting object detection including carcass condition (if the may exceed 18 kts in order to fully test exercises in the NARW critical habitat; animal(s) is/are dead), location, time of the functionality of the torpedoes. This first discovery, observed behaviors (if (2) Prior to conducting surface ship increased speed would occur for a short alive), and photo or video (if available). object detection exercises in the period of time (e.g., 10–15 minutes) to Based on the information provided, southeastern areas of the North Atlantic evade the torpedo when fired upon. NMFS shall determine if, and advise the right whale critical habitat during the (H) In the event of an animal strike, Navy whether a modified shutdown is time of November 15–April 15, ships or if an animal is discovered that appropriate on a case-by-case basis. appears to be in distress, the Navy shall shall contact FACSFACJAX to obtain (4) If the Navy finds an injured (or immediately report the discovery the latest North Atlantic right whale entangled) North Atlantic right whale through the appropriate Navy chain of sighting information. FACSFACJAX floating at sea during an MTE, the Navy Command. shall advise ships of all reported whale shall implement shutdown procedures (xxix) The Navy shall abide by the sightings in the vicinity of the critical (14 or 17 nm, as defined below) around following additional measures: habitat and associated areas of concern the animal immediately (without (A) The Navy shall avoid planning (which extend 9 km (5 NM) seaward of waiting for notification from NMFS). major exercises in the specified the designated critical habitat The Navy shall then notify NMFS planning awareness areas (PAAs—as boundaries). To the extent operationally (pursuant to the AFAST depicted in NMFS’ ‘‘Environmental feasible, ships shall avoid conducting Communication Protocol) immediately Assessment of Mitigation Alternatives training in the vicinity of recently or as soon as operational security for Issuance of Incidental Take sighted North Atlantic right whales. considerations allow. The Navy shall Regulations to U.S. Navy for Atlantic Ships shall maneuver to maintain at provide NMFS with species or Fleet Active Sonar Training (AFAST)’’) least 500 yards separation from any description of the animal(s), the where feasible. Should national security observed whale, consistent with the condition of the animal(s) including require the conduct of more than four safety of the ship. carcass condition (if the animal(s) is/are major exercises (C2X, JTFEX, (xxx) The Navy shall abide by the dead), location, time of first discovery, SEASWITI, or similar scale event) in letter of the ‘‘Stranding Response Plan observed behaviors (if alive), and photo these areas (meaning all or a portion of for Major Navy Training Exercises in the or video (if available). Subsequent to the the exercise) per year the Navy shall AFAST Study Area’’ (available at: discovery of the injured whale, any provide NMFS with prior notification http://www.nmfs.noaa.gov/pr/permits/ Navy platforms in the area shall report and include the information in any incidental.htm), to include the any North Atlantic right whale sightings associated after-action or monitoring following measures: to NMFS (or to a contact that can alert reports. (A) Shutdown Procedures—When an NMFS as soon as possible). Based on the (B) The Navy shall conduct no more Uncommon Stranding Event (USE— information provided, NMFS may than one of the four above-mentioned defined in § 216.241) occurs during a initiate/organize an aerial survey (by major exercises (COMPTUEX, JTFEX, Major Training Exercise (MTE, requesting the Navy’s assistance SEASWITI or similar scale event) per including SEASWITI, IAC, Group Sails, pursuant to the memorandum of year in the Gulf of Mexico to the extent JTFEX, or COMPTUEX) in the AFAST agreement (MOA) (see (a)(1)(xxx)(C) of operationally feasible. If national Study Area, the Navy shall implement this section) or by other available security needs require more than one the procedures described below. means) to see if other North Atlantic major exercise to be conducted in the (1) The Navy shall implement a right whales are in the vicinity. Based Gulf of Mexico PAAs, the Navy shall Shutdown (as defined § 216.241) when on the information provided by the provide NMFS with prior notification advised by a NMFS Office of Protected Navy and, if necessary, the outcome of and include the information in any Resources Headquarters Senior Official the aerial surveys, NMFS shall associated after-action or monitoring designated in the AFAST Stranding determine whether a continued reports. Communication Protocol that a USE shutdown is appropriate on a case-by- (C) The Navy shall include the PAAs involving live animals has been case basis. Though it will be determined in the Navy’s Protective Measures identified and that at least one live on a case-by-case basis after Navy/ Assessment Protocol (PMAP) animal is located in the water. NMFS NMFS discussion of the situation, (implemented by the Navy for use in the and Navy shall communicate, as NMFS anticipates that the shutdown protection of the marine environment) needed, regarding the identification of will continue within 14 or 17 nm of a

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live, injured/entangled North Atlantic of units using MFAS/HFAS, and marine out of communication range of these right whale until the animal dies or has mammal sightings information sensors. not been seen for at least 3 hours (either associated with training activities (v) Aural Detection: If the presence of by NMFS staff attending the injured occurring within 80 nm (148 km) and 72 marine mammals is detected aurally, animal or Navy personnel monitoring hours prior to the USE event. then that should cue the aircrew to the area around where the animal was Information not initially available increase the diligence of their visual last sighted). regarding the 80 nm (148 km), 72 hours, surveillance. Subsequently, if no marine (5) If the Navy finds a dead North period prior to the event shall be mammals are visually detected, then the Atlantic right whale floating at sea provided as soon as it becomes Navy crew may continue multi-static during an MTE, the Navy shall notify available. The Navy shall provide NMFS active search. NMFS (pursuant to AFAST Stranding investigative teams with additional (vi) Visual Detection: Communication Protocol) immediately relevant unclassified information as (A) If marine mammals are visually or as soon as operational security requested, if available. detected within 1,000 yards (914 m) of considerations allow. The Navy shall (C) Memorandum of Agreement the explosive source sonobuoy (AN/ provide NMFS with species or (MOA)—The Navy and NMFS shall SSQ–110A) intended for use, then that description of the animal(s), the develop a MOA, or other mechanism payload shall not be detonated. condition of the animal(s) (including consistent with Federal fiscal law (B) Navy Aircrews may utilize this carcass condition if the animal(s) is/are requirements (and all other applicable post once the marine mammals have not dead), location, time of first discovery, laws), that will establish a framework been re-sighted for 30 minutes, or are observed behaviors (if alive), and photo whereby the Navy can (and provide the observed to have moved outside the or video (if available). Subsequent to the Navy examples of how they can best) 1,000 yards (914 m) safety buffer. discovery of the dead whale, if the Navy assist NMFS with stranding (C) Navy Aircrews may shift their is operating sonar in the area they shall investigations in certain circumstances. multi-static active search to another use increased vigilance (in looking for This document shall be finalized in post, where marine mammals are North Atlantic right whales) and all 2009 (unless NMFS notifies the Navy outside the 1,000 yards (914 m) safety platforms in the area shall report that a delay is needed). buffer. sightings of North Atlantic right whales (2) Mitigation for IEER/AEER—The (vii) For IEER (AN/SSQ–110A), Navy to NMFS as soon as possible. Based on following are mitigation measures for Aircrews shall make every attempt to the information provided, NMFS may use with Extended Echo Ranging/ manually detonate the unexploded initiate/organize an aerial survey (by Improved Extended Echo Ranging (EER/ charges at each post in the pattern prior requesting the Navy’s assistance IEER) and Advanced Extended Echo to departing the operations area by pursuant to the MOA (see (a)(1)(xxx)(C) Ranging given an explosive source using the ‘‘Payload 1 Release’’ command of this section) or by other available generates the acoustic wave used in this followed by the ‘‘Payload 2 Release’’ means) to see if other North Atlantic sonobuoy. command. Aircrews shall refrain from right whales are in the vicinity. Based (i) Navy crews shall conduct visual using the ‘‘Scuttle’’ command when two on the information provided by the reconnaissance of the drop area prior to payloads remain at a given post. Navy and, if necessary, the outcome of laying their intended sonobuoy pattern. Aircrews shall ensure that a 1,000 yard the aerial surveys, NMFS will determine This search should be conducted below (914 m) safety buffer, visually clear of whether any additional mitigation 500 yards (457 m) at a slow speed, if marine mammals, is maintained around measures are necessary on a case-by- operationally feasible and weather each post as is done during active case basis. conditions permit. In dual aircraft search operations. (6) In the event, following a USE, that: training activities, crews are allowed to (viii) Navy Aircrews shall only leave (a) Qualified individuals are attempting conduct coordinated area clearances. posts with unexploded charges in the to herd animals back out to the open (ii) For IEER (AN/SSQ–110A), Navy event of a sonobuoy malfunction, an ocean and animals are not willing to crews shall conduct a minimum of 30 aircraft system malfunction, or when an leave, or (b) animals are seen repeatedly minutes of visual and acoustic aircraft must immediately depart the heading for the open ocean but turning monitoring of the search area prior to area due to issues such as fuel back to shore, NMFS and the Navy commanding the first post (source/ constraints, inclement weather, and in- should coordinate (including an receiver sonobuoy pair) detonation. This flight emergencies. In these cases, the investigation of other potential 30-minute observation period may sonobuoy will self-scuttle using the anthropogenic stressors in the area) to include pattern deployment time. secondary or tertiary method. determine if the proximity of MFAS/ (iii) For any part of the briefed pattern (ix) The Navy shall ensure all HFAS training activities or explosive where a post (source/receiver sonobuoy payloads are accounted for. Explosive detonations, though farther than 14 or pair) will be deployed within 1,000 source sonobuoys (AN/SSQ–110A) that 17 nm from the distressed animal(s), is yards (914 m) of observed marine cannot be scuttled shall be reported as likely decreasing the likelihood that the mammal activity, deploy the receiver unexploded ordnance via voice animals return to the open water. If so, ONLY and monitor while conducting a communications while airborne, then NMFS and the Navy shall further visual search. When marine mammals upon landing via naval message. coordinate to determine what measures are no longer detected within 1,000 (x) Marine mammal monitoring shall are necessary to further minimize that yards (914 m) of the intended post continue until out of own-aircraft sensor likelihood and implement those position, co-locate the explosive source range. measures as appropriate. sonobuoy (AN/SSQ–110A) (source) with (3) Mitigation Measures Related to (B) Within 72 hours of NMFS the receiver. Vessel Transit and North Atlantic Right notifying the Navy of the presence of a (iv) When operationally feasible, Navy Whales: USE, the Navy shall provide available crews shall conduct continuous visual (i) Mid-Atlantic, Offshore of the information to NMFS (per the AFAST and aural monitoring of marine mammal Eastern United States: Communication Protocol) regarding the activity. This is to include monitoring of (A) All Navy vessels are required to location, number and types of acoustic/ own-aircraft sensors from first sensor use extreme caution and operate at a explosive sources, direction and speed placement to checking off station and slow, safe speed consistent with mission

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and safety during the months indicated to make informed decisions regarding coordinates: 42–04.8° N. lat., 70–10° W. below and within a 37 km (20 nm) arc safe speed and path of intended long.; 42–12° N. lat., 70–15° W. long.; (except as noted) of the specified movement. Subs shall contact 42–12° N. lat., 70–30° W. long.; 41–46.8° associated reference points: Commander, Submarine Group Ten for N. lat., 70–30° W. long. (1) South and East of Block Island (37 similar information. (B) Ships, surfaced subs, and aircraft km (20 NM) seaward of line between (B) The following specific mitigation shall report any North Atlantic right 41–4.49° N. lat. 071–51.15° W. long. and measures apply to activities occurring whale sightings (if the whale is 41–18.58° N. lat. 070–50.23° W. long): within the critical habitat and an identifiable as a right whale) off the Sept–Oct and Mar–Apr. associated area of concern which northeastern U.S. to Patrol and (2) New York/New Jersey (40–30.64° extends 9 km (5 NM) seaward of the Reconnaissance Wing N. lat. 073–57.76° W. long.): Sep–Oct designated critical habitat boundaries: (COMPATRECONWING). The report and Feb–Apr. (1) When transiting within the critical shall include the time of sighting, lat/ (3) Delaware Bay (Philadelphia) (38– habitat or associated area of concern, long, direction of movement (if 52.13° N. lat. 075–1.93° W. long.): Oct– vessels shall exercise extreme caution apparent) and number and description Dec and Feb–Mar. and proceed at a slow safe speed. The of the whale(s). (4) Chesapeake Bay (Hampton Roads speed shall be the slowest safe speed (C) Vessels or aircraft that observe and Baltimore) (37–1.11° N. lat. 075– that is consistent with mission, training whale carcasses shall record the 57.56° W. long.): Nov–Dec and Feb–Apr. and operations. location and time of the sighting and (5) North Carolina (34–41.54° N. lat. (2) Speed reductions (adjustments) are report this information as soon as 076–40.20° W. long.): Dec–Apr. required when a whale is sighted by a possible to the cognizant regional (6) South Carolina (33–11.84° N. lat. vessel or when the vessel is within 9 km environmental coordinator. All whale 079–8.99° W. long. and 32–43.39° N. lat. (5 NM) of a reported new sighting less strikes must be reported. This report 079–48.72° W. long.): Oct–Apr. then 12 hours old. Circumstances could shall include the date, time, and (B) During the months indicated in arise where, in order to avoid North location of the strike; vessel course and paragraph (a)(3)(i)(A) of this section, Atlantic right whale(s), speed speed; operations being conducted by Navy vessels shall practice increased reductions could mean vessel must the vessel; weather conditions, vigilance with respect to avoidance of reduce speed to a minimum at which it visibility, and sea state; description of vessel-whale interactions along the mid- can safely keep on course or vessels the whale; narrative of incident; and Atlantic coast, including transits to and could come to an all stop. indication of whether photos/videos from any mid-Atlantic ports not (3) Vessels shall avoid head-on were taken. Navy personnel are specifically identified in paragraph approaches to North Atlantic right encouraged to take photos whenever (a)(3)(i)(A) of this section. whale(s) and shall maneuver to possible. (C) All surface units transiting within maintain at least 457 m (500 yd) of (D) Specific mitigation measures 56 km (30 NM) of the coast in the mid- separation from any observed whale if related to activities occurring within the Atlantic shall ensure at least two deemed safe to do so. These critical habitat include the following: watchstanders are posted, including at requirements do not apply if a vessel’s (1) Vessels shall avoid head-on least one lookout who has completed safety is threatened, such as when a approaches to North Atlantic right required MSAT training. change of course would create an whale(s) and shall maneuver to (D) Navy vessels shall not knowingly imminent and serious threat to a person, maintain at least 457 m (500 yd) of approach any whale head on and shall vessel, or aircraft, and to the extent separation from any observed whale if maneuver to keep at least 457 m (1,500 vessels are restricted in the ability to deemed safe to do so. These ft) away from any observed whale, maneuver. requirements do not apply if a vessel’s consistent with vessel safety. (4) Ships shall not transit through the safety is threatened, such as when (ii) Southeast Atlantic, Offshore of the critical habitat or associated area of change of course would create an Eastern United States—for the purposes concern in a North-South direction. imminent and serious threat to person, of the measures below (within this (5) Ships, surfaced subs, and aircraft vessel, or aircraft, and to the extent paragraph), the ‘‘southeast’’ shall report any whale sightings to Fleet vessels are restricted in the ability to encompasses sea space from Charleston, Area Control and Surveillance Facility, maneuver. South Carolina, southward to Sebastian Jacksonville, by the quickest and most (2) When transiting within the critical Inlet, Florida, and from the coast practicable means. The sighting report habitat or associated area of concern, seaward to 148 km (80 NM) from shore. shall include the time, latitude/ vessels shall use extreme caution and North Atlantic right whale critical longitude, direction of movement and operate at a safe speed so as to be able habitat is the area from 31–15° N. lat. to number and description of whale (i.e., to avoid collisions with North Atlantic 30–15° N. lat. extending from the coast adult/calf). right whales and other marine out to 28 km (15 NM), and the area from (iii) Northeast Atlantic, Offshore of mammals, and stop within a distance 28–00° N. lat. to 30–15° N. lat. from the the Eastern United States: appropriate to the circumstances and coast out to 9 km (5 NM). All mitigation (A) Prior to transiting the Great South conditions. measures described here that apply to Channel or Cape Cod Bay critical habitat (3) Speed reductions (adjustments) are the critical habitat apply from areas, ships shall obtain the latest North required when a whale is sighted by a November 15–April 15 and also apply to Atlantic right whale sightings and other vessel or when the vessel is within 9 km an associated area of concern which information needed to make informed (5 NM) of a reported new sighting less extends 9 km (5 NM) seaward of the decisions regarding safe speed. The than one week old. designated critical habitat boundaries. Great South Channel critical habitat is (4) Ships transiting in the Cape Cod (A) Prior to transiting or training in defined by the following coordinates: Bay and Great South Channel critical the critical habitat or associated area of 41–00° N. lat., 69–05° W. long.; 41–45° habitats shall obtain information on concern, ships shall contact Fleet Area N. lat, 69–45° W. long; 42–10° N. lat., recent whale sightings in the vicinity of Control and Surveillance Facility, 68–31° W. long.; 41–38° N. lat., 68–13° the critical habitat. Any vessel operating Jacksonville, to obtain latest whale W. long. The Cape Cod Bay critical in the vicinity of a North Atlantic right sighting and other information needed habitat is defined by the following whale shall consider additional speed

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reductions as per Rule 6 of International annually on October 1 describing the (D) Calves observed (y/n); Navigational Rules. implementation and results (through (E) Initial Detection Sensor; August 1 of the same year) of the (F) Indication of specific type of § 216.245 Requirements for monitoring AFAST Monitoring Plan. Data collection platform observation made from and reporting. methods will be standardized across (including, for example, what type of (a) As outlined in the AFAST range complexes to allow for surface vessel, i.e., FFG, DDG, or CG); Stranding Communication Plan, the comparison in different geographic (G) Length of time observers Navy must notify NMFS immediately locations. Although additional maintained visual contact with marine (or as soon as clearance procedures information will also be gathered, the mammal; allow) if the specified activity identified marine mammal observers (MMOs) (H) Wave height (in feet); in § 216.240(c) is thought to have collecting marine mammal data (I) Visibility; resulted in the mortality or injury of any pursuant to the AFAST Monitoring Plan (J) Sonar source in use (y/n); marine mammals, or in any take of shall, at a minimum, provide the same (K) Indication of whether animal is < marine mammals not identified in marine mammal observation data 200 yd, 200–500 yd, 500–1000 yd, § 216.242(c). required in the data required in 1000–2000 yd, or > 2000 yd from sonar (b) The Navy must conduct all § 216.245(f)(1). The AFAST Monitoring source in paragraph (f)(1)(ii)(J) of this monitoring and required reporting Plan Report may be provided to NMFS section; (L) Mitigation Implementation— under the Letter of Authorization, within a larger report that includes the Whether operation of sonar sensor was including abiding by the AFAST required Monitoring Plan Reports from delayed, or sonar was powered or shut Monitoring Plan, which is incorporated AFAST and multiple Range Complexes. herein by reference. (f) Annual AFAST Exercise Report— down, and how long the delay was; (M) If source in use (i.e., in paragraph (c) The Navy shall complete an The Navy shall submit an Annual (f)(1)(ii)(J) of this section) is Integrated Comprehensive Monitoring AFAST Exercise Report on October 1 of hullmounted, true bearing of animal Program (ICMP) Plan in 2009. This every year (covering data gathered from ship, true direction of ship’s travel, planning and adaptive management tool through August 1 of the same year). This and estimation of animal’s motion shall include: report shall contain information relative to ship (opening, closing, (1) A method for prioritizing identified in subsections § 216.245(f)(1) monitoring projects that clearly parallel); through (f)(5). (N) Observed behavior— describes the characteristics of a (1) MFAS/HFAS Major Training Watchstanders shall report, in plain proposal that factor into its priority. Exercises—This section shall contain language and without trying to (2) A method for annually reviewing, the following information for the major categorize in any way, the observed with NMFS, monitoring results, Navy training exercises for reporting (MTERs), behavior of the animals (such as animal R&D, and current science to use for which include the Southeastern ASW closing to bow ride, paralleling course/ potential modification of mitigation or Integrated Training Initiative speed, floating on surface and not monitoring methods. (SEASWITI), Integrated ASW Course (3) A detailed description of the swimming, etc.). (IAC), Composite Training Unit Monitoring Workshop to be convened in (iii) An evaluation (based on data Exercises (COMPTUEX), and Joint Task 2011 and how and when Navy/NMFS gathered during all of the MTERs) of the Force Exercises (JTFEX) conducted in will subsequently utilize the findings of effectiveness of mitigation measures the AFAST Study Area: designed to avoid exposing marine the Monitoring Workshop to potentially (i) Exercise Information (for each mammals to MFAS. This evaluation modify subsequent monitoring and MTER): shall identify the specific observations mitigation. (A) Exercise designator; (4) An adaptive management plan. (B) Date that exercise began and that support any conclusions the Navy (5) A method for standardizing data ended; reaches about the effectiveness of the collection for AFAST and across Range (C) Location; mitigation. Complexes (D) Number and types of active (2) ASW Summary—This section (d) General Notification of Injured or sources used in the exercise; shall include the following information Dead Marine Mammals—Navy (E) Number and types of passive as summarized from both MTERs and personnel shall ensure that NMFS acoustic sources used in exercise; non-major training exercises: (regional stranding coordinator) is (F) Number and types of vessels, (i) Total annual hours of each type of notified immediately (or as soon as aircraft, etc., participating in exercise; sonar source (along with explanation of clearance procedures allow) if an (G) Total hours of observation by how hours are calculated for sources injured or dead marine mammal is watchstanders; typically quantified in alternate way found during or shortly after, and in the (H) Total hours of all active sonar (buoys, torpedoes, etc.)). vicinity of, any Navy training exercise source operation; (ii) Cumulative Impact Report—To the utilizing MFAS, HFAS, or underwater (I) Total hours of each active sonar extent practicable, the Navy, in explosive detonations. The Navy shall source (along with explanation of how coordination with NMFS, shall develop provide NMFS with species or hours are calculated for sources and implement a method of annually description of the animal(s), the typically quantified in alternate way reporting non-major (i.e., other than condition of the animal(s) (including (buoys, torpedoes, etc.)); MTERs) training exercises utilizing hull- carcass condition if the animal is dead), (J) Wave height (high, low, and mounted sonar. The report shall present location, time of first discovery, average during exercise). an annual (and seasonal, where observed behaviors (if alive), and photo (ii) Individual marine mammal practicable) depiction of non-major or video (if available). The Navy shall sighting info (for each sighting in each training exercises geographically across consult the Stranding Response Plan to MTER): the AFAST Study Area. To the extent obtain more specific reporting (A) Location of sighting; practicable, this report will also include requirements for specific circumstances. (B) Species (if not possible— the total number of sonar hours (from (e) Annual AFAST Monitoring Plan indication of whale/dolphin/pinniped); helicopter dipping sonar and object Report—The Navy shall submit a report (C) Number of individuals; detection exercises) conducted within

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the southern NARW critical habitat plus months of receipt. These reports will be described work, mitigation or 5 nm buffer area. The Navy shall considered final after the Navy has monitoring undertaken during the include (in the AFAST annual report) a addressed NMFS’ comments or upcoming 12 months; brief annual progress update on the provided the requested information, or (2) Timely receipt (by the dates status of the development of an effective three months after the submittal of the indicated in these regulations) of the and unclassified method to report this draft if NMFS does not comment by monitoring reports required under information until an agreed-upon (with then. § 216.245(c) through (j); and NMFS) method has been developed and (k) In 2011, the Navy shall convene a (3) A determination by the NMFS that implemented. Monitoring Workshop in which the the mitigation, monitoring and reporting (3) IEER/AEER Summary—This Monitoring Workshop participants will measures required under § 216.244 and section shall include an annual be asked to review the Navy’s the Letter of Authorization issued under summary of the following IEER and Monitoring Plans and monitoring results §§ 216.106 and 216.247, were AEER information: and make individual recommendations undertaken and will be undertaken (i) Total number of IEER and AEER (to the Navy and NMFS) of ways of during the upcoming annual period of events conducted in the AFAST Study improving the Monitoring Plans. The validity of a renewed Letter of Area; recommendations shall be reviewed by Authorization. (ii) Total expended/detonated rounds the Navy, in consultation with NMFS, (b) If a request for a renewal of a (buoys); and modifications to the Monitoring Letter of Authorization issued under (iii) Total number of self-scuttled Plan shall be made, as appropriate. §§ 216.106 and 216.248 indicates that a IEER rounds. substantial modification, as determined (g) Sonar Exercise Notification—The § 216.246 Applications for Letters of by NMFS, to the described work, Navy shall submit to the NMFS Office Authorization. mitigation or monitoring undertaken of Protected Resources (specific contact To incidentally take marine mammals during the upcoming season will occur, information to be provided in LOA) pursuant to the regulations in this the NMFS will provide the public a either an electronic (preferably) or subpart, the U.S. citizen (as defined by period of 30 days for review and verbal report within fifteen calendar § 216.103) conducting the activity comment on the request. Review and days after the completion of any MTER identified in § 216.240(c) (the U.S. comment on renewals of Letters of indicating: Navy) must apply for and obtain either Authorization are restricted to: (1) Location of the exercise; an initial Letter of Authorization in (1) New cited information and data (2) Beginning and end dates of the accordance with § 216.247 or a renewal indicating that the determinations made exercise; under § 216.248. in this document are in need of (3) Type of exercise (e.g., COMPTUEX reconsideration, and or SEASWITI). § 216.247 Letters of Authorization. (2) Proposed changes to the mitigation (h) AFAST 5-yr Comprehensive (a) A Letter of Authorization, unless and monitoring requirements contained Report—The Navy shall submit to suspended or revoked, will be valid for in these regulations or in the current NMFS a draft report that analyzes and a period of time not to exceed the period Letter of Authorization. summarizes all of the multi-year marine of validity of this subpart, but must be (c) A notice of issuance or denial of mammal information gathered during renewed annually subject to annual a renewal of a Letter of Authorization ASW, MIW and IEER/AEER exercises renewal conditions in § 216.248. will be published in the Federal for which annual reports are required (b) Each Letter of Authorization will Register. (Annual AFAST Exercise Reports and set forth: (d) NMFS, in response to new AFAST Monitoring Plan Reports). This (1) Permissible methods of incidental information and in consultation with report will be submitted at the end of taking; the Navy, may modify the mitigation or the fourth year of the rule (November (2) Means of effecting the least monitoring measures in subsequent 2012), covering activities that have practicable adverse impact on the LOAs if doing so creates a reasonable occurred through June 1, 2012. species, its habitat, and on the likelihood of more effectively (i) Comprehensive National ASW availability of the species for accomplishing the goals of mitigation Report—By June, 2014, the Navy shall subsistence uses (i.e., mitigation); and and monitoring set forth in the preamble submit a draft National Report that (3) Requirements for mitigation, of these regulations. Below are some of analyzes, compares, and summarizes the monitoring and reporting. the possible sources of new data that active sonar data gathered (through (c) Issuance and renewal of the Letter could contribute to the decision to January 1, 2014) from the watchstanders of Authorization will be based on a modify the mitigation or monitoring and pursuant to the implementation of determination that the total number of measures: the Monitoring Plans for AFAST, marine mammals taken by the activity (1) Results from the Navy’s SOCAL, the HRC, the Marianas Range as a whole will have no more than a monitoring from the previous year Complex, the Northwest Training negligible impact on the affected species (either from AFAST or other locations). Range, the Gulf of Alaska, and the East or stock of marine mammal(s). (2) Findings of the Monitoring Coast Undersea Warfare Training Range. Workshop that the Navy will convene in (j) The Navy shall respond to NMFS § 216.248 Renewal of Letters of 2011 (section 216.245(l)). comments and requests for additional Authorization and Adaptive Management. (3) Compiled results of Navy funded information or clarification on the (a) A Letter of Authorization issued research and development (R&D) studies AFAST Comprehensive Report, the under §§ 216.106 and 216.247 for the (presented pursuant to the ICMP Comprehensive National ASW report, activity identified in § 216.240(c) will be (§ 216.245(d))). the Annual AFAST Exercise Report, or renewed annually upon: (4) Results from specific stranding the Annual AFAST Monitoring Plan (1) Notification to NMFS that the investigations (either from the AFAST Report (or the multi-Range Complex activity described in the application Study Area or other locations, and Annual Monitoring Plan Report, if that submitted under § 216.246 will be involving coincident MFAS/HFAS or is how the Navy chooses to submit the undertaken and that there will not be a explosives training or not involving information) if submitted within 3 substantial modification to the coincident use).

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(5) Results from the Long Term Authorization by NMFS, issued that poses a significant risk to the well- Prospective Study described in the pursuant to §§ 216.106 and 216.247 and being of the species or stocks of marine preamble to these regulations. subject to the provisions of this subpart mammals specified in § 216.242(c), a (6) Results from general marine shall be made until after notification Letter of Authorization issued pursuant mammal and sound research (funded by and an opportunity for public comment to §§ 216.106 and 216.247 may be the Navy (described below) or has been provided. For purposes of this substantively modified without prior otherwise). paragraph, a renewal of a Letter of notification and an opportunity for § 216.249 Modifications to Letters of Authorization under § 216.248, without public comment. Notification will be Authorization. modification (except for the period of published in the Federal Register (a) Except as provided in paragraph validity), is not considered a substantive within 30 days subsequent to the action. modification. (b) of this section, no substantive [FR Doc. E9–1706 Filed 1–22–09; 4:15 pm] modification (including withdrawal or (b) If the Assistant Administrator suspension) to the Letter of determines that an emergency exists BILLING CODE 3510–22–P

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Part IV

Department of Health and Human Services Centers for Medicare & Medicaid Services

42 CFR Parts 447 and 457 Medicaid Program; Premiums and Cost Sharing; Final Rule

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DEPARTMENT OF HEALTH AND Please allow sufficient time for mailed sharing requirements on certain HUMAN SERVICES comments to be received before the Medicaid recipients. The DRA close of the comment period. provisions also specifically address cost Centers for Medicare & Medicaid 3. By express or overnight mail. You sharing for non-preferred drugs and Services may send written comments (one non-emergency care furnished in a original and two copies) to the following hospital emergency department. 42 CFR Parts 447 and 457 address only: Centers for Medicare & The November 25, 2008 final rule Medicaid Services, Department of integrated into CMS regulations the [CMS–2244–F2] Health and Human Services, Attention: statutory flexibility to impose premiums CMS–2244–F2, Mail Stop C4–26–05, and cost sharing that was added by the RIN 0938–A047 7500 Security Boulevard, Baltimore, MD DRA. In addition, in the November 25, Medicaid Program; Premiums and Cost 21244–8010. 2008 final rule, we responded to public Sharing 4. By hand or courier. If you prefer, comments on the February 22, 2008 you may deliver (by hand or courier) proposed rule (73 FR 9727). AGENCY: Centers for Medicare & your written comments (one original II. Provisions of This Action Medicaid Services (CMS), HHS. and two copies) before the close of the This action delays the effective date of ACTION: Final rule; delay of effective comment period to either of the the November 25, 2008 final rule and date and reopening of comment period. following addresses: reopens the comment period on the a. Room 445–G, Hubert H. Humphrey policies set out in the final rule. The SUMMARY: In accordance with the Building, 200 Independence Avenue, effective date of the November 25, 2008 memorandum of January 20, 2009, from SW., Washington, DC 20201. the Assistant to the President and Chief final rule, which would have been (Because access to the interior of the January 26, 2009, is now March 27, of Staff, entitled ‘‘Regulatory Review HHH Building is not readily available to Plan,’’ this action temporarily delays for 2009. The 60-day delay in the effective persons without Federal Government date is necessary to give the public the 60 days the effective date of the final identification, commenters are rule entitled ‘‘Medicaid Program; opportunity to submit additional encouraged to leave their comments in comments on the policies set forth in Premiums and Cost Sharing’’ (73 FR the CMS drop slots located in the main 71828). The temporary 60-day delay in the November 25, 2008 final rule, and lobby of the building. A stamp-in clock to provide an opportunity for CMS to effective date is necessary to give is available for persons wishing to retain Department officials the opportunity for consider all additional public a proof of filing by stamping in and comments. further review and consideration of new retaining an extra copy of the comments regulations. In addition, this action being filed.) III. Waiver of Proposed Rulemaking reopens the comment period on the b. 7500 Security Boulevard, and Delay in Effective Date policies set out in the November 25, Baltimore, MD 21244–1850. We ordinarily publish a notice of 2008 final rule. If you intend to deliver your proposed rulemaking in the Federal DATES: Effective Date. This action is comments to the Baltimore address, Register to provide a period for public effective January 23, 2009. The effective please call telephone number (410) 786– comment before the provisions of a date of the rule amending 42 CFR parts 9994 in advance to schedule your notice such as this take effect, in 447 and 457 published in the November arrival with one of our staff members. accordance with section 553(b) of the 25, 2008 Federal Register (73 FR 71828) Comments mailed to the addresses Administrative Procedure Act (APA) (5 is delayed 60 days until March 27, 2009. indicated as appropriate for hand or U.S.C. 553(b)). We also ordinarily Comment Period. To be assured courier delivery may be delayed and provide a 30-day delay in the effective consideration, comments must be received after the comment period. date of the provisions of a notice in received at one of the addresses FOR FURTHER INFORMATION CONTACT: accordance with section 553(d) of the provided below, no later than 5 p.m. on Christine Gerhardt, (410) 786–0693. APA (5 U.S.C. 553(d)). However, we can February 26, 2009. SUPPLEMENTARY INFORMATION: waive both the notice and comment ADDRESSES: In commenting, please refer procedure and the 30-day delay in to file code CMS–2244–F2. Because of I. Background effective date if the Secretary finds, for staff and resource limitations, we cannot On November 25, 2008, we published good cause, that it is impracticable, accept comments by facsimile (FAX) a final rule entitled ‘‘Medicaid Program; unnecessary or contrary to the public transmission. Premiums and Cost Sharing’’ in the interest to follow the notice and You may submit comments in one of Federal Register to implement and comment procedure or to comply with four ways (please choose only one of the interpret the provisions of sections the 30-day delay in the effective date, ways listed): 6041, 6042, and 6043 of the Deficit and incorporates a statement of the 1. Electronically. You may submit Reduction Act of 2005 (DRA), and finding and the reasons in the notice. electronic comments on this regulation section 405(a)(1) of the Tax Relief and This action delays the effective date of to http://www.regulations.gov. Follow Health Care Act of 2006 (TRHCA) (73 the November 25, 2008 final rule that the instructions for ‘‘Comment or FR 71828). The DRA was amended by was promulgated through notice and Submission’’ and enter the filecode to the TRHCA which revised sections comment rulemaking. A delay in find the document accepting comments. 6041, 6042, and 6043 of the DRA effective date and reopening of the 2. By regular mail. You may mail including limitations on cost sharing for comment period is necessary to ensure written comments (one original and two individuals with family incomes at or that we have the opportunity to receive copies) to the following address only: below 100 percent of the federal poverty additional public comments to fully Centers for Medicare & Medicaid line. These sections amended the Social inform our decisions before the policies Services, Department of Health and Security Act (the Act) by adding a new contained in the final rule become Human Services, Attention: CMS–2244– section 1916A to provide State effective. Moreover, we believe it would F2, P.O. Box 8010, Baltimore, MD Medicaid agencies with increased be contrary to the public interest for the 21244–8010. flexibility to impose premium and cost November 25, 2008 final rule to become

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effective until we are certain that all the 30-day delay in effective date for Dated: January 22, 2009. public comments, including any this action are unnecessary. Therefore, Approved: additional comments that are submitted we find there is good cause to waive Charles Johnson, notice and comment procedures and the in the reopened comment period, are Acting Secretary. considered. To do otherwise could 30-day delay in effective date for this [FR Doc. E9–1771 Filed 1–23–09; 11:15 am] potentially result in uncertainty and action. BILLING CODE 4120–01–P confusion as to the finality of the final (Catalog of Federal Domestic Assistance rule. For the reasons stated above, we Program No. 93.778, Medical Assistance find that both notice and comment and Program)

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Part V

The President Executive Order 13491—Ensuring Lawful Interrogations Executive Order 13492—Review and Disposition of Individuals Detained at the Guanta´namo Bay Naval Base and Closure of Detention Facilities Executive Order 13493—Review of Detention Policy Options

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Federal Register Presidential Documents Vol. 74, No. 16

Tuesday, January 27, 2009

Title 3— Executive Order 13491 of January 22, 2009

The President Ensuring Lawful Interrogations

By the authority vested in me by the Constitution and the laws of the United States of America, in order to improve the effectiveness of human intelligence-gathering, to promote the safe, lawful, and humane treatment of individuals in United States custody and of United States personnel who are detained in armed conflicts, to ensure compliance with the treaty obligations of the United States, including the Geneva Conventions, and to take care that the laws of the United States are faithfully executed, I hereby order as follows: Section 1. Revocation. Executive Order 13440 of July 20, 2007, is revoked. All executive directives, orders, and regulations inconsistent with this order, including but not limited to those issued to or by the Central Intelligence Agency (CIA) from September 11, 2001, to January 20, 2009, concerning detention or the interrogation of detained individuals, are revoked to the extent of their inconsistency with this order. Heads of departments and agencies shall take all necessary steps to ensure that all directives, orders, and regulations of their respective departments or agencies are consistent with this order. Upon request, the Attorney General shall provide guidance about which directives, orders, and regulations are inconsistent with this order. Sec. 2. Definitions. As used in this order: (a) ‘‘Army Field Manual 2–22.3’’ means FM 2–22.3, Human Intelligence Collector Operations, issued by the Department of the Army on September 6, 2006. (b) ‘‘Army Field Manual 34–52’’ means FM 34–52, Intelligence Interroga- tion, issued by the Department of the Army on May 8, 1987. (c) ‘‘Common Article 3’’ means Article 3 of each of the Geneva Conventions. (d) ‘‘Convention Against Torture’’ means the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, 1465 U.N.T.S. 85, S. Treaty Doc. No. 100–20 (1988). (e) ‘‘Geneva Conventions’’ means: (i) the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, August 12, 1949 (6 UST 3114); (ii) the Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, August 12, 1949 (6 UST 3217); (iii) the Convention Relative to the Treatment of Prisoners of War, August 12, 1949 (6 UST 3316); and (iv) the Convention Relative to the Protection of Civilian Persons in Time of War, August 12, 1949 (6 UST 3516). (f) ‘‘Treated humanely,’’ ‘‘violence to life and person,’’ ‘‘murder of all kinds,’’ ‘‘mutilation,’’ ‘‘cruel treatment,’’ ‘‘torture,’’ ‘‘outrages upon personal dignity,’’ and ‘‘humiliating and degrading treatment’’ refer to, and have the same meaning as, those same terms in Common Article 3. (g) The terms ‘‘detention facilities’’ and ‘‘detention facility’’ in section 4(a) of this order do not refer to facilities used only to hold people on a short-term, transitory basis.

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Sec. 3. Standards and Practices for Interrogation of Individuals in the Custody or Control of the United States in Armed Conflicts. (a) Common Article 3 Standards as a Minimum Baseline. Consistent with the requirements of the Federal torture statute, 18 U.S.C. 2340–2340A, section 1003 of the Detainee Treatment Act of 2005, 42 U.S.C. 2000dd, the Convention Against Torture, Common Article 3, and other laws regulating the treatment and interrogation of individuals detained in any armed conflict, such persons shall in all circumstances be treated humanely and shall not be subjected to violence to life and person (including murder of all kinds, mutilation, cruel treatment, and torture), nor to outrages upon personal dignity (including humiliating and degrading treatment), whenever such individuals are in the custody or under the effective control of an officer, employee, or other agent of the United States Government or detained within a facility owned, operated, or controlled by a department or agency of the United States. (b) Interrogation Techniques and Interrogation-Related Treatment. Effec- tive immediately, an individual in the custody or under the effective control of an officer, employee, or other agent of the United States Government, or detained within a facility owned, operated, or controlled by a department or agency of the United States, in any armed conflict, shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in Army Field Manual 2–22.3 (Manual). Interrogation techniques, approaches, and treatments described in the Manual shall be implemented strictly in accord with the principles, processes, conditions, and limitations the Manual prescribes. Where processes required by the Manual, such as a requirement of approval by specified Department of Defense officials, are inapposite to a department or an agency other than the Department of Defense, such a department or agency shall use processes that are substantially equivalent to the processes the Manual prescribes for the Department of Defense. Nothing in this section shall preclude the Federal Bureau of Investigation, or other Federal law enforcement agencies, from continuing to use authorized, non-coercive techniques of interrogation that are designed to elicit voluntary statements and do not involve the use of force, threats, or promises. (c) Interpretations of Common Article 3 and the Army Field Manual. From this day forward, unless the Attorney General with appropriate consultation provides further guidance, officers, employees, and other agents of the United States Government may, in conducting interrogations, act in reliance upon Army Field Manual 2–22.3, but may not, in conducting interrogations, rely upon any interpretation of the law governing interrogation—including interpretations of Federal criminal laws, the Convention Against Torture, Common Article 3, Army Field Manual 2–22.3, and its predecessor document, Army Field Manual 34–52—issued by the Department of Justice between September 11, 2001, and January 20, 2009. Sec. 4. Prohibition of Certain Detention Facilities, and Red Cross Access to Detained Individuals. (a) CIA Detention. The CIA shall close as expeditiously as possible any detention facilities that it currently operates and shall not operate any such detention facility in the future. (b) International Committee of the Red Cross Access to Detained Individ- uals. All departments and agencies of the Federal Government shall provide the International Committee of the Red Cross with notification of, and timely access to, any individual detained in any armed conflict in the custody or under the effective control of an officer, employee, or other agent of the United States Government or detained within a facility owned, operated, or controlled by a department or agency of the United States Government, consistent with Department of Defense regulations and policies. Sec. 5. Special Interagency Task Force on Interrogation and Transfer Policies.

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(a) Establishment of Special Interagency Task Force. There shall be established a Special Task Force on Interrogation and Transfer Policies (Special Task Force) to review interrogation and transfer policies. (b) Membership. The Special Task Force shall consist of the following members, or their designees: (i) the Attorney General, who shall serve as Chair; (ii) the Director of National Intelligence, who shall serve as Co-Vice- Chair; (iii) the Secretary of Defense, who shall serve as Co-Vice-Chair; (iv) the Secretary of State; (v) the Secretary of Homeland Security; (vi) the Director of the Central Intelligence Agency; (vii) the Chairman of the Joint Chiefs of Staff; and (viii) other officers or full-time or permanent part-time employees of the United States, as determined by the Chair, with the concurrence of the head of the department or agency concerned. (c) Staff. The Chair may designate officers and employees within the Department of Justice to serve as staff to support the Special Task Force. At the request of the Chair, officers and employees from other departments or agencies may serve on the Special Task Force with the concurrence of the head of the department or agency that employ such individuals. Such staff must be officers or full-time or permanent part-time employees of the United States. The Chair shall designate an officer or employee of the Department of Justice to serve as the Executive Secretary of the Special Task Force. (d) Operation. The Chair shall convene meetings of the Special Task Force, determine its agenda, and direct its work. The Chair may establish and direct subgroups of the Special Task Force, consisting exclusively of members of the Special Task Force, to deal with particular subjects. (e) Mission. The mission of the Special Task Force shall be: (i) to study and evaluate whether the interrogation practices and techniques in Army Field Manual 2–22.3, when employed by departments or agencies outside the military, provide an appropriate means of acquiring the intelligence necessary to protect the Nation, and, if warranted, to recommend any additional or different guidance for other departments or agencies; and (ii) to study and evaluate the practices of transferring individuals to other nations in order to ensure that such practices comply with the domestic laws, international obligations, and policies of the United States and do not result in the transfer of individuals to other nations to face torture or otherwise for the purpose, or with the effect, of undermining or circumventing the commitments or obligations of the United States to ensure the humane treatment of individuals in its custody or control. (f) Administration. The Special Task Force shall be established for administrative purposes within the Department of Justice and the Department of Justice shall, to the extent permitted by law and subject to the availability of appropriations, provide administrative support and funding for the Special Task Force. (g) Recommendations. The Special Task Force shall provide a report to the President, through the Assistant to the President for National Security Affairs and the Counsel to the President, on the matters set forth in subsection (d) within 180 days of the date of this order, unless the Chair determines that an extension is necessary. (h) Termination. The Chair shall terminate the Special Task Force upon the completion of its duties.

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Sec. 6. Construction with Other Laws. Nothing in this order shall be construed to affect the obligations of officers, employees, and other agents of the United States Government to comply with all pertinent laws and treaties of the United States governing detention and interrogation, including but not limited to: the Fifth and Eighth Amendments to the United States Constitution; the Federal torture statute, 18 U.S.C. 2340–2340A; the War Crimes Act, 18 U.S.C. 2441; the Federal assault statute, 18 U.S.C. 113; the Federal maiming statute, 18 U.S.C. 114; the Federal ‘‘stalking’’ statute, 18 U.S.C. 2261A; articles 93, 124, 128, and 134 of the Uniform Code of Military Justice, 10 U.S.C. 893, 924, 928, and 934; section 1003 of the Detainee Treatment Act of 2005, 42 U.S.C. 2000dd; section 6(c) of the Military Commissions Act of 2006, Public Law 109–366; the Geneva Conven- tions; and the Convention Against Torture. Nothing in this order shall be construed to diminish any rights that any individual may have under these or other laws and treaties. This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity against the United States, its departments, agencies, or other entities, its officers or employees, or any other person.

THE WHITE HOUSE, January 22, 2009.

[FR Doc. E9–1885 Filed 1–26–09; 11:15 am] Billing code 3195–W9–P

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Executive Order 13492 of January 22, 2009 Review and Disposition of Individuals Detained At the Guanta´namo Bay Naval Base and Closure of Detention Fa- cilities

By the authority vested in me as President by the Constitution and the laws of the United States of America, in order to effect the appropriate disposition of individuals currently detained by the Department of Defense at the Guantańamo Bay Naval Base (Guantańamo) and promptly to close detention facilities at Guantańamo, consistent with the national security and foreign policy interests of the United States and the interests of justice, I hereby order as follows: Section 1. Definitions. As used in this order: (a) ‘‘Common Article 3’’ means Article 3 of each of the Geneva Conventions. (b) ‘‘Geneva Conventions’’ means: (i) the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, August 12, 1949 (6 UST 3114); (ii) the Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, August 12, 1949 (6 UST 3217); (iii) the Convention Relative to the Treatment of Prisoners of War, August 12, 1949 (6 UST 3316); and (iv) the Convention Relative to the Protection of Civilian Persons in Time of War, August 12, 1949 (6 UST 3516). (c) ‘‘Individuals currently detained at Guantańamo’’ and ‘‘individuals covered by this order’’ mean individuals currently detained by the Department of Defense in facilities at the Guantańamo Bay Naval Base whom the Depart- ment of Defense has ever determined to be, or treated as, enemy combatants. Sec. 2. Findings. (a) Over the past 7 years, approximately 800 individuals whom the Depart- ment of Defense has ever determined to be, or treated as, enemy combatants have been detained at Guantańamo. The Federal Government has moved more than 500 such detainees from Guantańamo, either by returning them to their home country or by releasing or transferring them to a third country. The Department of Defense has determined that a number of the individuals currently detained at Guantańamo are eligible for such transfer or release. (b) Some individuals currently detained at Guantańamo have been there for more than 6 years, and most have been detained for at least 4 years. In view of the significant concerns raised by these detentions, both within the United States and internationally, prompt and appropriate disposition of the individuals currently detained at Guantańamo and closure of the facilities in which they are detained would further the national security and foreign policy interests of the United States and the interests of justice. Merely closing the facilities without promptly determining the appropriate disposition of the individuals detained would not adequately serve those interests. To the extent practicable, the prompt and appropriate disposition of the individuals detained at Guantańamo should precede the closure of the detention facilities at Guantańamo. (c) The individuals currently detained at Guantańamo have the constitu- tional privilege of the writ of habeas corpus. Most of those individuals

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have filed petitions for a writ of habeas corpus in Federal court challenging the lawfulness of their detention. (d) It is in the interests of the United States that the executive branch undertake a prompt and thorough review of the factual and legal bases for the continued detention of all individuals currently held at Guantańamo, and of whether their continued detention is in the national security and foreign policy interests of the United States and in the interests of justice. The unusual circumstances associated with detentions at Guantańamo require a comprehensive interagency review. (e) New diplomatic efforts may result in an appropriate disposition of a substantial number of individuals currently detained at Guantańamo. (f) Some individuals currently detained at Guantańamo may have committed offenses for which they should be prosecuted. It is in the interests of the United States to review whether and how any such individuals can and should be prosecuted. (g) It is in the interests of the United States that the executive branch conduct a prompt and thorough review of the circumstances of the individuals currently detained at Guantańamo who have been charged with offenses before military commissions pursuant to the Military Commissions Act of 2006, Public Law 109–366, as well as of the military commission process more generally. Sec. 3. Closure of Detention Facilities at Guanta´ namo. The detention facilities at Guantańamo for individuals covered by this order shall be closed as soon as practicable, and no later than 1 year from the date of this order. If any individuals covered by this order remain in detention at Guantańamo at the time of closure of those detention facilities, they shall be returned to their home country, released, transferred to a third country, or transferred to another United States detention facility in a manner consistent with law and the national security and foreign policy interests of the United States. Sec. 4. Immediate Review of All Guanta´ namo Detentions. (a) Scope and Timing of Review. A review of the status of each individual currently detained at Guantańamo (Review) shall commence immediately. (b) Review Participants. The Review shall be conducted with the full cooperation and participation of the following officials: (1) the Attorney General, who shall coordinate the Review; (2) the Secretary of Defense; (3) the Secretary of State; (4) the Secretary of Homeland Security; (5) the Director of National Intelligence; (6) the Chairman of the Joint Chiefs of Staff; and (7) other officers or full-time or permanent part-time employees of the United States, including employees with intelligence, counterterrorism, military, and legal expertise, as determined by the Attorney General, with the concurrence of the head of the department or agency concerned. (c) Operation of Review. The duties of the Review participants shall include the following: (1) Consolidation of Detainee Information. The Attorney General shall, to the extent reasonably practicable, and in coordination with the other Review participants, assemble all information in the possession of the Federal Government that pertains to any individual currently detained at Guantańamo and that is relevant to determining the proper disposition of any such individual. All executive branch departments and agencies shall promptly comply with any request of the Attorney General to provide information in their possession or control pertaining to any such individual. The Attorney General may seek further information relevant to the Review from any source.

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(2) Determination of Transfer. The Review shall determine, on a rolling basis and as promptly as possible with respect to the individuals currently detained at Guantańamo, whether it is possible to transfer or release the individuals consistent with the national security and foreign policy interests of the United States and, if so, whether and how the Secretary of Defense may effect their transfer or release. The Secretary of Defense, the Secretary of State, and, as appropriate, other Review participants shall work to effect promptly the release or transfer of all individuals for whom release or transfer is possible. (3) Determination of Prosecution. In accordance with United States law, the cases of individuals detained at Guantańamo not approved for release or transfer shall be evaluated to determine whether the Federal Government should seek to prosecute the detained individuals for any offenses they may have committed, including whether it is feasible to prosecute such individuals before a court established pursuant to Article III of the United States Constitution, and the Review participants shall in turn take the necessary and appropriate steps based on such determinations. (4) Determination of Other Disposition. With respect to any individuals currently detained at Guantańamo whose disposition is not achieved under paragraphs (2) or (3) of this subsection, the Review shall select lawful means, consistent with the national security and foreign policy interests of the United States and the interests of justice, for the disposition of such individuals. The appropriate authorities shall promptly implement such dispositions. (5) Consideration of Issues Relating to Transfer to the United States. The Review shall identify and consider legal, logistical, and security issues relating to the potential transfer of individuals currently detained at Guantańamo to facilities within the United States, and the Review participants shall work with the Congress on any legislation that may be appropriate. Sec. 5. Diplomatic Efforts. The Secretary of State shall expeditiously pursue and direct such negotiations and diplomatic efforts with foreign governments as are necessary and appropriate to implement this order. Sec. 6. Humane Standards of Confinement. No individual currently detained at Guantańamo shall be held in the custody or under the effective control of any officer, employee, or other agent of the United States Government, or at a facility owned, operated, or controlled by a department or agency of the United States, except in conformity with all applicable laws governing the conditions of such confinement, including Common Article 3 of the Geneva Conventions. The Secretary of Defense shall immediately undertake a review of the conditions of detention at Guantańamo to ensure full compliance with this directive. Such review shall be completed within 30 days and any necessary corrections shall be implemented immediately thereafter. Sec. 7. Military Commissions. The Secretary of Defense shall immediately take steps sufficient to ensure that during the pendency of the Review described in section 4 of this order, no charges are sworn, or referred to a military commission under the Military Commissions Act of 2006 and the Rules for Military Commissions, and that all proceedings of such military commissions to which charges have been referred but in which no judgment has been rendered, and all proceedings pending in the United States Court of Military Commission Review, are halted. Sec. 8. General Provisions. (a) Nothing in this order shall prejudice the authority of the Secretary of Defense to determine the disposition of any detainees not covered by this order. (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

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(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

THE WHITE HOUSE, January 22, 2009.

[FR Doc. E9–1893 Filed 1–26–09; 11:15 am] Billing code 3195–W9–P

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Executive Order 13493 of January 22, 2009

Review of Detention Policy Options

By the authority vested in me as President by the Constitution and the laws of the United States of America, in order to develop policies for the detention, trial, transfer, release, or other disposition of individuals captured or apprehended in connection with armed conflicts and counterterrorism operations that are consistent with the national security and foreign policy interests of the United States and the interests of justice, I hereby order as follows: Section 1. Special Interagency Task Force on Detainee Disposition. (a) Establishment of Special Interagency Task Force. There shall be established a Special Task Force on Detainee Disposition (Special Task Force) to identify lawful options for the disposition of individuals captured or apprehended in connection with armed conflicts and counterterrorism operations. (b) Membership. The Special Task Force shall consist of the following members, or their designees: (i) the Attorney General, who shall serve as Co-Chair; (ii) the Secretary of Defense, who shall serve as Co-Chair; (iii) the Secretary of State; (iv) the Secretary of Homeland Security; (v) the Director of National Intelligence; (vi) the Director of the Central Intelligence Agency; (vii) the Chairman of the Joint Chiefs of Staff; and (viii) other officers or full-time or permanent part-time employees of the United States, as determined by either of the Co-Chairs, with the concurrence of the head of the department or agency concerned. (c) Staff. Either Co-Chair may designate officers and employees within their respective departments to serve as staff to support the Special Task Force. At the request of the Co-Chairs, officers and employees from other departments or agencies may serve on the Special Task Force with the concurrence of the heads of the departments or agencies that employ such individuals. Such staff must be officers or full-time or permanent part- time employees of the United States. The Co-Chairs shall jointly select an officer or employee of the Department of Justice or Department of Defense to serve as the Executive Secretary of the Special Task Force. (d) Operation. The Co-Chairs shall convene meetings of the Special Task Force, determine its agenda, and direct its work. The Co-Chairs may establish and direct subgroups of the Special Task Force, consisting exclusively of members of the Special Task Force, to deal with particular subjects. (e) Mission. The mission of the Special Task Force shall be to conduct a comprehensive review of the lawful options available to the Federal Govern- ment with respect to the apprehension, detention, trial, transfer, release, or other disposition of individuals captured or apprehended in connection with armed conflicts and counterterrorism operations, and to identify such options as are consistent with the national security and foreign policy interests of the United States and the interests of justice.

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(f) Administration. The Special Task Force shall be established for administrative purposes within the Department of Justice, and the Department of Justice shall, to the extent permitted by law and subject to the availability of appropriations, provide administrative support and funding for the Special Task Force. (g) Report. The Special Task Force shall provide a report to the President, through the Assistant to the President for National Security Affairs and the Counsel to the President, on the matters set forth in subsection (d) within 180 days of the date of this order unless the Co-Chairs determine that an extension is necessary, and shall provide periodic preliminary reports during those 180 days. (h) Termination. The Co-Chairs shall terminate the Special Task Force upon the completion of its duties. Sec. 2. General Provisions. (a) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. (b) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

THE WHITE HOUSE, January 22, 2009.

[FR Doc. E9–1895 Filed 1–26–09; 11:15 am] Billing code 3195–W9–P

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Reader Aids Federal Register Vol. 74, No. 16 Tuesday, January 27, 2009

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING JANUARY

Federal Register/Code of Federal Regulations At the end of each month, the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. Presidential Documents 1 CFR January 1, 2009 ...... 1583 Executive orders and proclamations 741–6000 No. 2009–11 of 2...... 3950 The United States Government Manual 741–6000 January 15, 2009 ...... 3957 10...... 3950 Other Services 11...... 3950 5 CFR Electronic and on-line services (voice) 741–6020 3 CFR 532...... 1871 Privacy Act Compilation 741–6064 9901...... 2757 Public Laws Update Service (numbers, dates, etc.) 741–6043 Proclamations: Proposed Rules: TTY for the deaf-and-hard-of-hearing 741–6086 8333...... 609 532...... 1948 8334...... 611 8335...... 1557 6 CFR ELECTRONIC RESEARCH 8336...... 1565 Proposed Rules: World Wide Web 8337...... 1577 5 ...... 2903, 2904, 2906 Full text of the daily Federal Register, CFR and other publications 8338...... 2753 is located at: http://www.gpoaccess.gov/nara/index.html 8339...... 3955 7 CFR Federal Register information and research tools, including Public 8340...... 4091 2...... 3395 Inspection List, indexes, and links to GPO Access are located at: 8341...... 4105 60...... 2658 http://www.archives.gov/federallregister 8342...... 4093 65...... 2658 8343...... 4341 E-mail 246...... 544 Executive Orders: 305...... 2770 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 13233 (revoked by 318...... 2770 an open e-mail service that provides subscribers with a digital 13489) ...... 4669 636...... 2786 form of the Federal Register Table of Contents. The digital form 13241 (amended by 652...... 2800 of the Federal Register Table of Contents includes HTML and 13484) ...... 2285 662...... 1587 PDF links to the full text of each document. 13440 (revoked by 925...... 3412 To join or leave, go to http://listserv.access.gpo.gov and select 13491) ...... 4893 944...... 2806, 3412 Online mailing list archives, FEDREGTOC-L, Join or leave the list 13484...... 2285 966...... 855 (or change settings); then follow the instructions. 13485...... 2287 980...... 2806 PENS (Public Law Electronic Notification Service) is an e-mail 13486...... 2289 999...... 2806 service that notifies subscribers of recently enacted laws. 13487...... 4097 1415...... 3856 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 13488...... 4111 1466...... 2293 and select Join or leave the list (or change settings); then follow 13489...... 4669 1467...... 2317 the instructions. 13490...... 4673 1491...... 2809 FEDREGTOC-L and PENS are mailing lists only. We cannot 13491...... 4893 1779...... 2823 respond to specific inquiries. 13492...... 4897 1780...... 393 Reference questions. Send questions and comments about the 13493...... 4901 1980...... 1872 Federal Register system to: [email protected] Administrative Orders: 3575...... 2823 The Federal Register staff cannot interpret specific documents or Notices: 4279...... 2823 regulations. Notice of January 15, 4280...... 2823 Reminders. Effective January 1, 2009, the Reminders, including 2009 ...... 3959 5001...... 2823 Rules Going Into Effect and Comments Due Next Week, no longer Notice of January 15, Proposed Rules: appear in the Reader Aids section of the Federal Register. This 2009 ...... 3961 305...... 651 information can be found online at http://www.regulations.gov. Memorandums: 319...... 651 CFR Checklist. Effective January 1, 2009, the CFR Checklist no Memorandum of 340...... 2907 longer appears in the Federal Register. This information can be December 23, 625...... 1954 found online at http://bookstore.gpo.gov/. 2008 ...... 1585 985...... 1971 Memorandum of March 1000...... 1976 FEDERAL REGISTER PAGES AND DATE, JANUARY 19, 2002 1033...... 1976 (superseded by EO 1780...... 411 1–200...... 2 13485) ...... 2287 201–392...... 5 Memorandum of 8 CFR 393–608...... 6 609–768...... 7 January 16, 2009 ...... 4099 1...... 2824 769–854...... 8 Memorandum of 2...... 2824 855–1142...... 9 January 16, 2009 ...... 4101 3...... 2824 1143–1582...... 12 Memorandum of 100...... 2824 1583–1870...... 13 January 21, 2009 ...... 4679 103...... 395 1871–2292...... 14 Memorandum of 204...... 2837 2293–2756...... 15 January 21, 2009 ...... 4683 209...... 2824 2757–3394...... 16 Memorandum of 212...... 395, 2824 3395–3962...... 21 3963–4114...... 22 January 21, 2009 ...... 4685 214...... 395, 2824 4115–4342...... 23 Presidential 215...... 2824, 2837 4343–4686...... 26 Determinations: 233...... 2824 4687–4902...... 27 No. 2009-10 of 235...... 2824, 2837

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245...... 395 3...... 1804 25 CFR 31 CFR 274a...... 2838 4...... 1804 Proposed Rules: 31...... 3431 299...... 395 Proposed Rules: 502...... 4363 1001...... 201 1500 ....2428, 2433, 2435, 2439 514...... 4363 32 CFR 1003...... 201 531...... 4363 160...... 2864 1274a...... 2337 17 CFR 533...... 4363 Proposed Rules: 1292...... 201 210...... 2158 535...... 4363 260...... 2932 9 CFR 211...... 2158 537...... 4363 229...... 2158 539...... 4363 33 CFR 71...... 1 230 ...... 3138, 3967, 4546 556...... 4363 125...... 2865 83...... 1 232...... 4546 558...... 4363 155...... 3364 93...... 1 239...... 4546 571...... 4363 157...... 3364 Proposed Rules: 240...... 3138, 3967 573...... 4363 165...... 2373 71...... 1634 249...... 2158 77...... 1634 26 CFR Proposed Rules: 260...... 3967 160...... 3534 78...... 1634 274...... 4546 1...... 340, 3420 161...... 3534 79...... 1634 Proposed Rules: 31...... 3421 164...... 3534 80...... 1634 38...... 3475 301...... 340, 2370 165...... 3534 602...... 340 10 CFR Ch. 2 ...... 4357 Proposed Rules: 34 CFR 72...... 1143 18 CFR 1 ...... 236, 3508, 3509 150...... 1872 99...... 400 Proposed Rules: 31...... 789 431...... 1091 284...... 2443 41...... 2910 37 CFR Proposed Rules: 301...... 236 385...... 4510 50...... 4346 19 CFR 430...... 1643, 3450 27 CFR Proposed Rules: 431...... 411, 1992 4...... 2824 201...... 666 12...... 2838, 2844 9...... 3422, 3425 478...... 1875 12 CFR 122...... 2824 38 CFR 163...... 2844 555...... 1878 622...... 2340 21...... 3436 207...... 2847 1202...... 2342 28 CFR Proposed Rules: 3...... 2016 1250...... 2347 21 CFR 545...... 1892 1773...... 2347 550...... 1892 17...... 3535 56...... 2358 Proposed Rules: 13 CFR 73...... 207 39 CFR 548...... 2913 Proposed Rules: 101...... 207 111...... 2866 120...... 1992 314...... 2849 29 CFR 3020 ...... 219, 622, 858 320...... 2849 121...... 1153 3...... 2862 Proposed Rules: 520...... 1146 125...... 1153 5...... 2862 111...... 4727 558...... 6 127...... 1153 403...... 3678 866...... 6 40 CFR 134...... 1153 408...... 3678 Proposed Rules: 825...... 2862 19...... 626 14 CFR 131...... 2443 1601...... 3429 51...... 2376, 3437 11...... 201 1300...... 3480 1603...... 3429 52 ...... 1146, 1148, 1591, 1899, 25...... 1143 1301...... 3480 1605...... 3429 1903, 1927, 2376, 2383, 39 ...... 4115, 4117, 4119, 4121, 1304...... 3480 1611...... 3429 2387, 2392, 3442, 3975 4123, 4126, 4129, 4131 1305...... 3480 1612...... 3429 81...... 1148 71 ...... 769, 1872, 1874, 2350 1307...... 3480 1614...... 3429 82...... 21 95...... 396 1615...... 3429 180 ...... 629, 634, 637, 2867 22 CFR 97 ...... 202, 205, 3963, 3965 1621...... 3429 300...... 4687 121...... 2351 42...... 2369 1626...... 3429 Proposed Rules: Proposed Rules: 215...... 9 1910...... 858 50...... 2936 25...... 4353 1915...... 858 51...... 2460, 2936 39 ...... 664, 1153, 1155, 1158, 23 CFR 1917...... 858 52 ...... 667, 2018, 2460, 2945 1159, 1164, 1646, 1649, Proposed Rules: 1918...... 858 82...... 2954 2425, 3462, 3978 180...... 3487 1926...... 858 112...... 2461 65...... 1280 511...... 1993 2550...... 3822 257...... 41 71 ...... 1651, 1652, 2427, 2909, 2560...... 17, 2373 300...... 4729 3465, 3466, 3468 24 CFR 4022...... 2863 41 CFR 119...... 1280 5...... 4832 4044...... 772 121...... 1280, 3469 17...... 4634 Proposed Rules: 102-42...... 2395 135...... 1280 20...... 4634 1910...... 3526 301-10 ...... 2396, 2397 142...... 1280 30...... 2750, 4634 1926...... 4363 Proposed Rules: 92...... 4832 102-192...... 870 15 CFR 103...... 4634 30 CFR 742...... 2355 180...... 4634 6...... 3430 42 CFR 744...... 770, 2355 203...... 2369 14...... 3430 410...... 4343 746...... 2355 908...... 4832 18...... 3430 414...... 2873 806...... 1590 1003...... 1868 48...... 3430 416...... 4343 922...... 3216 3500...... 2369 75...... 3430 419...... 4343 Proposed Rules: 570...... 4634 926...... 217 422...... 1494 736...... 413 954...... 4634 Proposed Rules: 423...... 1494, 2881 990...... 4638 74...... 2915 424...... 166 16 CFR 3500...... 4634 936...... 868 447...... 4888 1...... 857 4001...... 617 938...... 2005 457...... 4888

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Proposed Rules: Proposed Rules: 216...... 2416 1002...... 4714 423...... 1550 73...... 1653 218...... 2407 1011...... 4714 493...... 3264 74...... 61 225...... 2417, 2418 1155...... 4714 79...... 1654 236...... 2417 43 CFR Proposed Rules: 237...... 2421 48 CFR 80...... 3487 3500...... 637 252 .....2408, 2410, 2411, 2417, 261...... 3487 Ch. 1...... 2710, 2746 2418, 2421, 2422 44 CFR 640...... 3487 1...... 2712, 2733 542...... 863 1201...... 248 64...... 641, 773 543...... 864 2 ...... 1937, 2712, 2713 1242...... 248 65...... 775 3...... 2713 552...... 863, 864 1301...... 416 67...... 401, 778 4...... 2712, 2724 Proposed Rules: 1700...... 3487 Proposed Rules: 5...... 2731 22...... 872 67 ...... 238, 241, 244, 245, 246, 6...... 2731 52...... 872 247, 789 7...... 2733 538...... 4596 50 CFR 11...... 2740 45 CFR 49 CFR 216 ...... 1456, 1607, 3882, 4844 12 ...... 2712, 2713, 2741 224...... 1937 46...... 2399 15...... 2724, 2746 171...... 1770, 2200 300...... 1607 88...... 2888 17...... 2724 172...... 1770, 2200 600...... 3178 89...... 2888 18...... 2733 173...... 1770, 2200 622...... 1148, 1621 162...... 3296, 3328 22 ...... 1937, 2724, 2741, 2745 174...... 1770 640...... 1148 Proposed Rules: 23...... 2713, 2740 175...... 2200 648...... 233 1355...... 4365 24...... 2731 176...... 2200 1356...... 4365 25...... 2713, 2745 178...... 2200 679 ...... 233, 868, 1631, 1946, 28...... 2733 179...... 1770 2902, 3446, 3449 46 CFR 32...... 2733 190...... 2889 Proposed Rules: 162...... 3364 33...... 2733 191...... 2889 17...... 419, 2465 401...... 220 39...... 2740 192...... 2889 32...... 1838 Proposed Rules: 43...... 2733 193...... 2889 223...... 249 197...... 414 50...... 2733 194...... 2889 224...... 249 52 ...... 1937, 2712, 2713, 2724, 195...... 2889 253...... 2467 47 CFR 2733, 2740, 2741, 2745 199...... 2889 300...... 2019, 2032 Ch. 1 ...... 4344 202...... 2407 213...... 1605 600...... 2467 1...... 3444 203 ...... 2407, 2408, 2410 356...... 2895 648...... 2478, 2959 64...... 4345 204...... 2411 365...... 2895 660...... 252 73 ...... 1593, 2405, 4691 209 ...... 2408, 2413, 2414 374...... 2895 679...... 254, 2984 79...... 1594 212...... 2415 580...... 643

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in ‘‘slip law’’ (individual Interior are those which were enacted public laws. To LIST OF PUBLIC LAWS pamphlet) form from the in effect on January 1, 2005. subscribe, go to http:// Superintendent of Documents, (Jan. 16, 2009; 123 Stat. 3) listserv.gsa.gov/archives/ This is the first in a continuing U.S. Government Printing A cumulative List of Public publaws-l.html list of public bills from the Office, Washington, DC 20402 Laws for the second session current session of Congress (phone, 202–512–1808). The of the 110th Congress will be text will also be made Note: This service is strictly which have become Federal published in the Federal for E-mail notification of new laws. It may be used in available on the Internet from Register on January 30, laws. The text of laws is not conjunction with ‘‘P L U S’’ GPO Access at http:// 2009. (Public Laws Update Service) www.gpoaccess.gov/plaws/ available through this service. on 202–741–6043. This list is index.html. Some laws may PENS cannot respond to also available online at http:// not yet be available. Public Laws Electronic specific inquiries sent to this address. www.archives.gov/federal- S.J. Res. 3/P.L. 111–1 Notification Service register/laws.html. Ensuring that the (PENS) The text of laws is not compensation and other published in the Federal emoluments attached to the PENS is a free electronic mail Register but may be ordered office of Secretary of the notification service of newly

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