3–17–09 Tuesday Vol. 74 No. 50 Mar. 17, 2009

Pages 11275–11460

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Contents Federal Register Vol. 74, No. 50

Tuesday, March 17, 2009

Agricultural Marketing Service Disability Employment Policy Office RULES NOTICES Relaxation of Handling Requirements: Agency Information Collection Activities; Proposals, Grapes Grown in a Designated Area of Southeastern Submissions, and Approvals, 11379–11380 California, etc., 11275–11277 Education Department NOTICES Agriculture Department Applications: See Agricultural Marketing Service Technological Innovation and Cooperation for Foreign See Food and Nutrition Service Information Access Program, 11358–11362 See Forest Service Federal Perkins Loan, Federal Work-Study, and Federal Supplemental Educational Opportunity Grant Air Force Department Programs, 11362–11364 NOTICES Privacy Act of 1974; System of Records, 11356–11357 Employment and Training Administration PROPOSED RULES Arts and Humanities, National Foundation Temporary Employment of H–2A Aliens, 11408–11440 See National Foundation on the Arts and the Humanities NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 11380 Census Bureau NOTICES Employment Standards Administration Meetings: See Wage and Hour Division Census Advisory Committees, 11348 Energy Department Children and Families Administration See Federal Energy Regulatory Commission NOTICES NOTICES Meetings: Agency Information Collection Activities; Proposals, Environmental Management Site-Specific Advisory Submissions, and Approvals, 11376 Board; Hanford, 11364 Revised Draft Environmental Impact Statement for Coast Guard Decommissioning and/or Long-Term Stewardship at RULES the West Valley Demonstration Project and Western Anchorage Regulations: New York Nuclear Service Center, 11364–11365 Port of New York; Correction, 11293 Environmental Protection Agency Commerce Department PROPOSED RULES See Census Bureau Outer Continental Shelf Air Regulations: See International Trade Administration Consistency Update for California, 11330–11334 See National Institute of Standards and Technology NOTICES See National Oceanic and Atmospheric Administration Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 11372–11373 Agency Information Collection Activities; Proposals, Executive Office of the President Submissions, and Approvals, 11347–11348 See Management and Budget Office Defense Department Federal Aviation Administration See Air Force Department RULES See Navy Department Standard Instrument Approach Procedures, and Takeoff RULES Minimums and Obstacle Departure Procedures, 11278– Civilian Health and Medical Program of the Uniformed 11279 Services (CHAMPUS)/TRICARE: NOTICES Inclusion of TRICARE Retail Pharmacy Program in Meetings: Federal Procurement of Pharmaceuticals, 11279– NextGen Mid-Term Implementation Task Force, 11399– 11293 11400 NOTICES Receipts of Noise Compatibility Programs and Requests for Delegation of Settlement Authority Under the Federal Tort Reviews: Claims Act, 11353 Detroit Metropolitan Wayne County Airport, Detroit, MI, Meetings: 11400 DoD Board of Actuaries, 11353 Privacy Act of 1974; Computer Matching Program, 11353– Federal Communications Commission 11355 RULES Privacy Act of 1974; System of Records, 11355–11356 DTV Delay Act, 11299–11318

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PROPOSED RULES Food and Drug Administration Implementation of the Child Safe Viewing Act: NOTICES Examination of Parental Control Technologies for Meetings: Video or Audio Programming Blood Products Advisory Committee, 11376–11377 Examination of Parental Control Technologies for Video or Audio Programming, 11334–11342 Food and Nutrition Service NOTICES Federal Energy Regulatory Commission Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 11345 Applications: Chandeleur Pipe Line Co., 11365 Forest Service Authorization for Continued Project Operation: NOTICES Southern California Edison Co., 11365–11366 Agency Information Collection Activities; Proposals, Combined Notice of Filings, 11366–11368 Submissions, and Approvals, 11345–11346 Complaints: Meetings Western Refining Southwest, Inc., et al., 11368–11369 South Gifford Pinchot National Forest Resource Advisory Environmental Impact Statements; Availability, etc.: Committee, 11346 Rockies Express Pipeline LLC, 11369–11370 Meetings: Meeting: North Gifford Pinchot National Forest Resource Advisory Energy Northwest; Staff Participation, 11371 Committee, 11346–11347 Meetings: Technical Conference Regarding Electronic Tariff Filings:, Health and Human Services Department 11371–11372 See Children and Families Administration Records Governing Off-the-Record Communications, 11370– See Food and Drug Administration 11371 Homeland Security Department Federal Highway Administration See Coast Guard NOTICES NOTICES Buy America Waiver Notification, 11400–11401 Certification Related to the Implementation of the Western Hemisphere Travel Initiative, 11377–11378 Federal Motor Carrier Safety Administration Housing and Urban Development Department RULES NOTICES Elimination of Route Designation Requirement for Motor Regulatory Waiver Requests for the Fourth Quarter (CY Carriers Transporting Passengers over Regular Routes, 2008), 11442–11460 11318–11319 Interior Department Federal Railroad Administration See Fish and Wildlife Service NOTICES Meetings: International Trade Administration Railroad Safety Advisory Committee (RSAC), 11401 NOTICES Railroad Safety Advisory Committee (RSAC) Working Antidumping: Group Activities Update, 11401–11405 Barium Carbonate from the People’s Republic of China, 11348–11349 Federal Reserve System Certain Frozen Fish Fillets from the Socialist Republic of NOTICES Vietnam, 11349–11351 Change in Bank Control Notices; Acquisition of Shares of Circular Welded Austenitic Stainless Pressure Pipe from Bank or Bank Holding Companies, 11373 the People’s Republic of China, 11351–11352 Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 11374 International Trade Commission Formations of, Acquisitions by, and Mergers of Bank NOTICES Holding Companies; Correction, 11374 Commission Determination Not to Review an Initial Proposals to Engage in Permissible Nonbanking Activities Determination, etc.: or to Acquire Companies that are Engaged in Certain Active Comfort Footwear, 11378 Permissible Nonbanking Activities, 11374 Determination: Welded Stainless Steel Pressure Pipe from China, 11378– Federal Trade Commission 11379 NOTICES Proposed Consent Agreements: Labor Department American Telecom Services, Inc., 11374–11376 See Disability Employment Policy Office See Employment and Training Administration Fish and Wildlife Service See Occupational Safety and Health Administration RULES See Veterans Employment and Training Service Endangered and Threatened Wildlife and Plants: See Wage and Hour Division Phyllostegia Hispida, 11319–11327 PROPOSED RULES Management and Budget Office Endangered and Threatened Wildlife and Plants: NOTICES Listing the Plant Lepidium papilliferum (Slickspot Federal Regulatory Review; Extension of request for Peppergrass) as Endangered, 11342–11344 comments, 11383–11384

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National Foundation on the Arts and the Humanities Exemption Under Section 312 of the Small Business NOTICES Investment Act, Conflicts of Interest: Meetings: Accretive Investors SBIC, L.P., 11398 National Endowment for the Humanities Panel, 11381 Small Business Size Standards: Waiver of the Nonmanufacturer Rule, 11398–11399 National Institute of Standards and Technology NOTICES State Department Meetings: NOTICES Information Security and Privacy Advisory Board, 11352– Certification Related to the Implementation of the Western 11353 Hemisphere Travel Initiative, 11377–11378 Meetings: National Oceanic and Atmospheric Administration Advisory Committee on International Postal and Delivery RULES Services, 11399 Fisheries of the Exclusive Economic Zone off Alaska: State Advisory Committee on Private International Law Pollock in Statistical Area 610, 11328 Study Group, 11399 Fisheries of the Northeastern United States: Scup Fishery; Reduction of Winter I Commercial Transportation Department Possession Limit, 11327–11328 See Federal Aviation Administration See Federal Highway Administration Navy Department See Federal Motor Carrier Safety Administration NOTICES See Federal Railroad Administration Meetings: Secretary of the Navy Advisory Panel; Partially Closed, Treasury Department 11357–11358 See United States Mint

Nuclear Regulatory Commission United States Mint NOTICES NOTICES Issuance and Availability of Regulatory Guide (RG) 10.4, Pricing for the United States Mint 2009 American (Revision 3), 11382 Presidency $1 Coin Cover Series, etc., 11405–11406 Issuance and Availability of Regulatory Guide 1.200, Pricing for United States Mint 2009 Annual Sets, 11406 Revision 2, 11381–11382 Meetings; Sunshine Act, 11383 Veterans Employment and Training Service NOTICES Occupational Safety and Health Administration Meetings: PROPOSED RULES Advisory Committee on Veterans’ Employment, Training Occupational Exposure to Diacetyl and Food Flavorings and Employer Outreach (ACVETEO): Cancellation, Containing Diacetyl, 11329–11330 11380

Office of Management and Budget Wage and Hour Division See Management and Budget Office PROPOSED RULES Temporary Employment of H–2A Aliens, 11408–11440 Postal Regulatory Commission RULES Domestic Mail Product, 11293–11299 Separate Parts In This Issue

Postal Service Part II NOTICES Labor Department, Employment and Training Change in Rates of General Applicability for Competitive Administration, 11408–11440 Products; Correction, 11384 Labor Department, Wage and Hour Division, 11408–11440

Securities and Exchange Commission Part III NOTICES Housing and Urban Development Department, 11442–11460 Self-Regulatory Organizations; Proposed Rule Changes: Fixed Income Clearing Corp., 11385–11386 NASDAQ Stock Market LLC, 11386–11391 New York Stock Exchange LLC, 11391–11392 Reader Aids NYSE Alternext US LLC, 11392–11396 Consult the Reader Aids section at the end of this page for NYSE Arca, Inc., 11396–11397 phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws. Small Business Administration To subscribe to the Federal Register Table of Contents NOTICES LISTSERV electronic mailing list, go to http:// Disaster Declarations: listserv.access.gpo.gov and select Online mailing list Kentucky, 11397 archives, FEDREGTOC-L, Join or leave the list (or change Texas, 11397–11398 settings); then follow the instructions.

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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.

7 CFR 925...... 11275 944...... 11275 14 CFR 97...... 11278 20 CFR Proposed Rules: 655...... 11408 29 CFR Proposed Rules: 501...... 11408 780...... 11408 788...... 11408 1910...... 11329 32 CFR 199...... 11279 33 CFR 110...... 11293 39 CFR 3020 (2 documents) ...... 11293, 11296 40 CFR Proposed Rules: 55...... 11330 47 CFR 73...... 11299 Proposed Rules: 73...... 11334 49 CFR 356...... 11318 365...... 11318 374...... 11318 50 CFR 17...... 11319 648...... 11327 679...... 11328 Proposed Rules: 17...... 11342

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Rules and Regulations Federal Register Vol. 74, No. 50

Tuesday, March 17, 2009

This section of the FEDERAL REGISTER ADDRESSES: Interested persons are maturity requirements as those in effect contains regulatory documents having general invited to submit written comments for the domestically produced applicability and legal effect, most of which concerning this rule. Comments must be commodities. are keyed to and codified in the Code of sent to the Docket Clerk, Fruit and The Department of Agriculture Federal Regulations, which is published under Vegetable Programs, AMS, USDA, 1400 (USDA) is issuing this rule in 50 titles pursuant to 44 U.S.C. 1510. Independence Avenue, SW., Stop 0237, conformance with Executive Order The Code of Federal Regulations is sold by Washington, DC 20250–0237; Fax: (202) 12866. the Superintendent of Documents. Prices of 720–8938; or Internet: http:// This rule has been reviewed under new books are listed in the first FEDERAL www.regulations.gov. All comments Executive Order 12988, Civil Justice REGISTER issue of each week. should reference the document number Reform. This action is not intended to and the date and page number of this have retroactive effect. This rule will issue of the Federal Register and will be not preempt any State or local laws, DEPARTMENT OF AGRICULTURE available for public inspection in the regulations, or policies, unless they Office of the Docket Clerk during regular present an irreconcilable conflict with Agricultural Marketing Service business hours, or can be viewed at: this rule. http://www.regulations.gov. All The Act provides that administrative 7 CFR Parts 925 and 944 comments submitted in response to this proceedings must be exhausted before rule will be included in the record and parties may file suit in court. Under [Doc. No. AMS–FV–08–0106; FV09–925–1 will be made available to the public. section 608c(15)(A) of the Act, any IFR] Please be advised that the identity of the handler subject to an order may file Grapes Grown in a Designated Area of individuals or entities submitting the with USDA a petition stating that the Southeastern California and Imported comments will be made public on the order, any provision of the order, or any Table Grapes; Relaxation of Handling Internet at the address provided above. obligation imposed in connection with Requirements FOR FURTHER INFORMATION CONTACT: the order is not in accordance with law Jennifer Garcia, Marketing Specialist, or and request a modification of the order AGENCY: Agricultural Marketing Service, Kurt J. Kimmel, Regional Manager, or to be exempted therefrom. A handler USDA. California Marketing Field Office, is afforded the opportunity for a hearing ACTION: Interim final rule with request Marketing Order Administration on the petition. After the hearing, USDA for comments. Branch, Fruit and Vegetable Programs, would rule on the petition. The Act AMS, USDA; Telephone: (559) 487– provides that the district court of the SUMMARY: This rule relaxes the handling 5901, Fax: (559) 487–5906, or e-mail: United States in any district in which requirements prescribed under the [email protected] or the handler is an inhabitant, or has his California table grape marketing order [email protected]. or her principal place of business, has (order) and the table grape import Small businesses may request jurisdiction to review USDA’s ruling on regulation. The order regulates the information on complying with this the petition, provided an action is filed handling of table grapes grown in a regulation by contacting Jay Guerber, not later than 20 days after the date of designated area of southeastern Marketing Order Administration the entry of the ruling. California and is administered locally Branch, Fruit and Vegetable Programs, There are no administrative by the California Desert Grape AMS, USDA, 1400 Independence procedures which must be exhausted Administrative Committee (committee). Avenue, SW., Stop 0237, Washington, prior to any judicial challenge to the The import regulation is authorized DC 20250–0237; Telephone: (202) 720– provisions of import regulations issued under section 8e of the Agricultural 2491, Fax: (202) 720–8938, or e-mail: under section 8e of the Act. Marketing Agreement Act of 1937 and [email protected]. This rule relaxes the minimum bunch regulates the importation of table grapes SUPPLEMENTARY INFORMATION: This rule size requirement for the 2009 season for into the United States. This rule relaxes is issued under Marketing Order No. grapes packed in containers holding 2 the one-quarter pound minimum bunch 925, as amended (7 CFR part 925), pounds net weight or less. Under the size requirement for the 2009 season for regulating the handling of grapes grown relaxation, up to 20 percent of the grapes packed in containers holding 2 in a designated area of southeastern weight of such containers may consist of pounds net weight or less. Under the California, hereinafter referred to as the single clusters weighing less than one- relaxation, up to 20 percent of the ‘‘order.’’ The order is effective under the quarter pound, but with at least five weight of such containers may consist of Agricultural Marketing Agreement Act berries each. This action provides single, unattached stems or clusters of at of 1937, as amended (7 U.S.C. 601–674), California desert grape handlers and least five berries each. This action hereinafter referred to as the ‘‘Act.’’ importers the flexibility to respond to a provides California desert grape This rule is also issued under section marketing opportunity on a test basis for handlers and importers the flexibility to 8e of the Act, which provides that one season to meet consumer needs. respond to a marketing opportunity on whenever certain specified The committee met on November 14, a test basis for one season to meet commodities, including table grapes, are 2008, and unanimously recommended consumer needs. regulated under a Federal marketing the change for California desert grapes. DATES: Effective March 20, 2009; order, imports of these commodities The change in the import regulation is comments received by May 18, 2009 into the United States are prohibited required under section 8e of the Act. will be considered prior to issuance of unless they meet the same or Section 925.52(a)(1) of the order a final rule. comparable grade, size, quality, or provides authority to regulate the

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handling of any grade, size, quality, weighing less than one-quarter pound, number of producers (50) yields an maturity, or pack of any and all varieties but with at least five berries each. This average annual producer revenue of grapes during the season. Section change will provide handlers with the estimate of about $1,060,800, which is 925.53 provides authority for the flexibility to respond to a marketing above the SBA threshold of $750,000. committee to recommend to USDA opportunity on a test basis for one Based on the foregoing, it may be changes to regulations issued pursuant season to meet consumer needs. Section concluded that a majority of grape to § 925.52. Section 925.55 specifies that 925.304(a) is modified accordingly. handlers and none of the producers may when grapes are regulated pursuant to Under section 8e of the Act, minimum be classified as small entities. The § 925.52, such grapes must be inspected grade, size, quality, and maturity average importer receives $2.8 million by the Federal or Federal-State requirements for table grapes imported in revenue from the sale of grapes. inspection service to ensure they meet into the United States are established Therefore, it may be concluded that the applicable requirements. under Table Grape Import Regulation 4 majority of importers may be classified Section 925.304(a) of the order’s rules (7 CFR 944.503) (import regulation). as small entities. and regulations requires grapes to meet Section 944.503(a)(1) specifies the This rule revises § 925.304(a) of the the minimum grade requirements of minimum bunch size requirement for rules and regulations of the California U.S. No. 1 Table, or U.S. No. 1 U.S. No. 1 Table grade grapes as set desert grape order and § 944.503(a)(1) of Institutional, or to meet all the forth in the Standards. The change to the table grape import regulation. This requirements of U.S. No. 1 Institutional, the order’s minimum bunch size rule relaxes the one-quarter pound except that a tolerance of 33 percent is requirement for the 2009 season minimum bunch size requirement for provided for off-size bunches. The requires a corresponding change to the the 2009 season for U.S. No. 1 Table requirements for the U.S. No. 1 Table minimum bunch size requirement for grade grapes packed in small consumer and U.S. No. 1 Institutional grades are imported table grapes. Similar to the packages containing 2 pounds net set forth in the United States Standards domestic industry, this change will weight or less. Under the relaxation, up for Grades of Table Grapes (European or allow importers the flexibility to to 20 percent of the weight of each Vinifera Type) (7 CFR 51.880 through respond to a marketing opportunity on clamshell container may consist of 51.914) (Standards). The regulatory a test basis for one season to meet single clusters weighing less than one- period runs from April 10 through July consumer needs. Section 944.503(a)(1) quarter pound, but with at least five 10 each year. is revised accordingly. berries each. Authority for the change to Currently, U.S. No. 1 Table grade the California desert grape order is Initial Regulatory Flexibility Analysis grapes must meet a minimum bunch provided in §§ 925.52(a)(1) and 925.53. size requirement of one-quarter pound. Pursuant to requirements set forth in Authority for the change to the table Recently, there has been interest in the Regulatory Flexibility Act (RFA) (5 grape import regulation is provided in packing grapes in individual consumer U.S.C. 601–612), the Agricultural section 8e of the Act. packages known as clamshells. These Marketing Service (AMS) has Regarding the impact of this rule on containers, used most commonly to considered the economic impact of this affected entities, this rule provides both pack strawberries, are made of a clear, rule on small entities. Accordingly, California desert grape handlers and rigid plastic and typically hold a half AMS has prepared this initial regulatory importers the flexibility to respond to a pound or a pound of fruit. Some flexibility analysis. marketing opportunity on a test basis for retailers prefer these containers because The purpose of the RFA is to fit one season to meet consumer needs. they are of the same net weight, and can regulatory actions to the scale of Handlers and importers will be able to be scanned at check-out. This is business subject to such actions in order provide buyers in the retail sector more particularly convenient for retailers that that small businesses will not be unduly packaging choices. The relaxation may do not have facilities for weighing or disproportionately burdened. result in increased shipments of produce, such as convenience stores Marketing orders issued pursuant to the consumer-sized grape packs, which and fast food outlets. Some consumers Act, and the rules issued thereunder, are would have a positive impact on also prefer the convenience of unique in that they are brought about producers, handlers, and importers. prepackaged individual portions of through group action of essentially There is general agreement in the fruit. small entities acting on their own industry for the need to relax the To meet changing market behalf. minimum bunch size requirement for requirements, California grape handlers There are approximately 14 handlers grapes packed in clamshells to allow for would like to be able to pack clamshells of southeastern California grapes who more packaging options. One suggestion containing 2 pounds net weight or less. are subject to regulation under the order was to relax the minimum bunch size However, current bunch size and about 50 grape producers in the requirement for U.S. No. 1 Table grade requirements make it difficult. Grape production area. In addition, there are grapes packed in clamshells containing bunches normally range in weight from approximately 123 importers of grapes. net weights of 2, 3, and 4 pounds. The one-quarter pound to 3 pounds. Portions Small agricultural service firms are committee discussed this alternative of bunches, weighing less than one- defined by the Small Business and decided that there is not a problem quarter pound, would have to be used Administration (SBA) (13 CFR 121.201) with clamshells containing net weights to fill the new packages to the weights as those having annual receipts of less of 3 and 4 pounds meeting the desired by buyers. than $7,000,000 and small agricultural minimum requirements at this time. Thus, the committee unanimously producers are defined as those whose Ultimately, the committee unanimously recommended relaxing the one-quarter annual receipts are less than $750,000. agreed that the relaxation for grapes pound minimum bunch size Nine of the 14 handlers subject to packed in clamshells containing 2 requirement for the 2009 season for U.S. regulation have annual grape sales of pounds net weight or less was No. 1 Table grade grapes packed in less than $7,000,000. Based on data appropriate as a test for one season. clamshells containing 2 pounds net from the National Agricultural Statistics AMS is committed to complying with weight or less. Under the relaxation, up Service and the committee, the average the E-Government Act, to promote the to 20 percent of the weight of such crop value for 2008 is about use of the Internet and other containers may consist of single clusters $53,040,000. Dividing this figure by the information technologies to provide

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increased opportunities for citizen tend to effectuate the declared policy of requirements of U.S. No. 1 Institutional access to Government information and the Act. with the exception of the tolerance services, and for other purposes. Pursuant to 5 U.S.C. 553, it is also percentage for bunch size. Such This rule will not impose any found and determined, upon good tolerance shall be 33 percent instead of additional reporting or recordkeeping cause, that it is impracticable, 4 percent as is required to meet U.S. No. requirements on either small or large unnecessary and contrary to the public 1 Institutional grade. Grapes meeting grape handlers or importers. As with all interest to give preliminary notice prior these quality requirements may be Federal marketing order programs, to putting this rule into effect and that marked ‘‘DGAC No. 1 Institutional’’ but reports and forms are periodically good cause exists for not postponing the shall not be marked ‘‘Institutional reviewed to reduce information effective date of this rule until 30 days Pack.’’ In addition, during the period requirements and duplication by after publication in the Federal Register April 10 through July 10, 2009, U.S. No. industry and public sector agencies. because: (1) This action relaxes the 1 Table grade grapes may be packed in In addition, USDA has not identified handling requirements currently in individual consumer packages any relevant Federal rules that effect for grapes grown in a designated containing 2 pounds net weight or less: duplicate, overlap or conflict with this area of southeastern California and for Provided, That not more than 20 percent rule. grapes imported into the United States of the weight of such containers may Further, the committee’s meeting was for the 2009 season; (2) California desert consist of single clusters weighing less widely publicized throughout the grape grape handlers are aware of this action than one-quarter pound, but with at industry and all interested persons were which was unanimously recommended least five berries each. invited to attend the meeting and by the committee at a public meeting; * * * * * participate in committee deliberations. (3) the shipping season begins on April Like all committee meetings, the 10, 2009, and handlers and importers PART 944—FRUITS; IMPORT November 14, 2008, meeting was a need sufficient time to prepare for the REQUIREMENTS public meeting and all entities, both upcoming season; and (4) this rule ■ large and small, were able to express provides a 60-day comment period and 3. In § 944.503, paragraph (a)(1) their views on this issue. Also, the any comments received will be introductory text is revised to read as World Trade Organization, the Chilean considered prior to finalization of this follows: Technical Barriers to Trade inquiry rule. § 944.503 Table Grape Import Regulation point for notifications under the U.S- List of Subjects 4. Chile Free Trade Agreement, the (a)(1) Pursuant to section 8e of the Act embassies of Argentina, Brazil, Canada, 7 CFR Part 925 and Part 944—Fruits, Import Chile, Italy, Mexico, Peru, and South Grapes, Marketing agreements and Regulations, the importation into the Africa, and known grape importers were orders, Reporting and recordkeeping United States of any variety of Vinifera notified of this action. requirements. species table grapes, except Emperor, Finally, interested persons are invited Calmeria, Almeria, and Ribier varieties, 7 CFR Part 944 to submit comments on this rule, is prohibited unless such grapes meet including the regulatory and Avocados, Food grades and standards, the minimum grade and size informational impacts of this action on Grapefruit, Grapes, Imports, Kiwifruit, requirements specified in 7 CFR 51.884 small businesses. Limes, Olives, Oranges. for U.S. No. 1 Table, as set forth in the A small business guide on complying ■ For the reasons set forth in the United States Standards for Grades of with fruit, vegetable, and specialty crop preamble, 7 CFR parts 925 and 944 are Table Grapes (European or Vinifera marketing agreements and orders may amended as follows: Type, 7 CFR 51.880 through 51.914), or be viewed at: http://www.ams.usda.gov/ ■ 1. The authority citation for 7 CFR shall meet all the requirements of U.S. AMSv1.0/ parts 925 and 944 continues to read as No. 1 Institutional with the exception of ams.fetchTemplateData.do?template= follows: the tolerance for bunch size. Such TemplateN&page=MarketingOrders Authority: 7 U.S.C. 601–674. tolerance shall be 33 percent instead of SmallBusinessGuide. Any questions 4 percent as is required to meet U.S. No. about the compliance guide should be PART 925—GRAPES GROWN IN A 1 Institutional grade. Grapes meeting sent to Jay Guerber at the previously DESIGNATED AREA OF these quality requirements shall not be mentioned address in the FOR FURTHER SOUTHEASTERN CALIFORNIA marked ‘‘Institutional Pack’’, but may be INFORMATION CONTACT section. marked ‘‘DGAC No. 1 Institutional.’’ In This rule invites comments on § 925.304 [Amended] addition, during the period April 10 relaxing the handling requirements ■ 2. Section 925.304 is amended by through July 10, 2009, U.S. No. 1 Table currently prescribed under the revising paragraph (a) introductory text grade grapes may be packed in marketing order for grapes grown in to read as follows: individual consumer packages southeastern California and for grapes containing 2 pounds net weight or less: imported into the United States. Any § 925.304 California Desert Grape Provided, That not more than 20 percent comments received will be considered Regulation 6. of the weight of such containers may prior to finalization of this rule. * * * * * consist of single clusters weighing less In accordance with section 8e of the (a) Grade, size, and maturity. Except than one-quarter pound, but with at Act, the United States Trade as provided in paragraphs (a)(1) and least five berries each. Representative has concurred with the (a)(2) of this section, such grapes shall * * * * * issuance of this rule. meet the minimum grade and size After consideration of all relevant requirements of U.S. No. 1 Table, as set Dated: March 12, 2009. material presented, including the forth in the United States Standards for David R. Shipman, committee’s recommendation, and other Grades of Table Grapes (European or Acting Administrator. information, it is found that this interim Vinifera Type 7 CFR 51.880 through [FR Doc. E9–5731 Filed 3–16–09; 8:45 am] final rule, as hereinafter set forth, will 51.914), or shall meet all the BILLING CODE 3410–02–P

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DEPARTMENT OF TRANSPORTATION SIAP and Takeoff Minimums and ODP (TERPS). In developing these changes to copies may be obtained from: SIAPs, the TERPS criteria were applied 14 CFR Part 97 1. FAA Public Inquiry Center (APA– only to specific conditions existing at [Docket No. 30657; Amdt. No. 3313] 200), FAA Headquarters Building, 800 the affected airports. All SIAP Independence Avenue, SW., amendments in this rule have been Standard Instrument Approach Washington, DC 20591; or previously issued by the FAA in a FDC Procedures, and Takeoff Minimums 2. The FAA Regional Office of the NOTAM as an emergency action of and Obstacle Departure Procedures; region in which the affected airport is immediate flight safety relating directly Miscellaneous Amendments located. to published aeronautical charts. The FOR FURTHER INFORMATION CONTACT: circumstances which created the need AGENCY: Federal Aviation Harry J. Hodges, Flight Procedure for all these SIAP amendments requires Administration (FAA), DOT. Standards Branch (AFS–420) Flight making them effective in less than 30 ACTION: Final rule. Technologies and Programs Division, days. SUMMARY: This rule establishes, amends, Flight Standards Service, Federal Because of the close and immediate suspends, or revokes Standard Aviation Administration, Mike relationship between these SIAPs and Instrument Approach Procedures Monroney Aeronautical Center, 6500 safety in air commerce, I find that notice (SIAPs) and associated Takeoff South MacArthur Blvd., Oklahoma City, and public procedure before adopting Minimums and Obstacle Departure OK 73169 (Mail Address: P.O. Box these SIAPs are impracticable and Procedures for operations at certain 25082 Oklahoma City, OK 73125) contrary to the public interest and, airports. These regulatory actions are telephone: (405) 954–4164. where applicable, that good cause exists needed because of the adoption of new SUPPLEMENTARY INFORMATION: This rule for making these SIAPs effective in less or revised criteria, or because of changes amends Title 14, Code of Federal than 30 days. occurring in the National Airspace Regulations, Part 97 (14 CFR part 97) by Conclusion System, such as the commissioning of amending the referenced SIAPs. The new navigational facilities, adding new complete regulatory description of each The FAA has determined that this obstacles, or changing air traffic SIAP is listed on the appropriate FAA regulation only involves an established requirements. These changes are Form 8260, as modified by the National body of technical regulations for which designed to provide safe and efficient Flight Data Center (FDC)/Permanent frequent and routine amendments are use of the navigable airspace and to Notice to Airmen (P–NOTAM), and is necessary to keep them operationally promote safe flight operations under incorporated by reference in the current. It, therefore—(1) is not a instrument flight rules at the affected amendment under 5 U.S.C. 552(a), 1 ‘‘significant regulatory action’’ under airports. CFR part 51, and § 97.20 of Title 14 of Executive Order 12866; (2) is not a the Code of Federal Regulations. ‘‘significant rule’’ under DOT regulatory DATES: This rule is effective March 17, The large number of SIAPs, their Policies and Procedures (44 FR 11034; 2009. The compliance date for each complex nature, and the need for a February 26, 1979); and (3) does not SIAP, associated Takeoff Minimums, special format make their verbatim warrant preparation of a regulatory and ODP is specified in the amendatory publication in the Federal Register evaluation as the anticipated impact is provisions. expensive and impractical. Further, so minimal. For the same reason, the The incorporation by reference of airmen do not use the regulatory text of FAA certifies that this amendment will certain publications listed in the the SIAPs, but refer to their graphic not have a significant economic impact regulations is approved by the Director depiction on charts printed by on a substantial number of small entities of the Federal Register as of March 17, publishers of aeronautical materials. under the criteria of the Regulatory 2009. Thus, the advantages of incorporation Flexibility Act. ADDRESSES: Availability of matter by reference are realized and incorporated by reference in the publication of the complete description List of Subjects in 14 CFR Part 97 amendment is as follows: of each SIAP contained in FAA form Air Traffic Control, Airports, For Examination— documents is unnecessary. This Incorporation by reference, and 1. FAA Rules Docket, FAA amendment provides the affected CFR Navigation (Air). Headquarters Building, 800 sections and specifies the types of SIAP Independence Avenue, SW., and the corresponding effective dates. Issued in Washington, DC, on March 6, 2009. Washington, DC 20591; This amendment also identifies the 2. The FAA Regional Office of the airport and its location, the procedure John M. Allen, region in which the affected airport is and the amendment number. Director, Flight Standards Service. located; Adoption of the Amendment 3. The National Flight Procedures The Rule Office, 6500 South MacArthur Blvd., This amendment to 14 CFR part 97 is ■ Accordingly, pursuant to the authority Oklahoma City, OK 73169 or effective upon publication of each delegated to me, Title 14, Code of 4. The National Archives and Records separate SIAP as amended in the Federal regulations, Part 97, 14 CFR part Administration (NARA). For transmittal. For safety and timeliness of 97, is amended by amending Standard information on the availability of this change considerations, this amendment Instrument Approach Procedures, material at NARA, call 202–741–6030, incorporates only specific changes effective at 0901 UTC on the dates or go to: http://www.archives.gov/ contained for each SIAP as modified by specified, as follows: federal_register/ FDC/P–NOTAMs. code_of_federal_regulations/ The SIAPs, as modified by FDC P– PART 97—STANDARD INSTRUMENT ibr_locations.html. NOTAM, and contained in this APPROACH PROCEDURES Availability—All SIAPs are available amendment are based on the criteria online free of charge. Visit nfdc.faa.gov contained in the U.S. Standard for ■ 1. The authority citation for part 97 to register. Additionally, individual Terminal Instrument Procedures continues to read as follows:

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Authority: 49 U.S.C. 106(g), 40103, 40106, §§ 97.23, 97.25, 97.27, 97.29, 97.31, 97.33, § 97.27 NDB, NDB/DME; § 97.29 ILS, 40113, 40114, 40120, 44502, 44514, 44701, and 97.35 [Amended] ILS/DME, ISMLS, MLS/DME, MLS/ 44719, 44721–44722. By amending: § 97.23 VOR, VOR/ RNAV; § 97.31 RADAR SIAPs; § 97.33 DME, VOR or TACAN, and VOR/DME RNAV SIAPs; and § 97.35 COPTER ■ 2. Part 97 is amended to read as or TACAN; § 97.25 LOC, LOC/DME, SIAPs. follows: LDA, LDA/DME, SDF, SDF/DME;

FDC date State City Airport FDC No. Subject

02/20/09 ...... SC NEWBERRY ...... NEWBERRY COUNTY ...... 9/6480 NDB RWY 22, AMDT 6. 02/23/09 ...... MD FREDERICK ...... FREDERICK MUNI ...... 9/6582 ILS OR LOC RWY 23, AMDT 5B. 02/27/09 ...... NY BATAVIA ...... GENESEE COUNTY ...... 9/7308 ILS OR LOC RWY 28, AMDT 6. 03/03/09 ...... ID CALDWELL ...... CALDWELL INDUSTRIAL ...... 9/7641 NDB RWY 30, AMDT 1. 03/03/09 ...... ID CALDWELL ...... CALDWELL INDUSTRIAL ...... 9/7642 RNAV (GPS) RWY 30, AMDT 1. 03/03/09 ...... ID CALDWELL ...... CALDWELL INDUSTRIAL ...... 9/7643 RNAV (GPS) RWY 12, AMDT 1. 03/03/09 ...... CA MODESTO ...... MODESTO CITY-CO-HARRY SHAM 9/7694 ILS OR LOC/DME RWY 28R, FLD. AMDT 14. 03/03/09 ...... KS WICHITA ...... BEECH FACTORY...... 9/7696 VOR/DME RNAV RWY 36, ORIG. 03/03/09 ...... KS WICHITA ...... BEECH FACTORY...... 9/7697 VOR/DME RNAV RWY 18, ORIG.

[FR Doc. E9–5661 Filed 3–16–09; 8:45 am] Pharmacy Operations Directorate, program on behalf of the four specified BILLING CODE 4910–13–P TRICARE Management Activity, agencies. The DoD consulted closely telephone 703–681–2890. with the VA in the development of this SUPPLEMENTARY INFORMATION: final rule and also, consistent with 10 DEPARTMENT OF DEFENSE U.S.C. 1073, consulted with the A. Background Departments of Health and Human Office of the Secretary Section 703 of the National Defense Services and Homeland Security. Authorization Act for Fiscal Year 2008 The TRICARE Pharmacy Benefits 32 CFR Part 199 (NDAA–08) (Pub. L. 110–181) enacted Program operates under the authority of 10 U.S.C. 1074g(f). It provides that with 10 U.S.C. 1074g. It provides outpatient [DoD–2008–HA–0029; 0720–AB22] respect to any prescription filled on or drugs to TRICARE beneficiaries through Civilian Health and Medical Program of after the date of enactment of the Military Treatment Facility (MTF) the Uniformed Services (CHAMPUS)/ NDAA, the TRICARE Retail Pharmacy pharmacies, the TRICARE mail order TRICARE: Inclusion of TRICARE Retail Program shall be treated as an element pharmacy program (TMOP), and a Pharmacy Program in Federal of the DoD for purposes of procurement TRICARE Retail Pharmacy program Procurement of Pharmaceuticals of drugs by Federal agencies under consisting of TRICARE Retail Pharmacy section 8126 of title 38, United States Network and retail non-network AGENCY: Office of the Secretary, Code (U.S.C.), to the extent necessary to pharmacies. As implemented, the new Department of Defense (DoD). ensure pharmaceuticals paid for by the statutory requirement will only apply to ACTION: Final rule. DoD that are provided by network retail pharmaceuticals paid for by DoD and pharmacies under the program to provided to eligible beneficiaries SUMMARY: Section 703 of the National eligible covered beneficiaries are subject through the TRICARE Retail Pharmacy Defense Authorization Act for Fiscal to the pricing standards in such section Network. There are approximately Year 2008 (NDAA–08) states with 8126. NDAA–08 was enacted on January 60,000 retail pharmacies in the Retail respect to any prescription filled on or 28, 2008. The statute requires Pharmacy Network. Section 1074g after the date of enactment of the implementing regulations. requires DoD to establish a Uniform NDAA, the TRICARE Retail Pharmacy The Veterans Health Care Act (VHCA) Formulary of pharmaceutical agents, Program shall be treated as an element of 1992, codified at 38 U.S.C. 8126, selected based on clinical and cost of the DoD for purposes of procurement established Federal Ceiling Prices effectiveness, as evaluated by the DoD of drugs by Federal agencies under (FCPs) of covered pharmaceuticals Pharmacy and Therapeutics (P&T) section 8126 of title 38, United States (requiring a minimum 24% discount off Committee, reviewed by the Beneficiary Code (U.S.C.), to the extent necessary to non-Federal average manufacturing Advisory Panel, and decided by the ensure pharmaceuticals paid for by the prices—‘‘non-FAMP’’) procured by the Director, TRICARE Management DoD that are provided by network retail four designated agencies covered in the Activity (TMA). The Uniform Formulary pharmacies under the program to Act: Department of Veterans Affairs has three tiers: Tier 1 contains generic eligible covered beneficiaries are subject (VA), DoD, Coast Guard, and the Public drugs; Tier 2 brand name Uniform to the pricing standards in such section Health Service/Indian Health Service. Formulary drugs; and Tier 3 non- 8126. NDAA–08 was enacted on January The non-FAMP is the average price paid Formulary drugs. Drugs in all three tiers 28, 2008. The statute requires to the manufacturer by wholesalers (or, are covered by the TRICARE Pharmacy implementing regulations. This final if there are insufficient wholesale sales, Benefits Program, but cost sharing and rule is to implement section 703 of the others who purchase directly from the other program differences encourage the NDAA–08. manufacturer) for drugs distributed to use of generic drugs and Uniform DATES: Effective Date: This final rule is non-federal purchasers, taking into Formulary brand name drugs. effective May 26, 2009. account any cash discounts or similar The TRICARE Retail Pharmacy FOR FURTHER INFORMATION CONTACT: Rear reductions given to those purchasers. Network is managed under a single Admiral Thomas McGinnis, Chief, The VA administers the VHCA discount Pharmacy Benefits Manager contract,

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linked to the DoD Pharmacy Benefits beneficiaries under this section are Benefits Program to encourage drug Office, and enabled by a management subject to the pricing standards’’ of the manufacturers to enter into agreements information system to verify beneficiary FCP program. The refund procedures to apply FCPs to Retail Pharmacy eligibility, check for potential drug will, to the extent practicable, Network prescriptions. Some interactions, and authorize payment for incorporate common industry practices commenters said the statute only the pharmaceuticals used to fill the for implementing pricing agreements establishes a general ‘‘goal’’ of applying beneficiary’s prescription. The between manufacturers and large FCPs and that the references in the management information system also pharmacy benefit plan sponsors. Such preamble to the proposed rule to records data on all prescriptions filled procedures shall provide the voluntary agreements with through the Retail Pharmacy Network, manufacturer at least 70 days from the manufacturers should be taken to signal permitting an accurate accounting of all date of submission by TMA to the that the statute has no effect absent a retail network pharmaceuticals paid for manufacturer (initially expected to be manufacturer’s agreement. On the other by DoD under the TRICARE Pharmacy on a quarterly basis) of the TRICARE hand, commenters representing retail Benefits Program. Since the beginning of pharmaceutical utilization data needed pharmacies strongly supported the the Federal Ceiling Price program, to calculate the refund before the refund interpretation that FCPs now apply outpatient pharmaceuticals provided by payment is due. The basis of the refund equally in all three TRICARE Pharmacy DoD through MTF pharmacies have will be the difference between the Benefits Program venues. been subject to FCPs, as have those average non-federal price of the drug Response: DoD does not agree with under the TMOP program since it began. sold by the manufacturer to wholesalers, the interpretation of the statute Implementation of similar applicability as represented by the most recent recommended by the pharmaceutical to the TRICARE Retail Pharmacy annual non-FAMP (reported to VA) and industry representatives. 10 U.S.C Network component of the Program is the FCP or, in the discretion of the 1074g(f) provides: the subject of this final regulation. manufacturer, the difference between (f) Procurement of pharmaceuticals by B. Provisions of the Proposed Rule FCP and direct commercial contract TRICARE retail pharmacy program. With sales prices specifically attributable to respect to any prescription filled on or after The proposed rule, published for TRICARE paid pharmaceuticals, the date of the enactment of the National public comment July 25, 2008, proposed determined for each applicable National Defense Authorization Act for Fiscal Year to add a new paragraph (q) to 32 CFR Drug Code (NDC) listing. Further, this 2008, the TRICARE retail pharmacy program 199.21. Paragraph (q)(1) repeated the paragraph of the proposed rule provided shall be treated as an element of the new statutory requirement. Paragraph that a refund due under the statute is Department of Defense for purposes of the (q)(2) provided that an agreement by a procurement of drugs by Federal agencies subject to the overpayment recovery manufacturer to honor the FCPs in the under section 8126 of title 38 to the extent procedures of § 199.11 of the TRICARE Retail Pharmacy Network component of necessary to ensure that pharmaceuticals regulation. the Pharmacy Benefits Program is a paid for by the Department of Defense that Finally, proposed paragraph (q)(4) condition of inclusion of a drug on the are provided by pharmacies under the stated that in the case of the failure of program to eligible covered beneficiaries Uniform Formulary. Further, it stated a manufacturer of a covered drug to under this section are subject to the pricing that a drug not under such an agreement make or honor an agreement to ensure standards in such section 8126. would require preauthorization to be that DoD pays no more than the FCP for provided through the Retail Pharmacy Setting aside the start date issue, which covered drugs provided through the Network. In addition, it indicated that will be discussed below, DoD interprets TRICARE Retail Pharmacy Network drugs covered by this requirement are the statute as follows. First, DoD component of the program, the Director, TRICARE Retail Pharmacy Network interprets the phrase, ‘‘the pricing TMA, in addition to other actions provided drugs that are covered by the standards in such section 8126’’ to mean VA’s FCP program, except any referred to in the rule, may take any Federal Ceiling Prices. This is based on prescription for which the TRICARE other action authorized by law. the text of 38 U.S.C. 8126(a) and (b), Pharmacy Benefits Program is the C. Public Comments which provide that ‘‘[e]ach second payer. While DoD proposed in manufacturer of covered drugs shall The proposed rule was published in this rulemaking to enter into voluntary enter into a master agreement with the the Federal Register July 25, 2008, for agreements with manufacturers that Secretary [of Veterans Affairs] under a 60-day comment period. DoD received would make prescriptions filled on or which’’ ‘‘with respect to each covered 16 public comments. Most of these were after the date of enactment of NDAA–08 drug of the manufacturer procured by’’ from or on behalf of the pharmaceutical subject to FCPs, the Department the Department of Veterans Affairs, the industry. Several were from or on behalf solicited comment regarding any other Department of Defense, the Public of the retail pharmacy sector. Significant appropriate and legally permissible Health Service, or the Coast Guard, comments are discussed below. implementation approach and/or date ‘‘that is purchased under depot from which to begin making 1. Statutory Requirement (Paragraph contracting systems or listed on the prescriptions filled in the Retail (q)(1)) Federal Supply Schedule, the Pharmacy Network subject to FCPs. DoD manufacturer has entered into and has a. Statutory Interpretation was specifically interested in the legal in effect a pharmaceutical pricing justification, including under section Comments: A number of comments by agreement with the Secretary * * * 703 of NDAA–08, for any alternative or on behalf of the pharmaceutical under which the price charged * * * implementation approaches and/or industry expressed the view that 10 may not exceed 76 percent of the non- dates that commenters may propose. U.S.C. 1074g(f), which was added by Federal average manufacturer price.’’ Proposed paragraph (q)(3) established section 703(a) of NDAA–08, does not The end result of the pricing refund procedures to, in the words of require that prescriptions filled in the calculations required by section 8126 is the statute, ‘‘ensure that TRICARE Retail Pharmacy Network are referred to as the Federal Ceiling Price. pharmaceuticals paid for by the DoD subject to Federal Ceiling Prices. Rather, Second, DoD interprets the phrase that are provided by pharmacies under they say, it authorizes DoD to use ‘‘treated as an element of the the program to eligible covered procedures of the TRICARE Pharmacy Department of Defense for purposes of

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the procurement of drugs by Federal ensure that pharmaceuticals provided facilities, residential treatment centers, agencies under section 8126’’ to mean under those prescriptions are subject to hospice programs, home health treated the same as a covered drug Federal Ceiling Prices. Stated even more agencies, physicians and other directly procured by DoD. The phrase simply, DoD interprets 10 U.S.C. individual health care professionals, does not require that the retail 1074g(f) to mean that all covered drug durable medical equipment, and pharmacy actually was involved in a TRICARE Retail Pharmacy Network military treatment facility and mail procurement by a Federal agency under prescriptions are subject to Federal order program pharmaceuticals. The last section 8126 or that the retail pharmacy Ceiling Prices. significant segment of the TRICARE was acting as an agent of a Federal This interpretation is almost a program to be covered by payment agency. An interpretation that would verbatim restatement of the primary reform is the $4.5 Billion Retail require such an actual procurement by statement of legislative history Pharmacy Network program. DoD is unsupportable because the concerning 10 U.S.C. 1074g(f). The b. Relationship Between 10 U.S.C. words ‘‘shall be treated as’’ would be Conference Report accompanying the 1074g(f) and the Master Agreements rendered meaningless, as would the legislation described it as a provision Under 38 U.S.C. 8126 entire section since any such actual ‘‘that would require that any procurement was undisputedly already prescription filled * * * through the Comment: A number of comments covered within section 8126. In TRICARE retail pharmacy network will from or on behalf of the pharmaceutical addition, DoD interprets this phrase as be covered by the federal pricing limits industry expressed the view that section precluding an interpretation of the applicable to covered drugs under 1074g(f) has no relationship to the VA statute that would apply FCPs to what section 8126 of title 38, United States Master Agreements under 38 U.S.C. the retail pharmacy may be paid by Code.’’ H. Conf. Rept. 110–477, p. 938. 8126 and that therefore the final rule DoD. In referring to the procurement of This simplified restatement of the would also have no relationship. Some drugs by Federal agencies under section statutory requirement has been added to of these commenters also stated that 8126, the statute is addressing paragraph (q)(1). under section 8126(g), their Master manufacturers’ prices, which are the Comment: Some commenters Agreement rights and obligations were focus of section 8126. Retail pharmacies representing the pharmaceutical frozen as of November 4, 1992, and are specifically excluded from the industry recommended that instead of cannot be enlarged by any subsequent definition of ‘‘manufacturer’’ in 38 establishing regulatory requirements for enactment, including 10 U.S.C. 1074g(f). U.S.C. 8126(h)(4). benchmark pricing, DoD should pursue Response: DoD does not agree with Third, DoD interprets the phrase voluntary negotiations with this opinion, but has endeavored to ‘‘pharmaceuticals paid for by the manufacturers to reduce costs. Some construct a rule that could stand on Department of Defense that are provided commenters said that applying Federal common ground between the view that by pharmacies under the program to Ceiling Prices in the Retail Pharmacy the Master Agreements encompass the eligible covered beneficiaries under this Program would hurt millions of other TRICARE Retail Pharmacy Network and section’’ to mean pharmaceuticals paid Americans because drug companies will the view that they utterly do not. This for through the TRICARE Retail raise prices to make up their reduced disagreement has some history. As Pharmacy Program. More specifically, profits from DoD sales, and that retail noted above, section 8126 includes DoD interprets the provision as limited refunds will cause DoD to push patients ‘‘depot contracting systems’’ within the to the TRICARE Retail Pharmacy to retail pharmacies where their co- scope of Federal Ceiling Price coverage. Network because prescriptions filled by payments are higher. On the other hand, The term ‘‘depot’’ is defined in section non-network retail pharmacies are not comments from the retail pharmacy 8126(h)(3) to include ‘‘a centralized subject to the pre-screening and sector expressed approval for equalizing commodity management system through authorization process incorporated into ingredient costs across all TRICARE which covered drugs procured by an the information systems referred to in Pharmacy Benefits Program venues. agency’’ are ‘‘delivered directly from the 10 U.S.C. 1074g and relied upon by DoD Response: While there are many commercial source to the entity using to document DoD payment for the policy arguments for and against various such covered drugs.’’ Pharmacy Benefits specific prescriptions covered and potential strategies for reducing the Program reforms adopted by DoD in because of legislative history on this dramatically increasing costs of the response to 10 U.S.C. 1074g included point, specifically, a Conference Report TRICARE Pharmacy Program, the issue restructured management of the Retail statement (discussed below). in this rule making is implementing the Pharmacy Program, including the Fourth, DoD interprets ‘‘any statutory requirement of section 703, establishment of a Retail Pharmacy prescription filled’’ to mean all under which all covered TRICARE Network of pharmacies linked to DoD prescriptions filled, regardless of Retail Pharmacy Network prescriptions through the Pharmacy Data Transaction whether the drugs are on the TRICARE are subject to Federal Ceiling Prices. Service required by section 1074g(e). Uniform Formulary or are non- DoD will continue voluntary This led to: A 2002 determination by the formulary drugs. Provisions of the rule negotiations concerning prices, but does Secretary of Veterans Affairs that the making a manufacturer’s agreement to not have the authority to agree to prices restructuring, when completed, would honor Federal Ceiling Prices in the above Federal Ceiling Prices. It may be make drugs provided by the Retail Retail Pharmacy Network a condition noteworthy that over the past 20 years, Pharmacy Network subject to Federal for Uniform Formulary status in no way Congress has enacted and DoD has Ceiling Prices; a 2004 Dear suggests that the statutory provision has implemented through regulations (32 Manufacturer letter from the such a limited scope. CFR 199.14) a long series of payment Department of Veterans Affairs Taken together, DoD interprets 10 reforms for TRICARE, including requiring manufacturers to refund to U.S.C. 1074g(f) to mean that all payment limits for acute care hospitals, DoD costs above the FCPs; and a legal TRICARE Retail Pharmacy Network psychiatric hospitals, hospital challenge in a case called Coalition for prescriptions shall be treated the same outpatient services, partial Common Sense in Government as drugs procured directly by DoD for hospitalization programs, substance Procurement v. Secretary of Veterans purposes of the Federal Ceiling Price abuse treatment programs, ambulatory Affairs, 464 F. 3d 1306 (Fed.Cir. 2006). program to the extent necessary to surgery centers, skilled nursing In that case, the Federal Circuit Court of

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Appeals set aside the VA’s action on the manufacturers would agree to make over retail pharmacies. Another grounds that it should have been taken TRICARE Retail Pharmacy Network commenter noted a prior statute that through notice and comment prescriptions subject to Federal Ceiling referred to ‘‘best business practices of rulemaking; the Court did not reach the Prices. That DoD considers these to be the private sector’’ and suggested this merits of the Secretary’s interpretation voluntary agreements does not indicate limited the applicability of Federal of the ‘‘depot’’ definition as covering the that DoD believes there is no legal Ceiling Prices. TRICARE Retail Pharmacy Network. obligation in the background. It means Response: DoD interprets the Fifteen days after the Court decision, that, as with most laws, voluntary action interaction of section 1074g(f) and these the Conference Report on the National consistent with the law is far preferable provisions of 1074g(a) to be that cost- Defense Authorization Act for Fiscal to reliance on enforcement action. It effectiveness determinations of the P&T Year 2007 (NDAA–07) explained that also means that, if there is voluntary Committee are now based on both a the House-Senate Conference agreement, whatever uncertainties there relative standard and a fixed standard. Committee considered but did not adopt are about the existence or scope of The relative standard is the cost- a Senate-passed provision, which was potential enforcement actions can be set effectiveness of the drug relative to quite similar to section 703 of NDAA– aside as moot. DoD contacts with other drugs in the class. The fixed 08, to ‘‘clarify’’ the underlying issue of pharmaceutical companies led DoD to standard is that a drug cannot be the Secretary’s interpretation of section believe that most companies might find considered cost effective if its price 8126: ‘‘The conferees concluded that this approach acceptable. Therefore, exceeds the maximum price allowed by there is no need for additional both the proposed and final rule focus law, the FCP. Thus, the P&T Committee legislation at this time because primarily on DoD program elements and will recommend Tier 3 (non-Formulary) prescriptions dispensed by the DoD market share for implementing the status for any drug not covered by a Department of Defense Retail Pharmacy requirement that covered TRICARE manufacturer’s agreement to honor FCPs Program qualify for discounted prices Retail Pharmacy Network prescriptions for Retail Pharmacy Network under section 8126.’’ H. Conf. Rept. are subject to Federal Ceiling Prices. prescriptions. However, there is a 109–702, p. 772. In other words, the The only reference in the rule to any potential conflict with the requirement conferees on NDAA–07 agreed with the matter outside the scope of the to ensure that all pharmacy classes are determination of the Secretary of TRICARE program is the reservation by represented on the Uniform Formulary Veterans Affairs. It is a reasonable DoD of rights to pursue as a remedy in the event that no drug in a class is inference that the comparable conferees (paragraph (q)(4)) ‘‘any other action covered by a manufacturer’s agreement for NDAA–08, in again considering a authorized by law.’’ The scope of any to honor FCPs. To deal with that Senate-passed provision, decided to such other actions is a matter that need possibility, even though remote, DoD enact into law an affirmation of the not and, because it potentially involves has added a subparagraph to this part of determination of the Secretary of agencies other than DoD, cannot be the final rule to state that the Veterans Affairs and the full Congress settled in this rule making. requirement for Tier 2 status to be agreed. conditioned on a manufacturer’s With respect to the section 8126(g) c. Relationship Between the FCP agreement to honor FCPs for Retail argument, DoD understands the VA Statutory Requirement and Other Pharmacy Network prescriptions may, view to be that section 8126 already Statutory Requirements of 10 U.S.C. upon the recommendation of the P&T encompassed coverage of a depot 1074g Committee, be waived to ensure that at contracting system such as the TRICARE Comment: Several commenters least one drug in the drug class is Retail Pharmacy Network program, and addressed the relationship between the included on the Uniform Formulary that therefore it is not limited by section new subsection (f) of section 1074g, (Tier 1 or Tier 2). It must be understood, 8126(g), and DoD agrees with that view. which established the requirement that however, that any such waiver does not Thus, there is a basis to conclude that covered Retail Pharmacy Network waive the statutory requirement that Congress affirmed the determination of prescriptions shall be subject to FCPs, Retail Network Pharmacy prescriptions the Secretary of Veterans Affairs that the and other provisions of the statute, such are subject to FCPs, only the usual TRICARE Retail Pharmacy Network as the requirement (in subsection regulatory requirement of exclusion program was already covered by 38 (a)(2)(A)) that the Uniform Formulary from the Uniform Formulary of drugs U.S.C. 8126, and required that shall assure the availability of not covered by agreements. determination to be implemented as of pharmaceutical agents in the complete Based on these interpretations of the the date of enactment of NDAA–08. This range of therapeutic classes and the statute, the TMA will ask manufacturers issue, however, remains a matter of requirement (in subsection (a)(2)(D)) to sign agreements to honor FCPs in controversy. The determination of the that no pharmaceutical agent may be Retail Pharmacy Network prescriptions. Secretary of Veterans Affairs, with excluded from the Uniform Formulary On or soon after the effective date of the which DoD has always strongly agreed, except upon the recommendation of the final rule, separate from the usual has never been withdrawn, nor has it Pharmacy and Therapeutics Committee. practice of individual drug class reviews been further acted upon, and there was Some commenters argued that there are of both clinical and cost effectiveness, no judicial resolution. limitations on the applicability of FCPs. the P&T Committee will determine Based on this history, DoD decided to Several comments from representatives whether drugs are or are not covered by propose a rule that would allow the of retail pharmacies expressed such agreements. A drug that is on the agencies and pharmaceutical companies agreement with the policy of the statute Uniform Formulary and is covered by to ‘‘agree to disagree’’ on that issue and and the proposed rule in making Retail such an agreement will be continued on seek common ground on a regulation Pharmacy Network prescriptions subject the Uniform Formulary for the time centered on incentives within the to FCPs, noting that this would equalize being, pending the next review of the TRICARE Pharmacy Benefits Program ingredient prices between retail drug class. A drug that is on the and encouraging voluntary, separate pharmacies and the TRICARE Mail Uniform Formulary (Tier 2) but not agreements between manufacturers and Order Pharmacy program, and thus covered by such an agreement will be DoD, independent of the Master eliminate any need for TRICARE recommended for Tier 3, subject to the Agreements, under which policies that encourage use of TMOP requirement for maintaining

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representation on Tiers 1 or 2 for all refund requirement can only be This paragraph is prospective; a refusal drug classes. A drug that is on Tier 3 established by regulation and by a to agree will not affect a drug’s that is covered by such an agreement contract or agreement, which cannot be formulary status prior to the effective will be subject to review at a later time retroactive. Also in response to the date of the final rule. If a drug company to determine if it should be changed to request in the proposed rule for legal does not want to maintain formulary Tier 2. justification, including under section status and refuses to sign an agreement Regarding the issue of preserving 703 of NDAA–08, for any alternative to honor the statute, the regulation does incentives for use of TMOP, as implementation dates commenters may not say anything that would affect the permitted by 10 U.S.C. 1074g, propose, a number of commenters legal rights and obligations of the copayment amounts are currently lower argued that the statutory phrase, ‘‘[w]ith parties—i.e., ‘‘change the legal in TMOP than in retail pharmacies for respect to any prescription filled on or landscape’’—with respect to the purpose of encouraging TMOP use. after the date of the enactment of the prescriptions filled between the dates of Possible future changes to this are National Defense Authorization Act for January 28, 2008, and the effective date outside the scope of this rule making Fiscal Year 2008,’’ should be construed of the final rule. process. With respect to the comment as precluding any applicability to The question of ‘‘retroactivity’’ of the about the prior statute that referred to prescriptions filled prior to that date, regulation should not be confused with ‘‘best business practices of the private not as requiring applicability as of that the effective date of the statute. The sector,’’ this reference was in section date. On the other hand, comments from statute commands that ‘‘[w]ith respect 703 of the National Defense representatives of retail pharmacies to any prescription filled on or after the Authorization Act for Fiscal Year 1999, strongly supported the provision of the date of the enactment of the National Public Law 104–261. The reference was proposed rule incorporating the Defense Authorization Act for Fiscal in the context of a requirement for DoD statutory date of applicability of FCPs in Year 2008,’’ which was January 28, to submit a plan to Congress for the retail network of January 28, 2008. 2008, ‘‘the TRICARE retail pharmacy redesign of the military pharmacy Response: The legal standard program shall be treated as an element system. This predates the primary applicable to a question regarding of the Department of Defense for statute that now governs the TRICARE impermissible retroactivity of a purposes of the procurement of drugs by Pharmacy Benefits Program, 10 U.S.C. regulation is well summarized in Federal agencies under’’ 38 U.S.C. 8126 1074g, as well as the 2008 amendment National Mining Ass’n v. Dept. of Labor, ‘‘to the extent necessary to ensure that on Federal Ceiling Prices. Whatever 292 F.3d 849, 859 (D.C. Cir. 2002): pharmaceuticals paid for by the might be associated with the general The general legal principles governing Department of Defense that are provided notion of best business practices of the retroactivity are relatively easy to state, by pharmacies under the program * * * private sector, it does not limit the although not as easy to apply. An agency may are subject to the pricing standards in applicability of the later enacted not promulgate retroactive rules absent such section 8126.’’ The statute changed statutory specification that all covered express congressional authority. Bowen v. the legal landscape, and did so TRICARE Retail Pharmacy Network Georgetown Univ. Hosp., 488 U.S. 204, 208 prospectively. The fact that the statute (1988). A provision operates retroactively prescriptions are subject to Federal also requires implementing regulations Ceiling Prices. when it ‘‘impairs rights a party possessed when he acted, increases a party’s liability does not mean that the statute has no d. Start Date for FCP Coverage of for past conduct, or imposes new duties with legal effect until implementing Prescriptions Filled respect to transactions already completed.’’ regulations are issued. On the contrary, Landgraf v. USI Film Prods., 511 U.S. 244, the statute by its express terms requires Comments: All commenters 280, (1994). In the administrative context, a representing the pharmaceutical that all prescriptions filled on or after rule is retroactive if it ‘‘‘takes away or the date of enactment ‘‘shall’’ be treated industry argued that the final rule impairs vested rights acquired under existing should state that only prescriptions law, or creates a new obligation, imposes a so as to ‘‘ensure’’ that they are subject filled on or after the effective date of the new duty, or attaches a new disability in to Federal Ceiling Prices. The final rule are subject to FCPs, and that respect to transactions or considerations Conference Report accompanying the prescriptions filled on or after the already past.’’’ Nat’l Mining Ass’n v. United proposed legislation reinforces that effective date of the statute (January 28, States Dep’t of Interior, 177 F.3d 1, 8 (D.C. express statutory requirement: Cir. 1999) (quoting Ass’n of Accredited 2008) and prior to the effective date of Cosmetology Sch. v. Alexander, 979 F.2d Inclusion of TRICARE retail pharmacy the final rule should not be subject to 859, 864 (D.C. Cir. 1992)). The critical program in federal procurement of FCPs. In support of this position, these question is whether a challenged rule pharmaceuticals (sec. 703) commenters cited legal precedents establishes an interpretation that ‘‘changes * * * * * generally disfavoring retroactive the legal landscape.’’ Id. (quoting Health Ins. The Senate amendment contained a application of regulations unless there is Ass’n of Am., Inc. v. Shalala, 23 F.3d 412, provision (sec. 701) that would require that very clear legal requirement for 423 (D.C. Cir. 1994)). any prescription filled on or after October 1, The rule does not create any 2007 through the TRICARE retail pharmacy retroactive application, including network will be covered by the federal Bowen v. Georgetown Univ. Hosp., 488 retroactive obligation on drug pricing limits applicable to covered drugs U.S. 204, 208 (1988). They argued that companies. Paragraph (q)(1) simply under section 8126 of title 38, United States the fact that the statute required restates the statute. The statute applies Code. regulations to be issued supports the according to its terms and the regulation The House recedes with an amendment view that implementation of the statute cannot modify those terms. The major that would change the implementation date was conditioned on the regulations; the provision of the regulation that from October 1, 2007 to the date of enactment fact that they could not be issued ‘‘changes the legal landscape’’ is of this Act. instantaneously, as Congress seemed to paragraph (q)(2). It requires an H. Conf. Rept. 110–477, p. 938. The date expect, does not obviate the need for agreement from manufacturers to honor of enactment is clearly established as regulations before the statutory the statute as a condition of DoD the ‘‘implementation date’’ of the requirement could apply. They further Uniform Formulary status and statutory requirement. The fact that argued that because 10 U.S.C. 1074g(f) unrestricted availability through the conforming regulatory modifications are does not expressly address refunds, a TRICARE Retail Pharmacy Network. also required by section 703(b) does not

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alter the fact that the statutory command that FCPs would apply only ‘‘with or other agreements pertaining to drugs to apply Federal Ceiling Prices to all respect to any prescription filled on or dispensed in military hospitals and covered drugs in Retail Pharmacy after the date of promulgation of through TMOP, would be breached by a Network prescriptions filled on or after regulations under section 703(b) of the demand for an additional refund under January 28, 2008 applies according to its National Defense Authorization Act for the statute. In relation to this breach of explicit terms. Fiscal Year 2008,’’ Congress would have contract argument, some commenters Therefore, with respect to said that. The words chosen by Congress cited Winstar Corp. v. United States, prescriptions filled on or after January are quite different and cannot be 518 U.S. 839 (1996), for the proposition 28, 2008, drug companies had a right to dismissed as imprecise drafting. that the government’s contract payment at the Federal Ceiling Price Further, as noted above, the legislative obligations cannot be reduced by and no more. The transaction of history, in the form of the Conference subsequent legislation. Further, pharmaceuticals moving from Report, unequivocally refers to the date commenters argued that in the case of manufacturer to patient, if not of enactment of the statute as the a drug that had previously been moved completed through the filling of a ‘‘implementation date’’ for ensuring that to Tier 3 because the manufacturer prescription before January 28, became prescriptions filled through the refused to offer a refund, it would be subject to a new obligation: the TRICARE Retail Pharmacy Network unfair to now require a refund for a time transaction ‘‘shall be treated’’ as a DoD shall be subject to Federal Ceiling period for which the drug was on Tier purchase under 38 U.S.C. 8126 ‘‘to the Prices. 3. DoD interprets section 703 as extent necessary to ensure’’ that the Response: DoD does not agree with all precluding any start date for applying Federal Ceiling Price applies. With of these arguments, but believes some FCPs to covered Retail Pharmacy respect to the applicability of FCPs. the may have merit in relation to particular Network prescriptions filled other than rule does not change that legal drugs. First, with respect to the date of enactment, January 28, 2008. landscape, nor does it add to or subtract recalculating non-FAMPs, DoD The only legal authority DoD has found from that obligation. Under the statute, understands that the Department of that would allow it to disregard the with respect to any covered TRICARE Veterans Affairs has addressed that overpayment and/or waive the refund is Retail Pharmacy Network prescriptions concern, as it relates to the 2008 annual the Federal Debt Collection Act and filled on or after January 28, 2008, if a non-FAMP reports, by advising related statutes. In an effort to find an manufacturers that there is no need for manufacturer received more than the acceptable resolution, DoD has added to Federal Ceiling Price, the transaction the final rule provisions to address reclassification of 2008 sales data to produced an overpayment and an requests for compromise or waiver of redesignate commercial sales as DoD overpayment requires a refund. overpayment refunds under those sales because of section 1074g(f). The fact of the overpayment is purely authorities. These provisions are Second, DoD believes all drug a function of the statutory effective date, discussed below. manufacturers were promptly aware of and has nothing to do with the date the Comment: In addition to the legal the enactment of section 703 and were Department of Defense asks for the arguments, a number of commenters thus on notice regarding the statutory refund of the overpayment or of the advanced several practical arguments date for applying FCPs to prescriptions Uniform Formulary status of the drug. and what they considered to be fairness filled. This situation is not like the Separate from mandating the arguments. One was the need to Winstar case. In that case, the legislation applicability of Federal Ceiling Prices to recalculate non-FAMPs if purported to reduce the government’s all prescriptions filled on or after manufacturers’ commercial sales into contract obligation after the contractors January 28, the statute also commanded retail distribution between the statutory had already performed their part of the the Secretary of Defense to ‘‘modify the enactment date and the regulatory bargain. In this case, the statute changed regulations under’’ the TRICARE effective date have to be reclassified as nothing regarding transactions Pharmacy Benefits Program ‘‘to DoD sales. Another practical problem completed before January 28, 2008. And implement the requirements of’’ the was that if refunds are required for the companies were on notice as of that new subsection 1074g(f). The rule, when prescriptions filled throughout 2008, by date that covered prescriptions filled on it becomes effective, will implement the the time refund demands are made, or after that date in the TRICARE Retail requirements through means including manufacturers will be forced to review Pharmacy Network were subject to agreements between manufacturers and and evaluate stale utilization data to FCPs. Third, with respect to Senator DoD. Those agreements will call on determine the accuracy of the data. Nelson’s statement, what he said was manufacturers to honor the statute. Another concern expressed was that that with respect to the ‘‘section of the Honoring the statute includes refunding companies already accounted for 2008 bill that would require that any overpayments that accrued on or sales as commercial sales and reported prescriptions dispensed through the after January 28. Nothing in the rule and profits based on regular commercial TRICARE retail pharmacy program be nothing in the agreements will operate prices, and should not have to redo procured at or below Federal ceiling to change the legal landscape that was financial statements and accounting and prices,’’ ‘‘it is the intent of the language created, effective January 28, by the profit reports, which would be costly and the intent of the conferees not to statute. and burdensome, especially for small modify the current master agreements.’’ Concerning the argument that the companies. Commenters also cited a (153 Cong. Rec. S–15,613–14, Dec. 14, ‘‘with respect to any prescription filled contemporaneous statement in the 2007.) DoD’s consistent position, both on or after the date of the enactment’’ Congressional Record from Senator prior to and since the enactment of clause of the statute should be Nelson which they said was to the effect section 703, has been that the law does construed as only precluding any that section 703 was not intended to not require an amendment to the master applicability to prescriptions filled prior modify any existing agreements with agreements between the VA and drug to that date, not as requiring drug companies, and that existing manufacturers. But DoD does not applicability as of that date, DoD does Uniform Formulary Voluntary believe there is any legislative history, not believe that is a credible Agreements for Retail Refunds (UF– including Senator Nelson’s statement, interpretation. Had Congress intended VARRs) for amounts higher than FCPs, suggesting a statutory implementation

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date other than January 28, 2008, or date this final rule becomes effective. the date of enactment. A company that making any point regarding UF–VARRs. One formulation for such a compromise thought the statute breached an existing However, DoD agrees there may be could be to propose a date that is in contract had the ability to mitigate the merit to some of the other concerns that between January 28, 2008, and the alleged contract damages by canceling in particular circumstances concerning effective date of the final rule, proposing the agreement. Even now, a company stale utilization data, prior incentive that DoD waive collection of refunds for that does not wish to provide its drugs pricing agreements between DoD and prescriptions filled prior to that date, to the TRICARE Pharmacy Benefits drug manufacturers, and other and for the company promptly to pay Program is not forced to do so. If a situations, there may be a reasonable refunds for prescriptions filled on or company believes it has incurred some basis to waive or compromise a refund after that date. (This example is merely contract damages based on the for prescriptions filled between January illustrative and does not commit the enactment of section 1074g(f), it can 28, 2008 and the effective date of the Department of Defense to any response.) take action to mitigate those damages final rule. The proposed rule included Comment: One commenter said that and apply to DoD to waive or a paragraph ((q)(3)) stating that a refund DoD’s failure to meet the statutory compromise any refund required by that due under paragraph (q) is subject to deadline for issuing implementing law. section 199.11 of the TRICARE regulations, which was December 31, Comment: Several commenters regulation, which is the section of the 2007, did not give DoD the right to make argued that applicability of Federal regulation addressing overpayments drug manufacturers bear the cost of Ceiling Prices to prescriptions filled on recovery, including administration of DoD’s delay. or after the date of enactment but before procedures under the Federal Debt Response: Nothing in the final rule the effective date of regulations and Collection Act and related laws for requires manufacturers to bear the cost agreements would violate Health and compromise or waiver of overpayment of DoD’s delay in issuing final Human Services regulations as 42 CFR refunds. DoD has revised this provision regulations. As noted above, section 1001.952(h)(4), which require that in of paragraph (q) to address specifically 1074g(f) requires that all covered order to be within a safe harbor from a request for waiver or compromise of TRICARE Retail Pharmacy Network anti-kickback rules, a ‘‘rebate’’ must be a refund amount in the context of prescriptions are subject to Federal ‘‘disclosed in writing to the buyer at the section 1074g(f) and the new 32 CFR Ceiling Prices, beginning with time of sale of the initial purchase to 199.21(q). It provides that a prescriptions filled on or after the date which the discount applies,’’ and that manufacturer may request waiver or of enactment. Drug manufacturers were this can only be achieved after compromise of a refund amount and aware of the law and were on notice of regulations and agreements are in effect. that during the pendency of any request their obligations. It is not clear how they Some commenters also said for waiver or compromise, a were somehow prejudiced by the delay applicability of Federal Ceiling Prices to manufacturer’s written agreement to in issuing regulations. In some ways prescriptions filled on or after the date honor FCPs for covered Retail Pharmacy they benefited by the delay because it of enactment but before the effective Network prescriptions shall be deemed deferred the due date of the refund date of regulations and agreements to exclude the matter that is the subject necessary to resolve the statutory would be contrary to the Sarbanes- of the request for waiver or compromise. overpayment. Nonetheless, the final rule Oxley Act of 2002 and accounting Further, during the pendency of any provides any company that believes it principles for recording anticipated such request, the matter that is the has been prejudiced in some way to payment liabilities. subject of the request shall not be apply for a waiver or compromise of the Response: DoD disagrees. Under considered a failure of a manufacturer to refund necessary for prescriptions filled section 1074g(f), DoD is the buyer in a make or honor an agreement for between the date of enactment and the sales transaction that occurs when the purposes of the remedies paragraph of effective date of the regulation to be prescription is filled for a covered the regulation. In other words, a subject to FCPs. DoD will consider all beneficiary by a retail network manufacturer can request a waiver or such applications and their supporting pharmacy. As of the date of enactment, compromise of a refund DoD believes is rationale. DoD and the manufacturer both had owing on any grounds the manufacturer Comment: One commenter said there written notice that Federal Ceiling believes appropriate, and the matter that are constitutional limitations on laws Prices apply. Further, the statute clearly is the subject of the request will not be that alter rights under existing contracts, indicated that FCPs applied to considered noncompliance with any and that this reinforced the need for not prescriptions filled on or after the provision of the regulation while the applying FCPs to prescriptions filled effective date, giving companies and request is pending. This provision for before the effective date of the their accountants notice of the waiver or compromise is available at regulation. anticipated payment liability. any time, but DoD intends that it Response: The existing contract Nevertheless, if there were a case in especially be available to address and rights referred to by this commenter are which a manufacturer is charged with resolve in a reasonable way issues not identified. If the commenter is an illegal kickback or some other arising from the period between the date referring to the Master Agreements with violation as a result of a refund under of enactment of the statute and the VA, DoD does not believe they are section 1074g(f), DoD would welcome a effective date of the regulation. altered by section 703. If the commenter request to waive or compromise the Thus, to give one possible example, a means existing UF–VARRs, DoD does refund under paragraph (q)(3)(iii) of the company might propose that if it agrees not believe section 1074g(f) is regulation. that for all of its covered drugs, all dependent on such an agreement. DoD Comment: Some commenters went TRICARE retail pharmacy network is unaware of any constitutional or legal further than arguing that FCPs only start prescriptions will prospectively be right of a vendor to sell its goods or to apply when the final rule becomes priced at or below Federal Ceiling services to the Federal government at a effective, and argued that they only start Prices, it might further propose to price dictated by the vendor. The law to apply when an agreement between compromise refunds for prescriptions set a ceiling price for covered DoD and the manufacturer becomes filled during the period beginning prescriptions filled in the TRICARE effective. In support of this position January 28, 2008, and ending on the Retail Pharmacy Network, beginning on they stated that because the statute says

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‘‘the TRICARE retail pharmacy program Pharmacy Network prescriptions are manufacturer to agree to provide all shall be treated as an element of the subject to Federal Ceiling Prices. This covered drugs produced by the Department of Defense for purposes of means that if a manufacturer was paid manufacturer as a condition for any of the procurement of drugs by Federal more than the FCP for a covered drug the manufacturer’s drugs to be included agencies,’’ some agreement in the nature that was provided through the TRICARE on the Uniform Formulary. of a procurement contract has to be Retail Pharmacy Network, the Response: This is another area where made before the statute has any effect. transaction resulted in an overpayment DoD is seeking an accommodation with Response: DoD disagrees. As noted in what DoD paid the pharmacy and in drug companies. DoD believes it has previously, DoD interprets 10 U.S.C. what the manufacturer received from statutory authority to require a 1074g(f) to mean that for all covered the pharmacy (directly or through an manufacturer to agree to provide all drugs, TRICARE Retail Pharmacy intermediary). To resolve the covered drugs produced by the Network prescriptions are subject to overpayment, the manufacturer must manufacturer as a condition for any of Federal Ceiling Prices. DoD interprets pay DoD a refund of the amount above the manufacturer’s drugs to be included the statutory phrase ‘‘treated as an the FCP. If the amount above the FCP on the Uniform Formulary because the element of the Department of Defense was the difference between FCP and the statute applies to all covered drugs. for purposes of the procurement of average commercial price for the drug However, DoD chooses in this rule at drugs by Federal agencies under section sold to buyers other than the Federal this time to follow a product-by-product 8126 of title 38 to the extent necessary government—represented by the non- approach for Uniform Formulary status. to ensure that pharmaceuticals paid for Federal Average Manufacturer’s Price DoD urges pharmaceutical companies to by’’ DoD in the Retail Pharmacy (non-FAMP)—then the refund amount is honor Federal Ceiling Prices for all Network ‘‘are subject to’’ FCPs to mean the difference between the non-FAMP covered drugs and thereby preserve treated the same as a covered drug and FCP. DoD interprets the statute as eligibility for each drug for the Uniform directly procured by DoD vis-a`-vis the establishing the fact of an overpayment Formulary, as well as show their applicability of FCPs; the phrase does and the need for a refund. These things compliance with the law. not require that there be some other are not dependent on the agreement to transaction comparable to a direct exist; they exist by operation of law c. Relationship Between Federal Ceiling procurement by a Federal agency under under the statute. The purpose of the Prices and Uniform Formulary Status section 8126. The transaction of a agreement, therefore, is simply to Comment: A number of covered drug prescription filled in the acknowledge the existence of the pharmaceutical industry representatives Retail Pharmacy Network is all that is obligation and promise to meet it. This recommended that because non- required. Further, as previously noted, is a change from the UF–VARRs, which compliance with Federal Ceiling Prices DoD interprets the phrase, ‘‘[w]ith are not premised on a statutory generally disqualifies a covered drug for respect to any prescription filled on or requirement that prescriptions filled in Uniform Formulary status, compliance after the date of the enactment’’ to mean the Retail Pharmacy Network are subject with Federal Ceiling Prices should that FCPs apply with respect to any to FCPs. automatically qualify a covered drug for However, as noted above, DoD wishes prescription filled on or after the date of Uniform Formulary status. These to emphasize voluntary compliance by the enactment. comments indicated that Uniform manufacturers. To this end, DoD has Formulary status is a necessary quid- 2. Manufacturer Written Agreement included in the new regulatory (Paragraph (q)(2)) provision for waiver or compromise of pro-quo for a company’s agreement to honor FCPs. a. Agreement in General refunds, discussed above, a waiver criteria (subparagraph (q)(3)(iii)(C)) Response: DoD does not agree. Under Comment: Some commenters premised on a written request by the 10 U.S.C. 1074g(a), Uniform Formulary expressed the view that an agreement manufacturer for voluntary removal of a (Tier 2) status is based on the relative between DoD and a manufacturer is drug from coverage in the TRICARE clinical and cost effectiveness of drugs necessary for the manufacturer to have Pharmacy Benefits Program. Thus if within a drug class. Under section any requirement to pay refunds to DoD there were ever a case in which a 1074g(f), all covered TRICARE Retail for amounts received for drugs manufacturer was really involuntarily Pharmacy Network prescriptions are dispensed under prescriptions filled in involved with DoD in relation to drugs subject to Federal Ceiling Prices. Both the TRICARE Retail Pharmacy Network. sold into the normal commercial requirements apply. A company’s These commenters said a market, the manufacturer could request obligation to honor FCPs is not manufacturer’s agreement to pay voluntary exclusion of a drug from dependent on Uniform Formulary refunds must be met with contractual coverage in the TRICARE Pharmacy placement. Further, there are drugs that consideration from DoD in the form of Benefits Program and waiver of the at their particular Federal Ceiling Prices Uniform Formulary status or something refund obligation. This reinforces the are not cost-effective within their similar, comparable to the current voluntariness of drug manufacturers’ respective drug classes. Subject to the Uniform Formulary Voluntary participation in the commercial judgment of the Pharmacy and Agreements for Retail Refunds (UF– transaction covered by section 1074g(f), Therapeutics Committee and the other VARRs). They also argued that if a drug a transaction that features sales by the steps in the statutory and regulatory is not included on Tier 2, the company and payment by DoD through process, such drugs are likely to be manufacturer would have no obligation the TRICARE Retail Pharmacy Network. classified as non-Formulary drugs. to refund to DoD any amount it received However, during the initial period of above the FCP for that drug dispensed b. Product-by-Product Review implementation of this final rule, DoD under prescriptions filled in the Comment: A number of anticipates that drugs currently on the TRICARE Retail Pharmacy Network. pharmaceutical industry commenters Uniform Formulary that become Response: DoD does not agree with agreed with the proposed rule’s covered by manufacturer agreements to this view. As noted above, DoD approach of product-by-product review honor FCPs in the Retail Pharmacy interprets 10 U.S.C. 1074g(f) to mean of drugs for compliance with Federal Network will remain on the Uniform that all covered TRICARE Retail Ceiling Prices, rather than requiring a Formulary in Tier 2, pending the next

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periodic review of the drug class need. Also, the P&T Committee and through one of the three pharmacy involved. Beneficiary Advisory Panel will venues. Non-Formulary drugs are and Comment: A number of commenters continue to be involved in the process. will remain available in the TRICARE asked how the requirement for an With respect to the argument that Mail Order Pharmacy Program (TMOP). agreement to honor FCPs would affect beneficiaries should not be Second, the current paragraph (k) of the drugs previously placed on the Uniform inconvenienced by the refusal of drug regulation is not limited to Formulary or in non-Formulary status, companies to honor FCPs as required by preauthorization for medical necessity, as well as newly approved drugs. law, DoD believes this will very much but rather provides that: ‘‘Selected Response: For covered drugs, be the exception to the norm. To pharmaceutical agents may be subject to continuation on the Uniform Formulary minimize inconvenience to prior authorization or utilization review is conditioned on the manufacturer beneficiaries, DoD has added a new requirements to assure medical signing an agreement to honor Federal paragraph (q)(5) to provide beneficiary necessity, clinical appropriateness and/ Ceiling Prices for that drug. If there is transition provisions. It provides that in or cost effectiveness.’’ The new currently in effect a UF–VARR at a price cases in which a pharmaceutical is requirement for preauthorization for above the FCP, that agreement fails to removed from the uniform formulary or non-Formulary drugs for which achieve the statutory requirement; DoD designated for preauthorization, the manufacturers refuse to honor FCPs as anticipates canceling it. For a drug Director, TMA may for transitional time required by law is entirely consistent previously placed in Tier 3, if the periods determined appropriate by the with the current law and regulation, as manufacturer signs an agreement to Director or for particular circumstances well as with the policy of assuring honor FCPs, it will be eligible for authorize the continued availability of beneficiary access to needed reclassification to Tier 2 upon the next the pharmaceutical in the retail pharmaceutical agents. review by the P&T Committee of the pharmacy network or in MTF In the case of a beneficiary presenting drug class involved. That will not pharmacies for some or all beneficiaries a prescription in a retail network necessarily occur when the initial as if the pharmaceutical were still on pharmacy for a drug that is on Tier 3 adjustments to the Uniform Formulary the uniform formulary. because of the refusal of the are made upon the final rule becoming manufacturer to honor Federal Ceiling d. Preauthorization for Retail Pharmacy effective. For newly approved drugs, Prices, there are several possible Network Prescriptions for Drugs for DoD will continue its current practice of outcomes. First, the pharmacist may Which the Manufacturer Refuses To scheduling P&T Committee review at consult with the prescribing physician Agree To Honor Federal Ceiling Prices the next practicable quarterly meeting. and the physician may change the Comment: A number of commenters Comment: A number of commenters prescription to a Uniform Formulary suggested that the requirement for a argued that DoD should delete the drug, which can be provided manufacturer’s agreement to honor FCPs provisions of the proposed rule that immediately at the Tier 2 co-payment. for TRICARE Retail Pharmacy Network made a manufacturer’s agreement to Second, if the beneficiary has a valid prescriptions as a condition for Tier 2 honor FCPs in the Retail Pharmacy clinical need for that non-Formulary status should be waived by DoD if a Network a precondition for the drug without delay, preauthorization drug is more cost-effective, or if a availability of that drug through retail will be granted. This will take care of weighted average of prices in all three network pharmacies without emergency needs for pharmaceuticals venues is no higher than the FCP, or if preauthorization under section and other cases of immediate clinical otherwise in the best interests of 199.21(k) of the current regulation. They need. However, depending on the beneficiaries. Also, some commenters argued that this preauthorization circumstances, the beneficiary may be suggested that the Uniform Formulary requirement conflicts with 10 U.S.C. advised that any refills will need to be process should not be changed to 1074g and the current scope of the obtained from TMOP. Third, if there is leverage drug manufacturers to agree to preauthorization provisions of no urgency, the beneficiary may be honor FCPs in the retail network, and paragraph (k) of the regulation, which advised to submit the prescription to that the process of P&T Committee and are intended to promote broad TMOP. This approach is consistent with Beneficiary Advisory Panel review by beneficiary access to clinically the statutory requirement that non- drug class should not be usurped and appropriate drugs. These comments Formulary agents be made available in should continue unchanged. These noted that under the current regulation, at least one venue, and also with the commenters said the beneficiaries non-formulary drugs are generally statutory requirement that all covered should not have to pay higher copays or available in retail pharmacies, and the Retail Pharmacy Network prescriptions bother with preauthorization because only statutory reference to are subject to FCPs. Moreover, it the drug company does not comply with preauthorization (in 10 U.S.C. continues DoD policy of meeting the law. 1074g(a)(4)) is to assure clinical beneficiary needs, even in cases in Response: DoD has modified the final appropriateness. They also argued that which drug manufacturers fail to honor rule to provide for a waiver if necessary the preauthorization requirement would the law—a circumstance DoD expects to to ensure that each drug class is delay beneficiary access to needed be very rare. The concern expressed by represented on the Uniform Formulary. pharmaceutical agents, and should have manufacturers for unencumbered Beyond this, DoD does not see a need exceptions for emergencies and other beneficiary access to needed for further waiver. As noted above, DoD clinical needs. pharmaceuticals is admirable, and it interprets the statute as now Response: These comments should provide sufficient motivation for establishing for determining cost- misunderstand the current statute and the manufacturers to accept the ceiling effectiveness a relative standard and a regulation as they apply to price set by law. fixed standard and the fixed standard preauthorization. First, the statute does Comment: Commenters on behalf of must be met, except as noted. With not require that non-Formulary (Tier 3) retail pharmacies argued forcefully that respect to protecting beneficiary drugs be provided in the Retail preauthorization requirements for drugs interests, preauthorization procedures Pharmacy Network. It requires (in not covered by manufacturer agreements ensure that beneficiaries will continue paragraph (a)(5) of section 1074g) only to honor FCPs apply equally to to have access to whatever drugs they that non-Formulary drugs are available prescriptions in the Retail Pharmacy

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Network and TMOP. The rationale for that dispense only prescriptions covered same document. Thus, if there are issues this is to increase the incentive on by the 340B program, those pharmacies that need to be resolved with respect to pharmaceutical manufacturers to honor will be excluded from DoD’s utilization refund procedure details, these need not FCPs and to avoid the shifting of data reported to manufacturers. interfere with a manufacturer’s ability to prescriptions from retail pharmacies to Regarding other pharmacies that are agree to follow the law and thereby TMOP. These commenters believe retail eligible to participate in the 340B maintain eligibility for Uniform pharmacies better meet beneficiary program but also fill other prescriptions, Formulary status. Again, as noted above, needs and that to require DoD will incorporate into the process DoD does not interpret 10 U.S.C. preauthorization in retail pharmacies appropriate procedures to identify and 1074g(f) as making the applicability of but not in TMOP would be unfair and exclude 340B covered prescriptions. FCPs or the collection of refunds for contrary to the ‘‘uniform formulary’’ Comment: A number of commenters amounts above FCPs subject to the requirement of law. They argued that requested clarification that a covered existence or terms of an agreement rather than adopt a procedure drug for purposes of this regulation is a between DoD and the manufacturer. disadvantageous to retail pharmacies, covered drug under 38 U.S.C. 8126. Therefore, any disputes or problems DoD should make sure pharmaceutical Response: The final rule includes regarding refund procedure details can companies comply with the legal clarifying language to this effect. be resolved appropriately without requirement to honor Federal Ceiling Comment: A number of commenters disturbing rights or obligations under Prices in the Retail Pharmacy Network. recommended expansion of the the law. Moreover, such details can best Response: DoD’s focus is on assuring exceptions for covered drugs to allow a be addressed outside the formalities of that beneficiaries receive the broad process for drug manufacturers to the rulemaking process. DoD will pharmaceuticals they need and that the obtain exemptions for particular drugs. continue to provide means to answer requirements of the law are faithfully Response: DoD does not agree. The executed. While there is some merit to statute commands that all covered specific manufacturers’ questions this suggestion, DoD believes the best TRICARE Retail Pharmacy Network regarding refund procedures, Uniform approach for now is to preserve the prescriptions are subject to FCPs. DoD Formulary procedures, and the like. option of referring some prescriptions to has established a limited waiver of the Such means include the following Web TMOP when that is the most direct condition for Uniform Formulary site: http://tricare.mil/tma/ means to both provide the placement when necessary to preserve Pharmacy.aspx. DoD supports pharmaceuticals needed by the representation of all drug classes on the incorporating into the manufacturer beneficiary and assure the applicability Uniform Formulary, and has established written agreements effective refund of FCPs. DoD believes it is not unfair or a process under section 199.11 for procedures consistent with best contrary to the uniform formulary waiver or compromise of refunds in commercial practice. Absent such provisions of 10 U.S.C. 1074g to have appropriate circumstances. There is also agreement, the standard collection differences in co-payments or an authority for any other exception, procedures of the existing TRICARE preauthorization requirements among consistent with law, established by the Regulation (section 199.11) are the three venues while maintaining the Director, TMA. This is intended for available. same formulary listing of drugs in all special circumstances, analogous to the Regarding the 41 U.S.C. 418b three venues. These differences are all 340B program. DoD does not see a need argument, DoD believes that although consistent with statutory purposes. DoD for another procedure for individual section 1074g(f) requires that the agrees with retail pharmacy drug products to avoid FCPs. TRICARE Retail Pharmacy Network representative commenters that the right 3. Refund Procedures (Paragraph (q)(3)) ‘‘shall be treated as’’ an element of the outcome is for all manufacturers to Department of Defense for purposes of comply with the obligation to honor a. Refund Procedures in General the ‘‘procurement of drugs by Federal FCPs in the Retail Pharmacy Network. agencies’’ under 38 U.S.C. 8126 ‘‘to the DoD’s expectation is that there will not Comment: A number of commenters extent necessary to ensure that’’ be many drugs that will be subject to requested further information and/or pharmaceuticals dispensed are subject this preauthorization requirement. specification in the regulation regarding the details of the refund procedures to FCPs, this does not result in any legal e. Covered Drugs referred to in the rule. They argued that requirement, or even an inference, to Comment: A number of commenters much more detail needed to be included also treat the transaction as if it were a recommended that DoD exclude from in the rule for manufacturers to be procurement for purposes of various the regulation drugs covered by section expected to decide whether they wanted procurement statutes. Thus, DoD does 340B of the Public Health Service Act. to sign agreements. Another comment not view refund procedure agreements Section 340B limits the cost of covered urged that all refund procedures be as falling within the scope of a outpatient drugs to certain federal published in the Federal Register for ‘‘procurement policy, regulation, grantees, federally-qualified health public comment under 41 U.S.C. 418b. procedure, or form’’ subject to 41 U.S.C. center look-alikes and qualified Response: The only definite 418b. In addition, especially while DoD disproportionate share hospitals. The requirement in the regulation for a seeks to work with manufacturers on rationale for this comment is that these manufacturer’s agreement to be a implementing practical and smooth prescriptions should not be covered by condition for Uniform Formulary procedures for sharing utilization data, double discounts. A number of placement and Retail Pharmacy resolving issues and problems, commenters also requested clarification Network availability without facilitating Uniform Formulary on how DoD would report utilization preauthorization is a simple agreement placement consistent with the law and data involving 340B sales or whether to honor Federal Ceiling Prices in the regulations, and facilitating a positive DoD would exclude all pharmacies Retail Pharmacy Network. DoD prefers relationship, DoD does not see the eligible for the 340B program. to also include in the agreement refund advantage of chiseling into regulatory Response: DoD agrees and has revised procedures, but has revised the final stone a detailed set of procedures which the rule accordingly in paragraph rule (in paragraph (q)(3)(i)) to clarify will then become too hard to adapt or (q)(2)(iii)(E). With respect to pharmacies that these things need not be in the improve.

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b. Specific Refund Procedures those agencies. With respect to the audit implementing regulations under these Comment: Specific refund procedure question, the dispute resolution process statutes are at section 199.11. This does issues included whether the current provides the manufacturer the not preclude mutually agreeable refund Uniform Formulary Voluntary opportunity to dispute any utilization procedures, but section 199.11 is a Agreements for Retail Refunds (UF– on which its data and DoD’s data are in necessary baseline of authority and VARRs) template will be used; whether conflict. All pertinent pricing procedures. information is already in the hands of the non-FAMPs and FCPs that will be 4. Remedies (Paragraph (q)(4)) used for the refunds are those applicable the manufacturer. Thus, DoD sees no Comment: A number of comments to the year in which the prescription need for routine manufacturer audits of from or on behalf of the pharmaceutical was filled or the year in which the DoD utilization data, other than what might be appropriate in a dispute industry urged revision to the proposed refund is due or the year in which the rule provision that in the case of the agreement was signed; whether UF– resolution context. Other details will be worked out consistent to the extent failure of a manufacturer of a covered VARRs currently in effect would be drug ‘‘to make or honor an agreement’’ cancelled; whether transferred practicable with common industry practices for implementing pricing to honor FCPs in the Retail Pharmacy ownership would require a new Network, the Director of TMA, in agreement; whether DoD would change agreements between manufacturers and large pharmacy benefit plan sponsors. addition to other actions referred to in any VA determinations of non-FAMP or this paragraph (q), may take ‘‘any other FCP; the guidance VA and the Centers c. Dispute Resolution Procedures action authorized by law.’’ These for Medicare and Medicaid Services Comment: Several commenters comments argued that agreements to (CMS) would provide on reporting representing the pharmaceutical honor FCPs in the retail network should transactions covered by section 1074g(f) industry urged that in cases in which be completely voluntary, so there for purposes of non-FAMP, best price, drug companies dispute DoD utilization should be no ‘‘remedy’’ or ‘‘penalty’’ for and other calculations; whether DoD reports, the companies are not required failure to make such an agreement. will maintain manufacturer pricing data to pay refunds pending the outcome of Some commenters described this in confidence; how DoD will deal with the dispute resolution process. At the provision as purporting to give the ‘‘penny pricing’’ on an FCP or various conclusion of the dispute resolution Director of TMA arbitrary power or data anomalies in the VA’s processes; process, refund amounts would then unlimited discretion. whether drug companies will have the include interest charges from the Response: As discussed above, while right to audit DoD utilization data; and original payment due date. These DoD wants to emphasize voluntary whether in any quarterly utilization commenters pointed out that this would compliance, the statute unambiguously period there will be an exclusion of be a change from the current DoD commands that all covered Retail prescriptions filled significantly before standard procedure under the Uniform Pharmacy Network prescriptions are that quarter. Formulary Voluntary Agreement for subject to Federal Ceiling Prices. As a Response: The rule has been clarified Retail Refunds (UF–VARRs), but would result, DoD has no reason to and to specify that the FCPs that apply are be consistent with the current practice expressly does not waive the right to those in effect in the year in which the under Medicaid rebate agreements. pursue any action authorized by law. prescription is filled. The non-FAMP Response: DoD agrees to this proposal This in no way is arbitrary, unlimited, that applies will be the one that gave and has added a new paragraph or unreasonable because it is strictly rise to the applicable FCP. DoD believes (q)(3)(iv) to defer refund payments limited to authorities under the law. the UF–VARR process has been effective pending resolution of disputes over the Comment: A comment from the retail and intends to use that as a base line for accuracy of the utilization data. pharmacy sector urged DoD to revise the refund procedures under the regulation, final rule to state that a failure of a d. Overpayments Recovery but intends to continue to work with manufacturer to honor FCPs in the industry on refinements and Comment: A number of commenters Retail Pharmacy Program is a violation improvements. Thus, these procedures questioned the portion of the proposed of 38 U.S.C. 8126 and bars the are not part of this regulation. DoD rule stating that a refund due under the manufacturer from eligibility to sell anticipates that current UF–VARRs that new paragraph (q) is subject to section pharmaceuticals to the referenced do not meet the statutory requirement 199.11 of the TRICARE Regulation. That Federal agencies and in Medicaid. will be canceled, but they are not section governs overpayments recovery. Response: It is DoD’s view that a cancelled by this regulation. In cases of These commenters recommended that failure of a manufacturer to comply with transferred ownership of a drug, DoD refund procedures should be negotiated 10 U.S.C. 1074g(f) does also constitute will look to the parties to advise DoD of between DoD and manufacturers, rather a failure to comply with 38 U.S.C. 8126. the transfer and its effect on existing than handled under section 199.11. However, as noted above, there are no relationships. DoD will not change any Response: As noted above, DoD judicial rulings on this point and the VA determinations of non-FAMPs or interprets section 1074g(f) as requiring state of the law is not settled on it. In FCPs; DoD will accept VA that all prescriptions for covered drugs any event, it is outside any regulatory determinations. This includes deferring in the Retail Pharmacy Network are authority of the Department of Defense to VA determinations on penny pricing subject to Federal Ceiling Prices. To the to make rules or issue legally controlling and the VA procedures for resolution of extent the ingredient costs for the interpretations regarding 38 U.S.C. data anomalies and relief from unfair prescriptions paid for in the Retail 8126. Thus, this matter is not addressed calculations. DoD is already under legal Pharmacy Network exceed the FCP, the in this rule. This rule only addresses obligation to maintain manufacturer prescription transaction produced an matters within the regulatory authority pricing data in confidence and will overpayment to the manufacturer, of the Department of Defense. comply with that obligation. DoD giving rise to a DoD right to a refund. cannot speak for VA and CMS but has There are existing statutes that govern D. Provisions of the Final Rule consulted with those agencies and will refunds of government payments that Like the proposed rule, the final rule do everything possible to facilitate exceed the legally authorized purposes, adds to section 199.21 of the TRICARE responses to manufacturers’ questions to circumstances, or amounts. TRICARE’s regulation a new paragraph (q) regarding

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pricing standards for the retail pharmacies under the Pharmacy of any request for such a waiver or pharmacy program. Paragraph (1)(i) Benefits Program are subject to Federal compromise, a manufacturer’s written repeats the statutory requirement, Ceiling Prices shall be established. Such agreement to honor FCPs shall be virtually verbatim. Paragraph (1)(ii) has procedures may be established as part of deemed to exclude the matter that is the been added to state in simpler terms the agreement referred to above, or in a subject of the request for waiver or DoD’s interpretation of the statute as separate agreement, or pursuant to compromise so that the agreement, if requiring that all covered drug TRICARE section 199.11. This paragraph of the otherwise sufficient, will continue to be Retail Pharmacy Network prescriptions final rule has been revised somewhat sufficient for purposes of satisfying the are subject to Federal Ceiling Prices from the proposed rule. The options for precondition to Uniform Formulary Tier under 38 U.S.C. 8126. procedures to be addressed in a separate 2 placement. Also, during the pendency Paragraph (2) provides that a written agreement between the manufacturer of any such request, the matter that is agreement by a manufacturer to honor and DoD or to be adopted under the the subject of the request shall not be Federal Ceiling Prices in the retail overpayment recovery rules of section considered a failure of a manufacturer to pharmacy network as required by the 199.11 are added in the final rule to honor an agreement for purposes of statute is with respect to a particular ensure that any problems regarding remedies for noncompliance. The final covered drug a condition for inclusion specific refund procedures need not get rule is further revised to state that a of that drug on the Uniform Formulary in the way of manufacturers agreeing to request for waiver may also be premised (Tier 2) and for the availability of that honor FCPs and thereby preserve on the voluntary removal by the drug through retail network pharmacies eligibility for their drugs for Uniform manufacturer in writing of a drug from without preauthorization. A covered Formulary Tier 2 placement. Paragraph coverage in the TRICARE Pharmacy drug not under such an agreement (q)(3)(ii) provides that the refund Benefit Program. This change further requires preauthorization to be provided procedures shall, to the extent protects a manufacturer from through a retail network pharmacy. This practicable, incorporate common involuntary involvement in the preauthorization requirement does not industry practices for implementing program. apply to other points of service. The pricing agreements between One other change to the refund final rule has been modified a bit to manufacturers and large pharmacy clarify that a covered drug for this benefit plan sponsors. The procedures procedures paragraph is that a new purpose is a drug that is a covered drug will provide the manufacturer at least paragraph (q)(3)(iv) has been added to under 38 U.S.C. 8126. A covered drug 70 days from the date of the submission state that in the case of disputes by the does not include a drug that is not a of the TRICARE pharmaceutical manufacturer of the accuracy of TMA’s covered drug under 38 U.S.C. 8126; a utilization data needed to calculate the utilization data, a refund obligation as to drug provided under a prescription that refund before the refund payment is the amount in dispute will be deferred is not covered by 10 U.S.C. 1074g(f); a due. The basis of the refund will be the pending good faith efforts to resolve the drug that is not provided through a difference between the average non- dispute. If the dispute is not resolved TRICARE retail network pharmacy; any federal price of the drug sold by the within 60 days, the Director, TMA will pharmaceutical for which the TRICARE manufacturer to wholesalers, as issue an initial administrative decision Pharmacy Benefits Program is the represented by the most recent annual and provide the manufacturer with second payer; and any other exception, non-Federal average manufacturing opportunity to request reconsideration consistent with law, established by the prices (non-FAMP) (reported to the or appeal consistent with procedures Director, TMA. The final rule adds to Department of Veterans Affairs (VA)) under the TRICARE regulation. When the list of non-covered drugs for this and the corresponding FCP or, in the the dispute is ultimately resolved, any purpose any drug provided under a discretion of the manufacturer, the refund owed relating to the amount in prescription and dispensed by a difference between the FCP and direct dispute will be subject to an interest pharmacy under the Section 340B commercial contract sales prices charge consistent with the normal program. regulatory practice. The final rule adds a new paragraph specifically attributable to the reported Paragraph (q)(4) provides that in the (q)(2)(iv) stating that the requirement for TRICARE paid pharmaceuticals, case of the failure of a manufacturer of a manufacturer’s agreement to honor determined for each applicable NDC a covered drug to make or honor an FCPs in the Retail Pharmacy Network as listing. The current annual FCP and the agreement under paragraph (q), the a precondition to Uniform Formulary non-FAMP on which it was based will Director, TMA, in addition to other (Tier 2) placement may, upon the be those applicable during the calendar actions referred to in the paragraph, may recommendation of the P&T Committee, year in which the prescription was take any other action authorized by law. be waived by the Director, TMA if filled. This paragraph is unchanged from the necessary to ensure that at least one As under the proposed rule, drug in the applicable drug class is paragraph (q)(3)(iii) provides that a proposed rule. included on the Uniform Formulary. refund due under the law is subject to Finally, a new paragraph (q)(5) has Any such waiver, however, does not section 199.11 of the TRICARE been added. It provides that in cases in waive the statutory requirement that all regulation, the section that governs which a pharmaceutical is removed covered TRICARE Retail Pharmacy recovery of overpayments. The final rule from the Uniform Formulary or Network prescriptions are subject to provision has been revised to clarify designated for preauthorization, the Federal Ceiling Prices; it only waives that the refund amount will be treated, Director, TMA may for transitional time the exclusion from the Uniform in the vernacular of section 199.11, as periods determined appropriate by the Formulary of drugs not covered by an erroneous payment. The final rule Director or for particular circumstances agreements. has also been revised to elaborate that authorize the continued availability of Paragraph (q)(3) addresses refund the applicability of section 199.11 the pharmaceutical in the retail procedures. Paragraph (q)(3)(i) states brings with it a procedure for a pharmacy network or in MTF that refund procedures to ensure that manufacturer to request waiver or pharmacies for some or all beneficiaries pharmaceuticals paid for by DoD that compromise of a refund amount due as if the pharmaceutical were still on are provided by retail network under the statute. During the pendency the Uniform Formulary.

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E. Regulatory Procedures through 2015 appear in the following Section 202, Public Law 104–4, table. It should be noted that these ‘‘Unfunded Mandates Reform Act’’ Executive Order 12866, ‘‘Regulatory estimates have been updated from those Planning and Review’’ available at the time the proposed rule This rule does not contain a Federal Executive Order (EO) 12866 requires was issued. The estimates included with mandate that may result in the that a comprehensive regulatory impact the proposed rule were the standing out- expenditure by State, local and tribunal analysis be performed on any year budget estimates developed several governments, in aggregate, or by the economically significant regulatory years ago from an FY–2003 utilization private sector, of $100 million or more action, defined primarily as one that and cost baseline. New estimates are (adjusted for inflation) in any one year. would result in an effect of $100 million from an FY–2007 utilization and cost The economic impact of this regulation, or more in any one year. The DoD has baseline. The significant increase in described above, is not in the form of a examined the economic, legal, and retail utilization and costs between 2003 mandated expenditure by a State, local, policy implications of this final rule and and 2007 results in a significant or tribal government or the private has concluded that it is an economically increase in overall budget impact of sector, but by reduced Federal significant regulatory action under implementing section 1074g(f). Finally, expenditures. section 3(f)(1) of the EO. The economic it should be noted that the budget Public Law 96–354, ‘‘Regulatory impact of applying Federal Ceiling estimates include amounts DoD would Flexibility Act’’ (5 U.S.C. 601) Prices to the TRICARE Retail Pharmacy have expected to receive from voluntary Network is in the form of reducing the refunds under the current Uniform The Regulatory Flexibility Act (RFA) prices of drugs paid for by DoD in the Formulary Voluntary Agreements for requires that each Federal agency retail pharmacy component of the Retail Refunds (UF–VARRs). In FY– prepare and make available for public TRICARE Pharmacy Benefits Program, 2010, for example, even if FCPs were comment, a regulatory flexibility making them comparable to the prices not required by the statute, DoD would analysis when the agency issues a paid by DoD in the Military Treatment have expected the UF–VARR program to regulation which would have a Facility and Mail Order Pharmacy produce Defense Health Program significant impact on a substantial components of the program. refunds of $100 million to $150 million number of small entities. DoD does not A recent Government Accountability of the projected $761 million in reduced anticipate that this regulation will result Office Report, ‘‘DoD Pharmacy Program: spending. in changes that would impact small Continued Efforts Needed to Reduce entities, including retail pharmacies, Growth in Spending at Retail MILLIONS OF DOLLARS whose reimbursements are not affected Pharmacies,’’ April 2008 (GAO–08– by the final rule. In addition, drugs 327), found that DoD’s drug spending FY–2010 DHP Reduced Spending .. 761 newly subject to implementation of ‘‘more than tripled from $1.6 billion in FY–2010 MERHCF Reduced Federal Ceiling Prices under the final fiscal year 2000 to $6.2 billion in fiscal Spending ...... 910 rule represent less than 2% of year 2006’’ and that retail pharmacy FY–2011 DHP Reduced Spending .. 842 manufacturers’ prescription drug sales. spending ‘‘drove most of this increase, FY–2011 MERHCF Reduced Therefore, this final rule is not expected rising almost nine-fold from $455 Spending ...... 1,007 to result in significant impacts on a million to $3.9 billion and growing from FY–2012 DHP Reduced Spending .. 919 substantial number of small entities. 29 percent of overall drug spending to FY–2012 MERHCF Reduced 63 percent.’’ DoD concurs in these Spending ...... 1,099 Public Law 96–511, ‘‘Paperwork findings. The principal economic FY–2013 DHP Reduced Spending .. 993 Reduction Act’’ (44 U.S.C. Chapter 35) impact of this final rule is to moderate FY–2013 MERHCF Reduced Spending ...... 1,188 This final rule contains information somewhat the rate of growth in the retail FY–2014 DHP Reduced Spending .. 1,072 pharmacy component of the program. collection requirements subject to the FY–2014 MERHCF Reduced Paperwork Reduction Act (PRA) of 1995 DoD has estimated the reduced Spending ...... 1,282 spending associated applying Federal FY–2015 DHP Reduced Spending .. 1,177 (44 U.S.C. 3501–3511). This consists of Ceiling Prices to the Retail Pharmacy FY–2015 MERHCF Reduced responding to the periodic TMA report Network. DoD funds the Military Health Spending ...... 1,408 of the TRICARE prescription utilization System through two separate data needed to calculate the refund. mechanisms. One is the Defense Health As a frame of reference, total TRICARE This information collection has been Program (DHP) appropriation, which Pharmacy Benefits Program spending is approved with OMB Control Number pays for health care for all beneficiaries estimated to be $8 billion in FY–2009. 0720–0032. No person is required to except those who are also eligible for respond to, nor shall any person be Medicare. DoD-funded health care for Congressional Review Act, 5 U.S.C. 801, subject to a penalty for failure to comply DoD beneficiaries who are also eligible et seq. with, a collection of information subject for Medicare is paid for by way of an Under the Congressional Review Act, to the requirements of the PRA, unless accrual fund called the Medicare- a major rule may not take effect until at that collection of information displays a Eligible Retiree Health Care Fund least 60 days after submission to currently valid OMB Control Number. (MERHCF) under 10 U.S.C. Chapter 56. Congress of a report regarding the rule. Executive Order 13132, ‘‘Federalism’’ Funds are paid into the MERHCF from A major rule is one that would have an military personnel appropriations and annual effect on the economy of $100 This final rule does not have the general U.S. treasury. The FY–2009 million or more or have certain other federalism implications, as set forth in budget approved by the President and impacts. This final rule is a major rule Executive Order 13132. This rule does Congress incorporated savings of $352 under the Congressional Review Act. As not have substantial direct effects on the million in the Defense Health Program noted above, applying Federal Ceiling States; the relationship between the appropriation. DoD estimated cost Prices to the TRICARE Retail Pharmacy National Government and the States; or reductions from applying Federal Network will reduce DoD spending on the distribution of power and Ceiling Prices to the TRICARE Retail pharmaceuticals by more than $100 responsibilities among the various Pharmacy Network in Fiscal Years 2010 million per year. levels of Government.

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List of Subjects in 32 CFR Part 199 (iii) For purposes of this paragraph sold by the manufacturer to wholesalers, Claims, Health care, Health insurance, (q)(2), a covered drug is a drug that is as represented by the most recent Military personnel, Pharmacy benefits. a covered drug under 38 U.S.C. 8126, annual non-Federal average ■ but does not include: manufacturing prices (non-FAMP) Accordingly, 32 CFR part 199 is (A) A drug that is not a covered drug (reported to the Department of Veterans amended as follows: under 38 U.S.C. 8126; Affairs (VA)) and the corresponding FCP PART 199—[AMENDED] (B) A drug provided under a or, in the discretion of the manufacturer, prescription that is not covered by 10 the difference between the FCP and ■ 1. The authority citation for part 199 U.S.C. 1074g(f); direct commercial contract sales prices continues to read as follows: (C) A drug that is not provided specifically attributable to the reported Authority: 5 U.S.C. 301; 10 U.S.C. chapter through a retail network pharmacy TRICARE paid pharmaceuticals, 55. under this section; determined for each applicable NDC (D) A drug provided under a listing. The current annual FCP and the ■ 2. Section 199.21 is amended by prescription which the TRICARE annual non-FAMP from which it was adding a new paragraph (q), to read as Pharmacy Benefits derived will be applicable to all follows: Program is the second payer under prescriptions filled during the calendar paragraph (m) of this section; § 199.21. Pharmacy benefits program. year. (E) A drug provided under a (iii) A refund due under this * * * * * prescription and dispensed by a paragraph (q) is subject to section (q) Pricing standards for retail pharmacy under section 340B of the 199.11 of this part and will be treated pharmacy program—(1) Statutory Public Health Service Act; or as an erroneous payment under that requirement. (i) As required by 10 (F) Any other exception for a drug, section. U.S.C. 1074g(f), with respect to any consistent with law, established by the (A) A manufacturer may under prescription filled on or after the date of Director, TMA. § 199.11 of this part request waiver or the enactment of the National Defense (iv) The requirement of this paragraph compromise of a refund amount due Authorization Act for Fiscal Year 2008, (q)(2) may, upon the recommendation of under 10 U.S.C. 1074g(f) and this the TRICARE retail pharmacy program the Pharmacy and Therapeutics paragraph (q). shall be treated as an element of the Committee, be waived by the Director, (B) During the pendency of any DoD for purposes of the procurement of TMA if necessary to ensure that at least request for waiver or compromise under drugs by Federal agencies under 38 one drug in the drug class is included subparagraph (q)(3)(iii)(A) of this U.S.C. 8126 to the extent necessary to on the Uniform Formulary. Any such section, a manufacturer’s written ensure pharmaceuticals paid for by the waiver, however, does not waive the agreement under paragraph (q)(2) shall DoD that are provided by pharmacies statutory requirement referred to in be deemed to exclude the matter that is under the program to eligible covered paragraph (q)(1) that all covered the subject of the request for waiver or beneficiaries under this section are TRICARE retail network pharmacy compromise. In such cases the subject to the pricing standards in such prescriptions are subject to Federal agreement, if otherwise sufficient for the section 8126. Ceiling Prices under 38 U.S.C. 8126; it purpose of the condition referred to in (ii) Under subparagraph (q)(1)(i) of only waives the exclusion from the paragraph (q)(2), will continue to be this section, all covered drug TRICARE Uniform Formulary of drugs not covered sufficient for that purpose. Further, retail pharmacy network prescriptions by agreements under this paragraph during the pendency of any such are subject to Federal Ceiling Prices (q)(2). request, the matter that is the subject of under 38 U.S.C. 8126. (3) Refund procedures. (i) Refund the request shall not be considered a (2) Manufacturer written agreement. procedures to ensure that failure of a manufacturer to honor an (i) A written agreement by a pharmaceuticals paid for by the DoD agreement for purposes of paragraph manufacturer to honor the pricing that are provided by retail network (q)(4). standards required by 10 U.S.C. 1074g(f) pharmacies under the pharmacy (C) In addition to the criteria and referred to in paragraph (q)(1) of benefits program are subject to the established in § 199.11 of this section, a this section for pharmaceuticals pricing standards referred to in request for waiver may also be premised provided through retail network paragraph (q)(1) of this section shall be on the voluntary removal by the pharmacies shall with respect to a established. Such procedures may be manufacturer in writing of a drug from particular covered drug be a condition established as part of the agreement coverage in the TRICARE Pharmacy for: referred to in paragraph (q)(2), or in a Benefit Program. (A) Inclusion of that drug on the separate agreement, or pursuant to (iv) In the case of disputes by the uniform formulary under this section; § 199.11. manufacturer of the accuracy of TMA’s and (ii) The refund procedures referred to utilization data, a refund obligation as to (B) Availability of that drug through in paragraph (q)(3)(i) of this section the amount in dispute will be deferred retail network pharmacies without shall, to the extent practicable, pending good faith efforts to resolve the preauthorization under paragraph (k) of incorporate common industry practices dispute in accordance with procedures this section. for implementing pricing agreements established by the Director, TMA. If the (ii) A covered drug not under an between manufacturers and large dispute is not resolved within 60 days, agreement under paragraph (q)(2)(i) of pharmacy benefit plan sponsors. Such the Director, TMA will issue an initial this section requires preauthorization procedures shall provide the administrative decision and provide the under paragraph (k) of this section to be manufacturer at least 70 days from the manufacturer with opportunity to provided through a retail network date of the submission of the TRICARE request reconsideration or appeal pharmacy under the Pharmacy Benefits pharmaceutical utilization data needed consistent with procedures under Program. This preauthorization to calculate the refund before the refund § 199.10 of this part. When the dispute requirement does not apply to other payment is due. The basis of the refund is ultimately resolved, any refund owed points of service under the Pharmacy will be the difference between the relating to the amount in dispute will be Benefits Program. average non-Federal price of the drug subject to an interest charge from the

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date payment of the amount was section to read: ‘‘We have analyzed this I. Background initially due, consistent with § 199.11 of rule under Department of Homeland On February 20, 2009, the Postal this part. Security Directive 0023.1 and Service filed a formal request pursuant (4) Remedies. In the case of the failure Commandant Instruction M16475.lD, to 39 U.S.C. 3642 and 39 CFR 3020.30 of a manufacturer of a covered drug to which guide the Coast Guard in et seq. to add Express Mail & Priority make or honor an agreement under this complying with the National Mail Contract 4 to the Competitive paragraph (q), the Director, TMA, in Environmental Policy Act of 1969 Product List.1 The Postal Service asserts addition to other actions referred to in (NEPA) (42 U.S.C. 4321–4370f), and that the Express Mail & Priority Mail this paragraph (q), may take any other have concluded this action is one of a Contract 4 product is a competitive action authorized by law. category of actions which do not product ‘‘not of general applicability’’ (5) Beneficiary transition provisions. individually or cumulatively have a within the meaning of 39 U.S.C. In cases in which a pharmaceutical is significant effect on the human 3632(b)(3). This Request has been removed from the uniform formulary or environment. This rule is categorically assigned Docket No. MC2009–17. designated for preauthorization under excluded, under figure 2–1, paragraph paragraph (q)(2) of this section, the The Postal Service 34(f), of the Instruction. This rule contemporaneously filed a contract Director, TMA may for transitional time involves a regulation reducing the size related to the proposed new product periods determined appropriate by the of an anchorage ground. pursuant to 39 U.S.C. 3632(b)(3) and 39 Director or for particular circumstances Under figure 2–1, paragraph (34)(f), of authorize the continued availability of the Instruction, an environmental CFR 3015.5. The contract has been the pharmaceutical in the retail analysis checklist and a categorical assigned Docket No. CP2009–24. In support of its Request, the Postal pharmacy network or in MTF exclusion determination are not Service filed the following materials: (1) pharmacies for some or all beneficiaries required for this rule.’’ A redacted version of the Governors’ as if the pharmaceutical were still on Dated: March 12, 2009. the uniform formulary. Decision authorizing the new product Steve G. Venckus, which also includes an analysis of Dated: March 10, 2009. Chief, Office of Regulations and Express Mail & Priority Mail Contract 4 Patricia L. Toppings, Administrative Law. and certification of the Governors’ OSD Federal Register Liaison Officer, [FR Doc. E9–5757 Filed 3–16–09; 8:45 am] vote; 2 (2) a redacted version of the Department of Defense. BILLING CODE 4910–15–P contract which, among other things, [FR Doc. E9–5702 Filed 3–16–09; 8:45 am] provides that the contract will expire 3 BILLING CODE 5001–06–P years from the effective date, which is POSTAL REGULATORY COMMISSION proposed to be 1 day after the Commission issues all regulatory DEPARTMENT OF HOMELAND 39 CFR Part 3020 approvals; 3 (3) requested changes in the SECURITY [Docket Nos. MC2009–17 and CP2009–24; Mail Classification Schedule product Order No. 187] list; 4 (4) a Statement of Supporting Coast Guard Justification as required by 39 CFR Domestic Mail Product 3020.32; 5 and (5) certification of 33 CFR Part 110 compliance with 39 U.S.C. 3633(a).6 AGENCY: Postal Regulatory Commission. [Docket No. USCG–2008–0155] In the Statement of Supporting ACTION: Final rule. Justification, Kim Parks, Manager, Sales RIN 1625–AA01 SUMMARY: The Commission is adding and Communications, Expedited Anchorage Regulations; Port of New Express Mail & Priority Mail Contract 4 Shipping, asserts that the service to be York; Correction to the competitive product list. This provided under the contract will cover action is consistent with changes in a its attributable costs, make a positive AGENCY: Coast Guard, DHS. recent law governing postal operations. contribution to coverage of institutional ACTION: Final rule; correction. Republication of the lists of market costs, and will increase contribution dominant and competitive products is toward the requisite 5.5 percent of the SUMMARY: The Coast Guard is correcting also consistent with new requirements Postal Service’s total institutional costs. the preamble to a final rule that in the law. Request, Attachment D, at 1. W. Ashley appeared in the Federal Register of Lyons, Manager, Corporate Financial March 11, 2009 (74 FR 10484). The DATES: Effective March 17, 2009 and is applicable beginning March 10, 2009. Planning, Finance Department, certifies preamble incorrectly referred to that the contract complies with 39 Department of Homeland Security ADDRESSES: Submit comments electronically via the Commission’s U.S.C. 3633(a). See id. Attachment E. Management Directive 5100.1, instead The Postal Service filed much of the Filing Online system at http:// of Department of Homeland Security supporting materials, including the www.prc.gov. Management Directive 0023.1. unredacted Governors’ Decision and the DATES: Effective April 10, 2009. FOR FURTHER INFORMATION CONTACT: FOR FURTHER INFORMATION CONTACT: LT Stephen L. Sharfman, General Counsel, 1 Request of the United States Postal Service to Edward Munoz, Chief, Waterways 202–789–6820 and Add Express Mail & Priority Mail Contract 4 to [email protected]. Competitive Product List and Notice of Management Division, telephone 718– Establishment of Rates and Class Not of General 354–2353. SUPPLEMENTARY INFORMATION: Regulatory Applicability, February 20, 2009 (Request). SUPPLEMENTARY INFORMATION: In FR Doc. History, 74 FR 9316 (March 2, 2009). 2 Attachment A to the Request. The analysis that E9–5095 appearing on page 10484 of the The Postal Service seeks to add a new accompanies the Governors’ Decision notes, among other things, that the contract is not risk free, but Federal Register of Wednesday, March product identified as Express Mail & concludes that the risks are manageable. 11, 2009, the following correction is Priority Mail Contract 4 to the 3 Attachment B to the Request. made: Competitive Product List. For the 4 Attachment C to the Request. 1. On page 10486, in the second reasons discussed below, the 5 Attachment D to the Request. column, correct the ‘‘Environment’’ Commission approves the Request. 6 Attachment E to the Request.

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unredacted contract, under seal. In its Accountability and Enhancement Act Cost considerations. The Postal Request, the Postal Service maintains (PAEA) requirements. This includes, for Service presents a financial analysis that the contract and related financial proposed competitive products, a showing that Express Mail & Priority information, including the customer’s review of the provisions applicable to Mail Contract 4 results in cost savings name and the accompanying analyses rates for competitive products. 39 U.S.C. while ensuring that the contract covers that provide prices, terms, conditions, 3633. its attributable costs, does not result in and financial projections, should remain Product list assignment. In subsidization of competitive products confidential. Id. at 2–3. determining whether to assign Express by market dominant products, and In Order No. 184, the Commission Mail & Priority Mail Contract 4 as a increases contribution from competitive gave notice of the two dockets, product to the Market Dominant products. appointed a public representative, and Product List or the Competitive Product Based on the data submitted, the provided the public with an opportunity List, the Commission must consider Commission finds that Express Mail & to comment.7 whether Priority Mail Contract 4 should cover its On March 3 and 10, 2009, the Postal the Postal Service exercises sufficient attributable costs (39 U.S.C. 3633(a)(2)), Service filed errata to correct certain market power that it can effectively set the should not lead to the subsidization of cost and revenue data.8 price of such product substantially above competitive products by market II. Comments costs, raise prices significantly, decrease dominant products (39 U.S.C. quality, or decrease output, without risk of 3633(a)(1)), and should have a positive Comments were filed by the Public losing a significant level of business to other effect on competitive products’ Representative.9 No filings were firms offering similar products. contribution to institutional costs (39 submitted by other interested parties. 39 U.S.C. 3642(b)(1). If so, the product U.S.C. 3633(a)(3)). Thus, an initial The Public Representative states that the will be categorized as market dominant. review of the proposed Express Mail & Postal Service’s filing complies with The competitive category of products Priority Mail Contract 4 indicates that it applicable Commission rules of practice shall consist of all other products. comports with the provisions applicable and procedure, and concludes that the The Commission is further required to to rates for competitive products. Express Mail & Priority Mail Contract 4 consider the availability and nature of Other considerations. The Postal agreement comports with the enterprises in the private sector engaged Service shall promptly notify the requirements of title 39. Public in the delivery of the product, the views Commission of the scheduled Representative Comments at 4. He of those who use the product, and the further states that the agreement appears termination date of the agreement. likely impact on small business If the agreement terminates earlier beneficial to the general public. Id. at 1. concerns. 39 U.S.C. 3642(b)(3). than anticipated, the Postal Service The Public Representative notes that The Postal Service asserts that its shall inform the Commission prior to the Postal Service has provided bargaining position is constrained by the new termination date. The adequate justification for maintaining the existence of other shippers who can Commission will then remove the confidentiality in this case. Id. at 3. He provide similar services, thus also points out several contractual precluding it from taking unilateral product from the Mail Classification provisions that he believes are mutually action to increase prices without the Schedule at the earliest possible beneficial to the parties and general risk of losing volume to private opportunity. public. Id. companies. Request, Attachment D, In conclusion, the Commission approves Express Mail & Priority Mail III. Commission Analysis para. (d). The Postal Service also contends that it may not decrease Contract 4 as a new product. The The Commission has reviewed the quality or output without risking the revision to the Competitive Product List Request, the contract, the financial loss of business to competitors that offer is shown below the signature of this analysis filed under seal, and the similar expedited delivery services. Id. Order and is effective upon issuance of comments filed by the Public It further states that the contract partner this order. Representative. supports the addition of the contract to IV. Ordering Paragraphs Statutory requirements. The the Competitive Product List to Commission’s statutory responsibilities effectuate the negotiated contractual It is Ordered: 1. Express Mail & Priority Mail in this instance entail assigning Express terms. Id. at para. (g). Finally, the Postal Contract 4 (MC2009–17 and CP2009–24) Mail & Priority Mail Contract 4 to either Service states that the market for is added to the Competitive Product List the Market Dominant Product List or to expedited delivery services is highly as a new product under Negotiated the Competitive Product List. 39 U.S.C. competitive and requires a substantial Service Agreements, Domestic. 3642. As part of this responsibility, the infrastructure to support a national 2. The Postal Service shall notify the Commission also reviews the proposal network. It indicates that large carriers Commission of the scheduled for compliance with the Postal serve this market. Accordingly, the termination date and update the Postal Service states that it is unaware 7 Commission if the termination date PRC Order No. 184, Notice and Order of any small business concerns that Concerning Express Mail & Priority Mail Contract occurs prior to that date, as discussed in could offer comparable service for this 4 Negotiated Service Agreement, February 24, 2009 this order. customer. Id. at para. (h). (Order No. 184). 3. The Secretary shall arrange for the 8 Notice of the United States Postal Service of No commenter opposes the proposed Filing Under Seal of Errata to Documentation, classification of Express Mail & Priority publication of this order in the Federal March 3, 2009; Notice of the United States Postal Mail Contract 4 as competitive. Having Register. Service of Filing Under Seal of Second Errata to By the Commission. Documentation, March 10, 2009. considered the statutory requirements 9 Public Representative Comments in Response to and the support offered by the Postal Steven W. Williams, United States Postal Service Request to Add Service, the Commission finds that Secretary. Express Mail & Priority Mail Contract 4 to Express Mail & Priority Mail Contract 4 Competitive Product List and Notice of List of Subjects in 39 CFR Part 3020 Establishment of Rates and Class Not of General is appropriately classified as a Applicability, March 5, 2009 (Public Representative competitive product and should be Administrative practice and Comments). added to the Competitive Product List. procedure; Postal Service.

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■ For the reasons stated in the preamble, Bulk Letters/Postcards Restricted Delivery under the authority at 39 U.S.C. 503, the [Reserved for Product Description] [Reserved for Product Description] Postal Regulatory Commission amends Flats Shipper-Paid Forwarding 39 CFR part 3020 as follows: [Reserved for Product Description] [Reserved for Product Description] Parcels Signature Confirmation PART 3020—PRODUCT LISTS [Reserved for Product Description] [Reserved for Product Description] Outbound Single-Piece First-Class Mail Special Handling ■ 1. The authority citation for part 3020 International [Reserved for Product Description] continues to read as follows: [Reserved for Product Description] Stamped Envelopes Inbound Single-Piece First-Class Mail [Reserved for Product Description] Authority: 39 U.S.C. 503; 3622; 3631; 3642; International Stamped Cards 3682. [Reserved for Product Description] [Reserved for Product Description] ■ 2. Revise Appendix A to subpart A of Standard Mail (Regular and Nonprofit) Premium Stamped Stationery [Reserved for Class Description] [Reserved for Product Description] part 3020—Mail Classification to read as High Density and Saturation Letters follows: Premium Stamped Cards [Reserved for Product Description] [Reserved for Product Description] Appendix A to Subpart A of Part High Density and Saturation Flats/Parcels International Ancillary Services 3020—Mail Classification Schedule [Reserved for Product Description] [Reserved for Product Description] Carrier Route International Certificate of Mailing Part A—Market Dominant Products [Reserved for Product Description] [Reserved for Product Description] 1000 Market Dominant Product List Letters International Registered Mail First-Class Mail [Reserved for Product Description] [Reserved for Product Description] Single-Piece Letters/Postcards Flats International Return Receipt Bulk Letters/Postcards [Reserved for Product Description] [Reserved for Product Description] Flats Not Flat-Machinables (NFMs)/Parcels International Restricted Delivery Parcels [Reserved for Product Description] [Reserved for Product Description] Outbound Single-Piece First-Class Mail Periodicals Address List Services International [Reserved for Class Description] [Reserved for Product Description] Inbound Single-Piece First-Class Mail Within County Periodicals Caller Service International [Reserved for Product Description] [Reserved for Product Description] Standard Mail (Regular and Nonprofit) Outside County Periodicals Change-of-Address Credit Card High Density and Saturation Letters [Reserved for Product Description] Authentication High Density and Saturation Flats/Parcels Package Services [Reserved for Product Description] Carrier Route [Reserved for Class Description] Confirm Letters Single-Piece Parcel Post [Reserved for Product Description] Flats [Reserved for Product Description] International Reply Coupon Service Not Flat-Machinables (NFMs)/Parcels Inbound Surface Parcel Post (at UPU rates) [Reserved for Product Description] Periodicals [Reserved for Product Description] International Business Reply Mail Service Within County Periodicals Bound Printed Matter Flats [Reserved for Product Description] Outside County Periodicals [Reserved for Product Description] Money Orders Package Services Bound Printed Matter Parcels [Reserved for Product Description] Single-Piece Parcel Post [Reserved for Product Description] Post Office Box Service Inbound Surface Parcel Post (at UPU rates) Media Mail/Library Mail [Reserved for Product Description] Bound Printed Matter Flats [Reserved for Product Description] Negotiated Service Agreements Bound Printed Matter Parcels Special Services [Reserved for Class Description] Media Mail/Library Mail [Reserved for Class Description] HSBC North America Holdings Inc. Special Services Ancillary Services Negotiated Service Agreement Ancillary Services [Reserved for Product Description] [Reserved for Product Description] International Ancillary Services Address Correction Service Bookspan Negotiated Service Agreement Address List Services [Reserved for Product Description] [Reserved for Product Description] Caller Service Applications and Mailing Permits Bank of America Corporation Negotiated Change-of-Address Credit Card [Reserved for Product Description] Service Agreement Authentication Business Reply Mail The Bradford Group Negotiated Service Confirm [Reserved for Product Description] Agreement Bulk Parcel Return Service International Reply Coupon Service Part B—Competitive Products International Business Reply Mail Service [Reserved for Product Description] Money Orders Certified Mail Competitive Product List Post Office Box Service [Reserved for Product Description] Express Mail Negotiated Service Agreements Certificate of Mailing Express Mail HSBC North America Holdings Inc. [Reserved for Product Description] Outbound International Expedited Services Negotiated Service Agreement Collect on Delivery Inbound International Expedited Services Bookspan Negotiated Service Agreement [Reserved for Product Description] Inbound International Expedited Services 1 Bank of America corporation Negotiated Delivery Confirmation (CP2008–7) Service Agreement [Reserved for Product Description] Inbound International Expedited Services 2 The Bradford Group Negotiated Service Insurance (MC2009–10 and CP2009–12) Agreement [Reserved for Product Description] Priority Mail Inbound International Merchandise Return Service Priority Mail Canada Post—United States Postal Service [Reserved for Product Description] Outbound Priority Mail International Contractual Bilateral Agreement for Parcel Airlift (PAL) Inbound Air Parcel Post Inbound Market Dominant Services [Reserved for Product Description] Parcel Select Registered Mail Parcel Return Service Market Dominant Product Descriptions [Reserved for Product Description] International First-Class Mail Return Receipt International Priority Airlift (IPA) [Reserved for Class Description] [Reserved for Product Description] International Surface Airlift (ISAL) Single-Piece Letters/Postcards Return Receipt for Merchandise International Direct Sacks—M-Bags [Reserved for Product Description] [Reserved for Product Description] Global Customized Shipping Services

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Inbound Surface Parcel Post (at non-UPU International The Postal Service seeks to add a new rates) [Reserved for Group Description] product identified as Express Mail & Canada Post—United States Postal service International Priority Airlift (IPA) Priority Mail Contract 5 to the Contractual Bilateral Agreement for [Reserved for Product Description] Competitive Product List. For the Inbound Competitive Services (MC2009– International Surface Airlift (ISAL) reasons discussed below, the 8 and CP2009–9) [Reserved for Product Description] International Money Transfer Service International Direct Sacks—M-Bags Commission approves the Request. International Ancillary Services [Reserved for Product Description] I. Background Special Services Global Customized Shipping Services Premium Forwarding Service [Reserved for Product Description] On February 20, 2009, the Postal Negotiated Service Agreements International Money Transfer Service Service filed a formal request pursuant Domestic [Reserved for Product Description] to 39 U.S.C. 3642 and 39 CFR 3020.30 Express Mail Contract 1 (MC2008–5) Inbound Surface Parcel Post (at non-UPU et seq. to add Express Mail & Priority Express Mail Contract 2 (MC2009–3 and rates) Mail Contract 5 to the Competitive CP2009–4) [Reserved for Product Description] Product List.1 The Postal Service asserts Express Mail Contract 3 (MC2009–15 and International Ancillary Services that the Express Mail & Priority Mail CP2009–21) [Reserved for Product Description] Express Mail & Priority Mail Contract 1 Contract 5 product is a competitive International Certificate of Mailing product ‘‘not of general applicability’’ (MC2009–6 and CP2009–7) [Reserved for Product Description] Express Mail & Priority Mail Contract 2 International Registered Mail within the meaning of 39 U.S.C. (MC2009–12 and CP2009–14) [Reserved for Product Description] 3632(b)(3). This Request has been Express Mail & Priority Mail Contract 3 International Return Receipt assigned Docket No. MC2009–18. (MC2009–13 and CP2009–17) [Reserved for Product Description] The Postal Service Express Mail & Priority Mail Contract 4 International Restricted Delivery contemporaneously filed a contract (MC2009–17 and CP2009–24) [Reserved for Product Description] related to the proposed new product Parcel Return Service Contract 1 (MC2009– International Insurance pursuant to 39 U.S.C. 3632(b)(3) and 39 1 and CP2009–2) [Reserved for Product Description] CFR 3015.5. The contract has been Priority Mail Contract 1 (MC2008–8 and Negotiated Service Agreements assigned Docket No. CP2009–25. CP2008–26) [Reserved for Group Description] Priority Mail Contract 2 (MC2009–2 and In support of its Request, the Postal Domestic Service filed the following materials: (1) CP2009–3) [Reserved for Product Description] Priority Mail Contract 3 (MC2009–4 and Outbound International A redacted version of the Governors’ CP2009–5) [Reserved for Group Description] Decision authorizing the new product Priority Mail Contract 4 (MC2009–5 and which also includes an analysis of CP2009–6) Part C—Glossary of Terms and Conditions [Reserved] Express Mail & Priority Mail Contract 5 Outbound International and certification of the Governors’ Global Direct Contracts (MC2009–9, Part D—Country Price Lists for International vote; 2 (2) a redacted version of the CP2009–10, and CP2009–11) Mail [Reserved] contract which, among other things, Global Expedited Package Services (GEPS) provides that the contract will expire 3 Contracts [FR Doc. E9–5672 Filed 3–16–09; 8:45 am] years from the effective date, which is GEPS 1 (CP2008–5, CP2008–11, CP2008– BILLING CODE 7710–FW–P 12, and CP2008–13, CP2008–18, proposed to be 1 day after the CP2008–19, CP2008–20, CP2008–21, Commission issues all regulatory CP2008–22, CP2008–23, and CP2008–24) POSTAL REGULATORY COMMISSION approvals; 3 (3) requested changes in the Global Plus Contracts Mail Classification Schedule product Global Plus 1 (CP2008–9 and CP2008–10) 39 CFR Part 3020 list; 4 (4) a Statement of Supporting Global Plus 2 (MC2008–7, CP2008–16 and Justification as required by 39 CFR CP2008–17) [Docket Nos. MC2009–18 and CP2009–25; 3020.32; 5 and (5) certification of Inbound International Order No. 188] compliance with 39 U.S.C. 3633(a).6 Inbound Direct Entry Contracts with In the Statement of Supporting Foreign Postal Administrations Domestic Mail Product Justification, Kim Parks, Manager, Sales (MC2008–6, CP2008–14 and CP2008–15) International Business Reply Service AGENCY: Postal Regulatory Commission. and Communications, Expedited Shipping, asserts that the service to be Competitive Contract 1 (MC2009–14 and ACTION: Final rule. CP2009–20) provided under the contract will cover Competitive Product Descriptions SUMMARY: The Commission is adding a its attributable costs, make a positive Express Mail new product identified as Express Mail contribution to coverage of institutional [Reserved for Group Description] & Priority Mail Contract 5 to the costs, and will increase contribution Express Mail toward the requisite 5.5 percent of the [Reserved for Product Description] Competitive Product List. This action is consistent with changes in a recent law Postal Service’s total institutional costs. Outbound International Expedited Services Request, Attachment D, at 1. W. Ashley [Reserved for Product Description] governing postal operations and a recent Inbound International Expedited Services Postal Service request. Republication of Lyons, Manager, Corporate Financial [Reserved for Product Description] the lists of market dominant and Priority competitive products is also consistent 1 Request of the United States Postal Service to Add Express Mail & Priority Mail Contract 5 to [Reserved for Product Description] with new requirements in the law. Priority Mail Competitive Product List and Notice of DATES: Establishment of Rates and Class Not of General [Reserved for Product Description] Effective March 17, 2009 and is applicable beginning March 10, 2009. Applicability, February 20, 2009 (Request). Outbound Priority Mail International 2 Attachment A to the Request. The analysis that [Reserved for Product Description] FOR FURTHER INFORMATION CONTACT: accompanies the Governors’ Decision notes, among Inbound Air Parcel Post Stephen L. Sharfman, General Counsel, other things, that the contract is not risk free, but [Reserved for Product Description] 202–789–6820 and concludes that the risks are manageable. Parcel Select [email protected]. 3 Attachment B to the Request. [Reserved for Group Description] 4 Attachment C to the Request. Parcel Return Service SUPPLEMENTARY INFORMATION: Regulatory 5 Attachment D to the Request. [Reserved for Group Description] History, 74 FR 9317 (March 3, 2009). 6 Attachment E to the Request.

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Planning, Finance Department, certifies (PAEA) requirements. This includes, for Cost considerations. The Postal that the contract complies with 39 proposed competitive products, a Service presents a financial analysis U.S.C. 3633(a). See id., Attachment E. review of the provisions applicable to showing that Express Mail & Priority The Postal Service filed much of the rates for competitive products. 39 U.S.C. Mail Contract 5 results in cost savings supporting materials, including the 3633. while ensuring that the contract covers unredacted Governors’ Decision and the Product list assignment. In its attributable costs, does not result in unredacted contract, under seal. In its determining whether to assign Express subsidization of competitive products Request, the Postal Service maintains Mail & Priority Mail Contract 5 as a by market dominant products, and that the contract and related financial product to the Market Dominant increases contribution from competitive information, including the customer’s Product List or the Competitive Product products. name and the accompanying analyses List, the Commission must consider that provide prices, terms, conditions, whether Based on the data submitted, the and financial projections, should remain Commission finds that Express Mail & the Postal Service exercises sufficient market confidential. Id. at 2–3. Priority Mail Contract 5 should cover its power that it can effectively set the price of attributable costs (39 U.S.C. 3633(a)(2)), In Order No. 185, the Commission such product substantially above costs, raise gave notice of the two dockets, prices significantly, decrease quality, or should not lead to the subsidization of appointed a public representative, and decrease output, without risk of losing a competitive products by market provided the public with an opportunity significant level of business to other firms dominant products (39 U.S.C. to comment.7 offering similar products. 3633(a)(1)), and should have a positive II. Comments 39 U.S.C. 3642(b)(1). If so, the product effect on competitive products’ will be categorized as market dominant. contribution to institutional costs (39 Comments were filed by the Public U.S.C. 3633(a)(3)). Thus, an initial Representative.8 No filings were The competitive category of products shall consist of all other products. review of the proposed Express Mail & submitted by other interested parties. Priority Mail Contract 5 indicates that it The Public Representative states that the The Commission is further required to comports with the provisions applicable Postal Service’s filing complies with consider the availability and nature of to rates for competitive products. applicable Commission rules of practice enterprises in the private sector engaged and procedure, and concludes that the in the delivery of the product, the views Other considerations. The Postal Express Mail & Priority Mail Contract 5 of those who use the product, and the Service shall promptly notify the agreement comports with the likely impact on small business Commission of the scheduled requirements of title 39. Public concerns. 39 U.S.C. 3642(b)(3). termination date of the agreement. If the Representative Comments at 4. He The Postal Service asserts that its agreement terminates earlier than further states that the agreement appears bargaining position is constrained by anticipated, the Postal Service shall beneficial to the general public. Id. at 1. the existence of other shippers who can inform the Commission prior to the new The Public Representative notes that provide similar services, thus termination date. The Commission will the Postal Service has provided precluding it from taking unilateral then remove the product from the Mail adequate justification for maintaining action to increase prices without the Classification Schedule at the earliest confidentiality in this case. Id. at 3. He risk of losing volume to private possible opportunity. also points out several contractual companies. Request, Attachment D, In conclusion, the Commission provisions that he believes are mutually para. (d). The Postal Service also approves Express Mail & Priority Mail beneficial to the parties and general contends that it may not decrease Contract 5 as a new product. The public. Id. quality or output without risking the loss of business to competitors that offer revision to the Competitive Product List III. Commission Analysis similar expedited delivery services. Id. is shown below the signature of this The Commission has reviewed the It further states that the contract partner Order and is effective upon issuance of Request, the contract, the financial supports the addition of the contract to this Order. analysis provided under seal that the Competitive Product List to IV. Ordering Paragraphs accompanies it, and the comments filed effectuate the negotiated contractual by the Public Representative. terms. Id. at para. (g). Finally, the Postal It Is Ordered: Statutory requirements. The Service states that the market for 1. Express Mail & Priority Mail Commission’s statutory responsibilities expedited delivery services is highly Contract 5 (MC2009–18 and CP2009–25) in this instance entail assigning Express competitive and requires a substantial is added to the Competitive Product List Mail & Priority Mail Contract 5 to either infrastructure to support a national as a new product under Negotiated the Market Dominant Product List or to network. It indicates that large carriers the Competitive Product List. 39 U.S.C. serve this market. Accordingly, the Service Agreements, Domestic. 3642. As part of this responsibility, the Postal Service states that it is unaware 2. The Postal Service shall notify the Commission also reviews the proposal of any small business concerns that Commission of the scheduled for compliance with the Postal could offer comparable service for this termination date and update the Accountability and Enhancement Act customer. Id. at para. (h). Commission if termination occurs prior No commenter opposes the proposed to that date, as discussed in this order. 7 PRC Order No. 185, Notice and Order classification of Express Mail & Priority 3. The Secretary shall arrange for the Concerning Express Mail & Priority Mail Contract Mail Contract 5 as competitive. Having 5 Negotiated Service Agreement, February 24, 2009 publication of this order in the Federal (Order No. 185). considered the statutory requirements Register. 8 Public Representative Comments in Response to and the support offered by the Postal United States Postal Service Request to Add Service, the Commission finds that List of Subjects in 39 CFR Part 3020 Express Mail & Priority Mail Contract 5 to Express Mail & Priority Mail Contract 5 Competitive Product List and Notice of is appropriately classified as a Administrative practice and Establishment of Rates and Class Not of General procedure, Postal Service. Applicability, March 4, 2009 (Public Representative competitive product and should be Comments). added to the Competitive Product List. By the Commission.

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Issued March 10, 2009. [Reserved for Class Description] [Reserved for Product Description] Steven W. Williams, Single-Piece Letters/Postcards Return Receipt for Merchandise [Reserved for Product Description] Secretary. [Reserved for Product Description] Bulk Letters/Postcards Restricted Delivery ■ For the reasons stated in the preamble, [Reserved for Product Description] [Reserved for Product Description] under the authority at 39 U.S.C. 503, the Flats Shipper-Paid Forwarding Postal Regulatory Commission amends [Reserved for Product Description] [Reserved for Product Description] 39 CFR part 3020 as follows: Parcels Signature Confirmation [Reserved for Product Description] [Reserved for Product Description] PART 3020—PRODUCT LISTS Outbound Single-Piece First-Class Mail Special Handling International [Reserved for Product Description] ■ 1. The authority citation for part 3020 [Reserved for Product Description] Stamped Envelopes continues to read as follows: Inbound Single-Piece First-Class Mail [Reserved for Product Description] International Stamped Cards Authority: 39 U.S.C. 503; 3622; 3631; 3642; [Reserved for Product Description] [Reserved for Product Description] 3682. Standard Mail (Regular and Nonprofit) Premium Stamped Stationery ■ 2. Revise Appendix A to subpart A of [Reserved for Class Description] [Reserved for Product Description] part 3020—Mail Classification to read as High Density and Saturation Letters Premium Stamped Cards follows: [Reserved for Product Description] [Reserved for Product Description] High Density and Saturation Flats/Parcels International Ancillary Services Appendix A to Subpart A of Part [Reserved for Product Description] [Reserved for Product Description] 3020—Mail Classification Schedule Carrier Route International Certificate of Mailing [Reserved for Product Description] [Reserved for Product Description] Part A—Market Dominant Products Letters International Registered Mail 1000 Market Dominant Product List [Reserved for Product Description] [Reserved for Product Description] First-Class Mail Flats International Return Receipt Single-Piece Letters/Postcards [Reserved for Product Description] [Reserved for Product Description] Bulk Letters/Postcards Not Flat-Machinables (NFMs)/Parcels International Restricted Delivery Flats [Reserved for Product Description] [Reserved for Product Description] Parcels Periodicals Address List Services Outbound Single-Piece First-Class Mail [Reserved for Class Description] [Reserved for Product Description] International Within County Periodicals Caller Service Inbound Single-Piece First-Class Mail [Reserved for Product Description] [Reserved for Product Description] International Outside County Periodicals Change-of-Address Credit Card Standard Mail (Regular and Nonprofit) [Reserved for Product Description] Authentication High Density and Saturation Letters Package Services [Reserved for Product Description] High Density and Saturation Flats/Parcels [Reserved for Class Description] Confirm Carrier Route Single-Piece Parcel Post [Reserved for Product Description] Letters [Reserved for Product Description] International Reply Coupon Service Flats Inbound Surface Parcel Post (at UPU rates) [Reserved for Product Description] Not Flat-Machinables (NFMs)/Parcels [Reserved for Product Description] International Business Reply Mail Service Periodicals Bound Printed Matter Flats [Reserved for Product Description] Within County Periodicals [Reserved for Product Description] Money Orders Outside County Periodicals Bound Printed Matter Parcels [Reserved for Product Description] Package Services [Reserved for Product Description] Post Office Box Service Single-Piece Parcel Post Media Mail/Library Mail [Reserved for Product Description] Inbound Surface Parcel Post (at UPU rates) [Reserved for Product Description] Negotiated Service Agreements Bound Printed Matter Flats Special Services [Reserved for Class Description] Bound Printed Matter Parcels [Reserved for Class Description] HSBC North America Holdings Inc. Media Mail/Library Mail Ancillary Services Negotiated Service Agreement Special Services [Reserved for Product Description] [Reserved for Product Description] Ancillary Services Address Correction Service Bookspan Negotiated Service Agreement International Ancillary Services [Reserved for Product Description] [Reserved for Product Description] Address List Services Applications and Mailing Permits Bank of America Corporation Negotiated Caller Service [Reserved for Product Description] Service Agreement The Bradford Group Negotiated Service Change-of-Address Credit Card Business Reply Mail Agreement Authentication [Reserved for Product Description] Confirm Bulk Parcel Return Service Part B—Competitive Products International Reply Coupon Service [Reserved for Product Description] Competitive Product List International Business Reply Mail Service Certified Mail Express Mail Money Orders [Reserved for Product Description] Express Mail Post Office Box Service Certificate of Mailing Outbound International Expedited Services Negotiated Service Agreements [Reserved for Product Description] Inbound International Expedited Services HSBC North America Holdings Inc. Collect on Delivery Inbound International Expedited Services 1 Negotiated Service Agreement [Reserved for Product Description] (CP2008–7) Bookspan Negotiated Service Agreement Delivery Confirmation Inbound International Expedited Services 2 Bank of America Corporation Negotiated [Reserved for Product Description] (MC2009–10 and CP2009–12) Service Agreement Insurance Priority Mail The Bradford Group Negotiated Service [Reserved for Product Description] Priority Mail Agreement Merchandise Return Service Outbound Priority Mail International Inbound International [Reserved for Product Description] Inbound Air Parcel Post Canada Post—United States Postal Service Parcel Airlift (PAL) Parcel Select Contractual Bilateral Agreement for [Reserved for Product Description] Parcel Return Service Inbound Market Dominant Services Registered Mail International Market Dominant Product Descriptions [Reserved for Product Description] International Priority Airlift (IPA) First-Class Mail Return Receipt International Surface Airlift (ISAL)

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International Direct Sacks—M-Bags Parcel Select within 30 days. This document Global Customized Shipping Services [Reserved for Group Description] implements procedures and prescribes Inbound Surface Parcel Post (at non-UPU Parcel Return Service timing for stations to transition early, rates) [Reserved for Group Description] while providing viewers who are not Canada Post—United States Postal Service International Contractual Bilateral Agreement for [Reserved for Group Description] prepared with a lifeline of analog Inbound Competitive Services (MC2009– International Priority Airlift (IPA) service and both on-air and off-air 8 and CP2009–9) [Reserved for Product Description] educational information about the International Money Transfer Service International Surface Airlift (ISAL) transition. The document also adjusts International Ancillary Services [Reserved for Product Description] the consumer education requirements Special Services International Direct Sacks—M-Bags placed on broadcasters to eliminate any Premium Forwarding Service [Reserved for Product Description] unnecessary burden after the transition Negotiated Service Agreements Global Customized Shipping Services while ensuring that on the most Domestic [Reserved for Product Description] meaningful information is provided to Express Mail Contract 1 (MC2008–5) International Money Transfer Service Express Mail Contract 2 (MC2009–3 and [Reserved for Product Description] viewers before they transition, and CP2009–4) Inbound Surface Parcel Post (at non-UPU addresses other issues. Express Mail Contract 3 (MC2009–15 and rates) DATES: Effective March 13, 2009. CP2009–21) [Reserved for Product Description] ADDRESSES: Federal Communications Express Mail & Priority Mail Contract 1 International Ancillary Services (MC2009–6 and CP2009–7) Commission, 445 12th Street, SW., [Reserved for Product Description] Washington, DC 20554. Express Mail & Priority Mail Contract 2 International Certificate of Mailing (MC2009–12 and CP2009–14) [Reserved for Product Description] FOR FURTHER INFORMATION CONTACT: For Express Mail & Priority Mail Contract 3 International Registered Mail more information, please contact Lyle (MC2009–13 and CP2009–17) [Reserved for Product Description] Elder, [email protected], at 202–418– Express Mail & Priority Mail Contract 4 International Return Receipt 2120; or Evan Baranoff, (MC2009–17 and CP2009–24) [Reserved for Product Description] [email protected], at 202–418– Express Mail & Priority Mail Contract 5 International Restricted Delivery (MC2009–18 and CP2009–25) 7142, of the Policy Division, Media [Reserved for Product Description] Bureau; or Eloise Gore, Parcel Return Service Contract 1 (MC2009– International Insurance 1 and CP2009–2) [Reserved for Product Description] [email protected], at 202–418–7200, Priority Mail Contract 1 (MC2008–8 and Negotiated Service Agreements of the Media Bureau. For additional CP2008–26) [Reserved for Group Description] information concerning the Paperwork Priority Mail Contract 2 (MC2009–2 and Domestic Reduction Act information collection CP2009–3) [Reserved for Product Description] requirements contained in this Priority Mail Contract 3 (MC2009–4 and Outbound International document, contact Cathy Williams on CP2009–5) [Reserved for Group Description] (202) 418–2918, or via the Internet at Priority Mail Contract 4 (MC2009–5 and CP2009–6) Part C—Glossary of Terms and Conditions [email protected]. [Reserved] Outbound International SUPPLEMENTARY INFORMATION: This is a Global Direct Contracts (MC2009–9, Part D—Country Price Lists for International summary of the Commission’s Third CP2009–10, and CP2009–11) Mail [Reserved] Report and Order, FCC 09–19, adopted Global Expedited Package Services (GEPS) and released on March 13, 2009. The Contracts [FR Doc. E9–5755 Filed 3–16–09; 8:45 am] full text of this document is available for GEPS 1 (CP2008–5, CP2008–11, CP2008– BILLING CODE 7710–FW–P 12, and CP2008–13, CP2008–18, public inspection and copying during CP2008–19, CP2008–20, CP2008–21, regular business hours in the FCC Reference Center, Federal CP2008–22, CP2008–23, and CP2008–24) FEDERAL COMMUNICATIONS Global Plus Contracts Communications Commission, 445 12th COMMISSION Global Plus 1 (CP2008–9 and CP2008–10) Street, SW., CY–A257, Washington, DC, Global Plus 2 (MC2008–7, CP2008–16 and 47 CFR Part 73 20554. These documents will also be CP2008–17) available via ECFS (http://www.fcc.gov/ Inbound International [MB Docket No. 09–17; FCC 09–19] cgb/ecfs/). (Documents will be available Inbound Direct Entry Contracts with electronically in ASCII, Word 97, and/ Foreign Postal Administrations Implementation of the DTV Delay Act (MC2008–6, CP2008–14 and CP2008–15) or Adobe Acrobat.) The complete text International Business Reply Service AGENCY: Federal Communications may be purchased from the Competitive Contract 1 (MC2009–14 and Commission. Commission’s copy contractor, 445 12th CP2009–20) Street, SW., Room CY–B402, ACTION: Competitive Product Descriptions Final rule. Washington, DC 20554. To request this Express Mail SUMMARY: document in accessible formats [Reserved for Group Description] This document completes the most essential remaining actions (computer diskettes, large print, audio Express Mail recording, and Braille), send an e-mail [Reserved for Product Description] necessitated by the delay in the DTV Outbound International Expedited Services transition deadline. In the DTV Delay to [email protected] or call the [Reserved for Product Description] Act, Congress extended the DTV Commission’s Consumer and Inbound International Expedited Services transition deadline from February 17, Governmental Affairs Bureau at (202) [Reserved for Product Description] 2009, to June 12, 2009, in an effort to 418–0530 (voice), (202) 418–0432 Priority provide consumers additional time to (TTY). [Reserved for Product Description] prepare for the transition from analog to Priority Mail Summary of the Report and Order digital broadcasting. The Act directed [Reserved for Product Description] I. Introduction Outbound Priority Mail International the Commission to take any actions [Reserved for Product Description] ‘‘necessary or appropriate to implement 1. In this Report and Order, the third Inbound Air Parcel Post the provisions, and carry out the in response to the Congressional [Reserved for Product Description] purposes’’ of the Act, and to do so extension of the digital television (DTV)

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transition deadline, we take the next remaining time-sensitive actions • Noncommercial educational actions necessary to implement the necessitated by the delay in the stations may terminate before April 16, ‘‘DTV Delay Act,’’ which was enacted transition deadline.7 The companion but not before March 27, if they certify into law on February 11, 2009.1 In the NPRM sought comment on the in their analog termination form that DTV Delay Act, Congress extended the procedures for early analog termination they need to terminate before April 16 DTV transition deadline from February and issues relating to DTV transition due to significant financial hardship. 17, 2009, to June 12, 2009, in an effort consumer education, and we address • We require all stations that to provide consumers additional time to those issues in the instant Order. terminate before June 12, 2009, to air prepare for the transition from analog to 2. The actions taken thus far, and viewer notifications for the 30 days digital broadcasting.2 The Act directed again in this Order, balance consumers’ prior to their transition. These viewer the Commission to take any actions need for time and information with notifications are based on those required ‘‘necessary or appropriate to implement broadcasters’ need for flexibility. This in the Third DTV Periodic Report and the provisions, and carry out the balance is implicit in the DTV Delay Order, but also require information purposes’’ of the Act, and to do so Act, which extended the deadline for about service loss from stations within 30 days.3 The Commission has the transition expressly to provide the predicted to lose more than 2 percent of already taken steps to comply with the their analog viewers. American public with more time to • DTV Delay Act directive. We issued a prepare for the transition to digital Major network affiliates may series of public notices (PNs) television, while allowing broadcasters terminate analog service prior to June establishing and implementing the early to complete their transitions prior to 12, 2009, provided at least 90 percent of transition process for stations that June 12, 2009, subject to such rules as their analog viewers will receive transitioned on February 17, 2009.4 The the Commission finds necessary or continuing full analog service from first Report and Order in the DTV Delay appropriate. This Order implements another major network affiliate through June 12, 2009. Act docket extended the analog license procedures and prescribes timing for • If a major network affiliate elects to terms and adjusted the construction stations to transition early while terminate prior to June 12 and more permits for the full power television providing viewers who are not prepared 5 than 10 percent of its viewers will not stations subject to the DTV Delay Act. with a lifeline of analog service and continue to have full analog service The Second Report and Order, 74 FR both on-air and off-air educational from another major network affiliate, the 8868 (February 27, 2009) (‘‘Omnibus information about the transition. The station must undertake specified public Order’’), and Notice of Proposed Order also adjusts the consumer interest measures, and so certify on the Rulemaking, 74 FR 8889 (February 27, education requirements placed on 6 Analog Service Termination 2009) (‘‘NPRM’’) addressed the broadcasters to eliminate any Notification form: (1) At least 90 percent unnecessary burden after the transition 1 of the population in its Grade B analog DTV Delay Act, Public Law 111–4, 123 Stat. 112 while ensuring that the most meaningful (2009) (‘‘DTV Delay Act’’). contour must receive some analog 2 information is provided to viewers See, e.g., 155 Cong. Rec. E240–02. service from a major network affiliate 3 before the stations complete their DTV Delay Act sec. 4(c). In addition, the DTV through June 12 (either ‘‘enhanced Delay Act amends the Digital Television and Public transition, and addresses other issues. Safety Act of 2005 (‘‘DTV Act’’), Public Law 109– nightlight’’ or some combination of 171, 120 Stat. 4 (2006), to direct the Commission II. Executive Summary enhanced nightlight and full analog to ‘‘take such actions as are necessary (1) to service from a major network affiliate); 3. This Report and Order takes the terminate all licenses for full-power television and (2) it will comply with the other stations in the analog television service, and to following actions to implement the DTV public interest conditions set forth require the cessation of broadcasting by full-power Delay Act: stations in the analog television service, by June 13, herein, including walk-in help centers, 2009; and (2) to require by June 13, 2009, * * * all Analog Service Terminations consumer referral telephone numbers, broadcasting by full-power stations in the digital television service, occur only on channels between • and DTV education and outreach. In the Omnibus Order, we revised • We permit all stations to terminate channels 2 and 36, inclusive, or 38 and 51, our analog service termination and inclusive (between frequencies 54 and 698 analog service at any time of day on megahertz, inclusive).’’ 47 U.S.C. 309 Note. The reduction procedures to require stations their final day of analog service and statutory deadline for Commission action is March that have not terminated analog service require that they notify the Commission 13, 2009. to file a binding notice of their proposed on the Analog Service Termination 4 FCC Announces Procedures Regarding analog service termination date by Termination of Analog Television Service On or Notification form of the approximate After February 17, 2009, Public Notice, FCC 09–6 March 17, 2009. time they will terminate. ( Feb. 5, 2009) (‘‘February 5th PN’’); FCC Releases • Stations that notify us by March 17, Lists of Stations Whose Analog Operations 2009 may proceed with their planned DTV Consumer Education Initiative Terminate Before February 17, 2009 or that Intend terminations without specific individual • to Terminate Analog Operations on February 17, We amend the DTV Consumer 2009, Public Notice, DA 09–221 (MB Feb. 10, 2009) approval, with limited exceptions. Education Initiative requirements to (‘‘February 10th PN’’); FCC Requires Public Interest • We adopt the Analog Service ensure that consumers will receive the Conditions for Certain Analog TV Terminations on Termination Notification form, which information they need to make proper February 17, 2009, Public Notice, FCC 09–7 (Feb. 11, 2009) (‘‘February 11th PN’’); FCC Releases Lists must be filed by every station that has preparations for the digital transition of of TV Stations’ Responses to Requirements for not yet terminated analog service. the stations on which they rely for Analog Termination on February 17, 2009, Public • Stations generally may not television service: Notice, DA 09–245 (MB Feb. 13, 2009) (‘‘February terminate analog service before April 16, Æ Beginning April 1, 2009, if the 13th PN’’). FCC’s Signal Loss Report predicts that 2 5 Implementation of the DTV Delay Act, MB 2009. Docket No. 09–17, Report and Order and Sua percent or more of the population in a Sponte Order on Reconsideration, FCC 09–9 (rel. 7 One of those actions was the adoption of rules station’s Grade B analog service contour Feb. 13, 2009), 74 FR 7654 (February 19, 2009) for the Option Two 100-Day Countdown, which will not receive the station’s digital (‘‘First DTV Delay Order’’). was subsequently temporarily waived. Temporary signal, the station must air service loss 6 Implementation of the DTV Delay Act, MB Waiver of 100-Day Countdown Requirement, Public Docket No. 09–17, Second Report and Order and Notice, FCC 09–15 (Mar. 3, 2009). As discussed in notices. These notices are in addition to Notice of Proposed Rulemaking, FCC 09–11, para 19 Section III.C.6, infra, we implement revised final the existing consumer education (rel. Feb. 20, 2009) (‘‘Omnibus Order’’ or ‘‘NPRM’’). rules for the countdown in this Order. requirements.

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Æ Beginning April 1, 2009, all stations service as a result of its transition to network affiliate analog service will be must include information about the use digital service. discontinued prior to June 12, 2009. of antennas as part of their consumer • We reconsider in part, sua sponte, 5. The Third DTV Periodic Report and education campaign, including the extension for ‘‘phased transitions,’’ Order, 72 FR 37310 (July 9, 2007), permitted stations to transition without information concerning a station’s as described in the Omnibus Order, and prior Commission approval during the change from the VHF to UHF bands. provide more time for stations facing Æ final months before the transition, but Beginning April 1, 2009, all stations ‘‘unique technical challenges’’ to they were required to make a showing must include information in their complete construction. consumer education campaigns to with their notification to the inform and remind viewers about the III. Discussion Commission that the analog service importance of periodically using the termination was ‘‘necessary to achieve rescan function of their digital A. Analog Service Terminations their transition.’’ Consistent with this televisions and digital converter boxes. 4. As discussed in detail in the requirement, stations that seek to Æ Beginning April 1, 2009, as part of Omnibus Order, we revised our analog transition early must provide us with its DTV consumer education campaign, service termination and reduction sufficient information in the Analog Service Termination Notification to every station must air notices providing procedures 8 to require stations that enable us to determine whether an early the location and operating hours of have not terminated analog service 9 to analog termination is necessary and in walk-in DTV help centers in the file a binding notice of their proposed the public interest. We will allow station’s market area; the FCC Call analog service termination date by stations that notify us in a timely Center telephone number and TTY March 17, 2009.10 In this Section, we manner to proceed with their planned number; and the station’s telephone discuss the implementation of the number for receiving consumer referrals terminations without specific individual Analog Service Termination approval, with limited exceptions. As and calls from local viewers. Notification form, which must be filed • We eliminate the requirement for discussed in the Omnibus Order, we by every station that did not terminate cannot forecast and deploy resources to most stations to continue broadcasting analog service on or before February 17, DTV transition educational information prepare and assist consumers based on 2009. We conclude that stations filing to after they have terminated analog rolling, uncoordinated notifications. We terminate analog service prior to June service. believe that allowing any or all stations 12, 2009, may not specify a date earlier • A station that has filed a request for to terminate or substantially reduce than April 16, 2009, except in the case an extension of the deadline for analog service under the existing Third of a noncommercial educational station construction of its full, authorized post- DTV Periodic Report and Order (‘‘NCE’’) facing significant financial transition digital facility, including a procedures would squander the time hardship, and may not change the date request for phased transition, or is given to us and the country by the delay operating under such an extension, they select to any other early (i.e., pre- enacted by Congress. must continue its DTV consumer June 12) termination date barring 6. A number of commenters oppose education campaign until it completes equipment failure, natural disaster, or the Commission’s decision to revise the construction and commences operation another unforeseeable emergency. We early analog termination procedures at of its full, authorized post-transition also adopt requirements to assure that all, and the specific proposals made in digital facility. viewers are notified of early transitions the NPRM. In its comments, the • We amend the 100-Day Countdown and retain access to some analog service Association of Public Television requirement and require broadcasters through June 12, 2009. Finally, we Stations (‘‘APTS’’) focuses largely on the subject to the Option Two consumer adopt our proposed post-transition argument for permitting NCE stations to education rules to air a 60-day analog service and consumer outreach transition before April 16, which is countdown to the date of their requirements for the subset of early addressed in Section II.A.4, below. individual termination of analog terminators that are major network APTS also argues more generally, service. affiliates in areas where all major however, that stations should be • We require broadcasters subject to permitted to terminate at any time the Option Two and Three consumer 8 We make no amendments to the Pre-Transition before June 12, because a ‘‘gradual, Digital Termination procedures adopted in the rolling cessation of analog works education rules to air a new, up-to-date Third DTV Periodic Report and Order. Third 30 minute informational video before relatively well and benefits the Periodic Review of the Commission’s Rules and 11 they transition. This video must include Policies Affecting the Conversion to Digital public.’’ It argues that this approach locally specific information, including Television, MB Docket 07–91, Report and Order, 23 provides a steady supply of information information about the transition dates of FCC Rcd 2994, 3045, para 133. (‘‘Third DTV to the Commission, while minimizing Periodic Report and Order’’.) viewer disruption, and that ‘‘so far it has all stations in the market. 9 Although the Omnibus Order referred to ‘‘all’’ worked.’’ 12 Some individual stations • We revise Form 388, the DTV stations, we take this opportunity to clarify that this Quarterly Activity Station Report, to filing requirement is limited to full-power also oppose the imposition of new reflect the changes we have made to the television stations that are still broadcasting in requirements for early termination, even analog (excluding analog nightlight service). Those DTV Consumer Education Initiative when they do not object to terminating stations that terminated analog television service on analog service on April 16 or later.13 broadcaster rules in this Report and or before February 17, 2009 do not need to file this Order. form. McGraw-Hill opposes the extension of 10 DTV Delay Act Omnibus Order, FCC 09–11 at viewer notification requirements Other Issues paras 26–32. The rule changes herein apply to beyond 30 days, arguing that longer • analog service terminations and substantial periods of notice could ‘‘adversely We extend until December 14, 2009, reductions to analog service. In general, a the deadline for accepting DTS ‘‘waiver ‘‘substantial’’ reduction is one that would affect 11 policy’’ proposals to permit a station to more than 10 percent of the population in a APTS Comments at 6. See also MATC station’s service area, as represented by the Comments. use DTS if doing so will enable it to predicted Grade B contour. References to 12 APTS Comments at 6. continue to serve its existing analog ‘‘termination’’ here are intended to apply to such 13 KET Comments at 2–3; OSU Comments at 3– viewers who would otherwise lose substantial reductions as well as to terminations. 7.

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impact a smooth transition’’ and spur Therefore, we adopt the procedures and contrary, we conclude that Section 4(a) increased viewer complaints to requirements described here to is ambiguous and reasonably can be stations.14 Even where commenters do implement this balanced approach. interpreted to ratify the termination not argue that a longer notification 8. For stations that elect to transition procedures that were in effect on the period would create problems, they on June 12, the final day of the date of enactment of the Act without contend that a 30-day notice period, as transition, we impose no additional restricting the Commission’s authority adopted in the Third DTV Periodic requirements for viewer notification. to modify them.20 Report and Order, is ‘‘sufficient to make Stations that will transition early may 10. Based on examination of the Act’s viewers * * * aware of the final date for do so on the day of their choosing; they text, legislative history, and structure, the termination of analog operations.’’ 15 must, however, run daily viewer we cannot conclude that Section 4(a) While there is less universal opposition notifications for 30 days prior to plainly expresses Congress’s intention to the proposed requirement to air transitioning, as required under the to restrict FCC authority to modify its crawls for seven days before analog Third DTV Periodic Report and Order early termination procedures. Section termination, the general consensus early termination procedures, 4(a) states that: among commenters is that the existing containing the information described in [n]othing in this Act is intended to prevent levels of pre-transition viewer this Order. Additionally, as discussed in a licensee of a television broadcast station notification are sufficient.16 detail below, affiliates of ABC, CBS, from terminating the broadcasting of such 7. While we appreciate broadcasters’ FOX, and NBC (‘‘major network station’s analog television signal * * * prior objections to the changes we are making affiliates’’) that are transitioning early to the [transition deadline] so long as such in our procedures, we find it necessary must either (1) certify that at least one prior termination is conducted in accordance to adopt new requirements and with the Federal Communications major network affiliate will continue to Commission’s requirements in effect on the procedures associated with early provide full analog service to their date of enactment of this Act, including the transitions to assure that viewers are viewers through June 12, 2009, or (2) flexible procedures established in the [Third fully prepared and equipped to receive certify that their viewers will receive DTV Periodic Report and Order].21 digital television signals and give up some continuing ‘‘enhanced nightlight’’ NAB maintains that this language analog service. Our experience in analog service, and that they will ‘‘specifically allows stations to cease preparing for the partial transition on operate or support and publicize a walk- analog broadcasting under the existing February 17, as well as the early market- in help center and a consumer referral requirements.’’ 22 Although NAB’s wide transitions in Wilmington, North telephone number, and provide certain reading may be plausible, we do not Carolina and Hawaii, have specific information about the transition agree that it is the only or even the most demonstrated the importance of on-the- in the on-air and other DTV educational reasonable interpretation of the ground consumer outreach, the efforts they undertake. These statutory text. The text clearly disavows availability of coupons to defray the cost requirements are very similar to those any Congressional intent to override the of DTV converter boxes, and the we imposed on many major network Commission’s existing termination availability of the boxes themselves. affiliates that transitioned early on procedures. It is silent, however, Testimony in the recent Commission en February 17, 2009. We conclude that regarding whether the Commission may banc hearings underscores the time these requirements are necessary and change those procedures. Had Congress needed by retailers, manufacturers, appropriate to implement the DTV intended to give broadcasters an NTIA, pay TV services, local and Delay Act’s provisions and carry out its affirmative right to terminate analog national outreach organizations, and our purposes. They retain stations’ transmissions early in accordance with own outreach staff to plan for both flexibility to choose a transition date the procedures established in the Third equipment availability and consumer prior to June 12, while also addressing DTV Periodic Report and Order and education.17 This experience convinces the needs and helping to ensure the prevent the Commission from changing us that more than 30 days are needed to readiness of viewers in their markets. those procedures, it could easily have plan and execute the intensified We also retain the right to revise any done so. Congress certainly knew how outreach efforts necessary in an area station’s proposed early termination if to use broad ‘‘notwithstanding’’ with stations transitioning early to we find it in the public interest to do so. language, as it used such language assure consumer readiness. Indeed, elsewhere in the DTV Delay Act.23 We more than 60 days is preferable. 1. Statutory Authority However, we recognize that some 9. We reaffirm our conclusion that the Comments; KET Comments at 5, 8–9; OSU stations have legitimate needs to Commission has authority to modify the Comments at 6; ZGS Comments at 4. transition early and that Congress Third DTV Periodic Report and Order’s 20 See generally Bell Atlantic Tel. Cos. v. FCC, 131 F.3d 1044, 1049 (D.C. Cir. 1997) (Under the Chevron required us to balance the consumer early termination procedures as doctrine, if a statute is silent or ambiguous as to the need for time and information with the necessary to implement and carry out precise question at issue, then a reasonable agency broadcaster need for flexibility. the purposes of the DTV Delay Act.18 In interpretation of the statute merits judicial their joint comments, NAB and MSTV deference). 21 DTV Delay Act sec. 4(a). 14 McGraw-Hill Comments at 3. (‘‘NAB’’) and others disagree with that 22 NAB Comments at 18. 15 Sunbelt Comments at 4. finding, arguing that Section 4(a) of the 23 16 DTV Delay Act sec. 4(c) (‘‘[n]otwithstanding See, e.g., Barry Comments at 4, note 1 Act plainly requires that broadcasters be any other provision of law, the Federal (proposing to air 30 days worth of notices before allowed to cease analog broadcasting Communications Commission * * * shall, not later transitioning on April 16); see also, Joseph Belisle than 30 days after the date of enactment of this Act, Comments (‘‘It is a mistake to adopt onerous, under the procedures ‘‘in effect on the * * * adopt or review its rules, regulations, or endless, unworkable procedures for early date of enactment of this Act,’’ and orders to take such other actions as may be termination of analog television service.’’). prevents the Commission from necessary or appropriate to implement the 17 Written testimony of Cathy Seidel, Bureau modifying those procedures.19 On the provisions, and carry out the purposes, of this Chief, Consumer and Governmental Affairs at 6–7; Act.’’). Cf. Central Bank of Denver v. First Interstate Written testimony of Eloise Gore, Associate Bureau Bank, 511 U.S. 164, 176–77 (1994) (although Chief, Media Bureau at 3; Mark Lloyd, Vice 18 Omnibus Order, FCC 09–11 at para 30. ‘‘Congress knew how to impose aiding and abetting President for Strategic Initiatives, Leadership 19 DTV Delay Act sec. 4(a). See NAB and MSTV liability when it chose to do so,’’ it did not use the Conference on Civil Rights and Leadership Joint Comments at 17–20 (‘‘NAB Comments’’); words ‘‘aid’’ and ‘‘abet’’ in the statute, and hence Conference on Civil Rights Education Fund at 5. APTS Comments at 2–4; Richard B. Brittain did not impose aiding and abetting liability).

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believe that the use of narrower remain persuaded that this after the release of this Order, but not language in Section 4(a) signals a more interpretation is the most reasonable later than 5:30 PM Eastern Daylight modest disavowal of intent to override one. As discussed above, we think that Time on March 17, 2009.33 In this existing procedures. Section 4(a) is most reasonably read as notification (the ‘‘March 17 filing’’), 11. Contrary to NAB’s argument, a disavowal of intent to override the stations must commit to terminating on neither Section 4(a)’s title (‘‘Permissive Commission’s early termination a date no earlier than April 16, 2009,34 Early Termination Under Existing procedures then in effect. Had Congress to give all parties at least 30 days from Requirements’’) nor the legislative not ratified those procedures, the DTV the notification date to prepare and history make plain the meaning of the Delay Act could be interpreted to educate consumers. Any station that statutory text; the title is only ‘‘a short- prohibit early termination altogether, for does not properly file this notification hand reference to the general subject its purpose arguably would be will not be permitted to terminate their matter involved,’’ 24 and the two floor undermined if most broadcasters chose analog service prior to June 12, 2009, statements cited by NAB merely to terminate before June 12.29 We reject except in the case of equipment failure, indicate the expectation that NAB’s argument that our construction natural disaster, or other unforeseeable broadcasters would be allowed to prefers Section 4(c)’s general terms over emergency. terminate early, without mentioning a Section 4(a)’s specific ones.30 Rather, 14. The analog termination advance freeze or other limitation on FCC our reading harmonizes and gives full notice procedures adopted in this authority.25 Further, the Act’s structure effect to both Section 4(a) and Section proceeding supersede the provisions of does not support NAB’s reading. On the 4(c), which reflects Congress’s Section 73.1615.35 Stations may rely on contrary, rather than restricting the recognition that implementing the DTV the provisions of Section 73.1615 for agency’s general rulemaking authority, Delay Act and carrying out its purposes brief terminations or reductions of Section 4(c) grants the Commission within the short time available ‘‘would service for technical reasons. They may expansive new authority.26 We find it require extraordinary and immediate not, however, rely on this provision to difficult to square NAB’s crabbed action by the Commission and terminate analog service altogether, reading of Section 4(a) as enshrining the others.’’ 31 even in the days immediately prior to FCC’s existing termination procedures 2. Analog Service Termination Form June 12, 2009. Barring Commission with Section 4(c)’s grant of expansive action, a station may only terminate new authority to implement the DTV 13. In the Omnibus Order, we analog service on the date it elects to do Delay Act and carry out its purposes.27 required all full-power television so on the analog service termination 12. Considering the DTV Delay Act’s stations that had not terminated their form. text, legislative history and structure, analog service as of February 17, 2009, 15. We impose no requirements in and consistent with Supreme Court to decide on a firm date by which they this section on stations that notify the precedent, we have concluded that intend to terminate their regular analog Commission of their intent to continue Section 4(a) ratifies the Third DTV television service and to notify us of providing full analog service 36 until that date no later than Tuesday, March June 12, 2009.37 Continuing to broadcast Periodic Report and Order’s early 32 termination procedures without 17, 2009. We imposed this in analog will give the viewers of these restricting the Commission’s authority requirement because we have found that stations the maximum possible to modify those procedures.28 We the opportunity for advance planning opportunity to prepare for digital contributes significantly to a smoother broadcasting. The Commission transition. We now announce that this 24 Trainmen v. Baltimore & Ohio Railroad, 331 recognizes the central importance of this U.S. 519, 528 (1947) (titles of acts or sections can notification must be made via the goal; therefore, stations that file an provide only limited interpretive aid). Commission’s Informal Filing Form analog service termination form to elect 25 See NAB Comments at 18 n.39, citing Statement of Rep. Boucher, Cong. Rec. H585 (Jan. 1, 9–13 (1965) (Secretary of State had statutory 33 Notice to the Commission must be provided 27, 2009) ‘‘[w]e fully anticipate that the FCC will authority to impose new area restrictions on be very flexible in applying’’ the provision allowing passports in 1961 under the Passport Act of 1926 electronically through the Commission’s stations to cease analog broadcasting early); because Congress had ratified the Secretary’s Consolidated Database System \(‘‘CDBS’’) using the Statement of Sen. Hutchinson, Cong. Rec. at S1051 authority to impose such restrictions in 1952 by Informal Application filing form. To access the (Jan 29, 2009) (explaining that the delay of the DTV enacting passport legislation without tampering CDBS electronic filing system in order to file an transition date ‘‘is voluntary,’’ which ‘‘was very with the rulemaking authority granted to the analog termination or reduction notification, go to important’’ because ‘‘many broadcast companies Secretary in the 1926 Act), and City of New York the Media Bureau’s Web site at: http://www.fcc.gov/ have made the investment for digital transmission’’ v. FCC, 486 U.S. 57 (1988) (Congressional mb/cdbs.html. Instructions as to how to file these and the bill allows them ‘‘to go’’ digital). To the ratification of FCC preemption of state and local notifications are as follows: After logging into the extent that NAB suggests that the FCC’s cable technical standards). None of the comments CDBS, select the last option from main menu modifications of the early termination procedures specifically address the Commission’s reliance on ‘‘Additional non-form Filings.’’ From the next menu deprive broadcasters of the flexibility that Congress ratification precedents in the DTV Delay Act select ‘‘Silent STA/Notification of Suspension.’’ intended, we disagree for the reasons set forth Second Report and Order. From the pre-form menu select: ‘‘Notification of elsewhere in this Order and our previous Order. We 29 Cf. Omnibus and Order and NPRM, FCC 09– analog termination or reduction.’’ No fee is believe that our actions afford stations the 11 at para 1 (‘‘In the DTV Delay Act, Congress required. For additional information, contact flexibility that they need to choose a termination extended the DTV transition deadline from Hossein Hashemzadeh, date prior to June 12 while also taking into account February 17, 2009 to June 12, 2009 in an effort to [email protected], of the Media the needs and readiness of viewers in their markets. provide consumers additional time to prepare for Bureau, Video Division, at (202) 418–1658. 26 DTV Delay Act sec. 4(c) (authorizing the FCC the transition from analog to digital broadcasting.’’), 34 But see Pre-April 16 Terminations by ‘‘[n]otwithstanding any other provision of law’’ to citing Cong. Rec. H895 (daily ed. Feb. 4, 2009). Noncommercial Educational Stations Certifying ‘‘adopt or revise its rules, regulations, or orders or 30 NAB Comments at 18–19. Significant Financial Hardship, infra. take such other actions as may be necessary or 31 Omnibus Order and NPRM, FCC 09–11 at para 35 47 CFR 73.1615. appropriate to implement the provisions, and carry 69. Finally, we note that NAB’s argument that 36 For the purposes of this Order, we define ‘‘full’’ out the purposes, of this Act.). modification of FCC procedures is not permissible analog service or programming to mean the 27 Verizon California, Inc. v. FCC, 2009 WL simply because sec. 4(a) does not expressly normally scheduled programming that the station 304745 (D.C. Cir. 2009) (context and purpose of foreclose it, NAB Comments at 19, is inapposite aired prior to transitioning to digital-only statute properly considered in determining because we do not rely on sec. 4(a)’s silence for broadcasting. meaning). authority here. As explained above, we have both 37 All stations must conform to the DTV 28 DTV Delay Act Second Report and Order and general rulemaking authority and expansive new Consumer Education Initiative rules, however, NPRM, FCC 09–11 at para 30 n. 59 and authority under sec. 4(c) of the DTV Delay Act. including those adopted in this Order, unless they accompanying text, citing Zemel v. Rusk, 381 U.S. 32 Omnibus Order, FCC 09–11 at para 26. are specifically exempted from doing so.

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an early transition date may later revoke noted throughout this Order, these no earlier than April 16, 2009, so that this notification and delay their notifications are in addition to the stations terminating analog service early transition to June 12, 2009. This requirements of the DTV Consumer could adequately prepare and educate revocation filing may be submitted at Education Initiative rules, including their viewers. We received several any time up to five days prior to the those adopted in this Order.40 comments, including from APTS and elected transition date, although a 17. We also asked in the NPRM many NCE stations, asking for shorter notice period is permissible in whether we should require major permission to terminate before April 16, the case of equipment failure, natural network affiliates, or even all stations, asserting significant financial disaster, or other unforeseeable that terminate analog service prior to hardship.44 emergency. In filing such a revocation, June 12 to run seven days of hourly 20. The Commission has consistently a station must certify that continuation crawls, as we required of stations that recognized that NCE stations face of full analog service will not result in terminated on February 17, 2009.41 NAB unique financial difficulties and has interference to the signal of any other opposed this requirement, arguing that afforded them additional flexibility to station that has been approved to 30 days of notices prior to the transition assist them in making their transition.45 commence early post-transition will be sufficient to educate viewers APTS notes that many NCE stations operations. It must also certify that it ahead of time, and pointing to continued broadcasting in analog after will provide notice to viewers of this widespread consumer annoyance with their planned termination date of revocation at least four times daily, with the appearance of the crawls during February 17 at the Commission’s urging, at least one notice in primetime, over programming.42 We agree with NAB with the expectation that they would be the five days prior to and including the that there is no need for additional pre- able to terminate soon thereafter.46 We day it originally elected to terminate termination notifications in the form of are also sensitive to the ‘‘unplanned analog service. crawls. When stations terminated on expenses’’ (such as costs for electricity, February 17, there was an extremely equipment maintenance, additional 3. Early Analog Service Termination short period of time available to notify tower rent, renegotiating tower leases, Viewer Notifications viewers of the impending change. The rescheduling tower crews and storing 16. Pursuant to the Third DTV DTV Delay Act was enacted on February new equipment until it can be installed) Periodic Report and Order, stations that 11, and the extensive news coverage which are incurred by stations keeping transition early are required to provide may have led many viewers to believe analog transmitters on the air after their additional viewer notifications in order that they did not need to prepare for the originally planned termination dates.47 to ensure that their viewers are digital transition, even if one of their Although all stations may face such prepared.38 In that Order, we required local stations was going to transition six unplanned expenses, they are likely to that stations provide viewer days later. With only six days, there was fall particularly hard on NCE stations notifications for at least 30 days prior to no way to run notices for thirty days. As because of their unique financial their termination of analog service, and a result, we found that an extremely difficulties, such as their reliance on we retain that requirement here. These intensive educational effort for the short government funding. We are aware that notifications must air at least four times period remaining was the only way to NCEs, unlike commercial stations, may a day, including at least once in reach viewers as completely as a long have budgetary restrictions that prevent primetime, for the 30-day period prior term notice campaign. Now, stations them from obtaining additional funding to the planned service reduction or will have time to run the full thirty days to address these expenses.48 termination. They must include: (1) The of viewer notifications.43 Under the station’s call sign and community of present circumstances, we conclude that 44 See APTS Comments at 2–5; see also WPT license; (2) the fact that the station is there is no need for additional pre- Comments at 2 (saying the following stations need planning to reduce or terminate its termination notifications in the form of to terminate early [April 5] due to ‘‘drastic technical and financial pressures’’: WHLA-TV, WHRM-TV, analog operations before the transition crawls. WHWC-TV, and WPNE(TV), WHA-TV); St. date; (3) the firm date of the reduction 4. Pre-April 16 Terminations by Lawrence Comments at 2 (saying the following or termination; (4) what viewers can do stations need to terminate early [March 15] due to to continue to receive the station, i.e., Noncommercial Educational Stations a ‘‘severe budgetary crisis’’: WPBS and WNPI); how and when the station’s digital Certifying Significant Financial WQED at 2 (saying that WQED needs to terminate early [April 1] because of a ‘‘severe budgetary 39 Hardship signal can be received; (5) information crisis’’); WJCT Comments at 2 (saying WJCT is about the availability of digital-to-analog 18. We will allow NCEs to terminate ‘‘facing severe economic constraints’’ and needs to converter boxes in their service area; analog service before April 16, if such terminate early [April 6]); MSU Comments at 2 and (6) the street address, e-mail termination is necessary as a result of (saying KOZK and KOZJ planned to terminate analog early [April 2] to address ‘‘serious financial address (if available), and phone significant financial hardship. Stations and equipment considerations’’). number of the station where viewers must certify in their analog termination 45 For example, in the Third DTV Periodic Report may register comments or request form (described above) that they need to and Order, the Commission afforded NCE stations information. In addition to the terminate before April 16 due to a reduced service requirement if their significant financial hardship and must circumstances warranted this additional flexibility. requirements described in the Third See, e.g., Third DTV Periodic Report and Order, 23 DTV Periodic Report and Order, stations comply with the viewer notification FCC Rcd at 3041, para 97; and Second DTV Periodic terminating early must also provide requirement. NCEs making this Report and Order, 19 FCC Rcd at 18311–18319, service loss information, pursuant to certification may terminate before April paras 80–87. In addition, NCE stations received a Section III.C.2, below, if that section 16, but not before March 27. later use-or-lose deadline in the Second DTV 19. In the NPRM, we tentatively Periodic Report and Order and, in the Fifth Report would require notice to viewers. As and Order, we noted the unique financial concluded that stations may terminate difficulties faced by NCE stations and reiterated our 38 Third DTV Periodic Report and Order, 23 FCC view that these stations warranted additional Rcd at 3050, para 117. 40 The revisions to our rules are shown in the flexibility. Fifth Report and Order, 12 FCC at 12852, 39 Alternatively, the notification could describe regulatory text to this document. para 104. how to get service from another station affiliated 41 February 5th PN. 46 APTS Comments at 5. with the same network if the station’s digital signal 42 NAB Comments at 22. 47 Id. at 4. will not cover the entire area that is within the 43 Certain noncommercial stations, discussed, 48 See, e.g. , Mid-South Comments at 2 (facing a station’s Grade B analog contour. infra, may not have the full 30 days. 15 percent cut in state funding); WNYPBA

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Accordingly, we will permit NCE that the date on which the station is assistance from their stations no later stations to terminate analog service terminating is prior to the new than the time that the last major prior to April 16, and as early as March nationwide date of June 12, 2009. network affiliate terminates full analog 27, provided they comply with the programming. 5. Early Analog Service Terminations by viewer notification requirement, 23. A major network affiliate which Major Network Affiliates discussed below. We find that stations cannot certify that 90 percent of its may not terminate analog service 22. As we discussed in the February viewers will receive full analog service without notifying viewers on air for at 11th PN, the early analog terminations from another major network affiliate least 10 days prior to termination, of certain stations poses a significant through June 12, 2009, but wishes to except in the case of equipment failure, risk of substantial public harm.53 The terminate early, must certify in its natural disaster, or other unforeseeable presence of ABC, CBS, FOX, and NBC March 17 filing that: (1) At least 90 emergency. We will not, however, network stations and affiliates in a percent of the population in its Grade B reinstate analog termination market is critical to ensuring that over- analog contour will receive some major notifications filed with the Commission the-air viewers have access to local network affiliate analog service under the prior procedures, nor will news and public affairs, because these (enhanced nightlight or some NCE stations’ comments filed in ‘‘major network affiliates’’ are the combination of full service and response to the NPRM satisfy the March primary source of local broadcast news enhanced nightlight) 55 until June 12, 17, 2009 notification requirement.49 and public affairs programming in most 2009; and (2) it will comply with the NCE stations must file their binding communities. No commenter disagreed other public interest conditions analog service termination notification with this point. Indeed, while some described below.56 The station’s by March 17, 2009.50 NCE stations commenters, including NAB, opposed enhanced nightlight and public interest terminating on or after April 16 should additional early termination obligations begin when more than 10 follow the analog termination requirements as a general matter,54 no percent of the population in the procedures discussed above. commenter specifically objected to station’s Grade B analog contour no 21. Viewer Notification Requirement. imposing such additional requirements longer receives analog service from a We require NCE stations that need to on major network affiliates that major network affiliate, if that day is terminate analog television service transition early. We will allow major before June 12. Under most before April 16 to broadcast the network affiliates to terminate analog circumstances, this will be the day on equivalent of 30 days’ worth of viewer service prior to June 12 under the which the last major network affiliate in notifications regarding the station’s following conditions that ensure a market terminates analog service early. imminent termination of its analog fulfillment of their public interest 24. As discussed in more detail service.51 We find that this viewer responsibilities. First, as discussed below, the ‘‘90 percent served’’ notification requirement is necessary to above, they must identify the date on condition will help to ensure that a protect viewer expectations and to carry which they plan to transition in their major network affiliate’s early out the purpose of the analog March 17 notification to the termination does not pose a significant termination procedures. The 30 days’ Commission. Second, major network risk of substantial public harm because worth of viewer notifications must affiliates must certify either that at least most viewers will continue to receive include the information discussed 90 percent of the population in their some analog service, and the public above.52 To comply with this Grade B analog contour will receive full interest conditions carry out the DTV requirement, stations must adequately analog service from another major Delay Act’s purposes by facilitating and clearly communicate the required network affiliate until June 12, 2009, or consumer readiness in communities information, and make particular note that they will comply with the where the primary sources of local additional public interest related broadcast news and public affairs Comments at 2 (facing a 50 percent cut in state conditions. The additional public programming are all terminating early. funding); and APTS comments at 5 (‘‘Requiring interest conditions are necessary to Any major network affiliate that stations to continue analog transmissions for a ameliorate any potential harms of early properly certifies may terminate on its month or more beyond what they had budgeted would have profound negative implications on their termination by assuring that viewers chosen date without the need for action financial futures.’’) who will lose regular analog service by the Commission.57 A major network 49 Omnibus Order at, para 26. from all of their major network affiliates affiliate that does not: (1) Certify that a 50 Implementation of the DTV Delay Act, MB before June 12 will continue to have major network affiliate will provide full Docket No. 09–17, Second Report and Order and some essential analog service through analog service to at least 90 percent of Notice of Proposed Rulemaking, FCC 09–11, para 26 (rel. Feb. 20, 2009). June 12 and will have access to local the population in its service area; (2) 51 Notifications must be aired 120 times, on a certify that it will comply with the daily basis, including 30 times in primetime, 53 February 11th PN. public interest related conditions distributed evenly during the 30-day period. 54 NAB focused on the importance of flexibility, (including the analog service Therefore, if the viewer notifications begin, for which is retained by our procedures, and objected requirements); or (3) demonstrate example, 10 days before the station’s termination, to the imposition of additional pre-transition viewer the station must broadcast notifications 120 times, notification obligations for early terminators, which extreme technical or financial including 30 times in primetime, distributed evenly we declined to impose. In particular, NAB focused difficulties by filing a showing of during the 10-day period; i.e. , the station must on the dangers of viewer fatigue as a result of extraordinary exigent circumstances; broadcast notifications every day on-air at least 12 additional on-air early transition notifications. NAB must continue providing full analog times a day, including at least three times in Comments at 21, 22, 24. The obligations on major primetime, for the 10-day period. network affiliates all apply after termination of their 52 We note that these viewer notifications are in analog signal, and more to NAB’s point about 55 See definition of Enhanced Nightlight, infra. addition to, and separate from, the notification viewer fatigue, do not require any on-air 56 These public interest conditions are based on requirements established in the Commission’s DTV notifications to digital viewers. The major networks the requirements established in the February 11th Consumer Education Initiative proceeding. See DTV or major network affiliates that filed comments with Public Notice. Consumer Education Initiative, MB Docket No. 07– the Commission either had no comment about these 57 Stations that are not major network affiliates 148, Report and Order, 23 FCC Rcd 4134 (2008); requirements, or supported them. [FOX, Lima, are not held to these responsibilities. The Media Order on Reconsideration and Further Notice of Griffin, no comment; McGraw-Hill ‘‘generally Bureau will issue a Public Notice listing the stations Proposed Rulemaking, 23 FCC Rcd 7272 (2008) supports the procedures proposed in the NPRM for and their early transition dates as soon as possible (collectively, ‘‘DTV Consumer Education Orders’’). binding early analog terminations.’’] after the certifications are submitted and reviewed.

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service until June 12, 2009 (except in additional conditions below. Analog that collective efforts are compliant, and the case of equipment failure, natural service, for this purpose, may be individually liable if they are not. We disaster, or other unforeseeable ‘‘enhanced nightlight’’ service, as expect that major network affiliates and emergency). defined below, or some combination of other stations serving the same viewing enhanced nightlight and full service area will closely coordinate if they a. Early Terminations By Major Network analog programming from a major Affiliates That Certify Continuing Full intend to terminate analog service network affiliate (when the full service Analog Service by Another Major before June 12, 2009. While we applaud analog programming is not available to Network Affiliate and encourage coordination among at least 90 percent of population in the broadcasters serving the same area 25. As discussed above, a major station’s Grade B analog contour). Either within a market, we emphasize that network affiliate may terminate early by of these will ensure continuing access to broadcasters that continue providing certifying that at least 90 percent of the local news, public affairs and full analog service to at least 90 percent population within its Grade B analog emergency information, as well as DTV of the population in their analog service 58 contour will continue to receive full educational information, for any viewer area through June 12, 2009, are not analog service through June 12, 2009, who has not yet transitioned. Any major responsible for compliance with any of from a major network affiliate. We note network affiliate that is certifying in the requirements associated with early that this need not be a single other order to terminate analog service early termination, or for any shared efforts or 59 major network affiliate, so long as 90 must include with its filing a list of the expenses incurred by early termination percent of the population is receiving stations that will, individually or stations as a result of these full analog service from some major collectively, continue to provide such requirements. network affiliate.60 Although such a analog service to at least 90 percent of station incurs no additional obligations, 28. A major network affiliate must its analog viewers through June 12, certify to all of the public interest it must comply fully with the 2009.62 Stations may cooperate to share requirements imposed on all stations related conditions in the next paragraph responsibility for providing the required if it intends to terminate analog service that terminate early: To file and update level of analog service, but each station the Analog Service Termination before June 12, 2009, unless some other is individually responsible for ensuring major network affiliate will provide full Notification form, as discussed in that its own analog viewers receive the analog service to at least 90 percent of Section III.A.2, and to air 30 days of required level of service. the population within the terminating viewer notifications, as described in 27. Major network affiliates must Section III.A.3. Although the filing certify in the March 17 filing that they station’s Grade B contour through June station must list, in the March 17 filing, will comply with these other public 12, 2009. We find that these conditions the stations it will rely upon to provide interest conditions if more than 10 are directly related to, and necessary for, the requisite level of service, each percent of the population in their Grade the early transition of a major network station is individually responsible for B service contour will lose full analog affiliate if its viewers will not have ensuring that the required percentage of service from all major network affiliates access to any other major network its own analog viewers actually receive before June 12. These obligations must affiliate programming. Our experience the required level of service.61 be undertaken so that they are in place on and after February 17th demonstrates that the continuing presence of at least b. Early Terminations By Major Network and operating no later than the day on which more than 10 percent of the one major network affiliate station Affiliates That Certify Compliance With broadcasting in analog provides vital the Public Interest Related Conditions population in their Grade B service contour actually do lose full analog information to viewers concerning the 26. If a major network affiliate cannot service from all major network transition, as well as keeping them certify that full analog service will be affiliates—usually when the last major informed of local news. Broadcasters provided by some major network network affiliate in the market have the primary responsibility for their affiliate to at least 90 percent of the terminates full service analog viewers and have the greatest interest in population in its Grade B contour programming. The requirements for assuring that their signals continue to be through June 12, 2009, then it must ‘‘Walk-In Help Centers’’ and ‘‘Consumer available to their viewers. We impose certify that there will be some analog Referral Telephone Numbers’’ these conditions with the awareness service to 90 percent of the population contemplate collective effort, in a that many broadcasters have taken and in its Grade B contour through June 12, market where more than one will take these actions, and more, on 2009, and that it will comply with the broadcaster has certified compliance their own. But we are mindful of our with the conditions, but we remind responsibility to ensure that all 58 See note 36. major network affiliates who certify broadcasters fulfill their public interest 59 Note that if the station is relying on (an)other obligations as licensees and to establish major network affiliate(s), the station must confirm compliance that they are each that the affiliate(s) relied on remain(s) able to cover individually responsible for ensuring a baseline of the necessary information at least 90 percent of the population in the station’s and service for viewers in every Grade B coverage area even if the affiliate(s) is (are) 62 In this situation, just as for other major network community, particularly during this operating at reduced power. affiliates, the stations filing for early termination potentially disruptive transition. These 60 Indeed, if the major network affiliate in must determine and certify that the requisite analog conditions are based on those proposed question is reducing rather than terminating, it may coverage will be provided, and we will rely on their count the percentage of its full Grade B contour still filings to determine whether the termination is in in the NPRM, which were in turn based served toward the 90 percent. So, if the station will the public interest. Here too, if a major network on those imposed on many major continue to serve 80 percent of the population in affiliate is substantially reducing coverage but not network affiliates that transitioned on its service area through June 12, there need only be terminating analog service altogether, it may count February 17. Although the Commission an additional, non-overlapping, 10 percent served the percentage of its Grade B contour still served by another major network affiliate through June 12 toward the 90 percent. For example, if the station will take all steps within our capacity to in order for the station to comply. will continue to serve 70 percent of the population provide outreach and support to 61 Stations filing for early termination must in its service area through June 12, there need only markets in which there will be an early determine and certify that the requisite analog be an additional, non-overlapping, 20 percent transition, realistically we cannot be coverage will be provided. We intend to rely on the served by another major network affiliate’s stations’ filings to determine whether the ‘‘enhanced nightlight’’ through June 12 in order for everywhere. And, while we intend to termination is in the public interest. the station to be in compliance. work with contractors and volunteer

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organizations across the country, we • The DTV transition information coupons and view coverage maps for cannot necessarily have all of these must be provided in Spanish and broadcast stations in their area. The services in place for every early English, and must include walk-in help center must also have a transition. Therefore, we find it demonstrations of converter box DVD player attached to a TV that is not reasonable and appropriate that the installations and antenna setups; the being used for setup demonstrations, so major network affiliates that choose to location and operating hours of all walk- that consumers can view educational transition early, leaving their viewers in DTV help centers in the market videos regarding installing a converter with no access to major network affiliate (including centers not affiliated with the box and videos regarding antennas, programming, take on some of the on- station); 65 the FCC Call Center reception, and coverage issues. the-ground responsibility to support and telephone and TTY numbers; the • The staff at the walk-in help center assist their viewers through the walk-in telephone number for the local or toll- must be prepared to demonstrate the use help centers, consumer referral free consumer referral telephone of the equipment on site; to provide telephone numbers, and other public number provided by the station; and information about any service losses for interest conditions described here. other helpful information about the DTV viewers of local stations; to assist 29. Based on our experience and transition. viewers with accessing DTV transition informal questions from stations information online; and to assist them affected by these requirements during Certification Regarding Other Public Interest Conditions with their personal equipment if they the February 17 transition, we have bring it to the center. reorganized the requirements and Walk-In Help Centers • At least one walk-in help center provided additional detail, as follows: • The station, alone or together with must be open every day from at least 12 Certification Regarding Continuing other stations or local businesses and p.m. (noon) to 8 p.m. for the first 21 Analog Service organizations in the market, will days this requirement is in effect, and between the hours of 4 and 8 p.m. on • At least 90 percent of the provide at least one location and Fridays, and 10 a.m. to 4 p.m. on population in the station’s Grade B sufficient staff for a consumer ‘‘walk-in’’ Saturdays and Sundays, thereafter. This analog contour will continue to receive help center. The walk-in help center(s) requirement terminates on June 12, some analog service, until June 12, must be able to: assist consumers with 2009. There must be at least one 2009, in the form of ‘‘enhanced applying for coupons and obtaining broadcast station employee, from any nightlight’’ service (described below), or converter boxes; demonstrate how to participating station, on-site at all times some combination of enhanced install and operate converter boxes; during the operating hours of the center. nightlight and ‘‘full’’ analog service assist consumers with antenna, from a major network affiliate.63 Note reception, and coverage questions; Consumer Referral Telephone Numbers that if the certifying station is relying on provide maps and lists of communities • The station must provide a local or one or more other major network that may be affected by coverage issues; toll-free consumer referral telephone affiliates, the station must confirm that and serve as a redistribution point for number to the Commission, and must the affiliates relied on remain able to consumers who are willing to donate staff this number with personnel that cover at least 90 percent of the coupons, converter boxes, and can answer complex viewer questions, population in the station’s Grade B televisions for those in need of these particularly about reception. This will coverage area even if the affiliates are items. The certification must specify serve to supplement the Commission’s operating at reduced power. whether the station will operate the national call center. The certification • ‘‘Enhanced nightlight’’ service walk-in help center(s) itself or rely on must specify whether the station’s constitutes the broadcast, by a major other organizations in the market. referral number will be staffed by the network affiliate, of an analog signal • Each walk-in help center must station itself or if the station is relying providing, at a minimum, DTV contain (for hands-on demonstration on another entity or entities to respond transition and emergency information, purposes) at least one analog-only to consumer calls and referrals. as well as local news and public affairs television, one coupon-eligible digital- programming. Both DTV transition and to-analog converter box, one VCR, DVD DTV Education and Outreach emergency information must be player, or game console (to demonstrate • No later than 30 days prior to its accessible to the disability community how to hook-up such devices in analog termination, the station will (e.g., broadcast notices must have an conjunction with a digital-to-analog provide the Commission with the audio component, as well as being converter box), and one antenna able to following information: the address and closed or open captioned). The local receive the digital signals of the local operating hours of the Walk-In Help news, public affairs, and other non- broadcast station(s). A display area for Center, and the phone number and emergency programming are not subject printed literature regarding the digital- operating hours applicable to the to the programming restrictions of the to-analog converter box coupon consumer referral telephone number, Analog Nightlight Act, and as such may program, connection guides for digital- that the station will be relying on to include commercial advertising.64 to-analog converter boxes, and guides for antenna and reception issues is also meet these obligations, as well as the 63 For example, combined coverage can be required. There must also be at least one name and phone number of the station’s provided by a major network affiliate that is not computer with an Internet connection point of contact for these issues. This transitioning early, but that does not provide full so that consumers can, among other information will be submitted by way of analog service to at least 90 percent of the an update to the Analog Service population in the certifying station’s Grade B analog things, apply online for converter box contour. We note that if some combination of major Termination Notification. network affiliates provide full analog service to at DTV Transition ‘‘Analog Nightlight’’ Program, MB • Each station is encouraged to least 90 percent of the population in the certifying Docket No. 08–255, Report and Order, FCC 09–2 coordinate with and use community station’s Grade B coverage area through June 12, (rel. Jan 15, 2009) (‘‘Analog Nightlight Order’’). resources to provide off-air consumer 2009, the station is exempt from these 65 The Commission will publicize the location requirements. and hours of local walk-in centers via our Web site outreach and support, including in- 64 Implementation of Short-Term Analog Flash at https://dtvsupport.fcc.gov/dtvtools, using the home assistance and other helpful and Emergency Readiness Act; Establishment of detailed data provided by stations. information about the DTV transition.

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30. We recognize that there may be not be permitted to transition on its transition obligations on broadcasters to extreme technical or financial elected early transition date. continue broadcasting DTV transition circumstances that prevent some major educational information via their digital B. Time of Day for Analog Service network affiliates subject to the signals because such viewers no longer Termination certification requirements from need this information.73 These certifying that they and/or the other 32. We find that it is appropriate to adjustments to the DTV Consumer stations in their market will provide permit all stations the flexibility to Education Initiative requirements are continuing analog service.66 In such terminate analog service at any time of necessary to accomplish the purposes of cases, these licensees may make an day on the date they terminate analog the DTV Delay Act and are based on our alternative showing to the Commission broadcasting. As noted in the First DTV experience and lessons learned in the that extraordinary, exigent Delay Act Order, full-power stations’ early transitions thus far. We conclude circumstances, such as the unavoidable analog licenses expire at 11:59:59 p.m. that these amended rules strike the loss of their analog site or extreme local time on June 12, 2009.69 Stations correct balance by requiring disclosure economic hardship, require that they may continue analog broadcasting after of both potential signal loss, where terminate their analog service on their 11:59:59 p.m. local time only to the warranted, and information about proposed date but prevent them from extent that they are participating in the antennas and rescanning, which providing enhanced nightlight service Analog Nightlight program.70 However, together will enable viewers to retain for their analog viewers.67 This showing the DTV Delay Act and the other access to the broadcast signals. At the must also include information regarding relevant statutory provisions are silent same time, we eliminate unnecessary analog service that will be available for as to the time of day on June 12, 2009, repetition of information after a station the station’s viewers after the station at which analog termination must occur. has completed its transition. This terminates its analog service.68 The We do not believe it is necessary to treat balanced adjustment to the rules is showing should not exceed five (5) analog termination on June 12 but prior supported by our experience and the pages, not including attachments. to 11:59:59 p.m. local time as an ‘‘early’’ record in this proceeding. Stations attempting to make this termination and leave it to stations to 34. Broadcasters are required to showing bear a heavy burden of proof. determine what time of day is most regularly provide on-air consumer Absent technical impossibility, any appropriate for their viewers.71 While education about the DTV transition.74 station electing to make this showing stations have the flexibility to transition The DTV Consumer Education Initiative must await a determination by the at any time, we understand that some offered broadcasters a choice of Commission that its showing is stations that have already transitioned approaches to fulfilling this sufficient before terminating analog experienced difficulties (e.g., requirement: Options One or Two, service. The Commission will endeavor coordination with local cable operators) available to any broadcaster, or Option to resolve all of these cases as soon as that were more easily addressed during Three, available only to non-commercial possible prior to the stations’ proposed daytime hours. Stations must inform the stations.75 Among and within these termination dates. Commission of the approximate time of Options, broadcasters have a range of 31. We also retain the right to prevent day they plan to terminate when they techniques to choose from, resulting in any station from going forward with file their analog service termination a mix of public service announcements their proposed early termination if we notification,72 and must notify viewers (PSAs), graphics and text superimposed find it in the public interest to do so. through their required PSAs, crawls and over programming, and longer-form For example, we may need to adjust the other on-air consumer education if they informational programming. In the timing of some stations’ or some are planning to end analog service Omnibus Order, we revised the rules of markets’ transition plans if multiple before 11:59:59 p.m. local time on their the DTV Consumer Education Initiative markets intend to transition final day of service. We also extend to conform to the delay of the DTV simultaneously, because this could flexibility to stations that are transition. In the companion NPRM we severely strain the resources of the transitioning early to do so at the time proposed additional revisions, which Commission and others working to of day most appropriate for their we adopt in this Report and Order. We ensure full consumer preparedness. As viewers. remind broadcasters that whatever the Commission did in the case of C. DTV Consumer Education Initiative option they elected, these on-air stations seeking to terminate on education requirements are separate 33. As proposed in the NPRM, we February 17, we will expeditiously from and in addition to any viewer amend the DTV Consumer Education provide public notice if any station will notification requirements associated Initiative requirements to ensure that with early analog termination 66 We anticipate that no station will have consumers will receive the information notifications discussed in this Report difficulty complying with the Walk-In Help Center, they need to make proper preparations and Order, the Third DTV Periodic Consumer Referral Telephone Number, and DTV for the digital transition of the stations Education and Outreach obligations, but that Report and Order,76 or any other rule or on which they rely for television continuing analog service may pose a significant regulation. challenge for stations facing extraordinary exigent service. We also eliminate post- circumstances. 35. Each of the revised DTV 67 Pappas Broadcasting has asked that all flash cut Consumer Education Initiative rules 69 First DTV Delay Order, FCC 09–9, § II.A. para stations be exempt from the early transition 3. requires stations to be in full requirements due to the technical limitations they 70 face. We invite such stations to make the alternative See Analog Nightlight Order. 71 73 In most cases, a viewer who can see the showing, if they believe these limitations constitute We remind stations that they must obtain extraordinary exigent circumstances. Pappas Commission approval for operation of a post- educational message on the station’s digital channel Comments at 3. transition digital facility at any time prior to June has, by definition, succeeded in making his or her own transition. Thus, only those who cannot see it 68 For example, a network affiliate might partner 12 at 11:59:59 pm. See Third DTV Periodic Report would benefit from it. with another station serving the same area to ensure and Order, 23 FCC Rcd at 3041–58, paras 98–134 74 that its viewers may view local news, public affairs (Section V.C.); see also February 5th Public Notice 47 CFR 73.674. and emergency information. Some network at 2. 75 DTV Consumer Education Initiative, 23 FCC affiliates transitioning on February 17 partnered 72 i.e., Early Morning (12 a.m.–6 a.m.), Morning Rcd at 4139. with local NCEs to provide local news programs, (6:01 a.m.–12 p.m.), Afternoon (12:01 p.m.–6 p.m.), 76 See, e.g., Third DTV Periodic Report and Order, which the NCEs aired without commercials. or Evening (6:01 p.m.–11:59 p.m.). 23 FCC Rcd 2994 at 3033, 3044, 3050 and 3057.

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compliance no later than April 1, 2009. acknowledges that consumer education areas predicted to gain service, but they This is the same date that on digital channels may have are required to air information about manufacturers, eligible ‘‘ancillary’’ benefits, but argues that they loss regardless of how many people are telecommunications carriers, and are far outweighed by the drawbacks, gaining service. As we discussed in the multichannel video programming including cost and confusion to NPRM, our experience with stations that distributors must be in full compliance viewers.83 Berl Brechner, President of have already terminated analog service, with the revisions to their respective WMDT, Salisbury, Maryland, opposes particularly in those areas where an sections, adopted in the Omnibus continuing DTV education requirements entire market has transitioned, is that Order.77 We note that stations will not as an excessive burden on broadcasters loss of a station due to a change in the be expected to address any of the who transitioned early.84 United and digital coverage area creates great revised requirements of this Order in NAB proposed at least limiting post- consumer confusion and distress.88 The their first quarter DTV Quarterly transition consumer education problem is no less acute, however, for Activity Station Report (Form 388), and requirements.85 analog viewers who received analog therefore the revised Form 388 will not 37. After review of the comments, and service and are within the digital service be available for filing until the second consideration of our experiences area but who nonetheless do not receive quarter of the year. working with consumers after the digital service, due to changes in signal February 17, 2009, early transitions, we propagation associated with a change 1. Elimination of Post-Termination conclude that the on-air obligations for Consumer Education Obligations from VHF to UHF channel assignments digital-only stations should be (or vice versa) or for other technical 36. In the NPRM, we asked whether eliminated. We find that, for digital-only reasons related to the use of digital stations that participate in the post- stations, providing on-air consumer transmission. Problems associated with transition statutory nightlight program education via digital broadcasting does signal loss may arise for the viewers of should be exempt from post-transition not produce sufficient benefit compared stations that transition at any time, up consumer education obligations. We to its cost, and therefore we revise our to and including June 12. Indeed, such received a large number of comments in rules to permit most stations to end problems may arise even before stations favor of this proposal. Responding to their participation in the Initiative after terminate their analog service as more our request for ‘‘comment on any they terminate analog programming. We and more viewers obtain digital actions ‘necessary or appropriate to will continue to require stations that equipment and come to rely on digital implement the provisions, and carry out have not completed construction of service.89 Therefore, we will require the purposes’ of the DTV Delay Act’’ their full authorized post-transition every station that has not already that were not resolved in the Omnibus digital facility to continue complying terminated analog broadcasting to Order, the majority of these comments with the Consumer Education provide specific notice to analog go farther and suggest that no station requirements after they terminate their viewers if 2 percent or more of the should have any obligations under the analog service until they complete population in its Grade B analog service DTV Consumer Education Initiative construction and commence operation area is likely to lose over-the-air service after it terminates analog broadcasting, of their full authorized post-transition from the station when it terminates or at least after every station in its 86 digital facility. These stations must analog service. We also remind stations market does so.78 Most commenters on revise the content of their educational that terminated analog service on this question agree that any additional messages to provide information about February 17, 2009 that they are required obligations for stations already the limits on station’s digital service to provide information about service transitioned to digital would cause area and the anticipated date for it to losses via the enhanced analog viewer confusion.79 Many comments complete construction and commence nightlight serving their area.90 argue that confusion might result, as operation of its full, authorized post- 39. Broadcasters that elected the viewers may think they need to take transition digital facility. Option One educational requirements additional action to prepare,80 or may are already required to provide question whether they will continue to 2. Service Loss Notices information to their viewers about any be able to view the station that has 38. As proposed in the NPRM, we ‘‘[c]hanges in the geographic area or already transitioned.81 Indeed, amend the DTV Consumer Education population served by the station during commenters argue that on-air consumer Initiative rules to require broadcasters to or after the transition.’’ 91 They must do education for digital-only stations inform their viewers if 2 percent or so via their regularly-aired PSAs.92 We would serve only to reach those already more of the population served in their asked in the NPRM whether a similar prepared, and that such information has analog service contour will not be requirement, but limited to population ‘‘no relevance or impact’’ for those served by their digital signal.87 Stations losses, should be extended to watching a digital broadcast.82 Griffin may also broadcast information about broadcasters who elected Options Two 77 Omnibus Order, FCC 09–11 para 15. 83 Griffin Comments at 5. 88 78 Griffin Comments at 5; NAB Comments at 10– 84 Berl Brechner Comments at 3. Id. at para 63. 89 13; Centex Comments at 3. We have already granted 85 United Comments at 3, NAB Comments at 13– This difficulty is exacerbated for consumers a waiver to all stations in the Wilmington market 15. relying on converter boxes that do not have analog area, after that market completed its transition 86 This requirement for continued consumer pass-through. early. See DTV Delay Act Omnibus Order, FCC 09– education applies, for example, to stations that have 90 February 11th PN. 11, para 67 (discussing the waiver). We note that received an extension of their construction permit 91 Consumer Education Order, 23 FCC Rcd at we have received consumer education waiver beyond June 12, 2009, or are operating pursuant to 4190. requests from the stations in the Hawaii market, a ‘‘phased transition’’ STA which allows continued 92 An example of such a ‘‘change to service area’’ which has also fully completed its transition, but operation on a pre-transition digital channel or notice was aired by WUTB–DT, a Baltimore, MD that these requests are mooted by our action in this reduced operation on the post-transition channel. It station, which states, in part: ‘‘Due to a slight Order. does not apply to stations that have completed change in the station’s transmission radius, viewers 79 NAB Comments at 13–15; Centex Comments at construction of their authorized post-transition in the following areas, Southwest Talbot County, 3; Griffin Comments at 2. facility but have not completed construction of a MD, Central Calvert County, MD, Southern Prince 80 Mt. Mansfield Comments at 3. maximized facility. See 47 CFR 73.674(b)(3), George’s County, MD, and East-Central Fairfax 81 Griffin Comments at 2. amended as 73.674(b)(4). County, VA, may not be able to receive WUTB–DT 82 Centex Comments at 3; Mt. Mansfield at 4. 87 NPRM at para 64. over the air on digital channel 24.1.’’

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or Three. NAB does not dispute the redress. Without this information, analog signal was weak or poor but need for service loss notices, but consumers will be unable to make viewable, while the digital signal is expressed concern about ‘‘providing too informed decisions about how to unwatchable due to the cliff effect much or unnecessary information to too address the service loss, such as through which results in tiling or a black screen. many viewers,’’ leading to a ‘‘flood’’ of technical improvements to their Viewers need the information and consumer calls.93 We conclude that, on reception system or through advice that stations are best positioned balance, it is better to give viewers too subscription to a paid television service. to provide so that they can make choices much DTV information rather than too 41. We amend our rules to require all about how to receive the station’s signal, little. Although there is some broadcasters to provide service loss whether over-the-air or through a information available to consumers information to their viewers via their subscription service. We find that it is about potential signal loss now on the existing on-air education efforts (PSAs, important that consumers be given a internet,94 we conclude that crawls, etc), if 2 percent or more of their reasonable amount of geographically broadcasters are best positioned to know analog viewers are predicted to lose specific information through on-air and communicate information about service (even if the station gains viewers spots, even if complete information signal loss and its effects on their own elsewhere).96 We note that the cannot be contained within a consumer viewers through the most direct and Commission identified 319 stations that notice. It is also critical that consumers appropriate means. Without broadcaster are predicted to have a signal loss of 2 be given guidance on how to find more disclosure, consumers are likely to be percent or greater.97 To date, 106 of complete information, by reference to unaware of the potential impact of these stations have terminated their the Commission’s Web site, as well as signal change or loss and the need to analog service.98 The remaining 213 other sources of information. consult our Web site for specific must comply with the new consumer 43. Of the 319 stations predicted to information. education requirement. experience population coverage losses 40. When the Commission issued its 42. Stations subject to this of 2 percent or more, 196 are a result of signal loss report in December 2008, we requirement must provide changes the station has made in its explained our findings with respect to geographically specific information service area through, for example, 319 stations predicted to lose 2 percent describing areas of population that are relocating the transmitter, reducing or more of their analog viewer covered by the Grade B analog contour power, or changing antenna direction. population after they transition to but are not predicted to receive digital We do not mandate specific language digital service. We noted that we service. NAB argues that if a station tries that must be used by such stations, but ‘‘expect broadcasters to make this to convey geographic information about stations that have shifted or reduced information publicly available and a areas within the digital service area but their coverage area must disclose the part of their local DTV education predicted to lose service, it would be geographic areas where there is likely to efforts.’’ 95 It appears that few stations ‘‘extremely confusing and be a service loss. We note, for example, 99 have heeded our expectation and inaccurate.’’ They suggest a service that WUTB, an affiliate of MyNetwork disclosed losses to their viewers. loss notice should be sufficient if it serving the Baltimore, Maryland area, Viewers in such areas will need to take contains text such as ‘‘a small developed a signal loss PSA which action to retain access to their local percentage of current viewers using an provides the type of information that stations, either by purchasing more antenna to view this analog station may would be clear and helpful for viewers. sophisticated reception equipment or by have problems receiving this station’s It briefly and clearly discloses the parts subscribing to a pay television service. digital signal,’’ and directs viewers to a of counties affected and advises viewers commercial antenna prediction site, to turn to another affiliate of that Without information from the stations 100 whose service area is changing, antennaweb.org. We disagree. If network to obtain digital service over- consumers have no easy way to discover broadcasters provide only the general the-air. Stations may also point out to the potential for loss or change in information suggested in NAB’s their viewers any areas in which their service. Consumers without such comments, it would effectively over-the-air service will improve or 101 information may experience not only undermine the goal of providing signal expand. All service loss notices must frustration, but also unnecessary loss information. Moreover, the direct viewers to the FCC toll-free antennaweb.org Web site is not ideal for expense. For example, they may heed telephone and TTY numbers and Web all consumers. It is not intended to be 102 more general consumer education site for more information. used to predict signal coverage, and messages advising over-the-air viewers 44. NAB supports limiting the signal provides little or no guidance regarding to obtain digital converter boxes, only to loss disclosure requirement to stations the usefulness of indoor antennas, discover belatedly that they are unable with losses due to changes in service which can work in many locations and to receive the digital signal from one or area, but Mt. Mansfield notes that many are often the only practical option. In more stations in their area. Even worse, stations are predicted to lose viewers some cases, viewers will need to obtain 103 they may invest money and time in the due to multiple reasons. We agree. new or better equipment to receive a purchase and installation of a new Consumers who may lose over-the-air station’s digital signal because the outdoor antenna only to learn that the service as a result of the change in digital signal will not reach their home 96 The Commission has created a list of stations 101 There may well be viewers who currently rely with sufficient strength to be received anticipated to lose 2 percent or more of their analog on subscription service who may be able to rely, and viewed. We conclude that the viewers, which can be found on the FCC Web site instead, on free over-the-air broadcasting and thus limited information available to at http://www.fcc.gov/dtv/markets/report2.html. realize one of the benefits of the DTV transition, consumers about service loss constitutes 97 See http://www.fcc.gov/dtv/markets/ particularly where the station offers multicast DTV_Report_2.pdf. channels. See http://www.FCC.gov/DTV/markets a substantial problem that we must 98 As noted here, any of these stations that are (Gains significantly outweigh losses nationwide). airing or participating in airing analog nightlight 102 The FCC telephone number is 1–888– 93 NAB Comments at 31. service must disclose and explain their signal loss CALLFCC, the TTY number is 1–888–TELLFCC, 94 See, e.g., http://www.fcc.gov/dtv/markets/ as part of the DTV information component of their and the Web site link for our address tool is report2.html on the FCC’s DTV.gov Web site. nightlight programming. http://www.DTV.gov/maps. 95 See Executive Summary at 1, http:// 99 NAB Comments at 31, note 72. 103 NAB Comments at 31, Mt. Mansfield www.fcc.gov/dtv/markets/DTV_Report_2.pdf. 100 NAB Comments at 32–33. Comments at 2.

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frequency from VHF to UHF are entitled FCC maps and coverage predictions are to comply with the Option One to be informed in advance so that they the basis for identifying stations that consumer education requirements.113 can make appropriate preparations. We must comply with these signal loss 3. Antenna Information recognize, however, that it may be more disclosure requirements.108 If our report difficult to articulate particular areas of predicts a loss of 2 percent or more, the 49. We also proposed that consumer loss due to a frequency change, as station is required to provide signal loss education should include information opposed to the coverage shifts, and that information to its viewers. Stations may about antennas. We find that antenna more general language may therefore be use their own specific engineering information is valuable for all viewers, appropriate. For example, a PSA could analysis to provide more particularized not only those where there is a state that engineering predictions information to their viewers. predicted signal loss.114 Many viewers indicate that some current viewers of 47. NAB also disputes the value to would benefit from a refined and the station’s analog signal who are individual viewers of the general enhanced understanding of the role located in areas obstructed by hills or coverage maps, arguing that a consumer- their antenna setup plays in reception of buildings may not receive the station’s focused Web site like http:// local stations, and any actions they digital signal, and direct the viewer to antennaweb.org is more valuable could take to improve reception, the FCC’s telephone number and Web because it provides information about a particularly actions short of purchasing site for more information. The FCC can specific address and does not assume new equipment.115 In addition to the provide information about predicted total loss of digital coverage exactly at general information that must be signal coverage for a particular address. the edge of the predicted service area.109 provided by all stations, if a station is We also note that in some cases signal We agree that an address-specific changing its broadcast frequency from loss may be attributable to both change mapping tool is the most helpful for VHF to UHF (or vice versa), it must of coverage and change of frequency. In consumers, and have developed an include information about the need for these cases, stations must disclose all online digital reception mapping tool additional or different equipment to geographically discrete locations specifically for that reason.110 As avoid loss of service.116 We will not predicted to lose service for any reason, discussed above, we do not agree that require specific language, but we do not and also include more general language http://antennaweb.org is the most useful find NAB’s proposed language, ‘‘using a about predicted losses due to tool for all consumers. VHF/UHF antenna will help ensure obstructions. 48. These required service loss notices reception of all stations in your local 45. The NPRM also sought comment may be no fewer than 30 seconds long, area,’’ sufficiently relevant for every on other means that stations could use and must be aired at least once per day, situation. Instead, we require that each to communicate signal loss information between 8 a.m. and 11:35 p.m., by all station that is transitioning between the to their viewers.104 We suggested broadcasters with a 2 percent or greater VHF and UHF bands, in either permitting or requiring direct mail to predicted service loss. At least three direction, must inform its viewers of the addresses in the affected area, or times per week, they must air in change in frequency and remind through radio broadcasts and local primetime.111 This requirement is in viewers that they must have a UHF or newspapers targeting viewers who are addition to and not in lieu of the other VHF antenna, as appropriate, to receive likely to experience loss. NAB opposed on-air informational requirements for the signal after the transition.117 We also requiring these other measures, noting, broadcasters, but like other consumer proposed in the NPRM to require for example, that stations would find it education requirements it will expire notices describing ‘‘areas where analog difficult to develop zip codes or mailing when a station terminates analog signal strength is generally sufficient for lists, and that postage is costly.105 We broadcasting. This information must viewers to rely on an indoor antenna but conclude that televised broadcasting of also appear on a station’s internet home where it is likely that they will need an information is the best way for stations page, including a link to the online outdoor antenna to receive the digital to be sure of reaching the affected digital reception mapping tool hosted by signal.’’ 118 NAB argues that there is population. Stations are permitted and the Commission.112 This information insufficient industry consensus on how encouraged to use other means, must remain available on a station’s to model this situation, and that it particularly radio broadcasts, if they internet home page for at least 30 days wish, but these other measures are not after the station terminates its analog 113 Signal loss information must also be included required.106 service, notwithstanding the in the viewer notifications required of stations that 46. NAB argues that, while the FCC’s termination of other consumer are terminating before June 12, for stations covered by this section. coverage maps can be relied upon to education requirements. Because we are make ‘‘an initial threshold 114 NAB’s comments support including applying this service loss notice information about antennas in the DTV Consumer determination of whether there would requirement to all analog broadcasters Education requirements. NAB Comments at 33. be a loss of viewership of two percent with a 2 percent or greater predicted 115 For instance, stations that are predicted to or more,’’ stations should be given the service loss, regardless of the consumer potentially lose some analog viewers should opportunity to demonstrate through provide guidance to viewers who could improve education option the broadcaster chose, their ability to receive the station’s signal by ‘‘specific engineering showings that the we will eliminate the existing service obtaining a different or better antenna. See http:// anticipated loss will be less than that loss notice requirement currently www.fcc.gov/dtv/markets/. shown on the FCC’s coverage maps,’’ applicable to broadcasters that elected 116 The implementation of Major Channel and presumably as a result be exempt Numbers as part of the Program System Information Protocol (PSIP) makes it more difficult for from the service loss notice 108 See http://www.fcc.gov/dtv/markets/ 107 consumers to determine this information on their requirement. We conclude that the report2.html and http://www.fcc.gov/dtv/markets/ own, because a station’s ‘‘channel’’ no longer _ _ DTV Report 2.pdf. necessarily reflects its over the air frequency. See 104 NPRM at para 65. 109 Id. Third DTV Periodic Report and Order, 23 FCC Rcd 105 NAB Comments at 34. 110 Found at http://www.DTV.gov/maps. at 3079–3082, paras 185–189. 106 NAB notes that some stations have engaged 111 See Rules Appendix. 117 We encourage stations to be mindful, in these other measures, which should be permitted 112 Found at http://www.DTV.gov/maps. preparing their notices, that from the perspective of but not required, so as to reduce the burden on Consumers can also find coverage change maps the viewer there is no change of channel number small stations in particular. See id. relevant to their market at http://www.fcc.gov/dtv/ even when there is a change of frequency. 107 NAB Comments at 32, note 73. markets/report2.html. 118 NPRM at para 64.

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therefore cannot be conveyed.119 We the importance of educating viewers prepared for an increased volume of agree that specific advice as to the use about rescanning, and is in fact calls, both referred and locally of indoor or outdoor antennas can vary preparing a public service originating, around important dates house by house within the same announcement about rescanning that it such as the date the station terminates neighborhood, and, therefore, we will will make available to all analog, the date many other stations in not require stations to include this broadcasters.122 It suggests that stations the market terminate analog, and June information. We will require, however, be given flexibility in providing this 12. This telephone number may be that a station whose signal strength will information, and we agree that this is operated and staffed by the station itself, be reduced in a discrete geographic area appropriate. Therefore, we will require by a group of stations in a market, or by as a result of a shift by the station in its all stations to broadcast information to a third party entity such as a state coverage area must address this consumers about the need to broadcasters’ association. reduction in their antenna information periodically rescan, but this information 54. We will also require that these notices. may be provided in the manner of a telephone numbers, and any walk-in 50. Antenna information could be station’s choosing. The message could centers in the market, be publicized by included as part of a station’s existing be included as part of a station’s each station as part of their consumer DTV Consumer Education Initiative existing DTV Consumer Education education obligations. In many markets, efforts,120 discussed during news Initiative efforts,123 discussed during there may be a number of local help programs, or otherwise conveyed in the news programs, or broadcast at another centers. These will include volunteer manner the station determines will be time if the station determines that will efforts, centers run by major network most helpful to consumers. The be most helpful to consumers. They affiliates that are transitioning early, and information must be provided at least must be aired at least once per day, in potentially FCC contractors. These once per day, in a message lasting at a message lasting at least 15 seconds, locally-focused efforts are among the least 15 seconds, with at least three of with at least three of those messages per best ways to help consumers who those messages per week airing during week airing during primetime.124 remain unprepared, but they are only primetime. valuable to the extent that they are made 5. Consumer Referral Telephone known to viewers. Therefore, we will 4. Rescanning Numbers and Publicizing Consumer require every station to include at least 51. As proposed in the NPRM, we will Help Centers the following elements in its on-air require all stations to provide 52. We will require all stations, when education efforts: the location and information to consumers about the filing the analog service termination operating hours of walk-in DTV help need to periodically rescan for channels. notification form, to provide us with a centers in the market; the FCC Call A digital receiver, whether it is in a telephone number that will serve to Center telephone number and TTY digital-to-analog converter box, a digital receive local consumer calls and number; and the telephone number for television, or any other device, must consumer referrals from our national the station’s telephone number for ‘‘scan’’ for available broadcast Call Center.125 We anticipate that the consumer referrals and calls from local frequencies before it can be used to tune FCC Call Center will be able to help viewers.126 Similar to the rescanning and view digital television.121 Most most callers, for instance with converter notices, this information could be such receivers do not automatically box set-ups, the NTIA coupon program, included as part of a station’s existing ‘‘rescan’’ for additional channels or scanning issues, access to the DTV Consumer Education Initiative changes in existing channels. During the Commission’s online mapping tool, and efforts,127 discussed during news time surrounding the conclusion of the basic antenna guidance. Nonetheless, programs, or broadcast at another time transition, many stations will be local stations typically are the best if the station determines that will be changing the service areas and the source of information and assistance for most helpful to consumers. The broadcast channels of their digital viewers having difficulty receiving a information must be aired at least once transmissions. As a result, viewers will particular signal. In particular, where a per day, in a message lasting at least 15 need to periodically rescan during this reception issue may arise due to very seconds, with at least three of those period in order to ensure that they are localized terrain issues, a local station is messages per week airing during correctly receiving all the digital in a much better position to address primetime.128 broadcast services available to them. related concerns than the staff at the Our experience assisting with outreach FCC’s national Call Center. 6. 100 Day Countdown and education across the nation, 53. We expect that the telephone 55. We amend Option Two of the DTV however, has made it clear that this number provided will be one that is Consumer Education Initiative to concept can be difficult to convey to staffed during business hours with require each station to air a 60-day viewers, particularly because digital personnel who are prepared to answer countdown to its termination of analog receivers, including different converter complex questions from viewers, service. As discussed above, the boxes, have a variety of different particularly regarding necessary actions Omnibus Order required stations to rescanning procedures. This makes to take to get reception in specific begin a new 100-Day Countdown to widespread consumer awareness of the locations, and other engineering issues. June 12, 2009, but we temporarily issue crucial, so that viewers can take We note that stations should be waived that requirement in order to the steps they need to take to educate themselves or seek help from others. 122 NAB Comments at 30. 126 This information will be available from the NAB agrees with the Commission about 123 Option One broadcasters may replace up to 25 Commission at our Web site, https:// percent of their daily PSAs and crawls with notices dtvsupport.fcc.gov/dtvtools, compiled using the focused on rescanning, notwithstanding the other detailed data provided by stations and third party 119 NAB Comments at 33. content requirements for Option One notices. 47 entities. 120 Option One broadcasters may replace up to 25 CFR 73.674(c)(3)(vi) and 4. 127 Option One broadcasters may replace up to 25 percent of their daily PSAs and crawls with antenna 124 See Rules Appendix. percent of their daily PSAs and crawls with this information notices, notwithstanding the other 125 This telephone number for consumer referrals ‘‘local assistance’’ contact information, content requirements for Option One notices. 47 must be provided by March 17, 2009 on the Analog notwithstanding the other content requirements for CFR 73.674(c)(3)(vi) and 4. Service Termination Notification form, but may be Option One notices. 47 CFR 73.674(c)(3)(vi) and 4. 121 NPRM at para 66. updated as necessary. 128 See Rules Appendix.

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consider possible revisions to ensure information.134 Nonetheless, the program aired before the adoption of the that the Countdown was as effective as countdown clock serves an important DTV Delay Act cannot be considered possible in educating consumers. We educational purpose, and stations sufficiently accurate and helpful to asked in the NPRM how we should transitioning early, in particular, need to viewers. Therefore, we will require such revise this requirement, and received a convey the appropriate level of urgency Option Two and Three stations to air an number of comments, all advocating to their viewers. This makes NAB’s up-to-date 30 minute informational limitations. There was complete proposal, which would appear to permit program before they cease analog agreement among commenters who stations that terminate early to do so programming. addressed this proposal that there without a countdown at all, not entirely 58. NAB supports this proposal, but should be no countdown for stations sufficient to meet the needs of consumer argues that we should not require the that have already transitioned. In education. Therefore, we will require video to contain locally-specific general, commenters emphasized that each Option Two station to run a information. However, we find that imposition of a 100-day countdown countdown to its own termination of locally-specific information is the most clock for stations that have transitioned analog service, beginning no later than important, particularly for viewers who would cause viewer confusion and March 17, 2009 or 60 days prior to its may not have transitioned because of would not reach those analog viewers analog termination, whichever date uncertainty regarding continuing most in need of such information.129 occurs later.135 As a result, stations that service. Therefore, in order to serve the NAB and Mt. Mansfield both argue that are terminating analog on the transition consumer educational purposes of the the countdown might lead digital deadline of June 12, 2009, will begin DTV Delay Act, this up-to-date 30- viewers to believe they need to take their countdown on April 13, 2009 minute informational video must further steps to prepare. United (such that April 13 is day 60, and June explain: (1) The change in the transition commented that the ‘‘fundamental 12 is Day Zero). Stations that transition date; (2) when that particular station is differences’’ between analog and digital earlier will begin counting down earlier, transitioning; (3) when other stations in broadcasts warrant different consumer but will not be required to begin their the market are transitioning; and (4) education tactics.130 As discussed countdown earlier than April 1, 2009. service loss issues, if any (providing the above, we agree with these commenters 7. 30 Minute Informational Videos same information required by the rules that a station need not continue DTV adopted in section III.C.2, above). transition education once it has 57. We amend the DTV Consumer terminated analog service. NAB, Education Initiative rules to require 8. Form 388 however, also proposed a more nuanced Option Two and Three broadcasters that 59. Finally, we revise Form 388, the and limited approach to the countdown are still broadcasting in analog to air a DTV Quarterly Activity Station Report, before a station terminates analog new, up-to-date 30 minute to reflect the changes we have made to service. They would limit all informational video before they the DTV Consumer Education Initiative countdowns to 60 days, arguing that this transition. United Communications broadcaster rules in this Report and will create more urgency once the Corporation agreed with our tentative Order.138 The Commission has received countdowns begin again.131 They would decision not to require stations that approval from OMB for these minor permit stations that transition early to have already transitioned to air an changes to the forms.139 air a countdown to their own transition, additional 30-minute informational and they would require stations that video, a proposal we adopt.136 Under D. DTS Signal Loss ‘‘Waiver Policy’’ transition on June 12 to air a countdown the rules as revised in the Omnibus Extended to the national transition deadline.132 Order, Option Two and Three 60. We extend until December 14, We largely agree with these proposals. broadcasters must, on at least one day 2009 the deadline for accepting DTV 56. As discussed in the NPRM, a prior to June 12, 2009, air ‘‘an distributed transmission system simple nationwide countdown was informational program on the digital technologies (‘‘DTS’’) ‘‘waiver policy’’ 137 appropriate when the vast majority of television transition.’’ Many, if not proposals to permit a station to use DTS stations were planning to continue most, of the affected broadcasters if doing so will enable it to continue to analog programming until the complied with this requirement when serve its existing analog viewers who conclusion of the transition.133 Now the transition was to take place on would otherwise lose service as a result that the transition has been delayed, February 17, and their informational of its transition to digital service. In the however, we anticipate that an programs necessarily reflected that date. DTS Order, the Commission adopted a appreciable number of the roughly 64 For stations that have already waiver policy to enable stations to percent of stations that did not transitioned, we find that such a address the type of loss experienced by transition on or before February 17 may program met the needs of their viewers. WECT, Wilmington, NC (channel 6), transition prior to June 12. Under the For stations that have not yet where many analog viewers of that circumstances, we agree with the transitioned, however, we find that a station lost service when the station commenters that requiring an identical transitioned to digital-only operations. 134 NAB Comments at 28, United Comments at 2, and simultaneous countdown to June 12 Griffin Comments at 3, Berl Brechner Comments at The Commission permitted a station to by all Option Two stations could create 1, Mt. Mansfield Comments at 3–4 use DTS if doing so will enable it to confusion, and would not necessarily 135 Stations may explain the difference between continue to serve its existing analog reach those viewers most in need of the the national and station-specific transition to viewers within its analog Grade B viewers, even simultaneously with their countdown contour who would otherwise lose clock. For instance, a station could run a graphic 140 129 NAB Comments at 28, Berl Brechner that shows both the national countdown and the service as a result of its transition. Comments at 1, Mt. Mansfield Comments at 3–4, station’s countdown simultaneously, if they are Griffin Comments at 3. different. In order to give stations more flexibility 138 All rule changes are reflected in the Appendix 130 United Comments at 2. in the format of these countdown reminders, we to this document. 131 NAB Comments at Attachment A. will remove the maximum duration limits provided 139 See OMB Control No. 3060–1115 (Form 388). 132 NAB Comments at 24. for in our rules. 140 Digital Television Distributed Transmission 133 DTV Delay Act Omnibus Order, FCC 09–11, 136 United Comments at 5. System Technologies, MB Docket No. 05–312, para 59. 137 47 CFR 73.674(d)(5). Continued

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The Commission set a deadline of without disappointing viewer that stations that started these viewer August 18, 2009 for accepting such expectations after the transition notifications in advance of a previously waiver requests, saying that ‘‘providing deadline.143 First, the Commission planned termination that did not occur the flexibility to apply within six granted a six month STA to stations to must restart airing these notifications 30 months after the transition date will temporarily remain on their pre- days in advance of their phased allow stations to deal with unforeseen transition DTV channel with an option transition. circumstances that come to light when to seek another six months, provided 63. In the First DTV Delay Order, we they make their transition.’’ 141 In the station continues to satisfy the extended until June 12, 2009 (the new comments in response to the NPRM, the conditions for this STA. These stations transition deadline) the construction Merrill Weiss Group LLC (‘‘MWG’’) asks were required to commence operations deadline for stations with a deadline of that the August deadline be extended on their final, post-transition (digital) February 17, 2009 (the previous until December 14, 2009—six months channel no later than February 18, 2010. transition deadline).146 In the Omnibus after the June 12 transition date.142 We Second, the Commission granted a one- Order, however, we found it agree with MWG and extend until time six-month STA to stations to build unnecessary to automatically extend the December 14, 2009 the deadline for less than their full, authorized facility deadlines established for stations that accepting DTS proposals under this by their construction deadline. These obtained STAs through the phased waiver policy. We expect that DTS can flexible options were particularly transition provisions of the Third DTV be a useful tool for stations to prevent needed by stations planning to use their Periodic Report and Order because, in such loss of service to existing analog own or another stations analog many cases, we found these STAs were viewers resulting from changes to the equipment for post-transition digital granted to address construction station’s service area in the transition to operation, which made it impossible for impediments due to weather-related digital service and find that stations them to finalize construction of their concerns.147 Finally, we noted in the should have access to this tool for up to digital facilities before February 17th Omnibus Order that, to the extent six months after the new June 12 without terminating their analog service additional time is needed by phased deadline. early. These stations were required to transition stations, they must comply commence operations at full, authorized with Section 73.3598(b) tolling standard E. Phased Transition STAs Extended digital facilities no later than August 18, established in the Third DTV Periodic From August 18 to October 18 2009.144 To qualify for either of these Report and Order.148 We note that 61. We reconsider sua sponte our phased transition provisions, stations stations with the first type of a phased decision in the Omnibus Order and give were required to meet a service transition STA (i.e., to temporarily stations with phased transition special requirement to minimize the loss of remain on their pre-transition DTV temporary authorizations (STAs) an service after the transition deadline, channel) are already permitted to seek additional two months—until October were prohibited from causing Commission approval for extensions up 18, 2009—to complete their transition impermissible interference to other until February 17, 2010, provided the and operate at their full, authorized stations or preventing other stations station continues to satisfy the post-transition (DTV) facilities. In from making their transition, and were conditions for this STA. We will addition, we will consider on a case-by- required to comply with a viewer scrutinize such requests to be sure that case basis extending these phased notification requirement.145 We note the circumstances justify the extension. transition STAs for an additional, but We will grant such extensions only for limited, period of time upon an 143 Third DTV Periodic Report and Order, 23 FCC as long as is absolutely necessary, based appropriate and detailed public interest Rcd at 3041. on the justifications submitted, and in 144 justification explaining why additional Id. no event beyond February 17, 2010. time is warranted given the station’s 145 Pursuant to the first phased transition provision, the Commission allowed stations that are 64. Some parties object to the decision particular circumstances. Finally, we moving to a different DTV channel for post- to limit the length of time stations with delegate authority to the Media Bureau transition operations to temporarily remain on their unique technical challenges could to consider and act on these phased pre-transition DTV channel while they complete remain at reduced power on their post- transition STAs, consistent with this construction of their final digital facilities, provided: (1) They build facilities that serve at least transition facilities. They seek Order. the same population that receives their current additional time for such stations that 62. In the Third DTV Periodic Report analog TV and DTV service so that over-the-air and Order, the Commission adopted viewers will not lose TV service; and (2) They do viewer notifications must occur every day on-air at two provisions for a ‘‘phased transition’’ not cause impermissible interference to other least four times a day including at least once in stations or prevent other stations from making their primetime for the 30 days prior to the station’s in an effort to offer broadcasters transition. Pursuant to the second phased transition regulatory flexibility in meeting their termination of full, authorized analog service. Third provision, the Commission allowed stations to DTV Periodic Report and Order, 23 FCC Rcd at post-transition construction deadlines operate their post-transition facilities at less than 3039, para 91. their full, authorized facilities, provided they 146 First DTV Delay Order, FCC 09–9 at para 3. demonstrated either: (1) A ‘‘unique technical Report and Order, 23 FCC Rcd 16731, para 28 147 challenge’’ (as defined in the Third DTV Periodic See Omnibus Order, FCC 09–11 para 37. See (2008) (‘‘DTS Order’’). Report and Order) and could serve at least 85 also Third DTV Periodic Report and Order, 23 FCC 141 Id. The Commission limited the use of DTS percent of the same population that receives their Rcd at 3036–3042, paras 88–97. under this waiver policy to stations that apply on current analog TV and DTV service; or (2) A 148 Specifically, as noted in paragraph 36 of the or before August 18, 2009 ‘‘[b]ecause the purpose significant technical impediment to the DTV Delay Act Omnibus Order, at para 36, we will of this waiver policy is to maintain service to construction of their full, authorized facilities that apply the extension request standard contained in existing viewers after the digital transition.’’ The would not otherwise qualify for an extension of Section 73.624(d)(3) to stations with construction Commission urged stations to determine right away time to construct facilities under the new, stricter deadlines on or before June 12, 2009 and the tolling ‘‘if they anticipate such a loss of service to current standard adopted in the Third DTV Periodic Report standard set forth in Section 73.3598(b) to all analog viewers and to apply as soon as possible to and Order and could serve at least 100 percent of construction deadlines occurring June 13, 2009 or obtain an STA for DTS operation under the interim the same population that receives their current later. See 47 CFR 73.624(d)(3) (extension standard); policy so that they can continue to provide analog TV and DTV service so that over-the-air and 47 CFR 73.3598(b) (tolling standard). We note uninterrupted service to the current analog viewers viewers will not lose TV service. Both phased that the Section 73.3598(b) tolling standard does within their analog Grade B contour after they transition provisions also require the station to not provide relief for financial hardship, except that terminate their analog service.’’ notify viewers on its analog channel about the paragraph (b)(2) would toll the construction 142 Merrill Weiss Group LLC (‘‘MWG’’) station’s planned delay in construction and deadline for a station that could not build because Comments. operation of post-transition (DTV) service. The of a pending bankruptcy court action.

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could demonstrate a need for more additional extension beyond October 18, The Commission has received OMB time.149 For example, Tribune/ the station must continue to satisfy the approval under OMB’s emergency Allbritton and UNC–TV explain in their conditions for a phased transition STA processing rules for these modified ex partes that their particular situations (noted above), which, we clarify, information collection requirements.158 require extensive tower work and includes a requirement that the station For additional information concerning coordination that can only take place provide an appropriate justification the information collection requirement after the stations terminate their analog explaining why additional time is contained in this Report and Order, service.150 They point out that work can warranted given the station’s particular contact the Office of Managing Director only commence after they terminate circumstances. Such a justification is (OMD), Performance Evaluation & analog service and that they had always required as part of the STA Records Management (PERM): Cathy planned on a four month process, approval process, but we note that we Williams, [email protected], at beginning in the spring following the will give renewed consideration as to 202–418–2918. original February 17th transition whether a particular length of extension deadline. The delay to June means that is warranted in the particular V. Ordering Clauses they cannot begin work on their post- circumstances at issue. 70. It is ordered that, pursuant to the transition facilities until mid-June authority contained in Sections 1, 2, 4, IV. Procedural Matters because they will continue to use their 7, 303, 309, and 337 of the analog transmission equipment until A. Statutory Authority Communications Act of 1934, as then. 67. As addressed in detail in the amended, 47 U.S.C. 151, 152, 154, 157, 65. We believe many other phased Omnibus Order, we have concluded that 303, 309, and 337, and Sections 2 and transition stations may be in this same the rule changes and other actions taken 4 of the DTV Delay Act, Public Law situation and are, therefore, persuaded in order to implement the DTV Delay 111–4, 123 Stat. 112, to be codified at to provide two additional months to all Act are not subject to the rulemaking 47 U.S.C. 309(j)(14) and 337(e), this phased transition stations, thus requirements of the Administrative Report and Order IS ADOPTED and the extending their STAs from August 18 to Procedure Act,152 Congressional Review Commission’s Rules are hereby October 18, 2009. Given the limited Act,153 Regulatory Flexibility Act,154 or amended as set forth in the Rules amount of time afforded, and that the any other provision of law that Appendix. service requirement will minimize the otherwise would apply and would 71. It is also ordered that, pursuant to loss of service after the transition date, impede implementation of the statutory the authority contained in Section 4(c) we find it appropriate to give this two- directives.155 No commenter disagreed of the DTV Delay Act, DTV Delay Act month blanket extension to all phased with our conclusion. We find that the sec 4(c), the rules, requirements, forms transition stations. We find that rule changes and other actions taken in and procedures adopted in this Report providing this extra time will permit this Order are, therefore, not subject to and Order will be effective on March 13, phased transition stations to continue the above-referenced requirements and, 2009. providing analog service until the end of in any event, conclude that there is good List of Subjects in 47 CFR Part 73 the transition and that the benefit of full cause for departure from such Digital television, Reporting and analog service through the transition requirements here for the reasons set recordkeeping requirements, and deadline weighs in favor of somewhat forth in the Omnibus Order. reduced post-transition digital service Television. 151 for a limited period of time. B. Additional Information Federal Communications Commission. Accordingly, we extend until October 68. For more information, please Gloria J. Miles, 18, 2009 the construction deadline for contact Evan Baranoff, Federal Register Liaison. stations with a phased transition STA [email protected], at 202–418– deadline of August 18, 2009. 7142 or Lyle Elder, [email protected], Final Rules 66. In addition to the blanket two- at 202–418–2120, of the Media Bureau, ■ For the reasons discussed in the month extension granted above, we will Policy Division, or Eloise Gore, consider on a case-by-case basis preamble, the Federal Communications [email protected], at 202–418–7200, Commission amends 47 CFR part 73 as extending phased transition STAs for of the Media Bureau. stations with unique technical follows: C. Final Paperwork Reduction Act of challenges. However, absent a tolling PART 73—RADIO BROADCAST 1995 Analysis justification, no phased transition SERVICES extensions will be granted beyond 69. This Report and Order was February 17, 2010. To obtain an analyzed with respect to the Paperwork ■ 1. The authority citation for part 73 Reduction Act of 1995 (‘‘PRA’’) 156 and continues to read as follows: 149 See, e.g., Tribune Broadcasting and Allbritton contains modified information Authority: 47 U.S.C. 154, 303, 334, 336. Communications (‘‘Tribune and Allbritton’’) Ex collection requirements. Specifically, Parte in MB Docket 09–17 (dated March 3, 2009); ■ 2. Revise § 73.674 to read as follows: University of North Carolina (‘‘UNC–TV’’) Ex Parte this Report and Order modifies several in MB Docket 09–17 (dated March 4, 2009); KTVU existing DTV transition-related § 73.674 Digital Television Transition Partnership (‘‘Cox’’) Comments regarding stations information collection requirements.157 Notices by Broadcasters. KTVU and KICU (each dated March 4, 2009); LeSEA Broadcasting Corporation Comments (dated (a) Each full-power commercial and 152 March 4, 2009); 5 U.S.C. 551, et seq. (APA). noncommercial educational television 153 150 Ex Parte Comments of Tribune Broadcasting 5 U.S.C. 801, et seq. (CRA). broadcast station licensee or permittee 154 and Allbritton Communications (dated March 3, 5 U.S.C. 601, et seq. (RFA). must air an educational campaign about 2009) at 1; Ex Parte Comments of the University of 155 DTV Delay Act Omnibus Order, FCC 09–11 at North Carolina (filed March 4, 2009) at 3. para 70. the transition from analog broadcasting 151 We note, however, that phased transition 156 The Paperwork Reduction Act of 1995 stations must continue to comply with the (‘‘PRA’’), Public Law 104–13, 109 Stat 163 (1995) consumer education requirements), and 3060–1117 Consumer Education requirements until they (codified in Chapter 35 of Title 44 U.S.C.). (viewer notifications for analog service complete construction and commence operation of 157 See OMB Control Nos. 3060–0386 (CDBS termination). their full, authorized post-transition digital facility. Informal Filing Forms), 3060–1115 (Form 388 and 158 5 CFR 1320.13.

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to digital television (DTV). For each between 8 p.m. and 11 p.m. in the loss of viewers should consider whether such commercial station, a licensee or Atlantic, Eastern and Pacific time zones, their viewers can improve their ability permittee must elect by March 27, 2008, and between 7 p.m. and 10 p.m. in the to receive their signal by obtaining a to comply with either paragraph (c) or Mountain, Central, and Alaskan time different or better antenna, and if so, (d) of this section. For each such zones. provide information concerning such noncommercial station, a licensee or (ii) Service loss notices are in addition antennas. permittee must elect, by March 27, to the other obligations imposed by this (iv) Antenna information notices must 2008, to comply with paragraph (c), (d), section. be no fewer than 15 seconds long, and or (e) of this section. A licensee or (iii) The service loss notices must must be aired at least once per day, permittee must note their election via include the FCC’s Call Center number, between 8 a.m. and 11:35 p.m. At least the filing of Form 388 as required by 1–888–CALL–FCC, the FCC’s TTY three antenna information notices per §§ 73.3526 and 73.3527. number, 1–888–TELL–FCC, and the week must air between 8 p.m. and 11 (b) The following requirements apply Web site address for the FCC’s online p.m. in the Atlantic, Eastern and Pacific to paragraphs (c), (d), and (e) of this digital reception mapping tool, http:// time zones, and between 7 p.m. and 10 section: www.DTV.gov/maps. p.m. in the Mountain, Central, and (1) The station must comply with the (iv) The station must post service loss Alaskan time zones. requirements of the paragraph it elects information on its Web site home page, (v) Antenna information notices may with respect to its analog channel and including a link to the relevant coverage be included as part of a station’s DTV its primary digital stream. change maps on http://www.DTV.gov Consumer Education Initiative efforts, (2) Any Public Service and the FCC’s online digital reception or may be discussed for at least 15 Announcement aired to comply with mapping tool, http://www.DTV.gov/ seconds during news programs, or these requirements must be closed- maps. This information must remain broadcast in other ways that the station captioned, notwithstanding § 79.1(d)(6) available on the station’s Web site home determines will be most helpful to of this chapter. page for at least 30 days after the station consumers. (3) The campaign must begin no later terminates its analog service, (vi) Notwithstanding the content than March 27, 2008, and continue at notwithstanding the termination of requirements of paragraph (c) of this least through the station’s termination of other consumer education requirements. section, a licensee or permittee electing analog service, not later than June 12, (v) The loss areas disclosed in the compliance with paragraph (c) of this 2009, except for stations subject to the service loss notices must be based on section may replace up to 25 percent of provisions of paragraph (b)(4) of this the FCC’s Signal Loss Report. their daily PSAs and crawls with section. (vi) Service loss notices must disclose antenna notices. (4) Any station that has filed a request that some current viewers of the (7) Rescanning Notices—Beginning for an extension of the deadline for station’s analog signal are predicted to April 1, 2009, all stations must include construction of its full, authorized post- experience a loss of service and describe information in their consumer transition digital facility, including a the discrete geographic areas where education campaigns to inform and request for phased transition pursuant there is likely to be a service loss. remind viewers about the importance of to the Third DTV Periodic Report and (vii) If any predicted service loss is periodically using the rescan function of Order in MB Docket 07–91, or is attributable to a change in the station’s their digital televisions and digital operating under such an extension, frequency from VHF to UHF, and the converter boxes, as provided in this must continue its DTV consumer predicted losses cannot entirely be paragraph. education campaign until the station described with respect to discrete (i) Rescanning notices should explain completes construction of its full, geographic areas, the station must, at a why rescanning is important in general authorized post-transition digital minimum, disclose that some analog and, in particular, if the station is facility. After the station terminates viewers located in areas obstructed by changing channels or signal direction. analog service, it must continue to hills or buildings are predicted to be (ii) Rescanning notices must be no comply with the requirements of the unable to receive the station’s digital fewer than 15 seconds long, and must be Consumer Education Campaign Option signal. This is in addition to, and not in aired at least once per day, between 8 that it has elected, except that the lieu of, descriptions of any discrete a.m. and 11:35 p.m. At least three content of all on-air education must be geographic areas where there is likely to rescanning notices per week must air revised to provide information about the be a service loss. between 8 p.m. and 11 p.m. in the station’s limited digital service area and (6) Antenna Information Notices— Atlantic, Eastern and Pacific time zones, the anticipated date for it to complete Beginning April 1, 2009, all stations and between 7 p.m. and 10 p.m. in the construction and commence operation must include information about the use Mountain, Central, and Alaskan time of its full, authorized post-transition of antennas as part of their consumer zones. digital facility. education campaign, as provided in this (iii) Rescanning notices may be (5) Service Loss Notices—Beginning paragraph. included as part of a station’s DTV April 1, 2009, if the FCC’s Signal Loss (i) The antenna information notices Consumer Education Initiative efforts, Report, available on http://www.dtv.gov, should provide information about the or may be discussed for at least 15 predicts that 2 percent or more of the types of antennas that their viewers may seconds during news programs, or population in a station’s Grade B analog need, and how to install them. broadcast in other ways that the station service contour will not receive the (ii) Stations that have changed or are determines will be most helpful to station’s digital signal, the station must changing the frequency band in which consumers. air service loss notices, as provided in they broadcast must inform their (iv) Notwithstanding the content this paragraph. viewers of the change in frequencies requirements of paragraph (c) of this (i) Service loss notices may be no and explain how the change affects the section, a licensee or permittee electing fewer than 30 seconds long, and must be antenna they need to receive their compliance with paragraph (c) of this aired at least once per day, between 8 signal. section may replace up to 25 percent of a.m. and 11:35 p.m. At least three (iii) Stations that are predicted by the their daily PSAs and crawls with service loss notices per week must air FCC’s Signal Loss Report to have any rescanning notices.

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(8) Help Center Notices—Beginning (ii) Air for no fewer than 60 on its post-transition channel, if it has April 1, 2009, as part of its DTV consecutive seconds; not already done so. consumer education campaign, every (iii) Be displayed so that the text (d) Consumer Education Campaign station must air notices providing the travels across the bottom or top of the Option Two: location and operating hours of walk-in viewing area at the same speed used for (1) A licensee or permittee must, at a DTV help centers in the station’s market other informative text crawls concerning minimum, air an average of sixteen (16) area; the FCC Call Center telephone news, sports, and entertainment transition-related PSAs per week, and number and TTY number; and the information; an average of sixteen (16) transition- station’s telephone number for receiving (iv) Be presented in the same language related crawls, snipes, and/or tickers per consumer referrals and calls from local as a majority of the programming carried week, over a calendar quarter. viewers, as provided in this paragraph. by the station; (2) For the purposes of calculating the (i) Help center notices must be no (v) Be displayed so that they do not average number of PSAs aired, a 30- fewer than 15 seconds long, and must be block and are not blocked by closed- second PSA qualifies as a single PSA, aired at least once per day, between 8 captioning or emergency information; and two 15-second PSAs count as a a.m. and 11:35 p.m. At least three help and single PSA. center notices per week must air (vi) Contain at least the following (3) PSAs, crawls, snipes, and/or between 8 p.m. and 11 p.m. in the information, but may contain more, tickers aired between the hours of 1 a.m. Atlantic, Eastern and Pacific time zones, provided they contain no misleading or and 5 a.m. do not conform to the and between 7 p.m. and 10 p.m. in the inaccurate statements: requirements of this section and will not Mountain, Central, and Alaskan time (A) The nationwide switch to digital count toward calculating the average zones. television broadcasting will be complete number of transition-related education (ii) Help center notices may be on June 12, 2009, but your local pieces aired. included as part of a station’s DTV television stations may switch sooner. (4) Over the course of each calendar Consumer Education Initiative efforts, After the switch, analog-only television quarter, 25 percent of all PSAs, and 25 or may be discussed for at least 15 sets that receive TV programming percent of all crawls, snipes, and/or seconds during news programs, or through an antenna will need a tickers, must air between 6 p.m. and broadcast in other ways that the station converter box to continue to receive 11:35 p.m. (Atlantic, Eastern and Pacific determines will be most helpful to over-the-air TV. Watch your local time zones) or between 5 p.m. and 10:35 consumers. stations to find out when they will turn p.m. (Mountain, Central, and Alaskan (iii) Notwithstanding the content off their analog signal and switch to time zones). requirements of paragraph (c) of this digital-only broadcasting. Analog-only (5) Stations must air a 30-minute section, a licensee or permittee electing TVs should continue to work as before informational program on the digital compliance with paragraph (c) of this to receive low power, Class A or television (DTV) transition between 8 section may replace up to 25 percent of translator television stations and with a.m.–11:35 p.m. on at least one day after its daily PSAs and crawls with help cable and satellite TV services, gaming April 1, 2009, and prior to the station’s center notices. consoles, VCRs, DVD players, and termination of analog service. The (c) Consumer Education Campaign similar products. program must contain at least the (B) More information is available by Option One: following information: phone and online, and provide (1) From March 27, 2008 through the (i) The fact that Congress has changed appropriate contact information, station’s termination of analog service the deadline for the national DTV including means of contacting the or, for stations subject to the provisions transition to June 12, 2009; station or the network. of paragraph (b)(4) of this section, until (4) Public service announcements (ii) The date and approximate time of the station completes construction of its must have a duration of no fewer than day when the station airing the full, authorized post-transition digital 15 consecutive seconds, and contain, at informational video is terminating facility, a licensee or permittee must, at a minimum, the information described analog service; a minimum, air one transition-related in paragraph (c)(3)(vi) of this section. (iii) The date and approximate time of public service announcement (PSA), They must also address the following day when all other full-power stations and one transition-related informative topics at least once each during every in the same market are terminating text crawl, in every quarter of every calendar week: analog service; broadcast day. This minimum will (i) The steps necessary for an over- (iv) For stations covered by paragraph increase to two of each, per quarter, the-air viewer or a subscriber to a (b)(5) of this section, the same service from April 1, 2008 through September multichannel video programming loss information required by paragraph 30, 2008, and to three of each, per distributor to continue viewing the (b)(5) of this section. quarter, from October 1, 2008 through station after the transition; (6) Beginning on April 1, 2009, or the conclusion of the campaign. At least (ii) The channel on which the station sixty (60) days prior to the station’s one PSA and one informative text crawl can be viewed after the transition; termination of analog service, per day must be aired between 8 p.m. (iii) Whether the station will be whichever is later, the station must and 11 p.m. in the Atlantic, Eastern and providing multiple streams of free video begin a 60-Day Countdown to its Pacific time zones, and between 7 p.m. programming during or after the transition to digital-only service. During and 10 p.m. in the Mountain, Central, transition; this period, the station must air at least and Alaskan time zones. (iv) Whether the station will be one of the following per day: (2) For the purposes of this section, providing a High Definition signal (i) Graphic Display. A graphic super- each broadcast day consists of four during or after the transition; imposed during programming content quarters; 6:01 a.m. to 12 p.m., 12:01 (v) The exact date and time that the that reminds viewers graphically there p.m. to 6 p.m., 6:01 p.m. to 12 a.m., and station will cease analog broadcasting; are ‘‘x number of days’’ until the 12:01 a.m. to 6 a.m. and transition. They will be visually (3) Informative text crawls must: (vi) The exact date and time that the instructed to call a toll-free number and/ (i) Air during programming; station will begin digital broadcasting or visit a Web site for details. The

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duration must be at least five (5) (i) The fact that Congress has changed consider and respond to comments, the seconds. the deadline for the national DTV effective date is extended for 90 days. (ii) Animated Graphic. A moving or transition to June 12, 2009; DATES: Comments must be received on animated graphic that ends up as a (ii) The date and approximate time of or before April 16, 2009. The effective countdown reminder. It would remind day when the station airing the date of the rule amending 49 CFR Parts viewers that there are ‘‘x number of informational video is terminating 356, 365, and 374, published at 74 FR days’’ until the transition. They will be analog service; 2895, January 16, 2009, is delayed until visually instructed to call a toll-free (iii) The date and approximate time of June 15, 2009. The compliance date for number and/or visit a Web site for day when all other full-power stations this rule continues to be July 15, 2009. details. The duration must be at least in the same market are terminating ADDRESSES: You may submit comments five (5) seconds. analog service; identified by the Federal Docket (iv) For stations covered by paragraph Management System Number in the (iii) Graphic and Audio Display. (b)(5) of this section, the same service Option #1 or option #2 with an added heading of this document by any of the loss information required by paragraph following methods. Do not submit the audio component. The duration must be (b)(5) of this section. at least five (5) seconds. same comments by more than one method. The Federal eRulemaking (iv) Longer Form Reminders. Stations [FR Doc. E9–5820 Filed 3–13–09; 4:15 pm] portal is the preferred method for can choose from a variety of longer form BILLING CODE 6712–01–P submitting comments, and we urge you options to communicate the countdown to use it. message. Examples might include an DEPARTMENT OF TRANSPORTATION Federal eRulemaking Portal: Go to ‘‘Ask the Expert’’ segment where http://www.regulations.gov. Follow the viewers can call in to a phone bank and Federal Motor Carrier Safety online instructions for submitting ask knowledgeable people their Administration comments. In the Comment or questions about the transition. The Submission section, type Docket ID duration must be at least two (2) 49 CFR Parts 356, 365, and 374 Number ‘‘FMCSA–2008–0235’’, select minutes. (Some stations may also ‘‘Go’’, and then click on ‘‘Send a choose to include during newscasts [Docket No. FMCSA–2008–0235] Comment or Submission.’’ You will DTV ‘‘experts’’ who may be asked RIN 2126–AB16 receive a tracking number when you questions by the anchor or reporter submit a comment. about the impending transition Elimination of Route Designation Telefax: 1–202–493–2251. deadline.) Requirement for Motor Carriers Mail, Courier, or Hand-Deliver: (e) Consumer Education Campaign Transporting Passengers Over Regular Docket Management Facility; U.S. Option Three: Routes Department of Transportation, Room W12–140, 1200 New Jersey Avenue, SE., (1) Only a licensee or permittee of a AGENCY: Federal Motor Carrier Safety Washington, DC 20590–0001. Office noncommercial television station may Administration (FMCSA), DOT. elect this option. Under this option, hours are between 9 a.m. and 5 p.m., ACTION: Final rule; delay of effective from March 27, 2008, through April 30, e.t., Monday through Friday, except date and request for comments. 2008, a noncommercial broadcaster Federal holidays. Privacy Act: Regardless of the method must, at a minimum, air 60 seconds per SUMMARY: On March 3, 2009, FMCSA day of transition-related education published a document in the Federal used for submitting comments, all (PSAs), in variable timeslots, including Register (74 FR 9172) requesting comments will be posted without at least 7.5 minutes per month between comments on its proposal to delay the change to the Federal Docket 6 p.m. and 12 a.m. From May 1, 2008, effective date of its January 16, 2009, Management System (FDMS) at http:// through October 31, 2008, a broadcaster final rule entitled ‘‘Elimination of Route www.regulations.gov. Anyone can must, at a minimum, air 120 seconds Designation Requirement for Motor search the electronic form of all our per day of transition-related education Carriers Transporting Passengers over dockets in FDMS, by the name of the (PSAs), in variable timeslots, including Regular Routes.’’ Based on the five individual submitting the comment (or at least 15 minutes per month between comments received, all supporting the signing the comment, if submitted on 6 p.m. and 12 a.m. From November 1, proposal to delay the effective date of behalf of an association, business, labor 2008, through the station’s termination the final rule, FMCSA is extending the union, etc.). DOT’s complete Privacy of analog service, or, for stations subject effective date by 90 days, and seeks Act Statement was published in the to the provisions of paragraph (b)(4) of additional public comment on the Federal Register on April 11, 2000 (65 this section, until the station completes rulemaking. The final rule announced FR 19476) or you may visit http:// construction of its full, authorized post- the discontinuation of the edocket.access.gpo.gov/2008/pdf/E8- transition digital facility, a broadcaster administrative requirement that 785.pdf. must, at a minimum, air 180 seconds applicants seeking for-hire authority to FOR FURTHER INFORMATION CONTACT: Mr. per day of transition-related education transport passengers over regular routes David Miller, Regulatory Development (PSAs), in variable timeslots, including submit a detailed description and a map Division, (202) 366–5370 or by e-mail at: at least 22.5 minutes per month between of the route(s) over which they propose [email protected]. 6 p.m. and 12 a.m. to operate. In response to the Assistant SUPPLEMENTARY INFORMATION: On (2) Noncommercial stations must air a to the President and Chief of Staff’s January 16, 2009, FMCSA published a 30-minute informational program on the memorandum of January 20, 2009, final rule announcing the digital television (DTV) transition FMCSA extends the effective date to discontinuation of the administrative between 8 a.m.–11:35 p.m. on at least allow the Agency the opportunity for requirement that applicants seeking for- one day after April 1, 2009, and prior to further review and consideration of the hire authority to transport passengers the station’s termination of analog January 16, 2009, final rule and solicits over regular routes submit a detailed service. The program must contain at public comments on the final rule. In description and a map of the route(s) least the following information: order to afford sufficient time to over which they propose to operate (74

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FR 2895). The effective date of the rule DEPARTMENT OF THE INTERIOR mass, dividing the island into roughly was originally March 17, 2009, with a three geographic segments: West compliance date of July 15, 2009. Fish and Wildlife Service Molokai Mountain, East Molokai In accordance with the January 20, Mountain, and a volcano that formed 50 CFR Part 17 Kalaupapa Peninsula (Department of 2009 memorandum, 74 FR 4435, [FWS-R1-ES-2008-0016; MO 9221050083-B2] Geography 1998, pp. 11, 13). January 26, 2009, from the Assistant to The taller and larger East Molokai the President and Chief of Staff, on RIN 1018-AV00 Mountain, which makes up eastern March 2, 2009 (74 FR 9172), FMCSA Molokai, rises 4,970 feet (ft) (1,514 sought comment on a proposal to extend Endangered and Threatened Wildlife meters (m)) above sea level on the the effective date of the final rule for 90 and Plants; Listing Phyllostegia island’s summit at Kamakou and days. FMCSA received five comments to hispida (No Common Name) as comprises roughly 50 percent of the the March 2 notice. All of the Endangered Throughout Its Range island’s land area (Department of commenters supported extending the AGENCY: Fish and Wildlife Service, Geography 1998, p. 11; Foote et al. effective date of the final rule for 90 Interior. 1972, p. 11). Phyllostegia hispida is known only from the wet forests of days, providing for a new comment ACTION: Final rule. period, and, if appropriate, eastern Molokai, at elevations from reconsidering the final rule based on SUMMARY: We, the U.S. Fish and 2,300 to 4,200 ft (700 to 1,280 m) any new information provided by the Wildlife Service (Service), determine (Wagner et al. 1999, p. 819). The wet comments. Therefore, FMCSA extends endangered status under the forests where P. hispida has been the effective date of its January 16, 2009, Endangered Species Act of 1973, as recorded are found only on the final rule from March 17, 2009, to June amended (Act), for Phyllostegia hispida windward side of East Molokai, which 15, 2009. This will provide us sufficient (no common name), a plant species from differs topographically from the leeward side. Precipitous cliffs line the northern time to address issues that have been the island of Molokai in the Hawaiian windward coast, with deep inaccessible raised about whether the new rule will Islands. This final rule implements the Federal protections provided by the Act valleys dissecting the coastline. The make it more difficult for us to enforce annual rainfall on the windward side our requirements concerning safety and for this species. We have also determined that critical habitat for P. ranges from 75 to over 150 inches (in) access for individuals with disabilities. hispida is prudent but not determinable (200 to over 375 centimeters (cm)), Although we believe the final rule fully at this time. distributed throughout the year. The addressed these issues, in light of the DATES: This rule becomes effective April soils are poorly drained and high in Assistant to the President and Chief of 16, 2009. organic matter. The gulches and valleys Staff’s memorandum, we are delaying are usually very steep, but sometimes ADDRESSES: This final rule is available the effective date of the final rule to gently sloping (Foote et al. 1972, p. 14). on the Internet at http:// allow the Agency the opportunity for The native habitats and vegetation of www.regulations.gov and http:// further review and consideration of the Hawaiian Islands have undergone www.fws.gov/pacificislands. Comments these issues. extreme alterations because of past and and materials received, as well as present land use, as well as the List of Subjects supporting documentation used in the intentional or inadvertent introduction preparation of this rule, will be 49 CFR Part 356 of nonnative animal and plant species. available for public inspection, by Introduced mammals, particularly feral Administrative practice and appointment, during normal business pigs (Sus scrofa), have greatly affected hours at: U.S. Fish and Wildlife Service, procedure, Routing, Motor carriers. native Hawaiian plant communities. Pacific Islands Fish and Wildlife Office, Feral pigs have been described as the 49 CFR Part 365 300 Ala Moana Boulevard, Room 3-122, most pervasive and disruptive Box 50088, Honolulu, HI 96850; nonnative influence on the unique Administrative practice and telephone, 808-792-9400; facsimile, 808- native forests of the Hawaiian Islands, procedure, Brokers, Buses, Freight 792-9581. and are widely recognized as one of the forwarders, Motor carriers, Moving of FOR FURTHER INFORMATION CONTACT: greatest threats to forest ecosystems in household goods, Reporting and Patrick Leonard, Field Supervisor, Hawaii today (Aplet et al. 1991, p. 56; recordkeeping requirements. Pacific Islands Fish and Wildlife Office Anderson and Stone 1993, p. 195; Loope 49 CFR Part 374 (see ADDRESSES section). If you use a 1998, p. 752). Introduced (nonnative) telecommunications device for the deaf plant species, which now comprise Aged, Blind, Buses, Civil rights, (TDD), call the Federal Information approximately half of the plant taxa in Freight, Individuals with disabilities, Relay Service (FIRS) at 800-877-8339. the islands, have come to dominate Motor carriers, Smoking. SUPPLEMENTARY INFORMATION: many Hawaiian ecosystems, and frequently outcompete native plants for Issued on: March 12, 2009. Background space, light, water, and nutrients, as Rose A. McMurray, Phyllostegia hispida is known only well as alter ecosystem function, Acting Deputy Administrator. from the island of Molokai, Hawaii, rendering habitats unsuitable for native [FR Doc. E9–5778 Filed 3–16–09; 8:45 am] where 24 wild and 214 outplanted species (Cuddihy and Stone 1990, pp. BILLING CODE 4910–EX–P individuals currently exist. Molokai is 73-91; Vitousek et al. 1997, p. 6). approximately 38 miles (mi) (61 The plant Phyllostegia hispida has kilometers (km)) long and up to 10 mi only a few recorded occurrences and (16 km) wide, and encompasses an area until recently was thought to be extinct of about 260 square (sq) mi (674 sq km) in the wild. Alterations of the plant’s (Foote et al. 1972, p. 11; Department of native habitat by feral pigs and Geography 1998, p. 13). Three shield nonnative plants have been the primary volcanoes make up most of the land threats to P. hispida, in conjunction

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with the threat of predation by feral (Lamiaceae), P. hispida is a loosely In November 1996, TNCH erected an pigs, competition with nonnative plants, spreading, many-branched vine that exclosure around the Pepeopae and more recently the negative often forms large, tangled masses. Boardwalk individual and began demographic and genetic consequences Leaves are thin and flaccid with hispid frequent, recurrent weeding and of extremely small population size, as hairs (rough with firm, stiff hairs) and monitoring within the fenced area well as the consequent vulnerability to glands. The leaf margins are irregularly (TNCH 1997a, p. 2). They also built an extinction through deterministic or and shallowly lobed. Six to eight white exclosure approximately 656 ft (200 m) stochastic (chance) events. flowers make up each verticillaster (a away for future outplantings of false whorl, composed of a pair of propagated individuals. Plants grown Previous Federal Actions nearly sessile cymes (a flat-topped or from leaf buds collected from the We first identified Phyllostegia round-topped flower cluster) in the axils Pepeopae Boardwalk plant were hispida as a candidate for listing in the of opposite leaves or bracts), and nutlets outplanted into the exclosure in September 19, 1997, Notice of Review of are approximately 0.1 inches (in) (2.5 December 1997 (TNCH 1998a, p. 7). Plant and Animal Taxa that are millimeters (mm)) long (Wagner et al. They survived through 1998 (TNCH Candidates or Proposed for Listing as 1999, pp. 817-819). No life history 1998b, Appendix 1, dot 28), but have Endangered or Threatened Species information is currently available on since been confirmed dead (Aruch 2006; (Notice of Review) (62 FR 49397). this species. Misaki 2006). Candidates are those taxa for which we The few documented specimens of The Pepeopae Boardwalk individual have on file sufficient information on Phyllostegia hispida have typically been died in 1998 or 1999 (HBMP 2005), and biological vulnerability and threats to found in wet Metrosideros polymorpha the wild plant and outplantings in Puu support preparation of a listing (ohia)–dominated forest, with most at an Alii NAR, which may possibly have proposal, but for which development of elevation between 3,650 and 4,200 ft been Phyllostegia manni and not P. a listing regulation is precluded by other (1,112 and 1,280 m). Associated native hispida (see above; the question of higher priority listing activities. species include Cheirodendron taxonomic identity was never resolved), On May 4, 2004, the Center for trigynum (olapa), Ilex anomala (aiae), died several years ago (Perlman 2005; Biological Diversity petitioned the Cibotium glaucum (hapuu), Broussaisia Wood 2005; Hughes 2006b). The Service to list 225 species of plants and argutus (kanawao), Rubus hawaiensis University of Hawaii’s Lyon Arboretum animals as endangered under the (akala), Sadleria cyatheoides (amau), has material from the individual that provisions of the Act (16 U.S.C. 1531 et Pipturus albidus (mamaki), Nertera was growing along the Puu Alii fence seq.), including Phyllostegia hispida. In granadensis (makole), Athyrium and from the Pepeopae Boardwalk our Notice of Review, dated September microphyllum (no common name), individual in micropropagation (U.S. 12, 2006 (71 FR 53756), we retained a Elaphoglossum fauriei (no common Fish and Wildlife Service 2005). listing priority number of 2 for this name), and bryophytes (Hawaii Surveys have been conducted in the species, in accordance with our priority Biodiversity and Mapping Program wet forests of east Molokai, but no guidance published on September 21, (HBMP) 2007). additional Phyllostegia hispida plants 1983 (48 FR 43098). A listing priority of From 1910 through 1979, a total of 8 were found. The species was thought to 2 reflects threats that are both imminent occurrences of Phyllostegia hispida have been extirpated from the wild until and high in magnitude, as well as the were recorded from the wet forests of 2005, when two seedlings were found in taxonomic classification of P. hispida as eastern Molokai (HBMP 2007). None of a Hanalilolilo stream bank in Kamakou a full species. We determined that these historical occurrences have been Preserve, indicating the possible publication of a proposed rule to list the relocated during surveys conducted in presence of a mature plant, or plants, species was precluded by our work on the wet forests of east Molokai over the somewhere in the vicinity (TNCH higher priority listing actions during the past several years (The Nature 1997b, pp. 1-19; Perlman 2005; Perlman period from May 2, 2005, through Conservancy of Hawaii (TNCH) 1997b, 2006a; Wood 2006). One of the August 23, 2006 (71 FR 53756). pp. 1-19; Perlman 2006a). In 1996, two seedlings was collected by a botanist However, we have since completed adult plants were found in eastern with HBMP and provided to Lyon those actions. As such, we had available Molokai within TNCH’s Kamakou Arboretum in Honolulu, which in turn resources to propose to list this species. Preserve, one next to the Pepeopae provided it to Kalaupapa National On February 19, 2008, we published Boardwalk and the other east of Historic Park (KNHP) on Molokai for a proposed rule to list Phyllostegia Hanalilolilo growing along the fence attempted propagation. That plant has hispida as endangered throughout its within the State of Hawaii’s Puu Alii since died (Hughes 2006a; Garnett range (73 FR 9078). We solicited data Natural Area Reserve (NAR). In 1997, a 2006). The other seedling was collected and comments from the public on the single Phyllostegia individual was by a botanist with the National tropical proposed rule. The comment period discovered on the rim of Pelekunu Botanic Gardens. Cuttings were opened on February 19, 2008, and Valley in the Puu Alii NAR (HBMP propagated from this seedling and closed on April 21, 2008. 2005; TNCH 1997b, p. 6). There is some providedto KNHP (Perlman 2006b). uncertainty, however, as to whether this Plants grown from these cuttings have Species Information individual was P. hispida, as it was since been outplanted into TNCH’s Phyllostegia hispida was first identified as P. manni by Hawaii Kamakou Preserve (see below). described by William Hillebrand in Division of Forestry and Wildlife Phyllostegia hispida was again 1870 from a specimen collected from an (DOFAW) staff, based upon the size and thought to be extirpated from the wild area that he described as the ‘‘heights of lobing of its leaves (Hobdy 2006; Lau until a single juvenile plant was Mopulehu’’ on the island of Molokai 2006; Nohara 2006). This individual discovered in May 2006 within the Puu (see ‘‘Type Description,’’ Smithsonian plant was protected from feral ungulates Alii NAR along the Puu Alii fenceline Institution and National Tropical inside a fenced exclosure. Seeds were at 4,100 ft (1,250 m) elevation (Perlman Botanical Garden 2008), and is collected, and seedlings were produced 2006b). Although protected within a 10- recognized as a distinct taxon in Wagner by DOFAW and outplanted into the ft (3-m) diameter fenced exclosure et al. (1999, pp. 817-819). A non- exclosure with the wild plant (Nohara (Stevens 2006), that individual has died aromatic member of the mint family 2006). for unknown reasons (Oppenheimer

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2007). However, 10 new wild plants the proposal. Newspaper notices recreational, scientific, or educational were discovered in April 2007: 9 within inviting general public comment were purposes; (C) disease or predation; (D) Kamakou Preserve and 1 within Puu published in the Honolulu Advertiser the inadequacy of existing regulatory Alii NAR. Four of the individuals found and Molokai Advertiser News. We did mechanisms; or (E) other natural or within Kamakou Preserve were not receive any requests for a public manmade factors affecting its continued seedlings that were closely clustered hearing. existence. Listing actions may be next to a fenceline. These were During the comment period for the warranted based on any of the above protected with temporary fencing; proposed rule, we received one written threat factors, singly or in combination. however, two of these individuals are public comment in support of listing Each of these factors is discussed below. now dead. Two of the remaining eight Phyllostegia hispida with endangered A. The Present or Threatened wild individuals discovered in April status. In addition, the commenter Destruction, Modification, or 2007 are mature and have fruited and concurred with our assessment that feral Curtailment of its Habitat or Range produced seeds. Seeds and cuttings pigs and invasive, nonnative plants are have been removed from these both important and immediate threats to As with virtually every other native individuals for attempted cultivation Hawaii’s native plants and to P. hispida plant community in the islands, the wet (Oppenheimer 2008b). Other than the in particular. No further additional forests of Molokai where Phyllostegia two remaining seedlings that were information was offered beyond these hispida occurs have been affected by protected with temporary fencing, the statements of support; therefore we will introduced (nonnative) feral pigs and remainder of the wild individuals are not address this comment further here. introduced (nonnative) plants (DOFAW 1991, pp. 3, 14-23; TNCH 1994, pp. 6, not currently protected within Peer Review exclosures. 9-12; HBMP 2007). The poor Since April 2007, 15 additional In accordance with our peer review reproduction and survivorship of P. Phyllostegia hispida individuals have policy published on July 1, 1994 (59 FR hispida clearly indicate that the current been found within Kamakou Preserve 34270), we solicited expert opinion conditions are less than optimal for this while conducting Rubus argutus from seven individuals with scientific species, although we do not yet fully (Florida prickly blackberry) control trips expertise that included familiarity with understand the specific mechanisms (Oppenheimer 2008a,b; Oppenheimer Phyllostegia hispida and its habitat, that are undermining its viability. biological needs, and threats. We 2008d). Most of the remaining wild Feral Pigs individuals, which now number 24, are received written comments from two located on landslides or in windthrow experts, both of whom agreed with the European pigs, introduced to Hawaii areas (areas in which trees have been assessment that P. hispida meets the by Captain James Cook in 1778, uprooted or overthrown by wind) definition of an endangered species. In hybridized with domesticated (Oppenheimer 2008b,c). addition, both experts pointed out that Polynesian pigs, became feral, and In addition, several outplantings of while the continuing invasion of alien invaded forested areas, especially wet cultivated individuals have been plants and feral ungulates undoubtedly and mesic forests and dry areas at high completed within TNCH’s Kamakou poses threats to the species and its elevations. They are currently present Preserve as of April 2007. Twelve habitat, the limited area currently on Kauai, Niihau, Oahu, Molokai, Maui, individuals were outplanted into occupied by P. hispida has not yet and Hawaii. These introduced feral pigs exclosures in April 2007, and 11 of become highly modified by nonnative are extremely destructive and have both these were still doing well as of April plants and feral pigs, due to ongoing direct and indirect impacts on native 2008. Another 12 were outplanted in management by TNCH. The remaining plant communities. While rooting in the June 2007, all of which remained as of plants are found in a native-dominated earth in search of invertebrates and April 2008 (Oppenheimer 2008b). A plant community within TNCH’s plant material, feral pigs directly affect third outplanting of 6 plants was done Kamakou Preserve where control efforts native plants by disturbing and in August 2007 (Oppenheimer 2008b), for both alien plants and feral ungulates destroying vegetative cover, trampling another 124 individuals were are ongoing. Both experts also point out plants and seedlings, and possibly outplanted in August 2008 that they believe P. hispida may be reducing or eliminating plant (Oppenheimer 2008d), and 61 more dependent upon tree-fall openings in regeneration by damaging or eating were outplanted in September 2008 the canopy or similar disturbances that seeds and seedlings (further discussion (Oppenheimer 2008c), bringing the total provide increased sunlight for of predation is under Factor C, below). number of Phyllostegia hispida plants in germination. Information provided by Feral pigs are a major vector for the the wild to 24 naturally occurring and the peer reviewers has been establishment and spread of competing 214 outplanted individuals. One of the incorporated into this final rule. invasive, nonnative plant species, by wild individuals is located within Puu dispersing these plant seeds on their Summary of Factors Affecting the Alii NAR; all of the remaining hooves and coats as well as through Species individuals are located within Kamakou their digestive tracts, and by fertilizing Preserve. Section 4 of the Act and its the disturbed soil through their feces. implementing regulations (50 CFR 424) Feral pigs feed preferentially on the Summary of Comments and set forth the procedures for adding fruits of many nonnative plants, such as Recommendations species to the Federal Lists of Passiflora tarminiana (banana poka) and In the proposed rule published on Endangered and Threatened Wildlife Psidium cattleianum (strawberry guava), February 19, 2008 (73 FR 9078), we and Plants. A species may be thereby facilitating the spread of these requested that all interested parties determined to be an endangered or invasive species, and also contribute to submit written comments on the threatened species due to one or more erosion by clearing vegetation and proposal by April 21, 2008. We also of the five factors described in section creating large areas of disturbed soil, contacted appropriate Federal and State 4(a)(1) of the Act: (A) The present or especially on slopes (Aplet et al. 1991, agencies, scientific experts and threatened destruction, modification, or p. 56; Smith 1985, pp. 190, 192, 196, organizations, and other interested curtailment of its habitat or range; (B) 200, 204, 230-231; Stone 1985, pp. 254- parties and invited them to comment on overutilization for commercial, 255, 262-264; Medeiros et al. 1986, pp.

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27-28; Scott et al. 1986, pp. 360-361; the feral pig population must be (Oppenheimer 2007), and nonnative Tomich 1986, pp. 120-126; Cuddihy and removed annually before any decline in plants are likely to contribute to both of Stone 1990, pp. 64-65; Loope et al. numbers is observed (Hess et al. 2006, these conditions. Examples of some of 1991, pp. 1-21; Wagner et al. 1999, p. p. 39). The most intensive feral pig the nonnative plants documented in the 52). eradication programs in the Hawaiian areas formerly occupied by P. hispida Feral pigs are present in the wet forest Islands have taken years of continuous include Axonopus fissifolius (narrow- habitat formerly and currently inhabited effort to achieve effective control, even leaved carpetgrass), Clidemia hirta by Phyllostegia hispida within Puu Alii within fenced areas (Hess et al. 2006). (Koster’s curse), Erechtites valerianifolia NAR and Kamakou Preserve, and Even though two peer reviewers have (fireweed), Juncus effuses (Japanese mat although control efforts are underway, suggested that the habitat currently rush), Rubus rosifolius (thimbleberry), they continue to degrade the condition occupied by Phyllostegia hispida on and Sacciolepis indica (Glenwood of the forest there (DOFAW 1991, pp. 3, TNCH land has not yet been highly grass). Rubus rosifolius and R. argutus 14-23; TNCH 1994, pp. 6, 9-12; HBMP modified by feral pigs, due to the well- are scattered throughout the area in 2007). They are considered a major documented negative impacts of feral which P. hispida currently exists, and threat to native species and to the pigs on native Hawaiian plant are targets of control by TNCH staff in overall health of the watershed in which communities, the known habitat the area (Oppenheimer 2008a). Because P. hispida occurs (DOFAW 1991, pp. 3, degradation caused by feral pigs in the of demonstrated habitat modification 14-23; TNCH 1994, pp. 6, 9-12). habitat occupied by P. hispida, and the and resource competition by nonnative Significant management actions are continuing presence of feral pigs in the plant species in habitat similar to the directed at feral ungulate control in the limited area where P. hispida is found, wet forest habitat of P. hispida, and the area where P. hispida has been found we consider habitat modification and ongoing need for control of invasive within Puu Alii NAR and Kamakou degradation by feral pigs to be an nonnative plant species in the area Preserve on Molokai, such as large-scale immediate and ongoing threat to this currently occupied by P. hispida, we watershed fencing, construction of species throughout its range, and we consider habitat modification and ungulate exclosures around rare plants, have no indication that this threat is degradation by nonnative plants to be and hunting of feral pigs by both staff likely to be significantly ameliorated in an immediate and ongoing threat to this and the public (TNCH 1997a, pp. 2-3; the near future. species throughout its range. TNCH 1998a, pp. 1-2, 7; DOFAW 2000, To date, successful eradication or pp. 3, 12; HBMP 2007). When the Nonnative Plants individual P. hispida was discovered in Introduced, nonnative plant species control of invasive alien plants has only 1996 next to the boardwalk at Pepeopae, are a pervasive threat to the native flora been achieved on a very small scale, and TNCH noted signs of feral pig presence throughout the Hawaiian Islands. Of the then usually when control efforts have (e.g., droppings, evidence of rooting, current total of nearly 2,000 native and been initiated in the early stages of wallows) in the vicinity (HPMP 2007) naturalized plant taxa, approximately establishment (Mack and Lonsdale and immediately erected a fenced half are introduced, nonnative species 2002, p. 166). Many of the invasive, exclosure around the plant to protect it from other parts of the world, and nonnative plants in Hawaii are so (TNCH 1997a, pp. 2-3). Similarly, a nearly 100 of these are considered widespread and easily dispersed that fenced exclosure was erected around the invasive pest species (Smith 1985, p. some researchers question whether individual that was discovered within 180). On the Hawaiian Islands and other eradication is a realistic goal (e.g., Mack the Puu Alii NAR in 1997 to protect it tropical islands, studies have shown and Lonsdale 2002, p. 165). On average, from feral pigs (Nohara 2006). The that many of these introduced plant taxa 40 new plant species have been juvenile plant discovered within the outcompete and displace native plants, introduced to the Hawaiian Islands Puu Alii NAR in 2005 was immediately and often alter the habitat to the point every year over the past two centuries fenced to protect it from feral pigs that it is no longer suitable for the native (Loope 1998, p. 752). Although (Stevens 2006), as were four of the most plant species; these studies include managers are attempting to control recently discovered plants along the nonnative pest plants found in habitat nonnative plants, resources to support fenceline within Kamakou Preserve similar to that of Phyllostegia hispida such efforts are often limited (e.g., Holt (Oppenheimer 2007). Most of the wild (Smathers and Gardner 1978, pp. 274- 1992, p. 527), and invasive nonnative individuals, however, are not currently 275; Smith 1985, pp. 196, 206, 230; plants persist in most areas in spite of protected within exclosures, and despite Loope and Medeiros 1992, pp. 7-8; such efforts. In addition, the control of ongoing control efforts, feral pigs persist Medeiros et al. 1992, pp. 30-32; Ellshoff introduced ungulates such as feral pigs, in the range of P. hispida. et al. 1995, pp. 1-5; Meyer and Florence which contribute to the spread of alien Feral pigs have been described as the 1996, pp. 777-780; Medeiros et al. 1997, plant species, is viewed as a most pervasive and disruptive pp. 30-32; Loope et al. 2004, pp. 1472- prerequisite to the effective control of nonnative influence on the unique 1473). In particular, nonnative pest nonnative plants (e.g., Holt 1992, p. native forests of the Hawaiian Islands, plants may make habitat less suitable for 527). Therefore, due to the ubiquitous and are widely recognized as one of the native plants by modifying availability nature of the invasive plant problem in greatest current threats to forest of light, altering soil-water regimes, the Hawaiian Islands, the extreme ecosystems in Hawaii (Aplet et al. 1991, modifying nutrient cycling, or altering difficulty of eradicating invasive, p. 56; Anderson and Stone 1993, p. 195; fire characteristics of native plant nonnative plant species that have Loope 1998, pp. 752, 769-770). Feral communities (Smith 1985, pp. 206, 217, become widespread and well- pigs continue to persist despite control 225, 227-233; Cuddihy and Stone 1990, established, and the continuing efforts, and fencing protects individual p. 74). presence of introduced ungulates that plants only temporarily. Furthermore, Although there is no empirical contribute to the spread and the remote and rugged terrain of the evidence specific to Phyllostegia establishment of nonnative plants, we islands makes the long-term hispida due to the lack of research on have no indication that this threat to maintenance of fencing difficult. the species, scientists familiar with P. Phyllostegia hispida is likely to be Because of their high rate of hispida believe it does not handle either significantly reduced any time in the reproduction, more than 40 percent of shade or competition well near future.

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In summary, feral pigs contribute to occurring in the herbaceous understory one single plant occurs under these the modification and degradation of and subcanopy layer (Diong 1982, p. protections. This fact, in conjunction Phyllostegia hispida’s habitat by 160). Therefore, even though we have with the persistence of nonnative plants disturbing and destroying vegetative no evidence of direct browsing for P. and feral pigs, small population size, cover, trampling plants and seedlings, hispida, given the presence of feral pigs and limited number of reproductive reducing or eliminating plant in the area where P. hispida occurs, we individuals of the species remaining, regeneration by damaging or eating consider it likely that feral pigs may renders P. hispida vulnerable to seeds and seedlings, and increasing affect the species directly through extinction due to these threats despite erosion by creating large areas of bare predation. As described above under the protections on the Puu Alii NAR. soil. Feral pigs are also a major vector Factor A, due to the persistence of feral The threat of extinction is not posed, for the dispersal of invasive, nonnative pigs in the limited range of P. hispida however, by an inadequacy of regulatory plant species that pose a threat to in spite of control efforts, and the mechanisms on the NAR. The regulatory P.hispida. The presence of nonnative likelihood that their presence will mechanisms that provide for the control plant species contributes to the continue, we believe feral pigs pose an of threats to P. hispida on the Puu Alii modification and degradation of P. immediate and ongoing threat to the NAR appear to be adequate, but as the hispida’s habitat by modifying species throughout its range, and that success of these control efforts has yet availability of light, altering soil-water this threat is unlikely to be significantly to be realized, the threats continue at regimes, modifying nutrient cycling, reduced in the near future. present. and changing the fire characteristics of We find that where individuals of D. The Inadequacy of Existing the native plant community. Evidence Phyllostegia hispida are currently Regulatory Mechanisms suggests that P. hispida is negatively found, the inadequacy of regulatory affected by shade and competition, both Of the 238 known individuals of mechanisms does not pose a threat to conditions exacerbated by invasive Phyllostegia hispida, 24 wild and 214 the species. However, should the nonnative plants. We therefore find that recently outplanted, 237 occur on recovery of the species eventually habitat modification and degradation by TNCH’s Kamakou Preserve. TNCH require reintroductions in other areas, feral pigs and nonnative plants poses an manages this private land for the benefit this factor may pose a potential immediate and ongoing threat to of threatened and endangered species impediment to recovery. Phyllostegia hispida, despite the and ecosystems. The management efforts at TNCH’s Kamakou Preserve E. Other Natural or Manmade Factors occurrence of the species on protected Affecting Its Continued Existence lands, and we have no indication that include control of nonnative plants and this threat is likely to be significantly feral pigs, as well as fencing, all of One of the most significant threats to ameliorated in the near future. which benefit P. hispida. However, as Phyllostegia hispida is its extremely low noted in the discussion of Factor A numbers and highly restricted B. Overutilization for Commercial, above, the eradication of nonnative distribution. A total of 238 plants are Recreational, Scientific, or Educational plants and feral pigs, even within currently known to exist, 24 naturally Purposes fenced areas under active management, occurring and 214 outplanted. Only two Overutilization for commercial, is a difficult and extremely lengthy task. wild individuals are mature and have recreational, scientific, or educational The continuing presence of nonnative fruited and produced seeds. All of the purposes is not known to be a threat to plants and feral pigs within the fenced remaining individuals are young or only Phyllostegia hispida in any portion of area of the preserve, in concert with the recently established. Survivorship of its range, and as such is not addressed threat of very small population size and known wild individuals has been poor, in this rule. limited number of reproductive and although outplantings have been individuals, which will be discussed in attempted, none of these outplantings C. Disease or Predation Factor E, renders P. hispida vulnerable has yet proven successful for more than Because the native vegetation of to extinction due to these threats despite the short term. Although propagules of Hawaii evolved without any browsing beneficial management on the Kamakou P. hispida have been collected on an or grazing mammals present, many Preserve. The threat of extinction is not opportunistic basis and some controlled plant species do not have natural posed, however, by an inadequacy of propagation of the species has taken defenses against such impacts (Carlquist regulatory mechanisms on TNCH lands. place, there is no dedicated funding for 1980, pp. 173-175; Lamoureux 1994, pp. Only one known individual of propagation of the species and no 54-55). Native plants such as Phyllostegia hispida is found on State formal plan exists for outplanting and Phyllostegia hispida do not have lands, in the Puu Alii NAR. Hawaii reintroduction. physical or chemical adaptations, such Administrative Rules 13-209 provide Deterministic factors, such as habitat as thorns or noxious compounds, to protections for this single individual, alteration or loss of a key pollinator, protect them, thereby rendering them including a prohibition against removal, may have reduced this population to particularly vulnerable to predation by injury, or killing, and a prohibition such a small size that it is now feral pigs or other ungulates against the introduction of plants or susceptible to a stochastic extinction (Department of Geography 1998, pp. animals. The State has been working to event (Gilpin and Soule´ 1986, pp. 24- 137-138; Carlquist 1980, p. 175). fence greater areas of the NAR and to 25). Species that are known from few Browsing by ungulates has been eradicate feral pigs and nonnative plants wild individuals and are endemic to a observed on many other native plants, within the fenced areas, but this work single, small island are inherently more including common and rare or is not yet complete. As noted in the vulnerable to extinction than endangered species (Cuddihy and Stone discussion of Factor A above, the widespread species because of the 1990, pp. 64-65). In a study of feral pig eradication of nonnative plants and feral higher risks posed to a few populations populations in the Kipahulu Valley on pigs, even within fenced areas under and individuals by genetic bottlenecks, the island of Maui, feral pigs were active management, is a difficult and random demographic fluctuations, and observed feeding on at least 40 plant extremely lengthy task. Although some localized catastrophes, such as species in the rainforest ecosystem, 75 regulatory protections are in place on hurricanes and disease outbreaks percent of which were native plants the NAR that benefit P. hispida, only (Mangel and Tier 1994, pp. 607-614;

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Pimm et al. 1988, pp. 757-785). In the (Factor C). The pervasive nature of feral proposed critical habitat. If a species is case of Phyllostegia hispida, the entire pigs and invasive plants on the island listed subsequently, section 7(a)(2) of population of the species is small and of Molokai makes it unlikely that the Act requires Federal agencies to restricted to a highly localized control efforts will significantly reduce ensure that activities they authorize, geographic area, rendering it highly the degree of threat to the species fund, or carry out are not likely to vulnerable to the risk of extinction in anytime in the near future; therefore we jeopardize the continued existence of the wild due to the lack of redundancy find that these factors, in combination the species or destroy or adversely in populations. In addition, the lack of with the extremely low number of modify its critical habitat. If a Federal reproductive individuals and skewing of reproductive individuals and limited action may adversely affect a listed the population toward young plants distribution of the population, pose a species or its critical habitat, the poses a significant threat to the species, significant and immediate threat to P. responsible Federal agency must enter as recruitment may not be sufficient to hispida and place the species at current into formal consultation with the offset mortality in the population. These risk of extinction throughout its range. Service. consequences of small population size The Act defines an endangered For Phyllostegia hispida, Federal (e.g., insufficient natural reproduction, species as ‘‘any species which is in agency actions that may require loss of genetic diversity), in conjunction danger of extinction throughout all or a consultation as described in the with the risk of losing the entire significant portion of its range.’’ preceding paragraph include feral population in the wild due to factors Phyllostegia hispida is highly restricted ungulate removal or other management such as localized events (e.g., in its range, currently occurring only actions undertaken by the National Park hurricanes) and threats posed by within Puu Alii NAR and the Service within Puu Alii NAR; the ungulates, render the species highly immediately adjacent Kamakou Preserve provision of Federal funds to State and vulnerable to extinction at any time. on the island of Molokai. Based on the private entities through Federal Although some species are naturally immediate and ongoing significant programs, such as the Service’s Partners rare, the poor survivorship of P. hispida threats to P. hispida throughout its for Fish and Wildlife Program, State suggests that the requisite biological or entire limited range, as described above, Wildlife Grant Program, and Federal ecological needs of the species are not we consider the species P. hispida to be Aid in Wildlife Restoration Program; being met under current conditions. The in danger of extinction throughout all of and the various grants administered by reasons for the poor survivorship and its range. Therefore, we are listing P. the U.S. Department of Agriculture, lack of reproduction observed in this hispida as an endangered species under Natural Resources Conservation Service. species are not known. the Act. Because we determine that P. Other types of actions that may require All of these negative demographic hispida is endangered throughout all of consultation include U.S. Army Corps factors, as well as the vulnerability of its range, there is no reason to consider of Engineers activities, such as the extinction of the population from a its status in any significant portion of its construction or maintenance of catastrophic natural event, pose range. boardwalks and bridges subject to immediate and significant threats to the section 404 of the Clean Water Act (33 Available Conservation Measures species despite the fact that it currently U.S.C. 1344 et seq.). occurs on protected lands, including Conservation measures provided to The Act and its implementing State and TNCH reserves. Small species listed as endangered or regulations set forth a series of general population size has therefore become a threatened under the Act include prohibitions and exceptions that apply primary and immediate threat to this recognition, recovery actions, to endangered plants. All prohibitions species, and given the current size and requirements for Federal protection, and of section 9(a)(2) of the Act, composition of the population, we do prohibitions against certain practices. implemented by 50 CFR 17.61, apply. not foresee the likelihood of this threat Recognition through listing results in These prohibitions, in part, make it lessening to any significant degree any public awareness and conservation by illegal for any person subject to the time in the near future. Federal, State, and local agencies, jurisdiction of the United States to private organizations, and individuals. import or export, transport in interstate Conclusion and Determination The Act encourages cooperation with or foreign commerce in the course of a We have carefully assessed the best the States and requires that recovery commercial activity, sell or offer for sale scientific and commercial information actions be carried out for all listed in interstate or foreign commerce, or available regarding the past, present, species. The protection measures remove and reduce to possession the and future threats to Phyllostegia required of Federal agencies and the species from areas under Federal hispida. The species’ extremely low prohibitions against certain activities jurisdiction. In addition, for plants numbers and highly restricted involving listed plants are discussed, in listed as endangered, the Act prohibits geographic range make it particularly part, below. the malicious damage or destruction on susceptible to extinction at any time Section 7(a) of the Act, as amended, areas under Federal jurisdiction and the from random events such as hurricanes requires Federal agencies to evaluate removal, cutting, digging up, or (Factor E). In addition, the lack of their actions with respect to any species damaging or destroying of such plants mature reproductive individuals poses that is proposed or listed as endangered in knowing violation of any State law or an immediate threat to the species or threatened and with respect to its regulation, including State criminal (Factor E). Although the species is critical habitat, if any is designated. trespass law. Certain exceptions to the found on protected lands with ongoing Regulations implementing this prohibitions apply to agents of the management efforts, as described above, interagency cooperation provision of the Service and State conservation agencies. we find that it nonetheless faces Act are codified at 50 CFR part 402. Although Hawaii has a strong continuing threats from habitat Section 7(a)(4) of the Act requires Endangered Species law (HRS, Sect. destruction and degradation due to feral Federal agencies to confer with the 195-D), Phyllostegia hispida is not pig activity and invasive nonnative Service on any action that is likely to currently protected under that law. plants (Factor A), competition with jeopardize the continued existence of a Federal listing of P. hispida will nonnative plant species (Factor A), and species proposed for listing or result in automatically invoke State listing under predation by nonnative mammals destruction or adverse modification of Hawaii’s Endangered Species law and

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supplement the protection available prohibition against Federal agencies the best scientific data available. They under other State laws. The Federal carrying out, funding, or authorizing the require our biologists, to the extent Endangered Species Act will, therefore, destruction or adverse modification of consistent with the Act and with the use offer additional protection to this critical habitat. Section 7(a)(2) of the Act of the best scientific data available, to species. requires consultation on Federal actions use primary and original sources of The Act and 50 CFR 17.62 also that may affect critical habitat. The information as the basis for provide for the issuance of permits to designation of critical habitat does not recommendations to designate critical carry out otherwise prohibited activities affect land ownership or establish a habitat. involving endangered plants under refuge, wilderness, reserve, preserve, or When we are determining which areas certain circumstances. Such permits are other conservation area. Such should be designated as critical habitat, available for scientific purposes and to designation does not allow the our primary source of information is enhance the propagation or survival of government or public to access private generally the information developed the species. We anticipate that the only lands. Such designation does not during the listing process for the permits that would be sought or issued require implementation of restoration, species. Additional information sources for Phyllostegia hispida would be in recovery, or enhancement measures by may include the recovery plan for the association with recovery efforts, as this private landowners. Where a landowner species, articles in peer-reviewed species is not common in cultivation or requests Federal agency funding or journals, conservation plans developed the wild. Requests for copies of the authorization for an action that may by States and counties, scientific status regulations regarding listed species and affect a listed species or critical habitat, surveys and studies, biological inquiries about prohibitions and permits the consultation requirements of section assessments, or other unpublished may be addressed to U.S. Fish and 7(a)(2) of the Act would apply, but even materials and expert opinion or Wildlife Service, Ecological Services, in the event of a destruction or adverse personal knowledge. Eastside Federal Complex, 911 N.E. 11th modification finding, the landowner’s Prudency Determination Avenue, Portland, OR 97232-4181 obligation is not to restore or recover the (telephone 503-231-6158; facsimile 503- species, but to implement reasonable Section 4(a)(3) of the Act, as 231-6243). and prudent alternatives to avoid amended, and implementing regulations destruction or adverse modification of (50 CFR 424.12), require that, to the Critical Habitat critical habitat. maximum extent prudent and Critical habitat is defined in section 3 For inclusion in a critical habitat determinable, the Secretary designate of the Act as: designation, the habitat within the critical habitat at the time a species is (1) The specific areas within the geographical area occupied by the determined to be endangered or geographical area occupied by the species at the time of listing must threatened. Our regulations (50 CFR species, at the time it is listed in contain the physical and biological 424.12(a)(1)) state that the designation accordance with the provisions of features essential to the conservation of of critical habitat is not prudent when section 4 of the Act, on which are found the species, and be included only if one or both of the following situations those physical or biological features those features may require special exist: (1) The species is threatened by (a) Essential to the conservation of the management considerations or taking or other human activity, and species and protection. Critical habitat designations identification of critical habitat can be (b) Which may require special identify, to the extent known using the expected to increase the degree of threat management considerations or best scientific data available, habitat to the species, or (2) such designation of protections; and areas that provide essential life cycle critical habitat would not be beneficial (2) Specific areas outside the needs of the species (i.e., areas on which to the species. geographical area occupied by a species are found the primary constituent There is no documentation that at the time it is listed in accordance elements (PCEs) laid out in the Phyllostegia hispida is threatened by with the provisions of section 4 of the appropriate quantity and spatial taking or other human activity. In the Act, upon a determination by the arrangement for the conservation of the absence of finding that the designation Secretary of the Interior that such areas species). Under the Act, we can of critical habitat would increase threats are essential for the conservation of the designate critical habitat in areas to a species, if there are any benefits to species. outside the geographical area occupied a critical habitat designation, then a Conservation, as defined under by the species at the time it is listed prudent finding is warranted. The section 3 of the Act, means to use and only when we determine that those potential benefits include: (1) Triggering the use of all methods and procedures areas are essential for the conservation consultation under section 7 of the Act, which are necessary to bring any of the species. for actions in which there may be a endangered or threatened species to the Section 4 of the Act requires that we Federal nexus where it would not point at which the measures provided designate critical habitat on the basis of otherwise occur because, for example, under the Act are no longer necessary. the best scientific and commercial data the area is or has become unoccupied or Such methods and procedures include, available. Further, our Policy on the occupancy is in question; (2) but are not limited to, all activities Information Standards Under the focusing conservation activities on the associated with scientific resources Endangered Species Act (published in most essential features and areas; (3) management such as research, census, the Federal Register on July 1, 1994 (59 providing educational benefits to State law enforcement, habitat acquisition FR 34271)), the Information Quality Act or county governments or private and maintenance, propagation, live (section 515 of the Treasury and General entities; and (4) preventing people from trapping, and transplantation, and, in Government Appropriations Act for causing inadvertent harm to the species. the extraordinary case where population Fiscal Year 2001 (Pub. L. 106-554; H.R. The primary regulatory effect of a pressures within a given ecosystem 5658)), and our associated Information critical habitat designation is the section cannot be otherwise relieved, may Quality Guidelines issued by the 7(a)(2) requirement that Federal include regulated taking. Service, provide criteria, establish agencies refrain from taking any action Critical habitat receives protection procedures, and provide guidance to that destroys or adversely affects critical under section 7 of the Act through the ensure that our decisions are based on habitat. At present, the only known

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extant individuals of Phyllostegia we consider those physical and reproduce successfully in the wild. The hispida occur on State and private land, biological features essential to the poor viability of the P. hispida and all previously known occurrences conservation of the species that may occurrences observed in recent years have been on State and private lands. require special management indicates that current conditions are not However, the State-owned Puu Alii considerations or protection. We sufficient to meet the basic biological NAR falls within the boundaries of the consider the physical or biological requirements of this species. Although Kalaupapa National Historic Park, and features to be the PCEs laid out in the two mature plants that are producing the National Park Service may need to appropriate quantity and spatial fruits were recently discovered, there consult with the Service in the future arrangement for the conservation of the has yet to be an observation of an should they determine that actions they species. The PCEs include, but are not individual or population of P. hispida intend to fund, carry out, or authorize limited to: that has successfully produced within the NAR may affect P. hispida or (1) Space for individual and destroy or adversely affect critical population growth and for normal surviving young in the wild. As the habitat. In addition, lands that may be behavior; successful survival and reproduction of designated as critical habitat in the (2) Food, water, air, light, minerals, or the species in the wild has not yet been future for this species may be subject to other nutritional or physiological documented, the optimal conditions Federal actions that trigger the section 7 requirements; that would provide the biological or consultation requirement, such as the (3) Cover or shelter; ecological requisites of the species are granting of Federal monies for (4) Sites for breeding, reproduction, not known. Although, as described conservation projects or the need for and rearing (or development) of above, we can surmise that habitat Federal permits for projects, such as the offspring; and degradation from a variety of factors has construction and maintenance of (5) Habitats that are protected from contributed to the decline of the species, boardwalks and bridges subject to disturbance or are representative of the we do not know specifically what section 404 of the Clean Water Act (33 historical geographical and ecological essential physical or biological features distributions of a species. U.S.C. 1344 et seq.). There may also be of that habitat are currently lacking for some educational or informational We are currently unable to identify the primary constituent elements for P. hispida. As we are unable to identify benefits to the designation of critical the physical and biological features habitat. Educational benefits include the Phyllostegia hispida, because those physical and biological features that are essential to the conservation of P. notification of land owners, land hispida, we are unable to identify areas managers, and the general public of the essential to the conservation of this species are not known at this time. As that contain these features and that importance of protecting the habitat of might qualify for designation as critical this species. In the case of P. hispida, discussed in the ‘‘Species Information’’ habitat. these aspects of critical habitat section of this rule, between the years designation would potentially benefit 1910 and 1996 only 10 occurrences of Although we have determined that the conservation of the species. P. hispida were documented, and the the designation of critical habitat is Therefore, since we have determined location information for these prudent for Phyllostegia hispida, the that the designation of critical habitat occurrences was recorded at a relatively biological needs of the species are not will not likely increase the degree of coarse scale. Elevations are known only sufficiently well known to permit threat to the species and may provide for the few individuals discovered identification of the physical and some measure of benefit, we find that within the last 10 years. From 1996 biological features that may be essential designation of critical habitat is prudent through 2005, a total of only 6 plants (3 for the conservation of the species, or adults, 2 seedlings, and 1 juvenile) were for P. hispida. those areas essential to the conservation located, all existing only as single of the species. Therefore, we find that Critical Habitat Determinability individuals in disparate locations. All of the previously known adults died critical habitat for P. hispida is not As stated above, section 4(a)(3) of the determinable at this time. The recent Act requires the designation of critical without reproducing naturally in the outplanting of more than 200 new habitat concurrently with the species’ wild. Currently, there are 24 individuals seedlings into the Kamakou Preserve listing ‘‘to the maximum extent prudent known to naturally exist in the wild, and determinable.’’ Our regulations at only 2 of which are mature. Seeds and presents us with an opportunity to 50 CFR 424.12(a)(2) state that critical cuttings have been removed from these study the growth of these plants and habitat is not determinable when one or two individuals for attempted better determine the physical and both of the following situations exist: cultivation (Oppenheimer 2008b). As of biological features that may be essential (i) Information sufficient to perform April 2008, an additional 214 for the conservation of the species. We required analyses of the impacts of the individuals produced from cuttings and intend to use the iterative information designation is lacking, or outplanted into exclosures in Kamakou gained from this continuing research (ii) The biological needs of the species Preserve are also extant. into the essential life history are not sufficiently well known to The reasons for the deaths of the requirements of P. hispida to facilitate permit identification of an area as Phyllostegia hispida individuals identification of essential features and critical habitat. summarized in the ‘‘Species areas. In addition, we will evaluate the When critical habitat is not Information’’ section of this rule are needs of P. hispida within the ecological determinable, the Act provides for an unknown, as are the reasons for poor context of the broader ecosystem in additional year to publish a critical natural reproduction in the wild. Key which it occurs, similar to the approach habitat designation (16 U.S.C. features of the plant’s life history, such that was recently proposed for 47 1533(b)(6)(C)(ii)). as longevity, dispersal mechanisms, or species endemic to the island of Kauai In accordance with section 3(5)(A)(i) vectors for pollination, are unknown. (October 21, 2008; 73 FR 62592), and of the Act and regulations at 50 CFR With so few recorded occurrences of 424.12, in determining which areas the species, little is known of will consider the utility of using this occupied by the species at the time of Phyllostegia hispida in terms of what approach for this species as well. listing to designate as critical habitat, this plant needs to survive and

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Required Determinations be prepared in connection with recordkeeping requirements, Paperwork Reduction Act of 1995 (44 regulations adopted under section 4(a) Transportation. U.S.C. 3501 et seq.) of the Act. We published a notice outlining our reasons for this Regulation Promulgation This rule does not contain any new determination in the Federal Register ■ collections of information that require on October 25, 1983 (48 FR 49244). Accordingly, we amend part 17, approval by Office of Management and subchapter B of chapter I, title 50 of the Budget (OMB) under the Paperwork References Cited Code of Federal Regulations, as follows: Reduction Act. This rule will not A complete list of all references cited impose recordkeeping or reporting in this rule is available on the Internet PART 17—[AMENDED] requirements on State or local at http://www.regulations.gov or upon ■ 1. The authority citation for part 17 governments, individuals, businesses, or request from the Field Supervisor, continues to read as follows: organizations. An agency may not Pacific Islands Fish and Wildlife Office conduct or sponsor, and a person is not (see FOR FURTHER INFORMATION CONTACT). Authority: 16 U.S.C. 1361-1407; 16 U.S.C. required to respond to, a collection of 1531-1544; 16 U.S.C. 4201-4245; Pub. L. 99- information unless it displays a Author(s) 625, 100 Stat. 3500; unless otherwise noted. currently valid OMB control number. The primary authors of this document ■ 2. Amend §17.12(h) by adding the are the staff members of the Pacific following entry to the List of National Environmental Policy Act Islands Fish and Wildlife Office, U.S. Endangered and Threatened Plants in We have determined that Fish and Wildlife Service (see alphabetical order under ‘‘Flowering environmental assessments and ADDRESSES). Plants’’: environmental impact statements, as defined under the authority of the List of Subjects in 50 CFR Part 17 § 17.12 Endangered and threatened plants. National Environmental Policy Act of Endangered and threatened species, * * * * * 1969 (42 U.S.C. 4321 et seq.), need not Exports, Imports, Reporting and (h) * * *

Species Historic range Family Status When listed Critical habitat Special rules Scientific name Common name

FLOWERING PLANTS *******

Phyllostegia None U.S.A. (HI) Lamiaceae E 762 NA NA hispida

******* Maine through North Carolina for the vessels and dealer permit holders that Dated: March 4, 2009. Winter I period. Regulations governing the commercial scup possession limit Rowan W. Gould, the scup fishery require publication of will be reduced once 80 percent of the this notification to advise the coastal Acting Director, U.S. Fish and Wildlife Winter I Period quota is projected to be Service. states from Maine through North harvested. Based upon recent Carolina that 80 percent of the [FR Doc. E9–5348 Filed 3–16–09; 8:45 am] projections, the Regional Administrator commercial quota allocated to the BILLING CODE 4310-55-S anticipates that 80 percent of the Winter I period is projected to be Federal commercial quota of 3,777,443 harvested and to announce that the lb (1,713 mt) for the 2009 Winter I possession limit for a Federal vessel DEPARTMENT OF COMMERCE period will be harvested by March 19, permit holder is reduced. 2009. Therefore, to maintain the National Oceanic and Atmospheric DATES: Effective 0001 hours, March 19, integrity of the 2010 Winter I period Administration 2009, through April 30, 2009. quota by avoiding quota overages, the FOR FURTHER INFORMATION CONTACT: commercial scup possession limit will 50 CFR Part 648 Emily Bryant, Fishery Management be reduced from 30,000 lb (13,608 kg) to Specialist, (978) 281–9244. [Docket No. 0809251266–81485–02] 1,000 lb (454 kg) of scup per trip. This SUPPLEMENTARY INFORMATION: possession limit will remain in effect RIN 0648–XN60 Regulations governing the scup fishery until the end of the Winter I period are found at 50 CFR part 648. The Fisheries of the Northeastern United (through April 30, 2009) or until the regulations at § 648.120(c) require the States; Scup Fishery; Reduction of Winter I quota allocation has been fully Northeast Regional Administrator to Winter I Commercial Possession Limit harvested, which ever occurs first. publish annual scup quota allocations AGENCY: National Marine Fisheries and the percentage of landings attained Classification during the Winter I period at which the Service (NMFS), National Oceanic and This action is required by 50 CFR part possession limits would be reduced. On Atmospheric Administration (NOAA), 648 and is exempt from review under January 2, 2009, NMFS published the Commerce. Executive Order 12866. ACTION: Temporary rule; inseason final rule for the summer flounder, adjustment. scup, and black sea bass specifications Authority: 16 U.S.C. 1801 et seq. in the Federal Register (74 FR 29). This SUMMARY: NMFS announces the final rule requires NMFS to publish a reduction of the scup coastwide notification in the Federal Register commercial possession limit from advising and notifying commercial

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Dated: March 12, 2009. GOA exclusive economic zone Classification Emily H. Menashes, according to the Fishery Management This action responds to the best Acting Director, Office of Sustainable Plan for Groundfish of the Gulf of available information recently obtained Fisheries, National Marine Fisheries Service. Alaska (FMP) prepared by the North from the fishery. The Assistant [FR Doc. E9–5749 Filed 3–16–09; 8:45 am] Pacific Fishery Management Council Administrator for Fisheries, NOAA BILLING CODE 3510–22–S under authority of the Magnuson– (AA), finds good cause to waive the Stevens Fishery Conservation and requirement to provide prior notice and Management Act. Regulations governing opportunity for public comment DEPARTMENT OF COMMERCE fishing by U.S. vessels in accordance pursuant to the authority set forth at 5 National Oceanic and Atmospheric with the FMP appear at subpart H of 50 U.S.C. 553(b)(B) as such requirement is Administration CFR part 600 and 50 CFR part 679. impracticable and contrary to the public The B season allowance of the 2009 interest. This requirement is 50 CFR Part 679 TAC of pollock in Statistical Area 610 impracticable and contrary to the public of the GOA is 3,233 metric tons (mt) as interest as it would prevent NMFS from [Docket No. 09100091344–9056–02] established by the final 2009 and 2010 responding to the most recent fisheries data in a timely fashion and would RIN 0648–XO07 harvest specifications for groundfish of delay the closure of pollock in the GOA (74 FR 7333, February 17, Fisheries of the Exclusive Economic Statistical Area 610 of the GOA. NMFS 2009). Zone Off Alaska; Pollock in Statistical was unable to publish a notice Area 610 in the Gulf of Alaska In accordance with § 679.20(d)(1)(i), providing time for public comment the Regional Administrator has because the most recent, relevant data AGENCY: National Marine Fisheries determined that the B season allowance only became available as of March 11, Service (NMFS), National Oceanic and of the 2009 TAC of pollock in Statistical 2009. Atmospheric Administration (NOAA), Area 610 of the GOA will soon be The AA also finds good cause to Commerce. reached. Therefore, the Regional waive the 30-day delay in the effective ACTION: Temporary rule; closure. Administrator is establishing a directed date of this action under 5 U.S.C. 553(d)(3). This finding is based upon SUMMARY: NMFS is prohibiting directed fishing allowance of 3,000 mt, and is fishing for pollock in Statistical Area setting aside the remaining 233 mt as the reasons provided above for waiver of 610 in the Gulf of Alaska (GOA). This bycatch to support other anticipated prior notice and opportunity for public action is necessary to prevent exceeding groundfish fisheries. In accordance with comment. the B season allowance of the 2009 total § 679.20(d)(1)(iii), the Regional This action is required by § 679.20 allowable catch (TAC) of pollock for Administrator finds that this directed and is exempt from review under Statistical Area 610 in the GOA. fishing allowance has been reached. Executive Order 12866. DATES: Effective 1200 hrs, Alaska local Consequently, NMFS is prohibiting Authority: 16 U.S.C. 1801 et seq. time (A.l.t.), March 12, 2009, through directed fishing for pollock in Statistical Dated: March 11, 2009. 1200 hrs, A.l.t., August 25, 2009. Area 610 of the GOA. Emily H. Menashes, FOR FURTHER INFORMATION CONTACT: Josh After the effective date of this closure Acting Director, Office of Sustainable Keaton, 907–586–7228. the maximum retainable amounts at Fisheries, National Marine Fisheries Service. SUPPLEMENTARY INFORMATION: NMFS § 679.20(e) and (f) apply at any time [FR Doc. E9–5713 Filed 3–12–09; 4:15 pm] manages the groundfish fishery in the during a trip. BILLING CODE 3510–22–S

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Proposed Rules Federal Register Vol. 74, No. 50

Tuesday, March 17, 2009

This section of the FEDERAL REGISTER only specific OSHA information the Agency to obtain information or contains notices to the public of the proposed requests, but also identified stakeholder limit stakeholders from providing issuance of rules and regulations. The concerns associated with developing a information and comment during this purpose of these notices is to give interested standard addressing occupational rulemaking. OSHA recognizes the persons an opportunity to participate in the exposure to diacetyl and food flavorings importance of gathering information and rule making prior to the adoption of the final rules. containing diacetyl. OSHA also comment during the development of announced its intent to convene a Small rules and stakeholders still have several Business Advocacy Review (SBAR) avenues to provide input during the DEPARTMENT OF LABOR Panel, pursuant to the SBREFA, in the rulemaking process even though the Department of Labor’s Semiannual ANPRM is being withdrawn. Occupational Safety and Health Regulatory Agenda (73 FR 71396, 71399, For example, during the SBREFA Administration 11/24/2008). The SBREFA requires that, process, small entity representatives prior to publication of any proposed (SERs) will review and comment on a 29 CFR Part 1910 rule that has a significant economic draft proposed standard, alternatives to [Docket No. OSHA–2008–0046] impact on a substantial number of small the draft proposal, and preliminary entities, OSHA convene a SBAR Panel analyses of costs, benefits, and impacts RIN 1218–AC33 to determine the impacts of such a rule of the draft proposal. At the same time on small businesses and the ways those OSHA provides these documents to the Occupational Exposure to Diacetyl and impacts can be reduced, consistent with SERs, the Agency will include the Food Flavorings Containing Diacetyl the Agency’s statutory requirements. documents in the public docket of this AGENCY: Occupational Safety and Health On January 21, 2009, OSHA rulemaking (Docket No. OSHA–2008– Administration (OSHA), Department of published an ANPRM (74 FR 3938). The 0046), which is available for Labor. ANPRM sought information and stakeholders to view and download. ACTION: Advance Notice of Proposed comment on issues related to OSHA will hold meetings (open to the Rulemaking; withdrawal. occupational exposure to diacetyl and public) with the SERs to gather their food flavorings containing diacetyl, input and will put their written SUMMARY: OSHA is withdrawing its including current employee exposures; comments in the public docket. Finally, Advance Notice of Proposed the relationship between exposure and OSHA will put the final SBAR Panel Rulemaking (ANPRM) on Occupational the development of adverse health report in the public docket at the Exposure to Diacetyl and Food effects; methods to evaluate, monitor, conclusion of the process. Throughout Flavorings Containing Diacetyl in order and control exposure; and related this process, interested parties who are to facilitate convening a Small Business topics. not directly participating in the SBREFA Advocacy Review Panel, pursuant to the OSHA is withdrawing the ANPRM in process may nevertheless enter Small Business Regulatory Enforcement order to promptly convene a SBAR comments into the public docket for this Fairness Act (SBREFA). Materials panel. Responses to the questions raised rulemaking. Such comments will be submitted prior to this withdrawal as in the ANPRM, however, are still of considered by OSHA as part of the well as any other information submitted interest to OSHA. Thus, such responses rulemaking. In addition, OSHA will directly to OSHA after the withdrawal submitted prior to this withdrawal as formally request public comment when will be put in the public rulemaking well as any other information submitted the Agency publishes a proposed rule in docket and receive equal consideration directly to OSHA after this withdrawal the Federal Register, and will hold as a part of the rulemaking record. In will be included in the public public hearings at which stakeholders addition, there will be several other rulemaking docket and receive equal will be provided a further opportunity opportunities for stakeholders to consideration as a part of the overall to provide additional information, make provide information and comment rulemaking record. In addition, relevant suggestions, and raise issues. during the rulemaking process. materials received before the SBAR OSHA also intends to conduct expert DATES: The ANPRM on Occupational panel is formally convened will be peer reviews of the preliminary risk and Exposure to Diacetyl and Food considered as part of the SBREFA feasibility assessments and will put the Flavorings Containing Diacetyl, review process. For consideration in the relevant documents in the public docket published January 21, 2009 (74 FR SBREFA review, OSHA requests that when a rule is proposed and open for 3938), is withdrawn, effective March 17, such information be submitted within public comment. In addition, OSHA has 2009. 10 business days of this notice. conducted and is continuing to conduct SUPPLEMENTARY INFORMATION: On Commenters should be aware that upon site visits at workplaces where September 25, 2007, OSHA announced withdrawal of this ANPRM they will no exposures to diacetyl and food its intent to initiate rulemaking to longer be able to use the http:// flavorings containing diacetyl may address concerns regarding diacetyl www.regulations.gov portal for occur to collect information on exposure in the workplace pursuant to submitting comments. Information processes utilizing diacetyl and the Section 6(b) of the Occupational Safety submitted informally to the Agency after controls used to prevent or minimize and Health Act of 1970 (29 U.S.C. 651, withdrawal of this ANPRM should be employee exposures. 655). The Agency hosted a stakeholder sent to OSHA’s Docket Office at the FOR FURTHER INFORMATION CONTACT: meeting on October 17, 2007, as part of address/fax number indicated below. Press Inquiries: Jennifer Ashley, its process to gather information for the OSHA believes that withdrawing the OSHA, Office of Communications, rulemaking. The meeting addressed not ANPRM will not hinder the ability of Room N–3647, U.S. Department of

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Labor, 200 Constitution Avenue, NW., corresponding onshore area (‘‘COA’’), as the index, some information may be Washington, DC 20210; telephone: 202– mandated by section 328(a)(1) of the publicly available only at the hard copy 693–1999. Clean Air Act, as amended in 1990 (‘‘the location (e.g., copyrighted material), and General and Technical Information: Act’’). The portions of the OCS air some may not be publicly available in David O’Connor, OSHA, Directorate of regulations that are being updated either location (e.g., CBI). To inspect the Standards and Guidance, Office of pertain to the requirements for OCS hard copy materials, please schedule an Chemical Hazards—Non-Metals, Room sources by the Ventura County Air appointment during normal business N–3718, U.S. Department of Labor, 200 Pollution Control District (Ventura hours with the contact listed in the FOR Constitution Avenue, NW., Washington, County APCD). The intended effect of FURTHER INFORMATION CONTACT section. DC 20210; telephone 202–693–2090. approving the OCS requirements for the FOR FURTHER INFORMATION CONTACT: Submission of Information and Ventura County APCD is to regulate Cynthia Allen, Air Division (Air–4), Comment: OSHA Docket Office, Room emissions from OCS sources in U.S. EPA Region 9, 75 Hawthorne N–2625, U.S. Department of Labor, 200 accordance with the requirements Street, San Francisco, CA 94105, (415) Constitution Avenue, NW., Washington, onshore. The change to the existing 947–4120, [email protected]. DC 20210 (reference Docket No. OSHA– requirements discussed below is SUPPLEMENTARY INFORMATION: 2008–0046); telephone 202–693–2350 or proposed to be incorporated by David O’Connor, OSHA, Directorate of reference into the Code of Federal Table of Contents Standards and Guidance, Office of Regulations and is listed in the I. Background Information Chemical Hazards—Non-Metals, Room appendix to the OCS air regulations. Why is EPA taking this action? N–3718, U.S. Department of Labor, 200 II. EPA’s Evaluation DATES: Any comments must arrive by A. What criteria were used to evaluate Constitution Avenue, NW., Washington, April 16, 2009. rules submitted to update 40 CFR part DC 20210; telephone 202–693–2090. If ADDRESSES: Submit comments, 55? your comments, including attachments identified by docket number OAR– B. What requirements were submitted to do not exceed 10 pages, you may fax 2004–0091, by one of the following update 40 CFR part 55? them to the OSHA Docket Office at 202– methods: III. Administrative Requirements 693–1648. A. Executive Order 12866: Regulatory 1. Federal eRulemaking Portal: Planning and Review Authority and Signature http://www.regulations.gov. Follow the B. Paperwork Reduction Act on-line instructions. C. Regulatory Flexibility Act This document was prepared under 2. E-mail: [email protected]. the direction of Donald G. Shalhoub, D. Unfunded Mandates Reform Act 3. Mail or deliver: Andrew Steckel E. Executive Order 13132: Federalism Deputy Assistant Secretary of Labor for (Air–4), U.S. Environmental Protection F. Executive Order 13175: Coordination Occupational Safety and Health, U.S. Agency Region IX, 75 Hawthorne Street, With Indian Tribal Government Department of Labor. It is issued San Francisco, CA 94105–3901. G. Executive Order 13045: Protection of pursuant to section 4, 6, and 8 of the Instructions: All comments will be Children From Environmental Health Occupational Safety and Health Act of included in the public docket without Risks and Safety Risks H. Executive Order 13211: Actions That 1970 and Secretary of Labor’s Order No. change and may be made available 5–2007 (72 FR 31160). Significantly Affect Energy Supply, online at http://www.regulations.gov, Distribution, or Use Signed at Washington, DC, this 11th day of including any personal information I. National Technology Transfer and March 2009. provided, unless the comment includes Advancement Act Donald G. Shalhoub, Confidential Business Information (CBI) J. Executive Order 12898: Federal Actions Deputy Assistant Secretary of Labor for or other information whose disclosure is To Address Environmental Justice in Occupational Safety and Health. restricted by statute. Information that Minority Populations and Low-Income [FR Doc. E9–5689 Filed 3–16–09; 8:45 am] you consider CBI or otherwise protected Populations BILLING CODE 4510–26–P should be clearly identified as such and I. Background Information should not be submitted through http://www.regulations.gov or e-mail. Why is EPA taking this action? ENVIRONMENTAL PROTECTION http://www.regulations.gov is an On September 4, 1992, EPA AGENCY ‘‘anonymous access’’ system, and EPA promulgated 40 CFR part 55,1 which will not know your identity or contact established requirements to control air 40 CFR Part 55 information unless you provide it in the pollution from OCS sources in order to body of your comment. If you send e- attain and maintain federal and state [OAR–2004–0091; FRL–8768–8] mail directly to EPA, your e-mail ambient air quality standards and to Outer Continental Shelf Air address will be automatically captured comply with the provisions of part C of Regulations; Consistency Update for and included as part of the public title I of the Act. Part 55 applies to all California comment. If EPA cannot read your OCS sources offshore of the States comment due to technical difficulties except those located in the Gulf of AGENCY: Environmental Protection and cannot contact you for clarification, Mexico west of 87.5 degrees longitude. Agency (‘‘EPA’’). EPA may not be able to consider your Section 328 of the Act requires that for ACTION: Proposed rule—Consistency comment. Electronic files should avoid such sources located within 25 miles of Update. the use of special characters, any form a State’s seaward boundary, the of encryption, and be free of any defects requirements shall be the same as would SUMMARY: EPA is proposing to update a or viruses. be applicable if the sources were located portion of the Outer Continental Shelf Docket: The index to the docket for (‘‘OCS’’) Air Regulations. Requirements this action is available electronically at 1 The reader may refer to the Notice of Proposed applying to OCS sources located within http://www.regulations.gov and in hard Rulemaking, December 5, 1991 (56 FR 63774), and the preamble to the final rule promulgated 25 miles of States’ seaward boundaries copy at EPA Region IX, 75 Hawthorne September 4, 1992 (57 FR 40792) for further must be updated periodically to remain Street, San Francisco, California. While background and information on the OCS consistent with the requirements of the all documents in the docket are listed in regulations.

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in the COA. Because the OCS onshore rules into part 55 as they exist inclusion in part 55 to ensure that they requirements are based on onshore onshore. This limits EPA’s flexibility in are rationally related to the attainment requirements, and onshore requirements deciding which requirements will be or maintenance of federal or state may change, section 328(a)(1) requires incorporated into part 55 and prevents ambient air quality standards or part C that EPA update the OCS requirements EPA from making substantive changes of title I of the Act, that they are not as necessary to maintain consistency to the requirements it incorporates. As designed expressly to prevent with onshore requirements. a result, EPA may be incorporating rules exploration and development of the Pursuant to § 55.12 of the OCS rule, into part 55 that do not conform to all OCS and that they are applicable to OCS consistency reviews will occur (1) At of EPA’s state implementation plan sources. 40 CFR 55.1. EPA has also least annually; (2) upon receipt of a (SIP) guidance or certain requirements evaluated the rules to ensure they are Notice of Intent under § 55.4; or (3) of the Act. Consistency updates may when a state or local agency submits a not arbitrary or capricious. 40 CFR result in the inclusion of state or local 55.12(e). In addition, EPA has excluded rule to EPA to be considered for rules or regulations into part 55, even administrative or procedural rules,2 and incorporation by reference in part 55. though the same rules may ultimately be requirements that regulate toxics which This proposed action is being taken in disapproved for inclusion as part of the response to requirements submitted by SIP. Inclusion in the OCS rule does not are not related to the attainment and the Ventura County APCD. Public imply that a rule meets the requirements maintenance of federal and state comments received in writing within 30 of the Act for SIP approval, nor does it ambient air quality standards. days of publication of this document imply that the rule will be approved by B. What requirements were submitted to will be considered by EPA before EPA for inclusion in the SIP. update 40 CFR part 55? publishing a final rule. Section 328(a) of II. EPA’s Evaluation the Act requires that EPA establish 1. After review of the requirements requirements to control air pollution A. What criteria were used to evaluate submitted by the Ventura County APCD from OCS sources located within 25 rules submitted to update 40 CFR part against the criteria set forth above and miles of States’ seaward boundaries that 55? in 40 CFR part 55, EPA is proposing to are the same as onshore requirements. make the following District To comply with this statutory mandate, In updating 40 CFR part 55, EPA requirements applicable to OCS sources: EPA must incorporate applicable reviewed the rules submitted for

Adoption or Rule No. Name amended date

72 ...... New Source Performance Standards (NSPS) ...... 9/9/08 73 ...... National Emissions Standards for Hazardous Air Pollutants (NESHAPS) ...... 9/9/08 230 ...... Notice to Comply ...... 9/9/08

III. Administrative Requirements (3) Materially alter the budgetary Reduction Act, 44 U.S.C. 3501 et seq. impact of entitlements, grants, user fees, and has assigned OMB control number A. Executive Order 12866: Regulatory or loan programs or the rights and 2060–0249. Notice of OMB’s approval of Planning and Review obligations of recipients thereof; or EPA Information Collection Request Under Executive Order 12866 (58 FR (4) Raise novel legal or policy issues (‘‘ICR’’) No. 1601.06 was published in 51735 (October 4, 1993)), the Agency arising out of legal mandates, the the Federal Register on March 1, 2006 must determine whether the regulatory President’s priorities, or the principles (71 FR 10499–10500). The approval action is ‘‘significant’’ and therefore set forth in the Executive Order. expires January 31, 2009. As EPA subject to Office of Management and This action is not a ‘‘significant previously indicated (70 FR 65897– Budget (‘‘OMB’’) review and the regulatory action’’ under the terms of 65898 (November 1, 2005)), the annual requirements of the Executive Order. Executive Order 12866 and is therefore public reporting and recordkeeping The Order defines ‘‘significant not subject to OMB Review. These rules burden for collection of information regulatory action’’ as one that is likely implement requirements specifically under 40 CFR part 55 is estimated to to result in a rule that may: and explicitly set forth by the Congress average 549 hours per response. Burden (1) Have an annual effect on the in section 328 of the Clean Air Act, means the total time, effort, or financial economy of $100 million or more or without the exercise of any policy resources expended by persons to adversely affect in a material way the discretion by EPA. These OCS rules generate, maintain, retain, or disclose or economy, a sector of the economy, already apply in the COA, and EPA has provide information to or for a Federal productivity, competition, jobs, the no evidence to suggest that these OCS agency. This includes the time needed environment, public health or safety, or rules have created an adverse material to review instructions; develop, acquire, State, local, or tribal governments or effect. As required by section 328 of the install, and utilize technology and communities; systems for the purposes of collecting, (2) Create a serious inconsistency or Clean Air Act, this action simply validating, and verifying information, otherwise interfere with an action taken updates the existing OCS requirements processing and maintaining or planned by another agency; to make them consistent with rules in the COA. information, and disclosing and providing information; adjust the 2 Each COA which has been delegated the B. Paperwork Reduction Act authority to implement and enforce part 55, will existing ways to comply with any use its administrative and procedural rules as The OMB has approved the previously applicable instructions and onshore. However, in those instances where EPA information collection requirements requirements; train personnel to be able has not delegated authority to implement and enforce part 55, EPA will use its own administrative contained in 40 CFR part 55, and by to respond to a collection of and procedural requirements to implement the extension this update to the rules, under information; search data sources; substantive requirements. 40 CFR 55.14(c)(4). the provisions of the Paperwork complete and review the collection of

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information; and transmit or otherwise of the UMRA generally requires EPA to power and responsibilities among the disclose the information. identify and consider a reasonable various levels of government.’’ An agency may not conduct or number of regulatory alternatives and This proposed rule does not have sponsor, and a person is not required to adopt the least costly, most cost- federalism implications. It will not have respond to, a collection of information effective or least burdensome alternative substantial direct effects on the States, unless it displays a currently valid OMB that achieves the objectives of the rule. on the relationship between the national control number. The OMB control The provisions of section 205 do not government and the States, or on the numbers for EPA’s regulations in 40 apply when they are inconsistent with distribution of power and CFR are listed in 40 CFR part 9 and are applicable law. Moreover, section 205 responsibilities among the various identified on the form and/or allows EPA to adopt an alternative other levels of government, as specified in instrument, if applicable. In addition, than the least costly, most cost-effective Executive Order 13132. These rules EPA is amending the table in 40 CFR or least burdensome alternative if the implement requirements specifically part 9 of currently approved OMB Administrator publishes with the final and explicitly set forth by the Congress control numbers for various regulations rule an explanation why that alternative in section 328 of the Clean Air Act, to list the regulatory citations for the was not adopted. without the exercise of any policy information requirements contained in Before EPA establishes any regulatory discretion by EPA. As required by this final rule. requirements that may significantly or section 328 of the Clean Air Act, this rule simply updates the existing OCS C. Regulatory Flexibility Act uniquely affect small governments, including tribal governments, it must rules to make them consistent with The Regulatory Flexibility Act (RFA) current COA requirements. These rules generally requires an agency to conduct have developed under section 203 of the UMRA a small government agency plan. do not amend the existing provisions a regulatory flexibility analysis of any within 40 CFR part 55 enabling rule subject to notice and comment The plan must provide for notifying potentially affected small governments, delegation of OCS regulations to a COA, rulemaking requirements unless the and this rule does not require the COA enabling officials of affected small agency certifies that the rule will not to implement the OCS rules. Thus, governments to have meaningful and have a significant economic impact on Executive Order 13132 does not apply timely input in the development of EPA a substantial number of small entities. to this rule. Small entities include small businesses, regulatory proposals with significant In the spirit of Executive Order 13132, small not-for-profit enterprises, and Federal intergovernmental mandates, and consistent with EPA policy to small governmental jurisdictions. and informing, educating, and advising promote communications between EPA These rules will not have a significant small governments on compliance with and state and local governments, EPA economic impact on a substantial the regulatory requirements. Today’s specifically solicits comments on this number of small entities. These rules proposed rules contain no Federal proposed rule from State and local implement requirements specifically mandates (under the regulatory officials. and explicitly set forth by the Congress provisions of Title II of the UMRA) for in section 328 of the Clean Air Act, State, local, or tribal governments or the F. Executive Order 13175: Coordination without the exercise of any policy private sector that may result in With Indian Tribal Governments discretion by EPA. These OCS rules expenditures of $100 million or more Executive Order 13175, entitled already apply in the COA, and EPA has for State, local, or tribal governments, in ‘‘Consultation and Coordination with no evidence to suggest that these OCS the aggregate, or to the private sector in Indian Tribal Governments’’ (65 FR rules have had a significant economic any one year. These rules implement 67249, November 9, 2000), requires EPA impact on a substantial number of small requirements specifically and explicitly to develop an accountable process to entities. As required by section 328 of set forth by the Congress in section 328 ensure ‘‘meaningful and timely input by the Clean Air Act, this action simply of the Clean Air Act without the tribal officials in the development of updates the existing OCS requirements exercise of any policy discretion by regulatory policies that have tribal to make them consistent with rules in EPA. These OCS rules already apply in implications.’’ This rule does not have the COA. Therefore, I certify that this the COA, and EPA has no evidence to a substantial direct effect on one or action will not have a significant suggest that these OCS rules have more Indian tribes, on the relationship economic impact on a substantial created an adverse material effect. As between the Federal Government and number of small entities. required by section 328 of the Clean Air Indian tribes or on the distribution of Act, this action simply updates the power and responsibilities between the D. Unfunded Mandates Reform Act existing OCS requirements to make Federal government and Indian tribes Title II of the Unfunded Mandates them consistent with rules in the COA. and thus does not have ‘‘tribal implications,’’ within the meaning of Reform Act of 1995 (‘‘UMRA’’), Public E. Executive Order 13132: Federalism Law 104–4, establishes requirements for Executive Order 13175. This rule Federal agencies to assess the effects of Executive Orders 13132, entitled implements requirements specifically their regulatory actions on State, local, ‘‘Federalism’’ (64 FR 43255 (August 10, and explicitly set forth by the Congress and tribal governments and the private 1999)), requires EPA to develop an in section 328 of the Clean Air Act, sector. Under section 202 of the UMRA, accountable process to ensure without the exercise of any policy EPA generally must prepare a written ‘‘meaningful and timely input by State discretion by EPA. As required by statement, including a cost-benefit and local officials in the development of section 328 of the Clean Air Act, this analysis, for proposed and final rules regulatory policies that have federalism rule simply updates the existing OCS with ‘‘Federal mandates’’ that may implications.’’ ‘‘Policies that have rules to make them consistent with result in expenditures to State, local, federalism implications’’ is defined in current COA requirements. In addition, and tribal governments, in the aggregate, the Executive Order to include this rule does not impose substantial or to the private sector, of $100 million regulations that have ‘‘substantial direct direct compliance costs tribal or more in any one year. Before effects on the States, on the relationship governments, nor preempt tribal law. promulgating an EPA rule for which a between the national government and Consultation with Indian tribes is written statement is needed, section 205 the States, or on the distribution of therefore not required under Executive

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Order 13175. Nonetheless, in the spirit explanations when the Agency decided consistent with current COA of Executive Order 13175 and consistent not to use available and applicable requirements, will not have with EPA policy to promote voluntary consensus standards. disproportionately high and adverse communications between EPA and As discussed above, these rules human health or environmental effects tribes, EPA specifically solicits implement requirements specifically on minority or low-income populations comments on this proposed rule from and explicitly set forth by the Congress because it increases the level of tribal officials. in section 328 of the Clean Air Act, environmental protection for all affected without the exercise of any policy G. Executive Order 13045: Protection of populations without having any discretion by EPA. As required by disproportionately high and adverse Children From Environmental Health section 328 of the Clean Air Act, this Risks and Safety Risks human health or environmental effects rule simply updates the existing OCS on any population, including any Executive Order 13045: ‘‘Protection of rules to make them consistent with minority or low-income population. Children From Environmental Health current COA requirements. In the Environmental justice considerations Risks and Safety Risks’’ (62 FR 19885 absence of a prior existing requirement may be appropriate to consider in the (April 23, 1997)), applies to any rule for the state to use voluntary consensus context of a specific OCS permit that: (1) Is determined to be standards and in light of the fact that application. ‘‘economically significant’’ as defined EPA is required to make the OCS rules under Executive Order 12866, and (2) consistent with current COA List of Subjects in 40 CFR Part 55 concerns an environmental health or requirements, it would be inconsistent Environmental protection, safety risk that EPA has reason to with applicable law for EPA to use Administrative practice and procedures, believe may have a disproportionate voluntary consensus standards in this Air pollution control, Hydrocarbons, effect on children. If the regulatory action. Therefore, EPA is not Incorporation by reference, action meets both criteria, the Agency considering the use of any voluntary Intergovernmental relations, Nitrogen must evaluate the environmental health consensus standards. EPA welcomes dioxide, Nitrogen oxides, Outer or safety effects of the planned rule on comments on this aspect of the Continental Shelf, Ozone, Particulate children, and explain why the planned proposed rulemaking and, specifically, matter, Permits, Reporting and regulation is preferable to other invites the public to identify recordkeeping requirements, Sulfur potentially effective and reasonably potentially-applicable voluntary oxides. consensus standards and to explain why feasible alternatives considered by the Dated: January 5, 2009. Agency. such standards should be used in this This proposed rule is not subject to regulation. Laura Yoshii, Executive Order 13045 because it is not Acting Regional Administrator, Region IX. J. Executive Order 12898: Federal economically significant as defined in Title 40 of the Code of Federal Actions To Address Environmental Executive Order 12866. In addition, the Regulations, Part 55, is proposed to be Justice in Minority Populations and Agency does not have reason to believe amended as follows: Low-Income Populations the environmental health or safety risks addressed by this action present a Executive Order 12898 (59 FR 7629 PART 55—[AMENDED] (Feb. 16, 1994)) establishes federal disproportional risk to children. 1. The authority citation for part 55 executive policy on environmental continues to read as follows: H. Executive Order 13211: Actions That justice. Its main provision directs Significantly Affect Energy Supply, federal agencies, to the greatest extent Authority: Section 328 of the Clean Air Act Distribution, or Use practicable and permitted by law, to (42 U.S.C. 7401 et seq.) as amended by Public This proposed rule is not subject to make environmental justice part of their Law 101–549. Executive Order 13211, ‘‘Actions mission by identifying and addressing, 2. Section 55.14 is amended by Concerning Regulations That as appropriate, disproportionately high revising paragraph (e)(3)(ii)(H) to read as Significantly Affect Energy Supply, and adverse human health or follows: Distribution, or Use’’ (66 FR 28355, May environmental effects of their programs, policies, and activities on minority § 55.14 Requirements that apply to OCS 22, 2001) because it is not a significant sources located within 25 miles of States’ regulatory action under Executive Order populations and low-income seaward boundaries, by State. 12866. populations in the United States. EPA lacks the discretionary authority to * * * * * (e) * * * I. National Technology Transfer and address environmental justice in this Advancement Act (3) * * * proposed action. This rule implements (ii) * * * Section 12(d) of the National requirements specifically and explicitly (H) Ventura County Air Pollution Technology Transfer and Advancement set forth by the Congress in section 328 Control District Requirements Act of 1995 (‘‘NTTAA’’), Public Law of the Clean Air Act, without the Applicable to OCS Sources. 104–113, 12(d) (15 U.S.C. 272 note) exercise of any policy discretion by directs EPA to use voluntary consensus * * * * * EPA. As required by section 328 of the 3. Appendix A to CFR Part 55 is standards in its regulatory activities Clean Air Act, this rule simply updates amended by revising paragraph (b)(8) unless to do so would be inconsistent the existing OCS rules to make them under the heading ‘‘California’’ to read with applicable laws or otherwise consistent with current COA as follows: impractical. Voluntary consensus requirements. standards are technical standards (e.g., Although EPA lacks authority to Appendix A to Part 55—Listing of State materials specifications, test methods, modify today’s regulatory decision on and Local Requirements Incorporated sampling procedures, and business the basis of environmental justice by Reference Into Part 55, by State practices) that are developed or adopted considerations, EPA nevertheless * * * * * by voluntary consensus standards explored this issue and found the bodies. The NTTAA directs EPA to following. This action, namely, California provide Congress, through OMB, updating the OCS rules to make them (b) * * *

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(8) The following requirements are Rule 33.8 Part 70 Permits—Reopening of Rule 74.9 Stationary Internal Combustion contained in Ventura County Air Pollution Permits (Adopted 10/12/93) Engines (Adopted 11/08/05) Control District Requirements Applicable to Rule 33.9 Part 70 Permits—Compliance Rule 74.10 Components at Crude Oil OCS Sources: Provisions (Adopted 04/10/01) Production Facilities and Natural Gas Rule 2 Definitions (Adopted 04/13/04) Rule 33.10 Part 70 Permits—General Part 70 Production and Processing Facilities Rule 5 Effective Date (Adopted 04/13/04) Permits (Adopted 10/12/93) (Adopted 03/10/98) Rule 6 Severability (Adopted 11/21/78) Rule 34 Acid Deposition Control (Adopted Rule 74.11 Natural Gas-Fired Residential Rule 7 Zone Boundaries (Adopted 06/14/ 03/14/95) Water Heaters-Control of NOX (Adopted 77) Rule 35 Elective Emission Limits (Adopted 04/09/85) Rule 10 Permits Required (Adopted 04/13/ 11/12/96) Rule 74.11.1 Large Water Heaters and Small 04) Rule 36 New Source Review—Hazardous Boilers (Adopted 09/14/99) Rule 11 Definition for Regulation II Air Pollutants (Adopted 10/06/98) Rule 74.12 Surface Coating of Metal Parts (Adopted 03/14/06) Rule 42 Permit Fees (Adopted 04/08/08) and Products (Adopted 04/08/08) Rule 12 Applications for Permits (Adopted Rule 44 Exemption Evaluation Fee Rule 74.15 Boilers, Steam Generators and 06/13/95) (Adopted 04/08/08) Process Heaters (Adopted 11/08/94) Rule 13 Action on Applications for an Rule 45 Plan Fees (Adopted 06/19/90) Rule 74.15.1 Boilers, Steam Generators and Authority to Construct (Adopted 06/13/95) Rule 45.2 Asbestos Removal Fees (Adopted Process Heaters (Adopted 06/13/00) Rule 14 Action on Applications for a Permit 08/04/92) Rule 74.16 Oil Field Drilling Operations to Operate (Adopted 06/13/95) Rule 47 Source Test, Emission Monitor, and (Adopted 01/08/91) Rule 15.1 Sampling and Testing Facilities Call-Back Fees (Adopted 06/22/99) Rule 74.20 Adhesives and Sealants (Adopted 10/12/93) Rule 50 Opacity (Adopted 04/13/04) (Adopted 01/11/05) Rule 16 BACT Certification (Adopted 06/ Rule 52 Particulate Matter-Concentration Rule 74.23 Stationary Gas Turbines 13/95) (Grain Loading) (Adopted 04/13/04) (Adopted 1/08/02) Rule 19 Posting of Permits (Adopted 05/23/ Rule 53 Particulate Matter-Process Weight Rule 74.24 Marine Coating Operations 72) (Adopted 04/13/04) (Adopted 11/11/03) Rule 20 Transfer of Permit (Adopted 05/23/ Rule 54 Sulfur Compounds (Adopted 06/ Rule 74.24.1 Pleasure Craft Coating and 72) 14/94) Commercial Boatyard Operations (Adopted Rule 23 Exemptions from Permits (Adopted Rule 56 Open Burning (Adopted 11/11/03) 01/08/02) 04/08/08) Rule 57 Incinerators (Adopted 01/11/05) Rule 74.26 Crude Oil Storage Tank Rule 24 Source Recordkeeping, Reporting, Rule 57.1 Particulate Matter Emissions from Degassing Operations (Adopted 11/08/94) Rule 74.27 Gasoline and ROC Liquid and Emission Statements (Adopted 09/15/ Fuel Burning Equipment (Adopted 01/11/ 92) Storage Tank Degassing Operations 05) Rule 26 New Source Review—General (Adopted 11/08/94) Rule 62.7 Asbestos—Demolition and (Adopted 03/14/06) Rule 74.28 Asphalt Roofing Operations Renovation (Adopted 09/01/92) Rule 26.1 New Source Review—Definitions (Adopted 05/10/94) Rule 63 Separation and Combination of (Adopted 11/14/06) Rule 74.30 Wood Products Coatings Emissions (Adopted 11/21/78) Rule 26.2 New Source Review— (Adopted 06/27/06) Requirements (Adopted 05/14/02) Rule 64 Sulfur Content of Fuels (Adopted Rule 75 Circumvention (Adopted 11/27/78) Rule 26.3 New Source Review—Exemptions 04/13/99) Rule 101 Sampling and Testing Facilities (Adopted 03/14/06) Rule 67 Vacuum Producing Devices (Adopted 05/23/72) Rule 26.6 New Source Review— (Adopted 07/05/83) Rule 102 Source Tests (Adopted 04/13/04) Calculations (Adopted 03/14/06) Rule 68 Carbon Monoxide (Adopted 04/13/ Rule 103 Continuous Monitoring Systems Rule 26.8 New Source Review—Permit To 04) (Adopted 02/09/99) Operate (Adopted 10/22/91) Rule 71 Crude Oil and Reactive Organic Rule 154 Stage 1 Episode Actions (Adopted Rule 26.10 New Source Review—PSD Compound Liquids (Adopted 12/13/94) 09/17/91) (Adopted 01/13/98) Rule 71.1 Crude Oil Production and Rule 155 Stage 2 Episode Actions (Adopted Rule 26.11 New Source Review—ERC Separation (Adopted 06/16/92) 09/17/91) Evaluation At Time of Use (Adopted 05/ Rule 71.2 Storage of Reactive Organic Rule 156 Stage 3 Episode Actions (Adopted 14/02) Compound Liquids (Adopted 09/26/89) 09/17/91) Rule 26.12 Federal Major Modifications Rule 71.3 Transfer of Reactive Organic Rule 158 Source Abatement Plans (Adopted (Adopted 06/27/06) Compound Liquids (Adopted 06/16/92) 09/17/91) Rule 28 Revocation of Permits (Adopted 07/ Rule 71.4 Petroleum Sumps, Pits, Ponds, Rule 159 Traffic Abatement Procedures 18/72) and Well Cellars (Adopted 06/08/93) (Adopted 09/17/91) Rule 29 Conditions on Permits (Adopted Rule 71.5 Glycol Dehydrators (Adopted 12/ Rule 220 General Conformity (Adopted 05/ 03/14/06) 13/94) 09/95) Rule 30 Permit Renewal (Adopted 04/13/ Rule 72 New Source Performance Standards Rule 230 Notice to Comply (Adopted 9/9/ 04) (NSPS) (Adopted 09/09/08) 08) Rule 32 Breakdown Conditions: Emergency Rule 73 National Emission Standards for * * * * * Hazardous Air Pollutants (NESHAPS) Variances, A., B.1., and D. only (Adopted [FR Doc. E9–5728 Filed 3–16–09; 8:45 am] 02/20/79) (Adopted 09/9/08) Rule 33 Part 70 Permits—General (Adopted Rule 74 Specific Source Standards BILLING CODE 6560–50–P 09/12/06) (Adopted 07/06/76) Rule 33.1 Part 70 Permits—Definitions Rule 74.1 Abrasive Blasting (Adopted 11/ (Adopted 09/12/06) 12/91) FEDERAL COMMUNICATIONS Rule 33.2 Part 70 Permits—Application Rule 74.2 Architectural Coatings (Adopted COMMISSION Contents (Adopted 04/10/01) 11/13/01) Rule 33.3 Part 70 Permits—Permit Content Rule 74.6 Surface Cleaning and Degreasing 47 CFR Part 73 (Adopted 09/12/06) (Adopted 11/11/03—effective 07/01/04) Rule 33.4 Part 70 Permits—Operational Rule 74.6.1 Batch Loaded Vapor Degreasers [MB Docket No. 09–26; FCC 09–14] Flexibility (Adopted 04/10/01) (Adopted 11/11/03—effective 07/01/04) Rule 33.5 Part 70 Permits—Time frames for Rule 74.7 Fugitive Emissions of Reactive Implementation of the Child Safe Applications, Review and Issuance Organic Compounds at Petroleum Viewing Act; Examination of Parental (Adopted 10/12/93) Refineries and Chemical Plants (Adopted Control Technologies for Video or Rule 33.6 Part 70 Permits—Permit Term 10/10/95) Audio Programming and Permit Reissuance (Adopted 10/12/93) Rule 74.8 Refinery Vacuum Producing Rule 33.7 Part 70 Permits—Notification Systems, Waste-Water Separators and AGENCY: Federal Communications (Adopted 04/10/01) Process Turnarounds (Adopted 07/05/83) Commission.

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ACTION: Proposed rule. (202) 418–2154 or at than August 29, 2009 detailing our [email protected]. findings in this proceeding. SUMMARY: This document implements the Child Safe Viewing Act of 2007, S. SUPPLEMENTARY INFORMATION: This is a Background and Scope of Inquiry 602, 110th Cong., adopted December 2, summary of the Commission’s Notice of 2. The media environment that 2008, which directs the Commission to Inquiry (NOI), FCC 09–14, adopted on children encounter is becoming initiate a proceeding to examine ‘‘the March 2, 2009, and released on March increasingly complex. In the majority of existence and availability of advanced 2, 2009. The full text of this document homes with children, there are at least blocking technologies that are is available for public inspection and three television sets, some of which compatible with various copying during regular business hours receive signals over the air and others communications devices or platforms’’ in the FCC Reference Center, Federal that are linked to cable or satellite and can be used by parents to shield Communications Commission, 445 12th services. The average TV household in their children from objectionable video Street, SW., CY–A257, Washington, DC the United States receives 17 broadcast or audio programming. Although the 20554. These documents will also be TV stations and more than 118 development of new media technologies available via ECFS (http://www.fcc.gov/ television channels. In addition, many and platforms offers learning cgb/ecfs/). (Documents will be available homes have DVD players, computers opportunities for children, it also poses electronically in ASCII, Word 97, and/ with Internet access, and a variety of new dangers. This Notice of Inquiry will or Adobe Acrobat.) The complete text mobile devices, such as iPods or other examine tools currently available to may be purchased from the MP3 devices and wireless devices such parents and under development to help Commission’s copy contractor, 445 12th as cell phones and smart phones, that them supervise how their children use Street, SW., Room CY–B402, are capable of playing both audio and the media and, as directed by the Child Washington, DC 20554. To request this video. Each of these media outlets has Safe Viewing Act, the Commission will document in accessible formats its own type of password and/or submit a report to Congress detailing its (computer diskettes, large print, audio program blocking system, which poses a findings. recording, and Braille), send an e-mail significant challenge for parents trying DATES: Comments are due on or before to [email protected] or call the to direct or supervise their children’s April 16, 2009; reply comments are due Commission’s Consumer and exposure to video and audio on or before May 18, 2009. Governmental Affairs Bureau at (202) programming. 418–0530 (voice), (202) 418–0432 3. Together with the growth in the ADDRESSES: You may submit comments, (TTY). kinds of media devices available to identified by MB Docket No. 09–26, by children there has been an increase in any of the following methods: Summary of the Notice of Inquiry the amount of time children are exposed • Federal eRulemaking Portal: to media content. Children six years and http://www.regulations.gov. Follow the Introduction younger average almost 21⁄2 hours of instructions for submitting comments. 1. This Notice of Inquiry (NOI) daily exposure to media content, while • Federal Communications implements the Child Safe Viewing Act children 8 to 18 use media—including Commission’s Web site: http:// of 2007, adopted December 2, 2008, television, video players, audio media, www.fcc.gov/cgb/ecfs/. Filers should which directs the Commission to video games, and computers—close to follow the instructions provided on the initiate a proceeding within 90 days five hours each day and often use two Web site for submitting comments. In after the date of enactment to examine or more media simultaneously. As a completing the transmittal screen, filers ‘‘the existence and availability of result of the transition to digital should include their full name, U.S. advanced blocking technologies that are technology and the continuing Postal Service mailing address, and the compatible with various technological convergence of media, applicable docket or rulemaking communications devices or platforms.’’ children today can access the same number. Congress defined ‘‘advanced blocking • source of content from a variety of E-mail: [email protected]. To get filing technologies’’ as ‘‘technologies that can media platforms, some of which are instructions, filers should send an e- improve or enhance the ability of a portable. Teens can watch on a mail to [email protected], and include the parent to protect his or her child from computer a program that aired on following words in the body of the any indecent or objectionable video or television days earlier and can use a cell message, ‘‘get form.’’ A sample form and audio programming, as determined by phone or other wireless device as a directions will be sent in response. such parent, that is transmitted through multimedia platform, to surf the Internet • Mail: Filings can be sent by the use of wire, wireless, or radio and download video and audio commercial overnight courier or by first- communications.’’ Congress’s intent in programming. The ubiquity of media in class or overnight U.S. Postal Service adopting the Act was to spur the the lives of children and the portability mail. development of the ‘‘next generation of of many media devices makes direct • For detailed instructions for parental control technology.’’ In adult supervision of the content of the submitting comments and additional conducting this proceeding, we will media to which children are exposed information on the rulemaking process, examine blocking technologies that may increasingly difficult. The goal of this see the SUPPLEMENTARY INFORMATION be appropriate across a wide variety of proceeding is to examine current and section of this document. distribution platforms and devices, can new technologies that can assist parents, For detailed instructions for submitting filter language based upon information as well as other caregivers, to shield comments and additional information in closed captioning, can operate children from inappropriate content in on the rulemaking process, see the independently of pre-assigned ratings, this rapidly changing media SUPPLEMENTARY INFORMATION section of and may be effective in enhancing a environment. this document. parent’s ability to protect his or her 4. Section 2(a) of the Child Safe FOR FURTHER INFORMATION CONTACT: For child from indecent or objectionable Viewing Act directs the Commission to additional information on this programming, as determined by the initiate a notice of inquiry to examine: proceeding, contact Kim Matthews of parent. The Act directs the Commission (1) The existence and availability of the Media Bureau, Policy Division at to issue a report to Congress no later advanced blocking technologies that are

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compatible with various television sets, DVD players, VCRs, and objectionable audio conveyed together communications devices or platforms; wireless devices, are capable of with video programming. (2) Methods of encouraging the transmitting both audio and video 8. We also invite comment on how we development, deployment, and use of programming. We seek comment on should interpret the term ‘‘video such technology by parents that do not whether Congress intended that we programming’’ for purposes of this affect the packaging or pricing of a examine blocking technologies for proceeding. Section 602(20) of the content provider’s offering; and content that is audio only (e.g., music), Communications Act states that: ‘‘the (3) The existence, availability, and use or technologies appropriate for content term ‘video programming’ means of parental empowerment tools and that combines audio and video (e.g., programming provided by, or generally initiatives already in the market. television programs), or both. The Act considered comparable to programming 5. Thus, the Act requires that we does not define the terms ‘‘audio’’ or provided by, a television broadcast examine ‘‘advanced blocking ‘‘video.’’ The legislative history station.’’ Is this the appropriate technologies’’ currently available across indicates that Congress was focused definition to use for purposes of the a wide range of media platforms. Child Safe Viewing Act? It seems clear primarily on television content. The Section 2(d) of the Act defines the term that ‘‘video programming’’ as that term Senate Report indicates that the Act ‘‘advanced blocking technologies’’ as is used in the Child Safe Viewing Act stems from Congress’s concern with the ‘‘technologies that can improve or includes, for example, an episode of a enhance the ability of a parent to protect efficacy of the V-chip, given its limited television program, whether that his or her child from any indecent or use by parents, as well as a desire to program is provided on a television set objectionable video or audio ensure that blocking capability over the air or via cable or satellite, or programming, as determined by such continues to be available to consumers provided over the Internet on a parent, that is transmitted through the as technology advances. The Senate computer or wireless device, or use of wire, wireless, or radio Report cites section 551(e) of the provided directly by a wireless carrier. communication.’’ We invite comment Telecommunications Act of 1996 and We invite comment, however, on on advanced blocking technologies that notes that that provision requires the whether the term ‘‘video programming’’ may be appropriate across various Commission to ‘‘ ‘take such action as the includes such content as videos distribution platforms, including wired, Commission determines appropriate’ to provided on Internet video hosting sites, wireless, and Internet platforms. We assess alternative program blocking such as YouTube, and vodcasts of also invite comment on the statutory technologies and to expand the V-chip nontraditional video content. In definition of ‘‘advanced blocking requirement, if necessary, to facilitate addition, we seek comment on how the technologies.’’ Whereas the Commission the use of alternative technologies that use of the term ‘‘video programming’’ in has defined the term ‘‘indecent’’ in may not rely on common ratings.’’ The the Act limits the scope of this other contexts, the Act appears to leave Senate Report also explains that the Act proceeding. determination of what is ‘‘indecent’’ or requires the Commission to consider 9. As directed by section 2(a)(2) of the ‘‘objectionable’’ entirely to the technologies that may be appropriate Act, we invite comment on ‘‘methods of individual discretion of parents. We across a variety of content distribution encouraging the development, invite comment on this interpretation platforms ‘‘[i]n recognition of the fact deployment, and use’’ of advanced and on any other issues regarding the that television content is currently being blocking technologies. What strategies statutory definition of advanced made available over the Internet and should be used in this regard and what blocking technologies. over mobile devices.’’(emphasis added) role should industry, trade 6. Section 2(b) of the Act states that This language suggests that Congress organizations, consumer groups, the Commission shall consider intended that we focus on television Government and others play in this advanced blocking technologies that: content and the variety of platforms effort? Section 2(a)(2) also states that the (1) May be appropriate across a wide over which such content can be Commission should examine methods variety of distribution platforms, displayed and consider technologies of encouraging the development, deployment, and use of advanced including wired, wireless, and Internet capable of blocking inappropriate audio blocking technologies ‘‘that do not affect platforms; or video content transmitted as part of the packaging or pricing of a content (2) May be appropriate across a wide such programming. We invite comment variety of devices capable of provider’s offering.’’ We invite comment on this view. We also note that, on how we should interpret this transmitting or receiving video or audio although section 2(b)(2) refers to programming, including television sets, language. How does the language in ‘‘devices capable of transmitting or DVD players, VCRs, cable set top boxes, section 2(a)(2) regarding packaging and receiving video or audio programming,’’ satellite receivers, and wireless devices; pricing of a content provider’s offering (3) Can filter language based upon it does not list radios as one of the relate to our mandate under the Act? information in closed captioning; specific devices for which blocking 10. In addition, section 2(a)(3) of the (4) Operate independently of ratings technology should be considered. Act directs us to examine ‘‘the pre-assigned by the creator of such Although the list is illustrative and not existence, availability, and use of video or audio programming; and exhaustive, it appears significant that no parental empowerment tools and (5) May be effective in enhancing the audio-only devices are listed. Moreover, initiatives already in the market.’’ ability of a parent to protect his or her the Senate Report discusses television Although the Act’s focus is advanced child from indecent or objectionable primarily and does not refer to radios, blocking technologies and facilitating programming, as determined by such and radios were not discussed during the next generation of parental control parent. the Senate hearing on the Act. In light technology, the Senate Report makes 7. This language makes it clear that of the language of the Act and the clear that Congress was concerned about we are to consider blocking technologies legislative history, we invite comment the V-chip, which is a parental appropriate for use on a variety of on whether we should examine blocking empowerment tool already in the devices that transmit audio and video technology designed for audio content market, and about the low-level of V- programming. The devices specifically alone in this proceeding, or focus on chip use. Accordingly, we invite identified in section 2(b)(2), such as technology capable of blocking comment specifically on efforts to

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improve or expand V-chip technology enable viewers to block display of all inches be equipped with a V-chip went and to encourage increased use of the V- programs with a common rating.’’ Id. into effect, were not even aware that chip by parents. We also seek comment (added by section 551 of the 1996 Act). they have a V-chip. on any other parental empowerment In 1998, the Commission adopted rules 16. We invite comment on these tools that are currently available to requiring that, starting in 2000, studies and any improvements that consumers, as well as any initiatives to television sets with screens 13 inches or could be made to the V-chip and the encourage their availability and/or use. larger must be equipped with a V-chip. existing TV ratings system to increase 11. Finally, we invite comment on Section 551 of the 1996 Act also their use and effectiveness. Are there whether we should examine blocking directed that, if the industry did not ways in which the V-chip could be technology for video game players and/ adopt voluntary rules for rating video made easier to use and program? What or video games. Video game players are programming within a year, the steps could be taken to increase parental not included among the devices Commission should prescribe awareness of the V-chip? The V-chip specifically identified in section 2(b)(2), guidelines and recommended has been referred to as an ‘‘orphaned and video games are not mentioned in procedures for program ratings. 47 technology,’’ meaning that no entity has the Senate Report and were not U.S.C. section 303(w). Following the a financial incentive to promote its use. discussed in the Senate hearing on the adoption of this provision, the What role should industry or the Act. However, in light of the popularity broadcast, cable, and movie industries government play in promoting the V- of video games among children and jointly created a voluntary system for chip? What kinds of promotions would concerns expressed regarding their rating television content, known as the be most effective and who should bear content, we seek comment on whether TV Parental Guidelines, which the the cost? We note that the broadcast we should examine methods of Commission subsequently recognized as networks have previously joined with controlling access to video games in this meeting the requirements of the 1996 the Advertising Council to air some proceeding. Act. public service campaigns promoting the 14. The Parental Guidelines contain V-chip. Was this campaign successful? Discussion and Request for Comment both age- and content-based ratings. The 17. We also invite comment on the A. Television age-based ratings are: TV–Y (All current ratings system. The 2007 Kaiser Children); TV–Y7 (Directed to Older Family Foundation study also showed 12. The Commission has long Children—age 7 or older); TV–G that, although more than 80 percent of recognized that television plays a (General Audience); TV–PG (Parental parents have heard of the TV ratings, significant role in the lives of American Guidance Suggested); TV–14 (Parents most do not understand what they children. Children ages 8 to 18 watch on Strongly Cautioned—may be unsuitable mean. Only 30 percent of parents with average more than three hours of for children under 14); and TV–MA children between 2 and 6 could name television each day, and more than two (Mature Audience Only—may be any of the ratings used for children’s thirds of children in this age range have unsuitable for children under 17). The programs (TV–Y, TV–7, or TV–G). Only a television in their bedroom. Children content-based descriptors are: V 11 percent of parents with children in younger than 8 watch on average 2 (violence); FV (fantasy violence in older this age range knew that the content hours of television daily and more than children’s programming); S (sexual rating FV had anything to do with one third have a television in their content); D (suggestive dialogue); and L violence, and 9 percent thought it meant bedroom. Because many children watch (strong language in programming). The ‘‘family viewing.’’ More than half of television while they engage in other guidelines apply to most television parents of older children that had heard activities, the total amount of time that programming, except for news and of the TV ratings understood the children are exposed to television sports programming and meaning of the TV–14 and TV–MA age- content is even greater than statistics advertisements. based ratings and the ‘‘V’’ content regarding their daily television use 15. As Congress noted in adopting the descriptor, but only 36 percent of these suggest. Moreover, in spite of the Child Safe Viewing Act, studies parents understood that ‘‘S’’ designates increase in the number of other types of conducted since the V-chip a show with sexual content and only 2 media to which children are exposed, requirements and TV Parental percent knew that ‘‘D’’ indicates television remains the media of choice Guidelines were adopted show that the suggestive dialogue. We invite comment among children. Children ages 8 to 18 V-chip is not widely used and many on these studies and on ways in which devote about 50 percent of their total parents remain unaware of it. A study awareness of the current ratings system media time to television, while younger conducted from 1999–2001 by the could be improved. children devote about two-thirds of Annenberg Public Policy Center found 18. We also seek comment on the their media time to television viewing. that only 8 percent of the families extent to which programming is rated, Thus, television remains a primary studied had the V-chip programmed and using both the age-based ratings as well medium of concern in terms of were using it. The study showed that as the content descriptors, and on children’s exposure to potentially many parents are not aware that they whether the ratings are applied objectionable content. have a V-chip and others find that accurately. Some have criticized the 13. In 1996, Congress amended Title ‘‘programming the V-chip is a multi-step application of the TV Parental III of the Communications Act, 47 and often confusing process.’’ In two Guidelines. In a 2007 report, the Parents U.S.C. section 303(x), to require the more-recent studies conducted by the Television Council (PTC) examined all incorporation of blocking technology Kaiser Family Foundation in 2004 and prime time entertainment programming into television sets. Section 551 of the 2007, the first showed that only 15 on the six broadcast networks during Telecommunications Act of 1996, also percent of parents have used the V-chip, the November 2006 and February 2007 known as the Parental Choice in and the second showed that 16 percent sweeps period. In its report, PTC states Television Programming Act, directed of parents used the V-chip. The 2007 that 99 percent of the programs they the Commission to adopt rules that Kaiser Family Foundation study showed examined were rated either TV–PG or require certain televisions or devices that more than half of parents who had TV–14, meaning they were deemed capable of receiving television signals to purchased a television set since 2000, suitable for children as young as 14, ‘‘be equipped with a feature designed to when the requirement that sets over 13 despite the fact that some programs

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contained mature subject matter. ensure that digital televisions can reconsideration of the Second DTV According to PTC, none of the programs respond to ‘‘improved content ratings Periodic Report and Order arguing that examined received the TV–MA rating that could help parents better select receivers should be required to respond for mature audiences, and forty percent what content enters their homes.’’ to only one additional RRT—RRT 5—in or more of the programs lacked one or CFIRS, et al. noted that the current addition to RRT 1. See Petition for more of the appropriate content ratings system does not allow parents to Reconsideration and/or Clarification of descriptors for suggestive dialogue block programs that ‘‘glamorize CEA, filed Nov. 3, 2004, in MB Docket (‘‘D’’), sexual (‘‘S’’) or violent content smoking, alcohol abuse or illegal drug No. 03–15. CFIRS and other parties have (‘‘V’’), or strong language (‘‘L’’). PTC use’’ and does not allow ratings in filed oppositions to the CEA Petition, argues that the problems in applying the languages other than English. CFIRS, et arguing that television sets should not TV Parental Guidelines stem from the al. also noted that several new TV be limited to only one additional RRT fact that there are no guidelines ratings systems have been developed and that more capacity is needed to dictating how the ratings should be since the present guidelines that would accommodate additional and improved applied and that each network rates its give viewers a choice of which ratings systems. The CEA Petition own programs. Other studies have also guidelines to use. CFIRS, et al. argued remains pending. The specific issue indicated that the ratings may not be that V-chip requirements should ensure raised in the CEA Petition regarding correctly applied and that parents do that there is ample space for future RRTs will be resolved in the Second not believe that programs are rated generations to extend the current ratings DTV Periodic Review proceeding. If the accurately. We seek comment on these and develop new ones. The concept of V-chip could accommodate multiple views. Are broadcasters and other a V-chip that can accommodate ratings program ratings created, for example, by programming distributors transmitting other than the existing TV Parental different ratings services, how would the ratings information, as they agreed Guidelines is generally referred to as the this system be implemented? How to do in 1997? ‘‘open V-chip.’’ The Commission has would multiple ratings be incorporated 19. As noted above, commercials are generally endorsed this concept by into programming? How would parents currently not rated using the TV recognizing that the ability to modify select a rating system for use on their Parental Guidelines. The Commission television set and how could a V-chip the current rating system is beneficial and others have raised concerns about offering this degree of choice be made and by requiring that television sets the airing of inappropriate or adult- easy for parents to use? Could parents have the capacity to respond to changes oriented commercials during decide to use more than one rating in the TV ratings. In their November programming directed to or widely system on the same television set and, 2008 letter, CFIRS, et al. urged the viewed by children. We invite comment if so, how would parents move from one Commission to take action on an issue on the extent to which inappropriate system to another? commercials are aired in programming pending in the Commission’s Second 22. We invite comment on whether viewed by children and on possible DTV Periodic Review proceeding. there are intellectual property concerns solutions to this problem. Could Ratings systems are carried in Rating that could affect efforts to improve the commercials be rated so that the V-chip Region Tables (RRTs). The Advanced V-chip and the current ratings system, or other technology could be used to Television Systems Committee (ATSC), as well as efforts to develop an ‘‘open filter out commercials with which maintains the list of rating region V-chip’’ and other next-generation inappropriate content? What role should assignments, originally assigned 0x01 parental control technologies. There is a the Government, industry, or third- (RRT 1) to the United States. RRT 1 patent on the technology that may be parties play in this effort? carries the current U.S. rating system necessary to enable television 20. We invite comment on blocking (the TV Parental Guidelines and MPAA manufacturers to implement an open V- technology that operates based on ratings). Prior to the Second DTV chip regime whereby television ratings established by an entity other Periodic Report and Order, 69 FR 59500, receivers must respond to multiple than the creator of the programming. October 4, 2004, television sets were Ratings Region Tables (RRTs) capable of Section 2(b) of the Act directs us to designed to convey only the ratings containing expanded ratings systems examine advanced blocking information contained in RRT 1. In the and/or multiple ratings systems. technologies that ‘‘operate Second DTV Periodic Report and Order, Licenses for this technology are being independently of ratings pre-assigned the Commission stated that ‘‘[w]e offered through Tri-Vision International by the creator of such video or audio generally believe that the ability to Limited (‘‘Tri-Vision’’), a Canadian programming’’ and that enhance the modify the current content advisory company. Would the Tri-Vision patent ability of a parent to protect his or her system is beneficial’’ and that ‘‘to ensure apply in a situation in which a child from indecent or objectionable the ability to modify the content television set could respond to multiple programming ‘‘as determined by such advisory system, receivers must be able RRTs, therefore providing capacity for parent.’’ Are there technologies to process newer RRT version numbers the set’s V-chip to process additional currently available or in development or use new rating region codes as and/or more-detailed ratings systems? that give parents a greater role in suggested by ATSC.’’ The Commission Are the licensing terms that Tri-Vision determining how programs should be also revised 47 CFR 15.120(d)(2) to, offers reasonable? What steps should be rated? How could the Commission among other things, state that ‘‘[d]igital taken to ensure that patent issues do not encourage the development, television receivers shall be able to discourage manufacturers from deployment, and use of such respond to changes in the content including blocking technology in technology? advisory system.’’ 47 CFR 15.120(d)(2). consumer equipment? We also invite 21. Other parties have also called for Subsequent to the adoption of the comment on what, if any, alternative improvements in the V-chip and the TV Second DTV Periodic Report and Order, ratings systems for use in conjunction ratings. In a November 2008 letter, the the ATSC reserved rating region code with the V-chip are available or are in Benton Foundation, Common Sense 0x05 (RRT 5) for an unspecified the process of being developed. Media, and the Coalition for alternative U.S. rating system or 23. Apart from the V-chip, we invite Independent Ratings (CFIRS, et al.) systems. The Consumer Electronics comment on any other advanced urged the Commission to take steps to Association (CEA) filed a petition for blocking technologies for television

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either currently in existence or under B. Cable and Satellite offerings (similar to broadcast, cable, development. We note that TiVo’s 26. We invite comment on the and satellite TV) and outside, third- KidZone permits parents to both block additional parental control options party content (similar to wireline and select and/or record programming available to cable and satellite broadband Internet service). Therefore, for their children based on a list of subscribers. What tools are available to parents may need to have access to recommended programs developed by a parents, how easy are these tools to use, multiple types of advanced blocking number of independent organizations, and how widely are they employed by technologies or ensure that the including Common Sense Media, parents to control what their children advanced blocking technologies can Discovery Kids, and the Parents watch? Like the V-chip, cable set top filter out objectionable content from Television Council. How does TiVo boxes and satellite receivers permit multiple sources. 28. Video programming and other compare to the V-chip in terms of ease parents to block programs that contain content available on wireless devices of use and effectiveness? Are there any certain ratings under the TV Parental includes both content offered by the data regarding actual use of KidZone by Guidelines. Are these boxes easier to wireless provider itself, such as parents? Are other entities offering use than the V-chip? In addition, digital streamed versions of certain cable TV similar devices? TiVo technology cable set-top boxes and satellite channels, music videos, sports, news permits parents not only to screen-out receivers offer the option of blocking clips, TV programs, and short TV content parents find inappropriate, but entire channels or blocking individual episodes made exclusively for mobile also to select specific content based on programs. We are interested in any phones (mobisodes), as well as third- recommendations from a number of research that compares cable and party content obtained via the Internet. different entities. Does any other satellite blocking devices to the V-chip, We seek comment on any blocking technology offer the ability to select particularly in terms of ease of use and technology currently available for desired programming as well as screen- popularity with parents. We also invite content, particularly video out objectionable programming? comment on blocking technology for programming, on wireless devices, as digital video recorders (DVRs). well as ways of encouraging the 24. Pursuant to section 2(b)(3) of the Although these devices are not Act, we also seek comment on advanced development, deployment, and use of specifically mentioned in section 2(b)(2) such technology. We also invite blocking technologies that ‘‘can filter of the Act, DVRs are generally language based upon information in comment on the availability of any other incorporated into or connected to a parental empowerment tools related to closed captioning.’’ This language seems cable or satellite set top box and are an wireless devices. to focus on technology that uses closed increasingly popular alternative to 29. The wireless industry has captions to identify inappropriate VCRs, which are specifically mentioned developed child protection measures content in television programs. One in section 2(b)(2). We note that TiVo, both for content offered by wireless technology being offered now is which is one brand of DVR, provides providers as well as content available TVGuardian, which operates by equipment that can be used in over the Internet on wireless devices. scanning closed captioning, muting the conjunction with cable and satellite CTIA and participating wireless carriers audio part of the program when service, thereby providing parents with have voluntarily adopted Carrier offensive phrases appear, and access to the KidZone product described Content Classification and Internet displaying a profanity-free version of above. How do the options provided by Access Control Guidelines, which the phrase at the bottom of the TV TiVo and any other third-party DVR provide for voluntary classification screen. We invite comment on this compare to the parental controls standards for ‘‘Carrier Content’’ (those technology and any others that use available in cable set top boxes and materials that reside with a carrier’s closed captioning as the basis for satellite receivers? In addition to managed content portal or third party screening programming. We note that technology currently available, are there content whose charges are included on closed captions are not always any new technologies under a carrier’s bill). Under the Guidelines, synchronized perfectly with the audio, development or on the horizon for Accessible Carrier Content is available and thus the captions may appear satellite or cable? We also invite to consumers of all ages while slightly before or after the time words comment on how we could encourage Restricted Carrier Content is available to are spoken as part of the on-screen the development of new technologies those 18 or older or to younger program. We invite comment on for these services, as well as their use by consumers with specific parental whether and how this lack of parents. authorization. Each carrier is responsible for its implementation of synchronization affects the use of C. Wireless Devices captions to block inappropriate content. access controls, including age- 27. Providing parents and caregivers verification mechanisms, and those 25. Finally, what methods would be with tools to protect children from carriers agreeing to these voluntary most effective in encouraging the content they deem inappropriate may guidelines have pledged not to offer any development and use of advanced present additional challenges on Restricted Carrier Content until they blocking technology for television? wireless devices, which are typically have provided controls to allow parents What role should the industry, trade operated by children away from the to restrict access to this type of content. associations, consumer organizations, purview of their parents. Further, the Restricted Carrier Content includes and Government play in this regard? Do devices themselves may be limited in intense profanity, intense violence, private entities have sufficient incentive the type of software or applications that graphic depiction of sexual activity or to develop advanced blocking can be added directly by the consumer. sexual behaviors, nudity, hate speech, technologies for commercial use? What We note that the type of content graphic depiction of illegal drug use, other parental empowerment tools and available over wireless devices differs and any activities that are restricted by initiatives are available to help parents from that available over broadcast law to those 18 years of age and older, protect their children from television, cable, or satellite in that such as gambling and lotteries. Several programming that they consider consumers can view both carrier- larger carriers have already announced objectionable or indecent? provided content through packaged the institution of guidelines to block

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inappropriate content through parental user experience (e.g., ease of use, ability now owned by about 84% of American control services. For example, Verizon to personalize or change the settings on households and VCRs, while in decline, Wireless allows parents to filter content the filter, etc.)? Further, as wireless are still owned by the great majority of by certain age categories (7+ years old, carriers move toward open platforms, American households. However, unlike 13+ years old, 17+ years old), which how will blocking and filtering be wired, wireless, or Internet platforms, includes content on its Mobile Web affected? For instance, do parties expect which directly distribute video or audio service. there to be additional blocking content to consumers, DVD players and 30. The wireless industry is also applications available that are being VCRs are dependent on video discs or developing ‘‘Internet Content Access created and marketed by third parties? videotapes to distribute content. This Control’’ technologies to enable account Do third-party application providers situation gives parents greater control holders to filter and block access to need open platforms in place in order to over DVD players and VCRs than they specific Web sites. According to CTIA, provide these advanced blocking have over other distribution platforms. all major carriers currently provide technologies to consumers, or do Specifically, parents have the ability to consumers with the ability to block all application providers generally provide purchase or rent for their children age- Internet access on their devices. In their products to the carriers themselves appropriate content for DVD players and addition, wireless companies are rather than directly to end users? Do VCRs and accumulate libraries of such researching solutions to provide consumers using licensed wireless content to be used at either their, or controls with the ability to limit specific service have to purchasing or request their children’s, discretion. Nonetheless, Internet content or sites on consumers’ free blocking or filtering from their there may remain a legitimate concern— devices, which would be implemented wireless providers, or can they purchase particularly for older children—to the on a carrier-by-carrier basis. or otherwise obtain freely these extent that children make their own 31. We invite comment on these technologies themselves and load content purchases for DVD players and methods for controlling access to applications onto their wireless devices? VCRs or are given inappropriate content available over wireless devices. 33. We also seek comment on how to videotapes or video discs by other Are these controls effective and easy to encourage the development, children or adults. Thus, there may be understand and activate by parents? To deployment, and use of blocking and a role for blocking technologies for these what extent are these parental control filtering technologies on wireless devices. We invite comment on whether technologies used? Both the Carrier devices by parents. To the extent blocking technologies exist or are under Content guidelines and the Internet wireless providers already have tools development for DVD players and VCRs Content Access Control guidelines filter available to help parents protect and, if so, how these technologies content using age-based categories as children from inappropriate content, compare to blocking technologies defined by the industry rather than by how are these providers educating available for other distribution consumers. How effective or accurate consumers and publicizing the platforms and networked devices. We are these content ratings? How do these availability and convenience of such also seek comment on whether blocking guidelines utilize existing standards, tools? How could trade organizations or technologies exist for similar non- such as the TV Parental Guidelines or consumer organizations publicize the networked devices, such as digital audio the MPAA rating system? Are there any development, deployment, and use of players (MP3 players) and portable technologies for wireless devices either filtering technologies? In addition, what media players. If blocking technologies currently in existence or in role should the Government play in exist for non-networked devices, to development that operate with a ratings ensuring that blocking and filtering what extent are they used by parents? system developed by an entity not tools are made available to parents so What methods would be effective in associated with the content creator or that children can be shielded from encouraging the development and use of the industry? inappropriate content? such technology? Movies on DVDs and 32. In addition to the blocking D. Non-Networked Devices video tapes are generally rated using the technologies discussed above, we also MPAA rating system. Is this rating seek information on any other types of 34. Section 2(b)(2) of the Act directs system effective? blocking or filtering technologies the Commission to examine advanced currently available to consumers or blocking technologies that ‘‘may be E. Content Available Over the Internet other technologies currently in appropriate across a wide variety of 36. Section 2(b)(1) of the Act directs development for use on wireless devices capable of transmitting or us to consider advanced blocking devices. We note that technology is receiving video or audio programming, technologies that ‘‘may be appropriate available on some wireless devices that including * * * DVD players [and] across a wide variety of distribution permits parents to view the information VCRs.’’ As directed by this section of platforms, including * * * Internet children receive over these devices. the Act, we inquire as to the existence platforms.’’ Video and audio How useful and widely used is this and availability of blocking technologies programming is increasingly available technology? We also invite comment on for non-networked devices capable of on the Internet. Many sources of video any other parental empowerment tools receiving video or audio programming, and audio programs traditionally seen currently available for wireless particularly DVD players and VCRs. We on television are making their content technology. How do the features that note that most DVD players do not available over the Internet, and third make mobile, wireless devices unique contain a tuner and therefore are not party online services such as Hulu (e.g., the size of the device/screen, the themselves capable of transmitting or permit individuals to watch television speed of broadband service on a mobile receiving video or audio programming. programs and movies that are streamed device, system requirements) affect how Nonetheless, as these devices are to computer screens. Other sites such as advanced blocking technologies operate specifically identified in the Act, we iTunes provide a download-on-demand for these devices? What are the pros and seek comment on blocking technologies service, permitting individuals to cons of using blocking technologies for these devices. download TV shows and movies to their through the network versus via the 35. DVD players and VCRs play a computers or from a computer to handset? How does the type of filter major role in the lives of many devices such as an iPod or iPhone. (network-or handset-based) affect the American families—DVD players are Some programs are also available as

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podcasts and vodcasts which can be through an automated analysis, human Is there technology that would permit subscribed to, downloaded on demand, review, or by user options. Individuals parents to select programming for their and played on computers, wireless can select different blocking services children similar to TiVo KidZone? devices, and MP3 (audio) or MP4 which may block based on different 41. We also invite comment on how (video) players. Some video hosting criteria, permitting parents to select a we can encourage the development and services, such as YouTube, permit service that more closely matches their use of advanced blocking technologies anyone to upload videos that can be concerns. The list of blocked content and other parental control solutions for streamed to viewers, thereby permitting may be updated regularly from the video and audio programming available Internet content to be created by filtering service or from a third party over the Internet. We note that parental individuals not associated with service that reviews Internet content. control solutions can be implemented in traditional television content. In Generally blocking technology gives the a variety of ways in a variety of addition, peer-to-peer applications have owner the ability to use a password to locations in the network, which offers likewise facilitated the distribution of turn off the filters when desired. the opportunity for multiple approaches content over the Internet. As discussed 39. In addition to blocking, there are to providing parental control. For in paragraph 8, supra, we invite a number of other kinds of parental example, blocking technology can reside comment on what video found on the empowerment tools currently available in a specific application that an Internet should properly be considered for the Internet. For example, many individual is using (a Web browser that ‘‘video programming’’ for purposes of services give content creators, viewers, blocks pop-up ads or an e-mail this proceeding. and third-parties the ability to label or application that blocks spam); in an 37. The safety of children online has tag content. Creators can label their own individual’s computer (a firewall that been a primary concern of families and content and individuals watching a blocks malicious traffic); in an Congress since the Internet was first video, viewing a photo, or reading a individual’s local network (a network opened to public use. Congress has blog can tag that content as worthy of gateway that restricts access to the passed several laws seeking to protect reading, offensive, or perhaps a network); in an individual’s Internet children from Internet content, and has violation of community standards. access service (ISP blocking ports that requested several reports on child Reviews and ratings of content can also are used in worm and virus attacks); online safety. There have also been a be provided by third-party Web sites. within Internet networks (networks number of non-U.S. Government studies We invite comment on whether tagging blocking malicious man-in-the-middle that have examined child online safety. or labeling content is an effective phishing attacks); at the hosting site of Most recently, in addition to this solution to protect children from the content or applications (hosting site inquiry mandated by the Child Safe inappropriate content. Is offensive takes down content which does not Viewing Act, Congress directed the content appropriately flagged, and has comply with the host’s acceptable use NTIA to establish the Online Safety and the industry been responsive in acting policy); or at a third party site which is Technology Working Group (‘‘OSTWG’’) on flagged content? Is tagging, labeling, monitoring for unwanted content (an ‘‘to review and evaluate the status of or flagging content by the Internet organization that reviews Web sites and industry efforts to promote online safety community itself more effective than publishes a list of Web sites that do not through educational efforts, parental filtering by the industry or a third-party meet that organization’s criteria). Which control technology, blocking and based on ratings developed by the of these approaches shows promise for filtering software, age-appropriate labels industry or a third-party? providing parents with ability to control for content or other technologies or 40. Another strategy currently used on children’s access to objectionable initiatives designed to promote a safe the Internet to block indecent or content? Are end-user device based online environment for children.’’ The offensive content is the creation of child mechanisms preferable in terms of OSTWG has one year from the date it is safe zones that ‘‘white list’’ safe content providing for parental control? What first convened to submit a report to and block out unwanted content. types of advanced blocking mechanisms Congress. We invite comment on how Examples of child safe zones include could be built into consumer-level our inquiry in this proceeding should .Kids.US and Teen Second Life. Has the routers? Are any blocking technologies differ from the effort of the OSTWG. We child safe zone strategy been effective, currently in use effective in giving also invite comment on what and do parents know about this option? parents the ability to restrict their information learned in previous studies Do children, particularly teenagers, children’s access to objectionable of the Internet, online safety, and simply bypass the restrictions of these content from sources other than Web parental control technologies could be safe zones, for example by going straight sites? applied to our mandate under the Child to the adult space instead of staying in 42. Finally, to what extent are Safe Viewing Act to examine advanced the designated child safe space? Other children able to circumvent the blocking blocking technologies for Internet video parental control solutions currently technologies adopted by parents? We and audio programming? What have we available on the Internet include note that encryption of content may learned since previous reports and how monitoring and recording devices that circumvent advanced blocking has the Internet evolved, including in provide parents with information about mechanisms. We also note that children ways perhaps not anticipated by those their children’s Internet use, takedown may obtain access to content deemed studies? and acceptable use policies adopted by objectionable via Internet access not 38. We invite comment generally on certain Web sites that identify and controlled by a child’s parents, such as advanced blocking technologies and remove objectionable content, services Wi-Fi hot spots, a neighbor’s wireless parental empowerment tools that assist offered by some Web sites that restrict LAN, or Internet access that is publicly parents in controlling their children’s access by children to parts of the site, available, such as in schools and access to audio and video programming and age verification. We invite comment libraries and Internet cafes. Children on the Internet. Blocking technology on these and any other technologies may also circumvent parental controls allows an individual to receive all available or under development to in the home through the use of portable content except content that is blocked control children’s access to Internet storage devices, such as a flash drive or because it is on a blacklist. The list of content, as well as any other parental an iPod or recordable DVDs. Is there what is blocked may be generated empowerment tools currently available. technology available to parents that

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would prevent a child from obtaining indicated on the first page of this addressed to 445 12th Street, SW., objectionable content from outside the document. Comments may be filed Washington, DC 20554. home and later viewing or listening to using: (1) The Commission’s Electronic • In addition, parties must serve the it on equipment in the home? In light of Comment Filing System (ECFS), (2) the following with either an electronic copy the ways in which blocking technology Federal Government’s eRulemaking via e-mail or a paper copy of each might be circumvented, what role Portal, or (3) by filing paper copies. See pleading: (1) the Commission’s should education play in protecting Electronic Filing of Documents in duplicating contractor, Best Copy and children from objectionable content? Rulemaking Proceedings, 63 FR 24121, Printing, Inc., Portals II, 445 12th Street, How can the value of the Internet as an May 1, 1998. SW., Room CY–B402, Washington, DC educational and informational tool for 46. Electronic Filers: Comments may 20554, telephone 1–800–378–3160, or children be balanced against efforts to be filed electronically using the Internet via e-mail at http://www.bcpiweb.com; ensure children’s online safety? by accessing the ECFS: http:// and (2) Kim Matthews, Media Bureau, F. Blocking Technologies Compatible www.Commission.gov/cgb/ecfs/ or the 445 12th Street, SW., Room 4–A813, With Multiple Platforms Federal eRulemaking Portal: http:// [email protected]. www.regulations.gov. Filers should 49. People with Disabilities: Contact 43. Finally, we seek general comment follow the instructions provided on the the Commission to request materials in on whether there are blocking Web site for submitting comments. accessible formats (Braille, large print, technologies currently available or in For ECFS filers, if multiple docket or electronic files, audio format, etc.) by e- development that are capable of mail at operating across multiple platforms. rulemaking numbers appear in the caption of this proceeding, filers must transmit one [email protected] or Because children today have access to electronic copy of the comments for each call the Consumer & Governmental multiple media platforms, content that docket or rulemaking number referenced in Affairs Bureau at 202–418–0530 (voice), parents may have blocked on one the caption. In completing the transmittal 202–418–0432 (TTY). medium could potentially be accessed screen, filers should include their full name, 50. Additional Information. For by children on another medium. For U.S. Postal Service mailing address, and the additional information on this example, while parents may have applicable docket or rulemaking number. proceeding, contact Kim Matthews, activated the V-chip to block TV–14 Parties may also submit an electronic Media Bureau, at (202) 418–2154, or at comment by Internet e-mail. To get filing content on the family television set, a [email protected]. child may be able to access the same instructions, filers should send an e-mail to content over the Internet on the family [email protected], and include the following Ordering Clause words in the body of the message, ‘‘get form.’’ computer or on the child’s own laptop A sample form and directions will be sent in 51. Accordingly, it is ordered that, or wireless device. To what extent could response. pursuant to the authority contained in blocking technologies compatible with sections 4(i), 303(g), and 403 of the 47. Paper Filers: Parties who choose multiple platforms provide a solution to Communications Act, 47 U.S.C. 154(i), to file by paper must file an original and parents in this situation? For example, 303(g), and 403, and pursuant to the four copies of each filing. If more than are there technologies that could operate Child Safe Viewing Act of 2007, this one docket or rulemaking number on a wireless network or wireless device Notice of Inquiry is adopted. as well as another platform (such as appears in the caption of this Federal Communications Commission. cable or wireline service)? Are Internet proceeding, filers must submit two filters able to filter Internet content to additional copies for each additional Marlene H. Dortch, all devices, including wireless devices, docket or rulemaking number. Secretary. or are they limited to computers (which 48. Filings can be sent by hand or [FR Doc. E9–5635 Filed 3–16–09; 8:45 am] would include wireless modem cards messenger delivery, by commercial BILLING CODE 6712–01–P used on laptops or other portable overnight courier, or by first-class or devices, but not wireless smartphones)? overnight U.S. Postal Service mail To the extent that blocking technologies (although we continue to experience DEPARTMENT OF THE INTERIOR are able to filter Internet content to both delays in receiving U.S. Postal Service wireline and wireless devices, are there mail). All filings must be addressed to Fish and Wildlife Service any technical limitations for filters the Commission’s Secretary, Office of operating on laptops using wireless the Secretary, Federal Communications 50 CFR Part 17 laptop cards, due to the potentially Commission. • [FWS–R1–ES–2008–0096; MO 922105083– slower speed of a wireless broadband The Commission’s contractor will B2] service? Are there other issues that need receive hand-delivered or messenger- RIN 1018–AW34 to be resolved in order to ensure that delivered paper filings for the Commission’s Secretary at 236 blocking technologies can operate Endangered and Threatened Wildlife seamlessly across platforms? Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours and Plants; Listing the Plant Lepidium Administrative Matters at this location are 8 a.m. to 7 p.m. All papilliferum (Slickspot Peppergrass) as Endangered 44. Ex Parte Rules. Pursuant to hand deliveries must be held together § 1.1204(b)(1) of the Commission’s rules, with rubber bands or fasteners. Any AGENCY: Fish and Wildlife Service, 47 CFR 1.1204(b)(1), this is an exempt envelopes must be disposed of before Interior. proceeding. Ex parte presentations are entering the building. ACTION: Proposed rule; reopening of • permitted, and need not be disclosed. Commercial overnight mail (other comment period and notice of 45. Comments and Reply Comments. than U.S. Postal Service Express Mail document availability. Pursuant to §§ 1.415 and 1.419 of the and Priority Mail) must be sent to 9300 Commission’s rules, 47 CFR 1.415, East Hampton Drive, Capitol Heights, SUMMARY: We, the U.S. Fish and 1.419, interested parties may file MD 20743. Wildlife Service (Service), announce the comments on the Notice of Inquiry, MB • U.S. Postal Service first-class, availability of new information relevant Docket No. 09–26, on or before the dates Express, and Priority mail should be to our consideration of the status of

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Lepidium papilliferum (slickspot The notice that published on January these reviews will also be accepted peppergrass), proposed for listing as 12, 2007 (72 FR 1621), served to during this comment period. endangered, under the Endangered withdraw our July 15, 2002, proposed New Information Available for Review Species Act of 1973, as amended (Act). rule (67 FR 46441) to list Lepidium We, therefore, announce the reopening papilliferum as endangered under the Information received, developed, or of the comment period on the proposed Act. The withdrawal of the proposed analyzed since the last comment period listing and invite interested members of rule was based on our conclusion that, ended on October 20, 2008, is available the public to submit comments on this while the best available information for review by accessing the Web site new information as it applies to the indicated that certain threat factors were http://www.regulations.gov (Docket ID status and proposed listing of L. degrading the species’ sagebrush-steppe FWS–R1–ES–2008–0096) or by papilliferum. Information previously matrix habitat, there was little evidence contacting the State Supervisor (see FOR submitted for this proposed listing need that these threats were negatively FURTHER INFORMATION CONTACT above). not be resubmitted, as all information affecting the abundance of L. This information includes, but is not already received regarding this papilliferum, which inhabits slickspot limited to, the following documents: proposed listing will be incorporated microsites within the sagebrush-steppe (1) Analysis of Slickspot Peppergrass into the public record and fully ecosystem. In addition, we concluded (Lepidium papilliferum) Population considered in our evaluation. that annual abundance of the plant was Trends on Orchard Training Area and DATES: To allow adequate time for strongly correlated with spring Rangewide Implications (Sullivan and consideration of your comments, all precipitation, and therefore the high Nations 2009); information should be submitted to us degree of variability observed in plant (2) Lepidium papilliferum (Slickspot by April 16, 2009. abundance over time was to be peppergrass) Evaluation of Trends expected. Information on the plant’s ADDRESSES: You may submit comments 2004–2007 (Unnasch 2008); overall population trend was by one of the following methods: (3) Analysis of Lepidium papilliferum • Federal eRulemaking Portal: http:// inconsistent, as it appeared to be monitoring data collected on the Inside www.regulations.gov. Follow the decreasing in recent years in a subset of Desert (Owyhee Plateau) (2000–2002) instructions for submitting comments. the species’ range, but appeared to be (Wells and Popovich 2009); • U.S. mail or hand-delivery: Public increasing over those same years on a (4) GIS Analysis for the 2009 Status Comments Processing, Attn: Docket rangewide scale as expected in response Review of Slickspot Peppergrass FWS–R1–ES–2008–0096; Division of to increased rainfall. Finding no (Lepidium papilliferum) (Stoner 2009). consistent evidence of a rangewide Policy and Directives Management; U.S. The public comments received during negative population trend for the Fish and Wildlife Service; 4401 N. the most recent public comment period, species, we concluded that L. Fairfax Drive, Suite 222; Arlington, VA which closed on October 20, 2008, are papilliferum did not meet the definition 22203. also accessible for viewing at http:// of a threatened or endangered species We will not accept e-mail or faxes. We www.regulations.gov (Docket ID FWS– will post all comments on http:// under the Act. On June 4, 2008, the U.S. District R1–ES–2008–0096), or by contacting the www.regulations.gov. This generally Court for the District of Idaho vacated State Supervisor (see FOR FURTHER means that we will post any personal the Service’s January 2007 withdrawal INFORMATION CONTACT above). information you provide us (see the notice and remanded the decision to the Public Comments section below for Public Comments Service for further consideration more information). consistent with the Court’s opinion We will base any final action resulting FOR FURTHER INFORMATION CONTACT: (Western Watersheds Project v. Jeffery from the proposed rule on the best Jeffery L. Foss, State Supervisor, U.S. Foss et al., Case No. 07–161–E–MHW). scientific and commercial data available Fish and Wildlife Service, Idaho Fish In response to the Court’s decision, the and intend to be as accurate and as and Wildlife Office, by mail at 1387 S. Service notified the public on effective as possible. Therefore, we Vinnell Way, Room 368, Boise, ID September 19, 2008, of the request comments or suggestions on the 83709; by telephone at 208–378–5243; reinstatement of the July 15, 2002, proposed rule from the public, other by facsimile at 208/378–5262; or by proposed rule to list Lepidium concerned governmental agencies, the electronic mail at: papilliferum as endangered and opened scientific community, industry, and any [email protected]. Persons who a public comment period for 30 days other interested parties. use a telecommunications device for the through October 20, 2008. We received We ask for comments concerning the deaf (TDD) may call the Federal a total of seven comments during that new information contained in the Information Relay Service (FIRS) at comment period. analyses of Lepidium papilliferum 800–877–8339. Since the closure of the last comment population trends on the Orchard SUPPLEMENTARY INFORMATION: period, new information has become Training Area in southwest Idaho available that is relevant to our (Sullivan and Nations 2009), on the Background evaluation of the proposed listing of rangewide Habitat Integrity and For a detailed description of Federal Lepidium papilliferum. To ensure that Population (HIP) monitoring (Unnasch actions concerning Lepidium our review of the species’ status is 2008), a recent analysis of L. papilliferum, please refer to the complete and based on the best papilliferum data collected on the September 19, 2008, Notice Reopening available scientific and commercial Inside Desert (Owyhee Plateau) from the Comment Period on the Proposed information, we are soliciting comments 2000 to 2002 (Wells and Popovich Rule to List Lepidium papilliferum as on this new information as it relates to 2009), and GIS analysis of Lepidium Endangered (73 FR 54345) and the the status and proposed listing of L. papilliferum (Stoner 2009). In January 12, 2007, Withdrawal Notice papilliferum. We have also specifically particular, comments are sought published in the Federal Register (72 requested peer review of this new regarding the relevance of the new FR 1621). A summary of the most recent information and its relevance to the information to the proposed listing Federal actions concerning the species status of L. papilliferum from experts status of L. papilliferum, as it pertains is provided here. familiar with the species or its habitat; to the following:

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(1) Biological, commercial trade, or submission—including your personal determination as to whether listing is other relevant data concerning threats identifying information—will be posted warranted on a review of the best (or lack thereof) to Lepidium on the Web site. If your submission is scientific and commercial information papilliferum; made via a hardcopy that includes available, including all such (2) Additional information concerning personal identifying information, you information received as a result of this the range, distribution, and population may request at the top of your document notice. size of Lepidium papilliferum, including that we withhold this information from Authors the locations of any additional public review. However, we cannot populations of the species; guarantee that we will be able to do so. The primary authors of this notice are (3) Any information on the biological We will post all hardcopy submissions staff of the Idaho Fish and Wildlife or ecological requirements of Lepidium on http://www.regulations.gov. Office, U.S. Fish and Wildlife Service. papilliferum; All comments and materials we (4) Current or planned activities in the receive, as well as supporting Authority areas occupied by Lepidium documentation used, will be available The authority for this action is the papilliferum and their possible impacts for public inspection on http:// Endangered Species Act of 1973, as on the species. www.regulations.gov, or by appointment amended (16 U.S.C. 1531 et seq.). If you wish to comment, you may during normal business hours at the submit your comments and materials U.S. Fish and Wildlife Service, Idaho Dated: March 4, 2009. concerning this new information by one Fish and Wildlife Office (see FOR Elizabeth H. Stevens, of the methods listed in the ADDRESSES FURTHER INFORMATION CONTACT). Acting Deputy Director, Fish and Wildlife section. At this time, we are soliciting new Service. If you submit information via http:// information on the status of Lepidium [FR Doc. E9–5697 Filed 3–16–09; 8:45 am] www.regulations.gov, your entire papilliferum. We will base our BILLING CODE 4310–55–P

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Notices Federal Register Vol. 74, No. 50

Tuesday, March 17, 2009

This section of the FEDERAL REGISTER Comments will also be accepted through areas of hunger and nutrition, as well as contains documents other than rules or the Federal eRulemaking Portal. Go to a mailing list of relevant local proposed rules that are applicable to the http://www.regulations.gov, and follow governmental agencies. Under the public. Notices of hearings and investigations, the online instructions for submitting original contract, Clearinghouse staff committee meetings, agency decisions and comments electronically. established the database by reviewing rulings, delegations of authority, filing of petitions and applications and agency All written comments will be open for relevant programs of organizations statements of organization and functions are public inspection at the office of the contained in several existing mailing examples of documents appearing in this Food and Nutrition Service during lists. Program and mailing information section. regular business hours (8:30 a.m. to 5 about organizations pulled from these p.m. Monday through Friday) at 3101 lists were collected and entered into the Park Center Drive, Room 912, database once each contract year via a DEPARTMENT OF AGRICULTURE Alexandria, Virginia 22302. mail survey with follow up to ensure All responses to this notice will be high response rates. Surveys are also Food and Nutrition Service summarized and included in the request completed online at http:// for Office of Management and Budget www.worldhungeryear.org/forms/ Agency Information Collection approval. All comments will also nhc_form.asp. Survey questionnaires Activities: Proposed Collection; become a matter of public record. will continue to be sent out under the Comment Request—National Hunger FOR FURTHER INFORMATION CONTACT: current contract. From this information Clearinghouse Database Form Requests for additional information or collection, the following information AGENCY: Food and Nutrition Service copies of this information collection was determined: (FNS), USDA. should be directed to Rachel Johnson, Estimate of the Burden: Public ACTION: Notice. Program Analyst, at 703–305–2297. reporting burden for this collection of Copies of this information collection information is estimated to average five SUMMARY: In accordance with the may be obtained from Ms. Johnson at (5) minutes to complete the survey (the Paperwork Reduction Act of 1995 (44 the address listed above. survey includes one two-page U.S.C. Chapter 35, as amended), this SUPPLEMENTARY INFORMATION: instrument). notice invites the general public and Title: National Hunger Clearinghouse Affected Public: Business or other for- other public agencies to comment on Database Form. profit, non-profit organizations this information collection, concerning OMB Number: 0584–0474. providing nutrition assistance services the National Hunger Clearinghouse. Expiration Date: 7/31/2009. to the public. DATES: Comments on this notice must be Type of Request: Revision of a Estimated Number of Respondents: received by May 18, 2009. currently approved collection. 1,750. ADDRESSES: Comments are invited on: Abstract: Section 26(d) of the Richard Estimated Number of Responses per (a) Whether the proposed collection of B. Russell National School Lunch Act Respondent: One response per information is necessary for the proper (42 U.S.C. 1769g(d)) (the Act), which respondent. performance of the functions of the was added to the Act by section 123 of Estimated Total Annual Burden: 146 agency, including whether the Public Law 103–448 on November 2, hours. information shall have practical utility; 1994, mandated that FNS enter into a Dated: March 10, 2009. (b) the accuracy of the agency’s estimate contract with a non-governmental E. Enrique Gomez, of the burden of the proposed collection organization to establish and maintain Acting Administrator, Food and Nutrition of information, including the validity of an information clearinghouse (named Service. the methodology and assumptions used; ‘‘USDA National Hunger [FR Doc. E9–5753 Filed 3–16–09; 8:45 am] (c) ways to enhance the quality, utility, Clearinghouse’’ or ‘‘Clearinghouse’’) for BILLING CODE 3410–30–P and clarity of the information to be groups that assist low-income collected; and (d) ways to minimize the individuals or communities regarding burden of the collection of information nutrition assistance programs or other DEPARTMENT OF AGRICULTURE on those who are to respond, including assistance. FNS awarded this contract to the use of appropriate automated, the national hunger advocacy Forest Service electronic, mechanical, or other organization World Hunger Year (WHY) technological collection techniques or of New York, NY. Section 26(d) was Information Collection: Ride-Along other forms of information technology. amended by section 112 of Public Law Program Comments may be sent to Rachel 105–336 on October 31, 1998 to extend AGENCY: Forest Service, USDA. Johnson, Program Analyst, Office of funding for the Clearinghouse (now ACTION: Notice; request for comment. Strategic Initiatives, Partnerships, and called ‘‘National Hunger Clearinghouse’’ Outreach, Food and Nutrition Service, or ‘‘Clearinghouse’’) through fiscal year SUMMARY: In accordance with the U.S. Department of Agriculture, 3101 2003. This Act was amended by Public Paperwork Reduction Act of 1995, the Park Center Drive, Room 912, Law 108–265 on June 30, 2004, and Forest Service is seeking comments Alexandria, VA 22302. Comments may provided increased funding for the from all interested individuals and also be submitted via fax to the attention Clearinghouse. organizations on a new information of Rachel Johnson, Program Analyst, at The Clearinghouse includes a collection associated with the Ride- 703–305–2908 or via e-mail to database of non-governmental, Along Program application, a program [email protected]. grassroots programs that work in the which allows any private citizen to

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apply to ride along with Forest Service FS–5300–34 is signed by riders to SUMMARY: The South Gifford Pinchot law enforcement officers. exempt law enforcement officers and National Forest Resource Advisory DATES: Comments must be received in the Forest Service from damage, loss, or Committee will meet on Monday, April writing on or before May 18, 2009 to be injury liability incurred during the 20, 2009, at the Columbia Gorge assured of consideration. Comments rider’s participation in the program. If Riverside Lodge 200 SW Cascade received after that date will be the information is not collected, riders Avenue, Stevenson, Washington. The considered to the extent practicable. will be denied permission to ride along meeting will begin at 9 a.m. and continue until 4 p.m. The purpose of the ADDRESSES: Comments concerning this with Forest Service law enforcement meeting is to: Elect a chairperson and notice should be addressed to the personnel. Estimate of Annual Burden: vice-chair, propose an indirect project Director of Law Enforcement and percentage, receive an overview of Title Investigations, USDA Forest Service, FS–5300–33: 5 minutes. II accomplishments, and make Mail Stop 1140, 1400 Independence FS–5300–34: 5 minutes. recommendations on approximately 60 Ave., SW., Washington, DC 20250–1140. Total: 10 minutes. proposals for Title II funding of projects Comments also may be submitted via Type of Respondents: Citizens who under the Secure Rural Schools and facsimile to 703–605–5112, or by e-mail want to learn about and observe Forest Service Law Enforcement and County Self-Determination Act of 2000. to Gene Smithson at All South Gifford Pinchot National [email protected]. Investigation (LE&I) tasks and activities. Estimated Annual Number of Forest Resource Advisory Committee The public may inspect comments meetings are open to the public. received at 1621 N. Kent Street, Room Respondents: 500. Estimated Annual Number of Interested citizens are encouraged to 1015, Rosslyn Plaza East, Arlington, VA, attend. The ‘‘open forum’’ provides during normal business hours. Visitors Responses per Respondent: 1. Estimated Total Annual Burden on opportunity for the public to bring are encouraged to call ahead to 703– Respondents: 84 hours per year. issues, concerns, and discussion topics 605–4690 to facilitate entry to the Comment is invited on: (1) Whether to the Advisory Committee. The ‘‘open building. this collection of information is forum’’ is scheduled to occur at 9:10 FOR FURTHER INFORMATION CONTACT: necessary for the stated purposes and a.m. on April 20. Interested speakers Gene Smithson, Acting Assistant the proper performance of the functions will need to register prior to the open Director for Enforcement and Liaison, of the Agency, including whether the forum period. The committee welcomes LE&I, 703–605–4530. Individuals who information will have practical or the public’s written comments on use telecommunication devices for the scientific utility; (2) the accuracy of the committee business at any time. deaf (TDD) may call the Federal Agency’s estimate of the burden of the FOR FURTHER INFORMATION CONTACT: Information Relay Service (FIRS) at 1– collection of information, including the Direct questions regarding this meeting 800–877–8339 twenty-four hours a day, validity of the methodology and to Roger Peterson, Public Affairs every day of the year, including assumptions used; (3) ways to enhance Specialist, at (360) 891–5007, or write holidays. the quality, utility, and clarity of the Forest Headquarters Office, Gifford SUPPLEMENTARY INFORMATION: information to be collected; and (4) Pinchot National Forest, 10600 NE. 51st Title: Forest Service Law Enforcement ways to minimize the burden of the Circle, Vancouver, WA 98682. Ride-Along Program. collection of information on Dated: March 6, 2009. OMB Number: 0596–0170. respondents, including the use of Janine Clayton, automated, electronic, mechanical, or Type of Request: Renewal. Forest Supervisor. Abstract: This information collection other technological collection techniques or other forms of information [FR Doc. E9–5587 Filed 3–16–09; 8:45 am] is necessary for Forest Service Law BILLING CODE 3410–11–M Enforcement and Investigations (LE&I) technology. personnel to authorize a rider who All comments received in response to this notice, including names and applies to participate in the Ride-Along DEPARTMENT OF AGRICULTURE program. The information collection addresses when provided, will be a also provides additional protection for matter of public record. Comments will Forest Service LE&I personnel who allow authorized be summarized and included in the riders to accompany them in boats, cars, information collection submission for North Gifford Pinchot National Forest trucks, or other vehicles. The purpose of Office of Management and Budget Resource Advisory Committee Meeting this program is for citizens to learn approval. Notice about and observe Forest Service LE&I Dated: March 3, 2009. AGENCY: Forest Service, USDA. tasks and activities. The program is Abigail R. Kimball, ACTION: Notice of meeting. intended to enhance Forest Service law Chief, Forest Service. enforcement community relationships, [FR Doc. E9–5761 Filed 3–16–09; 8:45 am] SUMMARY: The North Gifford Pinchot improve the quality of Forest Service BILLING CODE 3410–11–P National Forest Resource Advisory customer service, and provide LE&I Committee will meet on Tuesday, April personnel a recruitment tool. A rider 14, 2009, at the Salkum Timberland shall complete two forms in order to DEPARTMENT OF AGRICULTURE Library, 2480 U.S. Highway 12, Salkum, participate. Form FS–5300–33 asks for Washington. The meeting will begin at the participant’s name, address, social Forest Service 9 a.m. and continue until 4 p.m. The security number, driver’s license purpose of the meeting is to: Elect a number, work address, location of the South Gifford Pinchot National Forest chairperson and vice-chair, propose an Ride-Along, and the reason for the Ride- Resource Advisory Committee Meeting indirect project percentage, receive an Along. Law enforcement officers use Notice overview of Title II accomplishments, form FS–5300–33 to conduct a AGENCY: Forest Service, USDA. and make recommendations on minimum background check before approximately 15 proposals for Title II ACTION: Notice of meeting. authorizing a person to ride along. Form funding of projects under the Secure

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Rural Schools and County Self- includes non-landline households and explore how sampling from the ACS for Determination Act of 2000. also identifies households with age- households with age-eligible children All North Gifford Pinchot National eligible children, would provide a more having landline, cell phone only, and no Forest Resource Advisory Committee complete sampling frame for the NIS telephone service could result in meetings are open to the public. and could substantially reduce data improvements to the survey, Interested citizens are encouraged to collection costs. particularly in terms of coverage, attend. The ‘‘open forum’’ provides The NIS is currently a continuing, response, and cost, and whether the opportunity for the public to bring nationwide random-digit-dialing (RDD) ACS and supplemental administrative issues, concerns, and discussion topics landline telephone survey of families files can be used to identify a sufficient to the Advisory Committee. The ‘‘open with children aged 19 to 35 months, and sample of children for national, state forum’’ is scheduled to occur at 9:10 teens aged 13–17 years, followed by a and local level assessment. a.m. Interested speakers will need to mailed survey to children’s The NIS is the largest survey ever register prior to the open forum period. immunization providers. Since the conducted to assess vaccination The committee welcomes the public’s survey’s inception to the present, coverage of young children and written comments on committee private contractors have conducted the adolescents in the U.S. and is used to business at any time. NIS for the CDC. National, state, and measure and assess changes in FOR FURTHER INFORMATION CONTACT: local level estimates of vaccine-specific vaccination coverage levels over time. Direct questions regarding this meeting coverage, including newly licensed Also, the NIS helps track progress to Roger Peterson, Public Affairs vaccines, are produced annually. towards public health immunization The NIS was established to provide an Specialist, at (360) 891–5007, or write goals. The purpose of this evaluation on going, consistent data set for Forest Headquarters Office, Gifford study is to determine if using the ACS analyzing vaccination coverage among Pinchot National Forest, 10600 NE. 51st as the frame from which to select the young children in the United States and NIS sample will result in improvements Circle, Vancouver, WA 98682. disseminating this information to state to the survey, in terms of providing a Dated: March 6, 2009. and local health departments and other more complete sampling frame, Janine Clayton, interested public health partners. One of increasing response rates, and Forest Supervisor. the goals of the 1993 Childhood decreasing data collection costs. The [FR Doc. E9–5588 Filed 3–16–09; 8:45 am] Immunization Initiative was to achieve evaluation study will be kept as closely BILLING CODE 3410–11–M target vaccination coverage levels for 2- as possible to the current NIS to allow year-old children. One of the activities comparisons, but plans are to for meeting these goals was to improve incorporate innovations that could be DEPARTMENT OF COMMERCE surveillance for vaccine coverage. As a implemented eventually as part of a full result, funding for the NIS was provided production survey. With the overall goal Submission for OMB Review; and data collection began in April 1994. of improving response rates and Comment Request Subsequently, national Healthy People coverage, possible experiments could 2000 and 2010 objectives included include offering incentives to all The Department of Commerce will targets for childhood and adolescent sampled households or using different submit to the Office of Management and vaccination rates. Currently, the NIS versions of the advance letter or Budget (OMB) for clearance the provides vaccination coverage estimates screener to encourage participation. following proposal for collection of annually for children aged 19–35 The NIS is an important tool for information under the provisions of the months and teens aged 13–17 years, by measuring vaccination coverage levels Paperwork Reduction Act (44 U.S.C. state and at least six city/county areas. for the nation; however, there are chapter 35). The information collected is used to limitations and challenges that the Agency: U.S. Census Bureau. evaluate state and local immunization current NIS faces. The NIS evaluation Title: National Immunization Survey programs, to develop health care study provides the CDC with the Evaluation Study. policies, and to assist in the opportunity to explore some possible Form Number(s): Numerous. determination of funding allocations for changes to the survey methodology in OMB Control Number: None. the Vaccines for Children (VFC) an attempt to assess new options and Type of Request: New collection. program. Since 1994, the VFC program refine current methods. One major Burden Hours: 1,445. has helped families of children who design change is in the sample Number of Respondents: 2,695. may not otherwise have access to selection. The current NIS sample is Average Hours Per Response: 32 vaccines by providing free vaccines to selected by landline RDD, whereas the minutes. doctors who serve them. sample for the NIS Evaluation Study is Needs and Uses: On behalf of the In recent years, the NIS has covered a targeted sample of age-eligible Centers for Disease Control and a decreasing portion of the target respondents drawn from the ACS Prevention (CDC), U.S. Department of population as more households rely sample. Using the ACS as the NIS Health and Human Services, the U.S. solely on cell phone telephone service. sampling frame provides a rich source Census Bureau requests authorization of Based on data from January–June 2008 of data for non-respondents and allows the Office of Management and Budget from the National Health Interview for more powerful weighting (OMB) to conduct an evaluation study Survey (NHIS), 29 percent of children adjustments. Furthermore, the NIS RDD of an alternative sampling methodology under three years of age lived in sample is limited to households with for the National Immunization Survey households without landline services. landline telephone service. However, (NIS). The purpose of this study is to Among households with both landline the Evaluation Study sample will not explore how collaborating with the CDC and cell phone service, some may only include households with landline and using the American Community primarily use their cell phones and be service but also non-landline Survey (ACS) as the sampling frame for less likely to respond to calls to their households (wireless service only) and selecting eligible households could landlines. As part of the CDC’s households with no phone service. The result in improvements to the NIS. Use continuing effort to evaluate and refine information collected from the latter of the ACS as a sampling frame, which the NIS, this study is intended to two groups will assist the CDC in

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assessing the potential bias in the meet in plenary and concurrent sessions preferably two weeks prior to the current NIS estimates from the on April 22–24, 2009. Last minute meeting. exclusion of these households. changes to the schedule are possible, Due to increased security and for However, the success of the evaluation which could prevent advance access to the meeting, please call 301– is contingent on the Census Bureau’s notification. 763–3231 upon arrival at the Census ability to draw sufficient sample from Bureau on the day of the meeting. A DATES: April 22–24, 2009. On April 22, photo ID must be presented in order to the ACS for state and local area the meeting will begin at approximately receive your visitor’s badge. Visitors are estimates. 1 p.m. and end at approximately 5 p.m. Affected Public: Individuals or not allowed beyond the first floor. On April 23, the meeting will begin at households; businesses or other for- approximately 8:30 a.m. and end at Dated: March 10, 2009. profit. approximately 4:30 p.m. On April 24, Thomas L. Mesenbourg, Frequency: One time. Respondent’s Obligation: Voluntary. the meeting will begin at approximately Acting Director, Bureau of the Census. Legal Authority: Title 13, United 8:30 a.m. and end at approximately 3:45 [FR Doc. E9–5677 Filed 3–16–09; 8:45 am] States Code, Section 8 and the Public p.m. BILLING CODE 3510–07–P Health Service Act, Title 42, United ADDRESSES: The meeting will be held at States Code, Sections 306 & 2102(a)(7). the U.S. Census Bureau, 4600 Silver Hill OMB Desk Officer: Brian Harris- Road, Suitland, Maryland 20746. DEPARTMENT OF COMMERCE Kojetin, (202) 395–7314. FOR FURTHER INFORMATION CONTACT: Jeri International Trade Administration Copies of the above information Green, Committee Liaison Officer, collection proposal can be obtained by Department of Commerce, U.S. Census A–570–880 calling or writing Diana Hynek, Bureau, Room 8H182, 4600 Silver Hill Barium Carbonate from the People’s Departmental Paperwork Clearance Road, Suitland, Maryland 20746, Republic of China: Continuation of Officer, (202) 482–0266, Department of telephone 301–763–6590. For TTY Antidumping Duty Order Commerce, Room 7845, 14th and callers, please use the Federal Relay Constitution Avenue, NW., Washington, Service 1–800–877–8339. AGENCY: Import Administration, DC 20230 (or via the Internet at SUPPLEMENTARY INFORMATION: The CACs International Trade Administration, [email protected]). on the African American Population, Department of Commerce. Written comments and the American Indian and Alaska Native SUMMARY: As a result of the recommendations for the proposed Populations, the Asian Population, the determinations by the Department of information collection should be sent Hispanic Population, and the Native Commerce (‘‘Department’’) and the within 30 days of publication of this Hawaiian and Other Pacific Islander International Trade Commission (‘‘ITC’’) notice to Brian Harris-Kojetin, OMB Populations are comprised of nine that revocation of the existing Desk Officer either by fax (202–395– members each. The Committees provide antidumping duty (‘‘AD’’) order on 7245) or email ([email protected]). an organized and continuing channel of barium carbonate from the People’s Dated: March 11, 2009. communication between the Republic of China (‘‘PRC’’) would likely Glenna Mickelson, representative race and ethnic lead to continuation or recurrence of Management Analyst, Office of the Chief populations and the Census Bureau. The dumping and material injury to an Information Officer. Committees provide an outside-user industry in the United States within a [FR Doc. E9–5657 Filed 3–16–09; 8:45 am] perspective and advice on research and reasonably foreseeable time, the BILLING CODE 3510–07–P design plans for the 2010 Decennial Department is publishing this notice of Census, the American Community continuation of the AD order. Survey, and other related programs EFFECTIVE DATE: March 17, 2009. DEPARTMENT OF COMMERCE particularly as they pertain to an FOR INFORMATION CONTACT: Hallie Noel accurate count of these communities. Zink at 202–482–6907; AD/CVD Bureau of the Census The Committees also assist the Census Operations, Import Administration, Bureau on ways that census data can International Trade Administration, Census Advisory Committees best be disseminated to diverse race and U.S. Department of Commerce, 14th AGENCY: Bureau of the Census, ethnic populations and other users. The Street and Constitution Avenue, NW, Department of Commerce. Committees are established in Washington, DC 20230. ACTION: Notice of public meeting. accordance with the Federal Advisory SUPPLEMENTARY INFORMATION: Committee Act (Title 5, United States SUMMARY: The Bureau of the Census Code, Appendix 2, Section 10(a)(b)). Background (Census Bureau) is giving notice of a All meetings are open to the public. On September 2, 2008, the joint meeting of the Census Advisory A brief period will be set aside at the Department initiated a sunset review of Committees (CACs) on the African meeting for public comment. However, the antidumping duty order on barium American Population, the American individuals with extensive questions or carbonate from the PRC pursuant to Indian and Alaska Native Populations, statements must submit them in writing section 751(c) of the Tariff Act of 1930, the Asian Population, the Hispanic to Ms. Jeri Green at least three days as amended (‘‘Act’’). See Initiation of Population, and the Native Hawaiian before the meeting. Seating is available Five-year (‘‘Sunset’’) Review, 73 FR and Other Pacific Islander Populations. to the public on a first-come, first-served 51275 (September 2, 2008); see also The Committees will address issues basis. Antidumping Duty Order: Barium related to the 2010 Decennial Census, These meetings are physically Carbonate from the People’s Republic of including the Integrated accessible to people with disabilities. China, 68 FR 56619 (October 1, 2003). Communications Campaign, 2010 Requests for sign language As a result of its review, the Department Partnerships, and other decennial interpretation or other auxiliary aids found that revocation of this AD order activities. The five Census Advisory should be directed to the Committee would likely lead to continuation or Committees on Race and Ethnicity will Liaison Officer as soon as possible, recurrence of dumping and notified the

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ITC of the margins likely to prevail were Dated: March 10, 2009. and the Post-preliminary results for the order revoked. See Barium John M. Andersen, South Vina. Based upon our analysis of Carbonate from the People’s Republic of Acting Deputy Assistant Secretary for the comments and information received, China: Final Results of the Expedited Antidumping and Countervailing Duty we made changes to the dumping Sunset Review of the Antidumping Duty Operations. margin calculations for the final results. Order, 74 FR 882 (January 9, 2009). On [FR Doc. E9–5743 Filed 3–16–09; 8:45 am] See Memorandum to the File from Alan January 21, 2009, the ITC determined, BILLING CODE 3510–DS–S Ray, Case Analyst, through Alex pursuant to section 751(c) of the Act, Villanueva, Program Manager, Final that revocation of the AD order on Results Analysis for QVD and its DEPARTMENT OF COMMERCE barium carbonate from the PRC would Affiliates (March 9, 2009); Memorandum to the File from Matthew likely lead to continuation or recurrence International Trade Administration of material injury to an industry in the Renkey, Senior Case Analyst, through [A–552–801] Alex Villanueva, Program Manager, United States within a reasonably Final Results Analysis for Binh An foreseeable time. See Barium Carbonate Certain Frozen Fish Fillets From the Seafood Joint Stock Company (‘‘Binh From China, 74 FR 10278 (March 10, Socialist Republic of Vietnam: Final An’’) (March 9, 2009); and 2000); and Barium Carbonate from Results of the Antidumping Duty Memorandum to the File from Javier China: Investigation No. 731–TA–1020 Administrative Review and New Barrientos, Senior Case Analyst, through (Review), ITC Publication 4060 (January Shipper Reviews Alex Villanueva, Program Manager, 2009). AGENCY: Import Administration, Final Results Analysis for Southern Scope of the Order International Trade Administration, Fishery Industries Co., Ltd. (‘‘South Department of Commerce. Vina’’) (March 9, 2009). The final dumping margins are listed below in the The merchandise covered by this SUMMARY: The Department of Commerce order is barium carbonate, regardless of (‘‘Department’’) is conducting an section entitled ‘‘Final Results of the form or grade. The product is currently administrative review and two new Reviews.’’ classifiable under subheading shipper reviews of the antidumping DATES: Effective Date: March 17, 2009. 2836.60.0000 of the Harmonized Tariff duty order on certain frozen fish fillets FOR FURTHER INFORMATION CONTACT: Schedule of the United States from the Socialist Republic of Vietnam Alan Ray or Javier Barrientos, AD/CVD (‘‘HTSUS’’). Although the HTSUS (‘‘Vietnam’’). See Notice of Operations, Office 9, Import subheading is provided for convenience Antidumping Duty Order: Certain Administration, International Trade and customs purposes, the written Frozen Fish Fillets from the Socialist Administration, U.S. Department of description of the scope of this Republic of Vietnam, 68 FR 47909 Commerce, 14th Street and Constitution proceeding is dispositive. (August 12, 2003) (‘‘Order’’). The Avenue, NW., Washington, DC 20230; administrative review and new shipper telephone: (202) 482–5403 and (202) Continuation of Order reviews includes three companies, 482–2243, respectively. As a result of the determinations by including QVD Food Company Ltd. SUPPLEMENTARY INFORMATION: (‘‘QVD’’), the mandatory respondent, the Department and the ITC that and the two new shipper review Case History revocation of the AD order on barium companies are Binh An Seafood Joint carbonate from the PRC would likely On September 8, 2008, the Stock Co. (‘‘Binh An’’) and Southern Department published in the Federal lead to continuation or recurrence of Fishery Industries Company, Ltd. Register the preliminary results of this dumping and material injury to an (‘‘South Vina’’). We preliminarily found new shipper and administrative review industry in the United States, pursuant that Binh An and QVD did not sell of the antidumping duty order on to section 751(d)(2) of the Act, the subject merchandise at less than normal certain frozen fish fillets from Vietnam. Department hereby orders the value (‘‘NV’’) and thus received zero Since the Preliminary Results, the continuation of the AD order on barium margins during the period of review following events have occurred. carbonate from the PRC. U.S. Customs (‘‘POR’’), August 1, 2006, through July From September 17–19, 2008, the and Border Protection will continue to 31, 2007. We also preliminarily Department conducted the verification collect AD cash deposits at the rates in rescinded South Vina. See Certain of Binh An Binh An in Can Tho City, effect at the time of entry for all imports Frozen Fish Fillets From the Socialist Vietnam. From September 22–24, 2008, of subject merchandise. This review Republic of Vietnam: Notice of the Department verified South Vina in covers imports from all manufacturers Preliminary Results of the New Shipper Can Tho City, Vietnam. and exporters of barium carbonate from Review and Fourth Antidumping Duty South Vina and An Xuyen Company the PRC. Administrative Review and Partial Ltd. (‘‘An Xuyen’’) submitted case briefs Rescission of the Fourth Administrative on January 5 and 23, 2009, respectively. The effective date of continuation of Review, 73 FR 52015 (September 8, On February 3, 2009, Petitioners, Catfish this AD order will be the date of 2008) (‘‘Preliminary Results’’). We Farmers of America and individual U.S. publication in the Federal Register of conducted verifications of Binh An and catfish processors, and QVD Food this notice. Pursuant to section 751(c)(2) South Vina and subsequently issued a Company (‘‘QVD’’) submitted case of the Act, the Department intends to post-preliminary calculation for South briefs. On February 10, 2009, initiate the next five-year review of Vina. See New Shipper Review of Petitioners, South Vina, Binh An, and these orders not later than February Certain Frozen Fish Fillets from the QVD submitted rebuttal briefs. 2013. See also 19 CFR 351.218(c)(2). Socialist Republic of Vietnam: Post- On October 20, 2008, the Department This five-year (‘‘sunset’’) review and Preliminary Results Analysis for extended the time limit for completion notice are in accordance with section Southern Fishery Industries Co., Ltd. of the final results of this administrative 751(c) of the Act and published dated January 13, 2009. We gave review by 60 days. See Certain Frozen pursuant to section 777(i)(1) of the Act. interested parties an opportunity to Fish Fillets from the Socialist Republic comment on the Preliminary Results of Vietnam: Extension of Time Limit for

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Final Results of the New Shipper and proceeding and to which we have from the Socialist Republic of Vietnam: Fourth Antidumping Duty responded are listed in the Appendix to Surrogate Values for the Final Results. Administrative Review, 73 FR 63435 this notice and addressed in the Issues Final Results of the Reviews (October 24, 2008). and Decision Memorandum (‘‘Final On February 25, 2009, the Department Decision Memo’’), which is hereby The weighted-average dumping conducted a public and a closed adopted by this notice. Parties can find margins for the POR are as follows: hearing. On March 3, 2009, the a complete discussion of the issues Department placed additional raised in this administrative review and CERTAIN FROZEN FISH FILLETS FROM information on the record. Petitioners the corresponding recommendations in VIETNAM and QVD submitted comments this public memorandum which is on regarding this additional information on file in the Central Records Unit Weighted- March 5, 2009. Manufacturer/exporter average (‘‘CRU’’), room 1117 of the main margin Scope of the Order Department building. In addition, a copy of the Final Decision Memo can be QVD 2 ...... 0.52 The product covered by the order is accessed directly on our Web site at South Vina ...... 0.00 frozen fish fillets, including regular, http://ia.ita.doc.gov/. The paper copy Binh An ...... 0.00 shank, and strip fillets and portions and electronic version of the Final Agifish 3 ...... 0.52 thereof, whether or not breaded or Decision Memo are identical in content. Anvifish 3 ...... 0.52 marinated, of the species Pangasius Vietnam-Wide Entity 4 ...... 63.88 Bocourti, Pangasius Hypophthalmus Verification (also known as Pangasius Pangasius), As provided in section 782(i) of the Assessment and Pangasius Micronemus. Frozen fish The Department will determine, and fillets are lengthwise cuts of whole fish. Tariff Act, as amended (‘‘Act’’), we U.S. Customs and Border Protection The fillet products covered by the scope conducted verification of the (‘‘CBP’’) shall assess, antidumping include boneless fillets with the belly information submitted by Binh An and duties on all appropriate entries, flap intact (‘‘regular’’ fillets), boneless South Vina for use in our final results. pursuant to 19 CFR 351.212(b). We have fillets with the belly flap removed See Memorandum to the File, through calculated importer-specific duty (‘‘shank’’ fillets), boneless shank fillets Alex Villanueva, Program Manager, AD/ assessment rates on a per-unit basis. cut into strips (‘‘fillet strips/finger’’), CVD Operations, Office 9, from Matthew Specifically, we divided the total which include fillets cut into strips, Renkey, Senior Case Analyst, AD/CVD dumping margins (calculated as the chunks, blocks, skewers, or any other Operations, Office 9, Certain Frozen difference between normal value and shape. Specifically excluded from the Fish Fillets from the Socialist Republic export price or constructed export price) scope are frozen whole fish (whether or of Vietnam: Verification of Binh An not dressed), frozen steaks, and frozen Seafood Joint Stock Company, dated for each importer by the total quantity belly-flap nuggets. Frozen whole December 9, 2008 and Memorandum to of subject merchandise sold to that dressed fish are deheaded, skinned, and the File, through Alex Villanueva, importer during the POR to calculate a eviscerated. Steaks are bone-in, cross- Program Manager, AD/CVD Operations, per-unit assessment amount. In this and section cuts of dressed fish. Nuggets are Office 9, from Javier Barrientos, Senior future reviews, we will direct CBP to the belly-flaps. The subject merchandise Case Analyst, AD/CVD Operations, assess importer-specific assessment will be hereinafter referred to as frozen Office 9, Certain Frozen Fish Fillets rates based on the resulting per-unit ‘‘basa’’ and ‘‘tra’’ fillets, which are the from the Socialist Republic of Vietnam: (i.e., per-kilogram) rates by the weight in Vietnamese common names for these Verification of Southern Fishery kilograms of each entry of the subject species of fish. These products are Industries Co., Ltd., dated December 10, merchandise during the POR. The classifiable under tariff article codes 2008. For all companies, we used Department intends to issue appropriate 1604.19.4000, 1604.19.5000, standard verification procedures, assessment instructions directly to CBP 0305.59.4000, 0304.29.6033 (Frozen including examination of relevant 15 days after publication of the final Fish Fillets of the species Pangasius accounting and production records, as results of these administrative and new including basa and tra) of the well as original source documents shipper reviews. Harmonized Tariff Schedule of the provided by the respondents. Cash Deposit Requirements United States (‘‘HTSUS’’).1 The order Changes Since the Preliminary Results The following cash-deposit covers all frozen fish fillets meeting the above specification, regardless of tariff Based on a review of the record as requirements will be effective upon classification. Although the HTSUS well as comments received from parties publication of the final results of these subheading is provided for convenience regarding our Preliminary Results, we administrative and new shipper reviews and customs purposes, our written have made revisions to the margin for all shipments of the subject description of the scope of the order is calculation for QVD, South Vina, and merchandise entered, or withdrawn dispositive. Binh An for the final results. For all 2 changes to the calculations of QVD, This rate is applicable to the QVD Single Entity Analysis of Comments Received which includes QVD, QVD Dong Thap, and Thuan Binh An and South Vina, see the Final Hung Co. Ltd. All issues raised in the case and Decision Memo and company specific 3 For the exporters subject to review that are rebuttal briefs by parties to this analysis memoranda. For changes to the determined to be eligible for separate-rate status, surrogate values see Memorandum to but were not selected as mandatory respondents, 1 the Department normally establishes a weighted- Until July, 2004, these products were the File, through Alex Villanueva, classifiable under tariff article codes 0304.20.60.30 average margin based on an average of the rates it (Frozen Catfish Fillets), 0304.20.60.96 (Frozen Fish Program Manager, AC/CVD Operations, calculated for the mandatory respondents, Fillets, NESOI), 0304.20.60.43 (Frozen Freshwater Office 9, from Alan Ray, case analyst, excluding any rates that are zero, de minimis, or Fish Fillets) and 0304.20.60.57 (Frozen Sole Fillets) AD/CVD Operations, Office 9, New based entirely on facts available. In this proceeding, there is only one such mandatory respondent, QVD. of the HTSUS. Until February 1, 2007, these Shipper Review and Fourth products were classifiable under tariff article code Accordingly, the rate calculated for QVD is applied 0304.20.60.33 (Frozen Fish Fillets of the species Antidumping Duty Administrative as the rate for Agifish and Anvifish. Pangasius including basa and tra) of the HTSUS. Review of Certain Frozen Fish Fillets 4 This includes An Xuyen.

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from warehouse, for consumption on or Dated: March 9, 2009. Administration, International Trade after the publication date, as provided Ronald K. Lorentzen, Administration, U.S. Department of for by section 751(a)(2)(C) of the Act: (1) Acting Assistant Secretary for Import Commerce, 14th Street and Constitution The cash deposit rate for each of the Administration. Avenue, NW, Washington, DC, 20230; telephone: (202) 482–3518 and 482– reviewed companies that received a Appendix I—Decision Memorandum separate rate in this review will be the 5193, respectively. rate listed in the final results of review COMMENT 1: SURROGATE FINANCIAL SUPPLEMENTARY INFORMATION: (except that if the rate for a particular RATIOS A. Bionic 5 Background company is de minimis, i.e., less than B. Gemini 6 0.5 percent, no cash deposit will be In accordance with sections 735(d) COMMENT 2: SURROGATE VALUE FOR and 777(i)(1) of the Tariff Act of 1930, required for that company); (2) for WHOLE LIVE FISH as amended (the ‘‘Act’’), on January 28, previously investigated companies not COMMENT 3: SURROGATE VALUE FOR 2009, the Department published its final listed above, the cash deposit rate will BROKEN FILLETS determination in the antidumping duty continue to be the company-specific rate COMMENT 4: INFLATORS FOR CERTAIN FACTORS OF PRODUCTION investigation of circular welded published for the most recent period of COMMENT 5: QVD austenitic stainless pressure pipe from review; (3) if the exporter is not a firm A. QVD’S U.S. SALES DATA the PRC. See Circular Welded Austenitic covered in this review, a prior review, B. INTERNATIONAL FREIGHT Stainless Pressure Pipe from the or the original less than fair value CALCULATION People’s Republic of China: Final investigation, but the manufacturer is, C. DUTY ABSORPTION Determination of Sales at Less Than D. COLLAPSING QVD/DONG THAP AND the cash deposit rate will be the rate Fair Value, 74 FR 4913 (January 28, established for the most recent period THUAN HUNG E. LABELS SURROGATE VALUE 2009). On March 12, 2009, the ITC for the manufacturer of the F. DIESEL FUEL SURROGATE VALUE notified the Department of its merchandise; and (4) the cash deposit COMMENT 6: AGIFISH SEPARATE RATE affirmative final determination of rate for all other manufacturers or MARGIN material injury to a U.S. industry. See exporters will be the Vietnam-wide rate COMMENT 7: AN XUYEN SEPARATE RATE Welded Stainless Steel Pressure Pipe of 63.88 percent. These deposit MARGIN from China, Investigation Nos. 701–TA– requirements, when imposed, shall COMMENT 8: SOUTH VINA 454 and 731–TA–1144 (Final), USITC remain in effect until further notice. A. BONA FIDE SALES Publication, 4064 (March 2009). B. SURROGATE VALUE FOR Reimbursement of Duties HYDRATECH Scope of the Order C. SURROGATE VALUE FOR WHITECH The merchandise covered by this This notice also serves as a final COMMENT 9: BINH AN order is circular welded austenitic reminder to importers of their A. BONA FIDE SALES stainless pressure pipe not greater than responsibility under 19 CFR 351.402(f) B. INTERNATIONAL FREIGHT C. DIESEL 14 inches in outside diameter. This to file a certificate regarding the D. ELECTRICITY merchandise includes, but is not limited reimbursement of antidumping duties [FR Doc. E9–5744 Filed 3–16–09; 8:45 am] to, the American Society for Testing and prior to liquidation of the relevant Materials (‘‘ASTM’’) A–312 or ASTM BILLING CODE 3510–DS–P entries during this POR. Failure to A–778 specifications, or comparable comply with this requirement could domestic or foreign specifications. result in the Department’s presumption DEPARTMENT OF COMMERCE ASTM A–358 products are only that reimbursement of antidumping included when they are produced to duties has occurred and the subsequent International Trade Administration meet ASTM A–312 or ASTM A–778 assessment of doubled antidumping specifications, or comparable domestic A–570–930 duties. or foreign specifications. Excluded from Administrative Protective Orders Antidumping Duty Order: Circular the scope are: (1) welded stainless Welded Austenitic Stainless Pressure mechanical tubing, meeting ASTM A– This notice also serves as a reminder Pipe from the People’s Republic of 554 or comparable domestic or foreign to parties subject to administrative China specifications; (2) boiler, heat protective orders (‘‘APO’’) of their exchanger, superheater, refining responsibility concerning the return or AGENCY: Import Administration, furnace, feedwater heater, and destruction of proprietary information International Trade Administration, condenser tubing, meeting ASTM A– disclosed under APO in accordance Department of Commerce. 249, ASTM A–688 or comparable with 19 CFR 351.305, which continues EFFECTIVE DATE: March 17, 2009. domestic or foreign specifications; and to govern business proprietary SUMMARY: Based on affirmative final (3) specialized tubing, meeting ASTM information in this segment of the determinations by the Department of A–269, ASTM A–270 or comparable proceeding. Timely written notification Commerce (the ‘‘Department’’) and the domestic or foreign specifications. International Trade Commission The subject imports are normally of the return/destruction of APO (‘‘ITC’’), the Department is issuing an classified in subheadings 7306.40.5005; materials or conversion to judicial antidumping duty order on circular 7306.40.5040, 7306.40.5062, protective order is hereby requested. welded austenitic stainless pressure 7306.40.5064, and 7306.40.5085 of the Failure to comply with the regulations pipe from the People’s Republic of Harmonized Tariff Schedule of the and terms of an APO is a violation China (‘‘PRC’’). United States (‘‘HTSUS’’). They may which is subject to sanction. FOR FURTHER INFORMATION CONTACT: also enter under HTSUS subheadings We are issuing and publishing the Melissa Blackledge or Howard Smith, 7306.40.1010; 7306.40.1015; final results of these administrative and AD/CVD Operations, Office 4, Import 7306.40.5042, 7306.40.5044, new shipper reviews and notice in 7306.40.5080, and 7306.40.5090. The accordance with sections 751(a)(1) and 5 Bionic Sea Food (‘‘Bionic’’). HTSUS subheadings are provided for (2) and 777(i) of the Act. 6 Gemini Sea Food Ltd. (‘‘Gemini’’). convenience and customs purposes

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only, the written description of the equal to the amount by which the DEPARTMENT OF COMMERCE scope of this order is dispositive. normal value of the merchandise National Institute of Standards and Provisional Measures exceeds the export price of the merchandise for all relevant entries of Technology Section 733(d) of the Act states that circular welded austenitic stainless Announcing a Meeting of the suspension of liquidation instructions pressure pipe from the PRC. Except for Information Security and Privacy issued pursuant to an affirmative the entries noted above,1 these Advisory Board preliminary determination may not antidumping duties will be assessed on remain in effect for more than four all unliquidated entries of circular AGENCY: National Institute of Standards months except where exporters welded austenitic stainless pressure and Technology, Commerce. representing a significant proportion of exports of the subject merchandise pipe from the PRC entered, or ACTION: Meeting notice. request the Department to extend that withdrawn from the warehouse, for consumption on or after September 5, SUMMARY: Pursuant to the Federal four–month period to no more than six Advisory Committee Act, 5 U.S.C. App., months. At the request of an exporter 2008, the date on which the Department published its preliminary notice is hereby given that the that accounted for a significant Information Security and Privacy proportion of exports of circular welded determination. See Preliminary Determination. Advisory Board (ISPAB) will meet austenitic stainless pressure pipe, we Wednesday, April 1, 2009 from 8:30 extended the four–month period to no Effective on the date of publication of a.m. until 5 p.m., Thursday, April 2, more than six months. See Circular the ITC’s final affirmative injury 2009, from 8:30 a.m. until 5 p.m., and Welded Austenitic Stainless Pressure determination, CBP will require, at the Friday, April 3, 2009 from 8 a.m. until Pipe from the People’s Republic of same time as importers would normally 12:15 p.m. All sessions will be open to China: Preliminary Determination of deposit estimated duties on this the public. The ISPAB was established Sales at Less Than Fair Value and merchandise, a cash deposit equal to the by the Computer Security Act of 1987 Postponement of Final Determination, estimated weighted–average (Pub. L. 100–235) and amended by the 73 FR 51788 (September 5, 2008) antidumping duty margins listed below. Federal Information Security (‘‘Preliminary Determination’’). See section 735(c)(1) of the Act. The In this investigation, the six–month Management Act of 2002 (Pub. L. 107– period beginning on the date of the ‘‘PRC–wide’’ rate applies to all exporters 347) to advise the Secretary of publication of the Preliminary of subject merchandise not specifically Commerce and the Director of NIST on Determination (i.e., September 5, 2008) listed. The weighted–average dumping security and privacy issues pertaining to ended on March 3, 2009. Furthermore, margins are as follows: federal computer systems. Details section 737 of the Act states that regarding the ISPAB’s activities are definitive duties are to begin on the date Weighted– available at http://csrc.nist.gov/groups/ Exporter & Producer Average SMA/ispab/index.html/. of publication of the ITC’s final injury Margin determination. Therefore, in accordance DATES: The meeting will be held on with section 733(d) of the Act, we have Zhejiang Jiuli Hi–Tech Metals April 1, 2009, from 8:30 a.m. until 5 instructed U.S. Customs and Border Co., Ltd. Produced by: p.m., April 2, 2009, from 8:30 a.m. until Protection (‘‘CBP’’) to terminate Zhejiang Jiuli Hi–Tech Metals 5 p.m. and April 3, 2009, from 8 a.m. suspension of liquidation and to Co., Ltd...... 10.53% until 12:15 p.m. liquidate without regard to antidumping PRC–Wide Entity ...... 55.21% ADDRESSES: The meeting will take place duties (i.e., release all bonds and refund at West Parlor Dining Room, George all cash deposits), unliquidated entries This notice constitutes the Washington University, 1918 F Street, of circular welded austenitic stainless antidumping duty order with respect to NW., Dining Room Conference, pressure pipe from the PRC entered, or circular welded austenitic stainless Washington, DC on April 1, 2009, and withdrawn from warehouse, for pressure pipe from the PRC pursuant to the George Washington University consumption after March 3, 2009, and section 736(a) of the Act. Interested Cafritz Conference Center, 800 21st before the date of publication of the parties may contact the Department’s Street, NW., Room 307, Washington, DC ITC’s final injury determination in the Central Records Unit, Room 1117 of the on April 2 & 3, 2009. Federal Register. Suspension of main Commerce building, for copies of FOR FURTHER INFORMATION CONTACT: Ms. liquidation will continue on or after the an updated list of antidumping duty Pauline Bowen, ISPAB Secretariat, date of publication of the ITC’s final orders currently in effect. Information Technology Laboratory, injury determination in the Federal National Institute of Standards and This order is published in accordance Register. Technology, 100 Bureau Drive, Stop with section 736(a) of the Act and 19 Antidumping Duty Order 8930, Gaithersburg, MD 20899–8930, CFR 351.211. telephone: (301) 975–2938. On March 12, 2009, in accordance Dated: March 12, 2009. SUPPLEMENTARY INFORMATION: with section 735(d) of the Act , the ITC Ronald K. Lorentzen, notified the Department of its final Agenda Acting Assistant Secretary for Import determination, pursuant to section —DNS Sec Report. 735(b)(1)(A)(i) of the Act, that an Administration. [FR Doc. E9–5730 Filed 3–16–09; 8:45 am] —Standard OMB Update. industry in the United States is —FNS and Tools of CERT. materially injured by reason of less– BILLING CODE 3510–DS–S —Open Government & Security. than-fair–value imports of subject —ID Management Framework. merchandise from the PRC. Therefore, 1 Namely, entries of circular welded austenitic —Supply Chain Risk Management. in accordance with section 736(a)(1) of stainless pressure pipe from the PRC entered, or —Privacy Report. withdrawn from warehouse, for consumption after the Act, the Department will direct CBP March 3, 2009, and before the date of publication —NIST Update. to assess, upon further instruction by of the ITC’s final injury determination in the —Follow-up Discussion On Cloud the Department, antidumping duties Federal Register. Computing.

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—Board Discussion on NIST Standards determine, compromise, and settle September 30, 2008, valuation and and Guidelines. administrative claims arising out of the proposed per capita and amortization —Stimulus and Cyber Security—CIO acts or omissions of civilian personnel cost reserve programs.* Panel. of DoD Components other than the September 30, 2008, valuation and —FISMA—What’s happening on the Military Departments in accordance proposed per capita and amortization Hill? with DoD Directive 5515.9, ‘‘Settlement cost active duty programs.* —Discussion of White House 60-day of Tort Claims,’’ April 19, 2004. Military Retirement Fund (August 28, Review. The authority delegated above may be 10 a.m.–1 p.m.). —Consensus Audit Guidelines. re-delegated in writing. Briefing on retirement fund Note that agenda items may change FOR FURTHER INFORMATION CONTACT: Ms investment experience. without notice because of possible Patricia Toppings, WHS/ESD September 30, 2008, valuation of the unexpected schedule conflicts of Information Management Division, 1777 military retirement system.* presenters. The final agenda will be North Kent Street, Rosslyn Plaza North, Methods and assumptions for posted on the Web site indicated above. Suite 11000, Arlington, VA 22209–2133. September 30, 2009, valuation.* Public Participation: The ISPAB Dated: March 12, 2009. Voluntary Separation Incentive (VSI) Fund.* agenda will include a period of time, Patricia L. Toppings, not to exceed thirty minutes, for oral Recent and proposed legislation. OSD Federal Register Liaison Officer, * Board approval required. comments from the public (Thursday, Department of Defense. April 2, 2009, at 3:15–3:45 p.m.). Each [FR Doc. E9–5709 Filed 3–16–09; 8:45 am] Public’s accessibility to the meeting: speaker will be limited to five minutes. Pursuant to 5 U.S.C. 552b and 41 CFR Members of the public who are BILLING CODE 5001–06–P 102–3.140 through 102–3.165, and the interested in speaking are asked to availability of space, this meeting is contact the ISPAB Secretariat at the DEPARTMENT OF DEFENSE open to the public. Seating is on a first telephone number indicated above. In come basis. addition, written statements are invited Office of the Secretary Committee’s Designated Federal and may be submitted to the ISPAB at Officer or Point of Contact: Persons any time. Written statements should be DoD Board of Actuaries Open Meeting desiring to attend the DoD Board of directed to the ISPAB Secretariat, Actuaries meeting or make an oral AGENCY: Department of Defense. Information Technology Laboratory, 100 presentation or submit a written Bureau Drive, Stop 8930, National ACTION: Notice of meeting. statement for consideration at the Institute of Standards and Technology, SUMMARY: Under the provision of the meeting must notify Inger Pettygrove at Gaithersburg, MD 20899–8930. Federal Advisory Committee Act of 703–696–7413 by August 3, 2009. Approximately 15 seats will be available 1972 (5 U.S.C., appendix as amended), Dated: March 12, 2009. for the public and media on April 1–3, the Government in the Sunshine Act of Patricia L. Toppings, 2009. 1976 (5 U.S.C. 552b as amended), and OSD Federal Register Liaison Officer, Dated: March 10, 2009. 41 CFR 102–3.150, the Department of Department of Defense. Patrick Gallagher, Defense announces that the following [FR Doc. E9–5706 Filed 3–16–09; 8:45 am] Deputy Director. Federal Advisory committee meeting of BILLING CODE 5001–06–P [FR Doc. E9–5745 Filed 3–16–09; 8:45 am] the DoD Board of Actuaries will take BILLING CODE 3510–13–P place: DATES: August 27, 2009 (1 p.m.–5 p.m.) DEPARTMENT OF DEFENSE and August 28, 2009 (10 a.m.–1 p.m.) Office of the Secretary DEPARTMENT OF DEFENSE ADDRESSES: 4040 N. Fairfax Drive, Suite 270, Arlington, VA 22203. [Docket ID: DoD–2009–OS–0045] Office of the Secretary FOR FURTHER INFORMATION CONTACT: Privacy Act of 1974; Notice of a Delegation of Settlement Authority Inger Pettygrove at the DoD Office of the Computer Matching Program Under the Federal Tort Claims Act Actuary, 4040 N. Fairfax Drive, Suite 308, Arlington, VA 22203; telephone AGENCY: Defense Manpower Data AGENCY: Office of the Secretary, DoD. 703–696–7413. Center, DoD. ACTION: Notice. SUPPLEMENTARY INFORMATION: ACTION: Notice of a Computer Matching Purpose of the meeting: The purpose Program. SUMMARY: Pursuant to Department of of the meeting is for the Board to review Justice Civil Division Directive (28 CFR DoD actuarial methods and assumptions SUMMARY: Subsection (e)(12) of the part 14) and 10 U.S.C. 113(d), the to be used in the valuations of the Privacy Act of 1974, as amended, (5 Secretary of Defense has delegated to Education Benefits Fund, the Military U.S.C. 552a) requires agencies to the Secretaries of the Army, Navy, and Retirement Fund, and the Voluntary publish advance notice of any proposed Air Force the authority to adjust, Separation Incentive Fund, in or revised computer matching program determine, compromise, and settle accordance with the provisions of by the matching agency for public administrative claims involving their Section 183, Section 2006, Chapter 74 comment. The DoD, as the matching respective Military Departments under (10 U.S.C. 1464 et seq.), and Section agency under the Privacy Act is hereby 28 U.S.C. 2672 (relating to the 1175 of Title 10, United States Code. giving notice to the record subjects of a administrative settlement of Federal tort Agenda: computer matching program between claims), if the amount of the proposed Education Benefits Fund (August 27, the Social Security Administration settlement, compromise, or award does 1 p.m.–5 p.m.). (SSA) and DoD that their records are not exceed $300,000. Briefing on investment experience. being matched by computer. The The Delegation to the Secretary of the Developments in education benefits. purpose of this agreement is to verify Army includes the authority to adjust, Economic assumptions.* applicants for, and recipients of

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Supplement Security Income (SSI) published in the Federal Register at 54 respective agencies under the Privacy payments and Special Veterans Benefits FR 25818 on June 19, 1989. Act of 1974, as amended, 5 U.S.C. 552a, (SVB) with respect of determination of The matching agreement, as required from which records will be disclosed for eligibility and calculating payment by 5 U.S.C. 552a(r) of the Privacy Act, the purpose of this computer match are amounts. and an advance copy of this notice was as follows: submitted on March 5, 2009, to the SSA will use records from a system of DATES: This proposed action will House Committee on Government records identified as 60–0103, entitled become effective April 16, 2009 and Reform, the Senate Committee on ‘‘Supplemental Security Income Record matching may commence unless Governmental Affairs, and the and Special Veterans Benefits, SSA / changes to the matching program are Administrator of the Office of ODSSIS’’, last published in the Federal required due to public comments or by Information and Regulatory Affairs, Register at 71 FR 1830, January 11, Congressional or by Office of Office of Management and Budget 2006. Management and Budget objections. pursuant to paragraph 4d of Appendix DoD will use the system of records Any public comment must be received I to OMB Circular No. A–130, ‘Federal identified as DMDC 01, entitled, before the effective date. Agency Responsibilities for Maintaining ‘‘Defense Manpower Data Center Data ADDRESSES: Any interested party may Records about Individuals,’ February 8, Base’’, published 73 FR 5820, January submit written comments to the 1996 (February 20, 1996, 61 FR 6427). 31, 2008. Attachment 5 is a copy of the Director, Defense Privacy Office, 1901 system notice with the appropriate South Bell Street, Suite 920, Arlington, Dated: March 11, 2009. routine use, i.e., RU l (e) (l) annotated. VA 22202–4512. Morgan E. Frazier, E. Description of Computer Matching Alternate OSD Federal Register Liaison FOR FURTHER INFORMATION CONTACT: Mr. Program: SSA, as the source agency, Officer, Department of Defense. Samuel P. Jenkins at telephone (703) will provide DMDC with an electronic 607–2943. Computer Matching Program Between file which contains the data elements. Upon receipt of the electronic file, SUPPLEMENTARY INFORMATION: the Social Security Administration and Pursuant DMDC, as the recipient agency, will to subsection (o) of the Privacy Act of the Department of Defense for Verification of Social Security perform a computer match using all 1974, as amended, (5 U.S.C. 552a), the nine digits of the SSN of the SSI/SVB DMDC and SSA have concluded an Supplemental Security Income Payments and Special Veterans Benefits file against a DMDC database which agreement to conduct a computer contains the data elements. The DMDC matching program between the agencies. A. Participating Agencies: database consists of extracts of The purpose of this agreement is to Participants in this computer matching personnel and pay records of retired verify eligibility of individual’s of program are the Social Security members of the uniformed services or Supplemental Security Income (SSI) Administration (SSA) and the Defense their survivors. The ‘‘hits’’ or matches payments and the entitlement of Manpower Data Center (DMDC) of the will be furnished to SSA. SSA is individuals to Special Veterans Benefits Department of Defense (DoD). The SSA responsible for verifying and (SVB). is the source agency, i.e., the activity determining that the data on the DMDC The parties to this agreement have disclosing the records for the purpose of electronic reply file are consistent with determined that a computer matching the match. The DMDC is the specific the SSA source file and resolving any program is the most efficient, recipient activity or matching agency, discrepancies or inconsistencies on an expeditious, and effective means of i.e., the agency that actually performs individual basis. SSA will also be obtaining the information needed by the the computer matching. responsible for making final SSA under the Social Security Act to B. Purpose of the Match: The Social determinations as to eligibility for/ verify the eligibility/entitlement of and Security Act requires SSA to verify, entitlement to, or amount of payments/ to verify payment/benefit amounts for with independent or collateral sources, benefits, their continuation or needed certain SSI and SVB recipients/ information provided to SSA by adjustments, or any recovery of beneficiaries. Conducting such a manual recipients of SSI payments and overpayments as a result of the match. match would impose a considerable beneficiaries of SVB benefits. The SSI 1. The electronic file provided by SSA administrative burden, constitute a and SVB recipient/beneficiaries will contain approximately 8.6 million greater intrusion of the individual’s provides information about eligibility/ records extracted from the SSR/SVB. privacy and would result in additional entitlement factors and other relevant 2. The electronic DMDC database delay in the eventual SSI payment and information. SSA obtains additional contains records on approximately 2.3 SVB benefit recovery of unauthorized or information as necessary before making million retired uniformed service erroneous payment. any determinations of eligibility/ members or their survivors. A copy of the computer matching payment or entitlement/benefit amounts F. Inclusive Dates of the Matching agreement between SSA and DMDC is or adjustments thereto. With respect to Program: This computer matching available upon request to the public. military retirement payments to SSI program is subject to public comment Requests should be submitted to the recipients and SVB beneficiaries who and review by Congress and the Office address caption above or to the Office of are retired members of the Uniformed of Management and Budget. If the Payment Policy, Office of Income Services or their survivors, SSA mandatory 30 day period for comment Security Programs, Office of Disability proposes to accomplish this task by has expired and no comments are and Income Security Programs, Social computer matching with the DOD. received and if no objections are raised Security Administration, 0106 RRCC, C. Authority for Conducting the by either Congress or the Office of 6401 Security Boulevard, Baltimore, MD Match: The legal authority for the Management and Budget within 40 days 21235. matching program is contained in of being notified of the proposed match, Set forth below is the notice of the sections 1631(e)(1)(B), (f), and 806(b) of the computer matching program establishment of a computer matching the Social Security Act (42 U.S.C. becomes effective and the respective program required by paragraph 6.c. of 1383(e)(1)(B), (f) and 1006(b)). agencies may begin the exchange at a the Office of Management and Budget D. Records to be Matched: The mutually agreeable time and thereafter Guidelines on computer matching systems of records maintained by the on a quarterly basis. By agreement

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between SSA and DMDC, the matching Dated: March 11, 2009. for contesting contents and appealing program will be in effect for 18 months Morgan E. Frazier, initial agency determinations are with an option to renew for 12 Alternate OSD Federal Register Liaison published in DTRA Instruction 5400.11; additional months unless one of the Officer, Department of Defense. 32 CFR part 318; or may be obtained parties to the agreement advises the from the Arms Control Inspection other by written request to terminate or HDTRA 019 Planning System, Program Lead, modify the agreement. SYSTEM NAME: Operations Enterprise, Operations G. Address for Receipt of Public Arms Control Treaty Inspections Branch, Defense Threat Reduction Comments or Inquiries: Director, Management System (April 18, 2007, Agency, Room 4533, HQ Complex, 8725 Defense Privacy Office, 1901 South Bell 72FR 19471). John J. Kingman Road, Ft. Belvoir VA Street, Suite 920, Arlington, VA 22202– 22060–6201.’’ CHANGES: 4512. Telephone (703) 607–2943. * * * * * * * * * * [FR Doc. E9–5708 Filed 3–16–09; 8:45 am] HDTRA 019 BILLING CODE 5001–06–P SYSTEM NAME: Delete entry and replace with ‘‘Arms SYSTEM NAME: Control Inspection Planning System Arms Control Inspection Planning DEPARTMENT OF DEFENSE Records’’. System Records. Office of the Secretary SYSTEM LOCATION: Delete entry and replace with SYSTEM LOCATION: [Docket ID: DOD–2009–OS–0044] ‘‘Defense Threat Reduction Agency, Defense Threat Reduction Agency, Room 4533, HQ Complex, 8725 John J. Room 4533, HQ Complex, 8725 John J. Privacy Act of 1974; System of Kingman Road, VA 22060–6201.’’ Kingman Road, VA 22060–6201. Records * * * * * CATEGORIES OF INDIVIDUALS COVERED BY THE AGENCY: Defense Threat Reduction SYSTEM MANAGER(S) AND ADDRESS: SYSTEM: Agency, DoD. Delete entry and replace with ‘‘Arms Control Inspection Planning System, Individuals affiliated with the Defense ACTION: Notice to amend a system of Program Lead, Operations Enterprise, Threat Reduction Agency, either by records. Operations Branch, Defense Threat military assignment, civilian Reduction Agency, Room 4533, HQ employment, or contractual support SUMMARY: Defense Threat Reduction Complex, 8725 John J. Kingman Rd., VA agreement. Individuals that are weapons Agency is amending a system of records 22060–6201.’’ inspectors, linguists, mission notices in its existing inventory of schedulers/planners, personnel record systems subject to the Privacy NOTIFICATION PROCEDURE: assistants/specialists, portal rotation Act of 1974, (5 U.S.C. 552a), as Delete entry and replace with specialists, operation technicians, amended. ‘‘Individuals seeking to determine passport managers, clerical staff, and whether information about themselves database management specialists. DATES: This proposed action will be is contained in this system of records effective without further notice on April should address written inquiries to CATEGORIES OF RECORDS IN THE SYSTEM: 16, 2009 unless comments are received Arms Control Inspection Planning which result in a contrary Individual’s name, Social Security System, Program Lead, Operations determination. Number (SSN), date of birth, city/state/ Enterprise, Operations Branch, Defense country of birth, education, gender, ADDRESSES: Send comments to the Threat Reduction Agency, Room 4533, race, civilian or military member, Freedom of Information and Privacy HQ Complex, 8725 John J. Kingman military rank, security clearance, Office, Defense Threat Reduction Road, Ft Belvoir, VA 22060–6201. occupational category, job organization Requests should contain individual’s Agency, 8725 John J. Kingman Road, and location, emergency locator full name and Social Security Number Fort Belvoir, VA 22060–6201. information, and passport numbers. (SSN).’’ FOR FURTHER INFORMATION CONTACT: Ms. Brenda Carter at (703) 767–1771. RECORD ACCESS PROCEDURES: AUTHORITY FOR MAINTENANCE OF THE SYSTEM: SUPPLEMENTARY INFORMATION: The Delete entry and replace with 5 U.S.C. 301, Departmental Defense Threat Reduction Agency ‘‘Individuals seeking to determine Regulations; 5 U.S.C. 302, Delegation of notices for systems of records subject to whether information about themselves Authority; National Security Directive the Privacy Act of 1974 (5 U.S.C. 552a), is contained in this system of records 41, Organizing to Manage On-site as amended, have been published in the should address written inquiries to Inspection for Arms Control; and E.O. Federal Register and are available from Arms Control Inspection Planning 9397 (SSN). the address above. System, Program Lead, Operations Enterprise, Operations Branch, Defense PURPOSE(S): The specific changes to the record Threat Reduction Agency, Room 4533, systems being amended are set forth HQ Complex, 8725 John J. Kingman To manage the Arms Control below followed by the notice, as Road, Ft Belvoir, VA 22060–6201. activities, including personnel amended, published in its entirety. The Requests should contain individual’s resources, manpower/billet proposed amendments are not within full name and Social Security Number management, passport status, mission the purview of subsection (r) of the (SSN).’’ scheduling and planning, inspection Privacy Act of 1974, (5 U.S.C. 552a), as team composition, inspector and amended, which requires the CONTESTING RECORD PROCEDURES: transport list management, inspector submission of a new or altered system Delete entry and replace with ‘‘The training, and inspection notification report. DTRA rules for accessing records and generation.

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ROUTINE USES OF RECORDS MAINTAINED IN THE John J. Kingman Road, Ft Belvoir, VA Warfighting Integration and Chief SYSTEM, INCLUDING CATEGORIES OF USERS AND 22060–6201. Information Officer, SAF/XCISI, 1800 THE PURPOSES OF SUCH USES: Requests should contain individual’s Air Force Pentagon, Suite 220, In addition to those disclosures full name and Social Security Number Washington, DC 20330–1800. generally permitted under 5 U.S.C. (SSN). FOR FURTHER INFORMATION CONTACT: Mr. 552a(b) of the Privacy Act, these records Kenneth Brodie at (703) 696–7557. or information contained therein may RECORD ACCESS PROCEDURES: SUPPLEMENTARY INFORMATION: specifically be disclosed outside the Individuals seeking to determine The DoD as a routine use pursuant to 5 whether information about themselves Department of the Air Force systems of U.S.C. 552a(b)(3) as follows: is contained in this system of records records notices subject to the Privacy The DoD ‘Blanket Routine Uses’ set should address written inquiries to Act of 1974, (5 U.S.C. 552a), as forth at the beginning of DTRA’s Arms Control Inspection Planning amended, have been published in the compilation of systems of records System System, Program Lead, Federal Register and are available from notices apply to this system. Operations Enterprise, Operations the address above. Branch, Defense Threat Reduction The Department of the Air Force POLICIES AND PRACTICES OF STORING, Agency, Room 4533, HQ Complex, 8725 proposes to delete a system of records RETRIEVING, ACCESSING, RETAINING, AND John J. Kingman Road, Ft Belvoir, VA notice in its inventory of record systems DISPOSING OF RECORDS IN THE SYSTEM: 22060–6201. subject to the Privacy Act of 1974 (5 STORAGE: Requests should contain individual’s U.S.C. 552a), as amended. The proposed Paper records in file folders and full name and Social Security Number deletion is not within the purview of electronic storage media. (SSN). subsection (r) of the Privacy Act of 1974, (5 U.S.C. 552a), as amended, which RETRIEVABILITY: CONTESTING RECORD PROCEDURES: requires the submission of a new or Records may be retrieved by name The DTRA rules for accessing records altered system report. and/or Social Security Number (SSN), and for contesting contents and Dated: March 11, 2009. title, personnel type, and passport appealing initial agency determinations Morgan E. Frazier, numbers. are published in DTRA Instruction Alternate OSD Federal Register Liaison 5400.11; 32 CFR part 318; or may be SAFEGUARDS: Officer, Department of Defense. obtained from the Arms Control Records are maintained in areas Inspection Planning System, Program F036 AETC E accessible only to Defense Threat Lead, Operations Enterprise, Operations SYSTEM NAME: Reduction Agency personnel who must Branch, Defense Threat Reduction use the records to perform their duties. Agency, Room 4533, HQ Complex, 8725 Recruiting Activities Management The computer files are password John J. Kingman Road, Ft. Belvoir VA Support System (RAMSS) (June 11, protected with access restricted to 22060–6201. 1997, 62 FR 31793). authorized users. Records are secured in locked or guarded buildings, locked RECORD SOURCE CATEGORIES: REASON: offices, or locked cabinets during non- Individual, DTR Officials, and The records collected for this system duty hours. Records are stored in a assignment personnel. are now covered by F036 AETC X, computer system with extensive College Scholarship Program (CSP) intrusion safeguards. EXEMPTIONS CLAIMED FOR THE SYSTEM: (August 22, 2008, 73 FR 49659). None. Accordingly, this Privacy Act System RETENTION AND DISPOSAL: of Records Notice should be deleted. Records are maintained for as long as [FR Doc. E9–5699 Filed 3–16–09; 8:45 am] the individual is assigned to Defense BILLING CODE 5001–06–P [FR Doc. E9–5700 Filed 3–16–09; 8:45 am] Threat Reduction Agency (DTRA). Upon BILLING CODE 5001–06–P departure from DTRA, records DEPARTMENT OF DEFENSE concerning that individual are removed DEPARTMENT OF DEFENSE from the active file and retained in an Department of the Air Force inactive file for two years and then Department of the Air Force deleted. [Docket ID: USAF–2009–0017] [Docket ID: USAF–2009–0020] SYSTEM MANAGER(S) AND ADDRESS: Privacy Act of 1974; System of Arms Control Inspection Planning Records Privacy Act of 1974; System of System, Program Lead, Operations Records AGENCY: Department of Air Force, DoD. Enterprise, Operations Branch, Defense AGENCY: Threat Reduction Agency, Room 4533, ACTION: Notice to delete a system of Department of the Air Force, HQ Complex, 8725 John J. Kingman Rd., records. DoD. ACTION: Notice to add a system of VA 22060–6201. SUMMARY: The Department of Air Force records. NOTIFICATION PROCEDURE: proposes to delete a system of records Individuals seeking to determine to its inventory of record systems SUMMARY: The Department of the Air whether information about themselves subject to the Privacy Act of 1974 (5 Force proposes to add a system of is contained in this system of records U.S.C. 552a), as amended. records to its inventory of record should address written inquiries to DATES: This action will be effective on systems subject to the Privacy Act of Arms Control Inspection Planning April 16, 2009 unless comments are 1974 (5 U.S.C. 552a), as amended. System System, Program Lead, received that would result in a contrary DATES: The proposed action will be Operations Enterprise, Operations determination. effective on April 16, 2009 unless Branch, Defense Threat Reduction ADDRESSES: Send comments to the Air comments are received that would Agency, Room 4533, HQ Complex, 8725 Force Privacy Act Officer, Office of result in a contrary determination.

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ADDRESSES: Send comments to the Air Department of Defense Regulation RECORD ACCESS PROCEDURES: Force Privacy Act Officer, Office of 5200–2R, DoD Personnel Security Individuals seeking to access records Warfighting Integration and Chief Program; Air Force Instruction 33–213, about themselves contained in this Information Officer, SAF/XCPPI, 1800 Identity Management; and E.O. 9397 system should address written requests Air Force Pentagon, Washington, DC (SSN). to ACES/IWIMS Program Manager, HQ 20330–1800. AFCESA/CEOI, 139 Barnes Drive, Suite PURPOSE(S): FOR FURTHER INFORMATION CONTACT: Mr. 1, Tyndall AFB, FL 32403–5319. Ben Swilley at (703) 696–6648. Provide accurate documentation of Individual should provide their full Explosive Ordnance Device (EOD) name, aliases, date and place of birth, SUPPLEMENTARY INFORMATION: The incident reporting to cover emergency Department of the Air Force’s notices Social Security Number, service response to improvised explosive for systems of records subject to the number(s), or other information devices, conventional munitions, Privacy Act of 1974 (5 U.S.C. 552a), as verifiable from the records in written airfield emergencies, support to civil amended, have been published in the request. authorities, and weapons of mass Federal Register and are available from CONTESTING RECORD PROCEDURES destruction incidents. Record : the address above. individual’s home-station and The Air Force rules for accessing The proposed systems reports, as contingency and ancillary training records, for contesting contents and required by 5 U.S.C. 552a(r) of the requirements. appealing initial agency determinations Privacy Act, were submitted on March are published in Air Force Instruction 9, 2009, to the House Committee on ROUTINE USES OF RECORDS MAINTAINED IN THE 37–132; 32 CFR part 806b; or may be Oversight and Government Reform, the SYSTEM, INCLUDING CATEGORIES OF USERS AND obtained from the system manager. Senate Committee on Homeland THE PURPOSES OF SUCH USES: RECORD SOURCE CATEGORIES: Security and Governmental Affairs, and POLICIES AND PRACTICES FOR STORING, the Office of Management and Budget RETRIEVING, ACCESSING, RETAINING, AND From the individual. (OMB) pursuant to paragraph 4c of DISPOSING OF RECORDS IN THE SYSTEM: EXEMPTIONS CLAIMED FOR THE SYSTEM: Appendix I to OMB Circular No. A–130, STORAGE: Records maintained in connection ‘‘Federal Agency Responsibilities for with providing protective services to the Maintaining Records About Electronic storage media. President and other individuals under Individuals,’’ dated February 8, 1996, RETRIEVABILITY: 18 U.S.C. 3056, may be exempt pursuant (February 20, 1996, 61 FR 6427). Last name, first name, and rank. to 5 U.S.C. 552a(k)(3). Dated: March 11, 2009. An exemption rule for this record Morgan E. Frazier, SAFEGUARDS: system has been promulgated in Alternate OSD Federal Register Liaison Steps have been taken to limit the accqordance with the requirements of 5 Officer, Department of Defense. access to the Privacy data to only those U.S.C. 553(b)(1), (2), and (3), (c) and (e) users with the appropriate roles. Access and published in 32 CFR part 806b. F032 AFCESA C to records is limited to persons [FR Doc. E9–5707 Filed 3–16–09; 8:45 am] responsible for servicing the record in SYSTEM NAME: BILLING CODE 5001–06–P Civil Engineer System—Explosive performance of their official duties and Ordnance Records. who are properly screened and cleared for need-to-know. Access to the DEPARTMENT OF DEFENSE SYSTEM LOCATION: application is restricted by passwords Department of the Air Force, 643 which are changed periodically. Department of the Navy ELSS/EIRC, 201 East Moore Drive, Bldg RETENTION AND DISPOSAL: 856, Gunter AFB, AL 36114–3001. Notice of Partially Closed Meeting of Records are retained for 30 years or the Secretary of the Navy Advisory CATEGORIES OF INDIVIDUALS COVERED BY THE until no longer needed and then deleted Panel SYSTEM: from the database by erasing or AGENCY: Active duty military, civilians, and degaussing. Department of the Navy, DoD. Air Force contractor personnel. ACTION: Notice. SYSTEM MANAGER(S) AND ADDRESS: SUMMARY: CATEGORIES OF RECORDS IN THE SYSTEM: Information Technology Program The Secretary of the Navy Full name, rank, Social Security Manager, HQ AFCESA/CEOI, 139 Advisory Panel will meet to receive Number (SSN), gender, place of birth, Barnes Drive, Suite 1, Tyndall AFB, FL ethics training and discuss top areas of date of birth; email address; clearance 32403–5319. concern that the Secretary of the Navy and clearance investigation status; should address. The discussion of such passport number, type, date and NOTIFICATION PROCEDURE: information would be exempt from location of issue; training information to Individuals seeking to determine public disclosure as set forth in section include dates of training, certifications; whether this system of records contains 552b(c)(5), (6), and (7) of title 5, United unit and assignment information; information on themselves should States Code. For this reason the temporary duty information. address written inquiries to ACES/ executive session of this meeting will be IWIMS Program Manager, HQ AFCESA/ closed to the public. AUTHORITY FOR MAINTENANCE OF THE SYSTEM: CEOI, 139 Barnes Drive, Suite 1, DATES: The open session of the meeting 10 U.S.C. 8013, Secretary of the Air Tyndall AFB, FL 32403–5319. will be held on Thursday, April 2, 2009, Force; 10 U.S.C. 9832, Property Individual should provide their full from 8:15 a.m. to 10:15 a.m. The closed Accountability: Regulations; name, aliases, date and place of birth, executive session will also be held on Department of Defense Directive Social Security Number, service Thursday, April 2, 2009, from 10:30 5210.55, Selection of DoD Military and number(s), or other information a.m. to 2 p.m. Civilian Personnel and Contractor verifiable from the records in written ADDRESSES: The meeting will be held in Employees for Assignment duties; request. Room 5E456, in the Pentagon,

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Washington, DC. The meeting will be DEPARTMENT OF EDUCATION Portuguese (all varieties), Quechua, handicap accessible. Romanian, Russian, Serbian, Sinhala For Access: Public access is limited Office of Postsecondary Education: (Sinhalese), Somali, Swahili, Tagalog, due to the Pentagon Security Overview Information; Technological Tajik, Tamil, Telugu, Thai, Tibetan, requirements. Any individual wishing Innovation and Cooperation for Tigrigna, Turkish, Turkmen, Ukrainian, to attend will need to contact CDR Marc Foreign Information Access Program Urdu, Uyghur/Uigur, Uzbek, Gage at 703–695–3042 or LCDR Victor Notice Inviting Applications for New Vietnamese, Wolof, Xhosa, Yoruba, and Spears at 703–695–3573 no later than Awards for Fiscal Year (FY) 2009 Zulu. March 26, 2009. Members of the public Program Authority: 20 U.S.C. 1126. who do not have Pentagon access will Catalog of Federal Domestic Applicable Regulations: The be required to also provide name, date Assistance (CFDA) Number: 84.337A. Education Department General Dates: Applications Available: March of birth and Social Security number by Administrative Regulations (EDGAR) in 17, 2009. March 26, 2009, in order to obtain a 34 CFR parts 74, 75, 77, 79, 82, 84, 85, Deadline for Transmittal of visitor badge. Public transportation is 86, 97, 98 and 99. As there are no Applications: April 16, 2009. recommended as public parking is not Deadline for Intergovernmental program-specific regulations, each available. Review: June 15, 2009. applicant is encouraged to read the Members of the public wishing to authorizing statute for the TICFIA attend this event must enter through the Full Text of Announcement Program in section 606 of Title VI, part Pentagon’s Metro Entrance between 8:15 I. Funding Opportunity Description A of the Higher Education Act of 1965, a.m. and 8:35 a.m. At this entrance, they as amended (HEA), 20 U.S.C. 1126. will be required to present two forms of Purpose of Program: The Note: The regulations in 34 CFR part 79 identification in order to receive a Technological Innovation and Cooperation for Foreign Information apply to all applicants except Federally visitors badge and meet their escort. recognized Indian tribes. Members of the public will then be Access (TICFIA) Program provides escorted to Room 5E456 to attend the grants to support projects that will Note: The regulations in 34 CFR part 86 open sessions of the Advisory Panel. develop innovative techniques or apply to institutions of higher education Members of the public shall remain programs using electronic technologies only. with designated escorts at all times to collect information from foreign Areas of National Need: while on the Pentagon Reservation. sources. The projects access, collect, In accordance with section 601(c) of Members of the public will be escorted organize, preserve, and widely the HEA, (20 U.S.C. 1121(c)), the back to the Pentagon Metro Entrance at disseminate information on world Secretary has consulted with and 10:15 a.m. regions and countries other than the received recommendations regarding FOR FURTHER INFORMATION CONTACT: United States that address our Nation’s national need for expertise in foreign Colonel Caroline Simkins-Mullins, teaching and research needs in languages and world regions from the SECNAV Advisory Panel, Office of international education and foreign head officials of a wide range of Federal Program and Process Assessment 1000 languages. agencies. The Secretary has taken these Navy Pentagon, Washington, DC 20350, Priority: This notice contains one recommendations into account, and a telephone: 703–697–9154. invitational priority. Under 34 CFR list of foreign languages and world 75.105(c)(1), we do not give an SUPPLEMENTARY INFORMATION: This regions identified by the Secretary as notice of meeting is provided per the application that meets this invitational areas of national need may be found on Federal Advisory Committee Act, as priority a competitive or absolute the following Web sites: http:// amended (5 U.S.C. App.). The executive preference over other applications. www.ed.gov/about/offices/list/ope/ Invitational Priority: session of this meeting will consist of policy.html. http://www.ed.gov/ This priority is: programs/iegpsticfia/legislation.html. discussions of ethics training for the Projects that focus on any of the Secretary of the Navy Advisory Panel. Also included on these Web sites are seventy-eight (78) languages on the U.S. the specific recommendations the The proposed closed session from 10:30 Department of Education’s list of Less a.m. to 2 p.m. will include a discussion Secretary received from Federal Commonly Taught Languages (LCTLs), agencies. of top areas of concern that the which follows: Secretary of the Navy should address. Akan (Twi-Fante), Albanian, II. Award Information Discussion of such information cannot Amharic, Arabic (all dialects), be adequately segregated from other Type of Award: Discretionary grants. Armenian, Azeri (Azerbaijani), Balochi, Estimated Available Funds: We topic, which precludes opening the Bamanakan (Bamana, Bambara, propose to allocate $1,700,000 for new executive session of this meeting to the Mandikan, Mandingo, Maninka, Dyula), awards for this program for FY 2009. public. Belarusian, Bengali (Bangla), Berber (all Accordingly, the Secretary of the The actual level of funding, if any, languages), Bosnian, Bulgarian, depends on final Congressional action. Navy has determined in writing that the Burmese, Cebuano (Visayan), Chechen, public interest requires that all sessions However, we are inviting applications to Chinese (Cantonese), Chinese (Gan), allow enough time to complete the grant of this meeting be closed to the public Chinese (Mandarin), Chinese (Min), because it will be concerned with process if Congress appropriates funds Chinese (Wu), Croatian, Dari, Dinka, for this program. matters listed in sections 552b(c)(5), and Georgian, Gujarati, Hausa, Hebrew (7) of the title 5, United States Code. Estimated Range of Awards: (Modern), Hindi, Igbo, Indonesian, $150,000–$190,000. Dated: March 10, 2009. Japanese, Javanese, Kannada, Kashmiri, Estimated Average Size of Awards: A.M. Vallandingham, Kazakh, Khmer (Cambodian), Kirghiz, $170,000. Lieutenant Commander, Judge Advocate Korean, Kurdish (Kurmanji), Kurdish Maximum Award: We will reject any General’s Corps, U.S. Navy, Federal Register (Sorani), Lao, Malay (Bahasa Melayu or application that proposes a budget Liaison Officer. Malaysian), Malayalam, Marathi, exceeding $190,000 for a single budget [FR Doc. E9–5696 Filed 3–16–09; 8:45 am] Mongolian, Nepali, Oromo, Panjabi, period of 12 months. The Assistant BILLING CODE 3810–FF–P Pashto, Persian (Farsi), Polish, Secretary for Postsecondary Education

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may change the maximum amount application narrative, except titles, remains subject to all other through a notice published in the headings, footnotes, quotations, requirements and limitations in this Federal Register. references, captions, and all text in notice. Estimated Number of Awards: 10. charts, tables, and graphs. These items Deadline for Intergovernmental Note: The Department is not bound by any may be single-spaced. Charts, tables, Review: June 15, 2009. estimates in this notice. figures, and graphs in the application 4. Intergovernmental Review: This Project Period: Up to 48 months. narrative count toward the page limit. program is subject to Executive Order • Use a font that is either 12 point or 12372 and the regulations in 34 CFR III. Eligibility Information larger, or no smaller than 10 pitch part 79. Information about 1. Eligible Applicants: (1) Institutions (characters per inch). However, you may Intergovernmental Review of Federal of higher education (IHEs); (2) public or use a 10 point font in charts, tables, Programs under Executive Order 12372 nonprofit private libraries; (3) a figures, and graphs. is in the application package for this • partnership of an IHE and one or more Use one of the following fonts: program. of the following: (A) another IHE; (B) a Times New Roman, Courier, Courier 5. Funding Restrictions: We reference library; or (C) a nonprofit educational New, or Arial. An application submitted regulations outlining funding organization. in any other font (including Times restrictions in the Applicable 2. Cost Sharing or Matching: This Roman and Arial Narrow) will not be Regulations section of this notice. program has a matching requirement accepted. 6. Other Submission Requirements: under section 606(d) of the HEA, 20 The page limit does not apply to Part Applications for grants under this U.S.C. 1126(d). The Federal share of the I, the Application for Federal Assistance competition must be submitted total cost of carrying out a program face sheet (SF 424); the supplemental electronically unless you qualify for an under this section shall not be more information form required by the exception to this requirement in than 662⁄3 percent. The non-Federal Department of Education; Part II, the accordance with the instructions in this share of such costs may be provided budget information summary form (ED section. either in-kind or in cash, and may Form 524); or Part IV, the assurances a. Electronic Submission of include contributions from private and certifications. The page limit also Applications. sector corporations or foundations. does not apply to a table of contents. If Applications for grants under the you include any attachments or Technological Innovation and IV. Application and Submission appendices not specifically requested, Information Cooperation for Foreign Information these items will be counted as part of Access (TICFIA) Program, CFDA 1. Address to Request Application your program narrative [Part III] for number 84.337A, must be submitted Package: Susanna Easton, International purposes of the page limit requirement. electronically using the Education Programs Service, U.S. You must include your complete Governmentwide Grants.gov Apply site Department of Education, 1990 K Street, response to the selection criteria in the at http://www.Grants.gov. Through this NW., room 6093, Washington, DC program narrative. site, you will be able to download a 20006–8521. Telephone: (202) 502– We will reject your application if you copy of the application package, 7628; or, by e-mail: apply these standards and exceed the complete it offline, and then upload and [email protected]. page limit. submit your application. You may not e- If you use a telecommunications 3. Submission Dates and Times: mail an electronic copy of a grant device for the deaf (TDD), call the Applications Available: March 17, Federal Relay Service (FRS), toll free, at 2009. application to us. 1–800–877–8339. Deadline for Transmittal of We will reject your application if you Individuals with disabilities can Applications: April 16, 2009. submit it in paper format unless, as obtain a copy of the application package Applications for grants under this described elsewhere in this section, you in an accessible format (e.g., braille, program must be submitted qualify for one of the exceptions to the large print, audiotape, or computer electronically using the Grants.gov electronic submission requirement and diskette) by contacting the program Apply site (Grants.gov). For information submit, no later than two weeks before contact person listed in this section. (including dates and times) about how the application deadline date, a written 2. Content and Form of Application to submit your application statement to the Department that you Submission: Requirements concerning electronically, or in paper format by qualify for one of these exceptions. the content of an application, together mail or hand delivery if you qualify for Further information regarding with the forms you must submit, are in an exception to the electronic calculation of the date that is two weeks the application package for this program submission requirement, please refer to before the application deadline date is competition. Page Limit: The Section IV. 6. Other Submission provided later in this section under application narrative is where you, the Requirements of this notice. Exception to Electronic Submission applicant, address the selection criteria We do not consider an application Requirement. that reviewers use to evaluate your that does not comply with the deadline You may access the electronic grant application. You must limit the requirements. application for the TICFIA Program at application narrative [Part III] that Individuals with disabilities who http://www.Grants.gov. You must search addresses the selection criteria to no need an accommodation or auxiliary aid for the downloadable application more than 40 pages, using the following in connection with the application package for this competition by the standards: process should contact the person listed CFDA number. Do not include the • A ‘‘page’’ is 8.5″ x 11″, on one side under FOR FURTHER INFORMATION CFDA number’s alpha suffix in your only, with 1″ margins at the top, bottom, CONTACT in Section VII of this notice. If search (e.g., search for 84.337, not and both sides. Page numbers and an the Department provides an 84.337A). identifier may be outside of the 1″ accommodation or auxiliary aid to an Please note the following: margin. individual with a disability in • When you enter the Grants.gov site, • Double space (no more than three connection with the application you will find information about lines per vertical inch) all text in the process, the individual’s application submitting an application electronically

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through the site, as well as the hours of successfully an application via your application electronically or by operation. Grants.gov. In addition, you will need to hand delivery. You also may mail your • Applications received by Grants.gov update your CCR registration on an application by following the mailing are date and time stamped. Your annual basis. This may take three or instructions described elsewhere in this application must be fully uploaded and more business days to complete. notice. submitted, and must be date and time • You will not receive additional If you submit an application after stamped by the Grants.gov system no point value because you submit your 4:30:00 p.m., Washington, DC time, on later than 4:30:00 p.m., Washington, DC application in electronic format, nor the application deadline date, please time, on the application deadline date. will we penalize you if you qualify for contact the person listed under FOR Except as otherwise noted in this an exception to the electronic FURTHER INFORMATION CONTACT in section, we will not accept your submission requirement, as described Section VII of this notice and provide an application if it is received—that is, date elsewhere in this section, and submit explanation of the technical problem and time stamped by the Grants.gov your application in paper format. you experienced with Grants.gov, along system—after 4:30:00 p.m., Washington, • You must submit all documents with the Grants.gov Support Desk Case DC time, on the application deadline electronically, including all information Number. We will accept your date. We do not consider an application you typically provide on the following application if we can confirm that a that does not comply with the deadline forms: Application for Federal technical problem occurred with the requirements. When we retrieve your Assistance (SF 424), the Department of Grants.gov system and that that problem application from Grants.gov, we will Education Supplemental Information for affected your ability to submit your notify you if we are rejecting your SF 424, Budget Information—Non- application by 4:30:00 p.m., application because it was date and time Construction Programs (ED 524), and all Washington, DC time, on the stamped by the Grants.gov system after necessary assurances and certifications. application deadline date. The • 4:30:00 p.m., Washington, DC time, on You must attach any narrative Department will contact you after a the application deadline date. sections of your application as files in determination is made on whether your • The amount of time it can take to a .DOC (document), .RTF (rich text), or application will be accepted. upload an application will vary .PDF (Portable Document) format. If you depending on a variety of factors, upload a file type other than the three Note: The extensions to which we refer in this section apply only to the unavailability including the size of the application and file types specified in this paragraph or of, or technical problems with, the Grants.gov the speed of your Internet connection. submit a password-protected file, we system. We will not grant you an extension Therefore, we strongly recommend that will not review that material. if you failed to fully register to submit your you do not wait until the application • Your electronic application must application to Grants.gov before the deadline date to begin the submission comply with any page-limit application deadline date and time; or, if the process through Grants.gov. requirements described in this notice. technical problem you experienced is • You should review and follow the • After you electronically submit unrelated to the Grants.gov system. Education Submission Procedures for your application, you will receive from Exception to Electronic Submission submitting an application through Grants.gov an automatic notification of Requirement: You qualify for an Grants.gov that are included in the receipt that contains a Grants.gov exception to the electronic submission application package for this competition tracking number. (This notification requirement, and may submit your to ensure that you submit your indicates receipt by Grants.gov only, not application in paper format, if you are application in a timely manner to the receipt by the Department.) The unable to submit an application through Grants.gov system. You can also find the Department then will retrieve your the Grants.gov system because— Education Submission Procedures application from Grants.gov and send a • You do not have access to the pertaining to Grants.gov at http:// second notification to you by e-mail. Internet; or e-Grants.ed.gov/help/ This second notification indicates that • You do not have the capacity to GrantsgovSubmissionProcedures.pdf. the Department has received your upload large documents to the • To submit your application via application and has assigned your Grants.gov system; and Grants.gov, you must complete all steps application a PR/Award Number (an • No later than two weeks before the in the Grants.gov registration process ED-specified identifying number unique application deadline date (14 calendar (see www.grants.gov/applicants/ to your application). days or, if the fourteenth calendar day get_registered.jsp). These steps include • We may request that you provide us before the application deadline date (1) registering your organization, a original signatures on forms at a later falls on a Federal holiday, the next multi-part process that includes date. business day following the Federal registration with the Central Contractor Application Deadline Date Extension holiday), you mail or fax a written Registry (CCR); (2) registering yourself in Case of Technical Issues With the statement to the Department, explaining as an Authorized Organization Grants.gov System: If you are which of the two grounds for an Representative (AOR); and (3) getting experiencing problems submitting your exception prevent you from using the authorized as an AOR by your application through Grants.gov, please Internet to submit your application. organization. Details on these steps are contact the Grants.gov Support Desk, If you mail your written statement to outlined in the Grants.gov 3-Step toll free, at 1–800–518–4726. You must the Department, it must be postmarked Registration Guide (see www.grants.gov/ obtain a Grants.gov Support Desk Case no later than two weeks before the section910/ Number and must keep a record of it. application deadline date. If you fax Grants.govRegistrationBrochure.pdf). If you are prevented from your written statement to the You also must provide on your electronically submitting your Department, we must receive the faxed application the same D–U–N–S Number application on the application deadline statement no later than two weeks used with this registration. Please note date because of technical problems with before the application deadline date. that the registration process may take the Grants.gov system, we will grant you Address and mail or fax your five or more business days to complete, an extension until 4:30:00 p.m., statement to: Susanna Easton, and you must have completed all Washington, DC time, the following International Education Programs registration steps to allow you to submit business day to enable you to transmit Service, U.S. Department of Education,

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1990 K Street, NW., room 6093, Note for Mail or Hand Delivery of specific conditions in the GAN. The Washington, DC 20006–8521. FAX: Paper Applications: If you mail or hand GAN also incorporates your approved (202) 502–7860. deliver your application to the application as part of your binding Your paper application must be Department— commitments under the grant. submitted in accordance with the mail (1) You must indicate on the envelope 3. Reporting: At the end of your or hand delivery instructions described and—if not provided by the project period, you must submit a final in this notice. Department—in Item 11 of the SF 424 performance report, including financial b. Submission of Paper Applications the CFDA number, including suffix information, as directed by the by Mail. letter, if any, of the competition under Secretary. If you receive a multi-year If you qualify for an exception to the which you are submitting your award, you must submit an annual electronic submission requirement, you application; and performance report that provides the may mail (through the U.S. Postal (2) The Application Control Center most current performance and financial Service or a commercial carrier) your will mail to you a notification of receipt expenditure information as directed by application to the Department. You of your grant application. If you do not the Secretary under 34 CFR 75.118. must mail the original and two copies receive this notification within 15 Grantees are required to use the of your application, on or before the business days from the application electronic data instrument International application deadline date, to the deadline date, you should call the U.S. Resource Information System (IRIS) to Department at the following address: Department of Education Application complete the final report. The Secretary U.S. Department of Education, Control Center at (202) 245–6288. may also require more frequent Application Control Center, Attention: performance reports under 34 CFR (CFDA Number 84.337A), LBJ Basement V. Application Review Information 75.720(c). For specific requirements on Level 1, 400 Maryland Avenue, SW., 1. General: For FY 2009, applications reporting, please go to: http:// Washington, DC 20202–4260. will be randomly divided and reviewed www.ed.gov/fund/grant/apply/ You must show proof of mailing by separate panels of foreign language appforms/appforms.html. consisting of one of the following: and area studies and international 4. Performance Measure: Under the (1) A legibly dated U.S. Postal Service studies experts. A rank order from Government Performance and Results postmark. highest to lowest score will be Act of 1993 (GPRA), the Department (2) A legible mail receipt with the developed and used for funding will use the following measure to date of mailing stamped by the U.S. purposes. evaluate the success of this program: Postal Service. 2. Selection Criteria: The selection Percentage of projects judged to be (3) A dated shipping label, invoice, or criteria for this program are from successful by the program officer, based receipt from a commercial carrier. EDGAR (34 CFR 75.209 and 75.210) and on a review of information provided in (4) Any other proof of mailing are as follows: (a) Meeting the purpose annual performance reports. acceptable to the Secretary of the U.S. of the authorizing statute (15 points), (b) The information provided by grantees Department of Education. in their performance reports submitted If you mail your application through Need for project (10 points), (c) Significance (14 points), (d) Quality of via IRIS will be the source of data for the U.S. Postal Service, we do not this measure. Reporting screens for accept either of the following as proof the project design (12 points), (e) Quality of key personnel (8 points), (f) institutions can be viewed at: http:// of mailing: www.ieps-iris.org/iris/pdfs/TICFIA.pdf. (1) A private metered postmark. Quality of project services (4 points), (g) (2) A mail receipt that is not dated by Adequacy of resources (12 points), (h) VII. Agency Contact the U.S. Postal Service. Quality of the management plan (10 FOR FURTHER INFORMATION CONTACT: If your application is postmarked after points), and (i) Quality of the project Susanna Easton, International Education the application deadline date, we will evaluation (15 points). Programs Service, U.S. Department of not consider your application. Note: Applicants should address these Education, 1990 K Street, NW., room Note: The U.S. Postal Service does not selection criteria only in the context of the 6069, Washington, DC 20006–8521. uniformly provide a dated postmark. Before program requirements in section 606 of the HEA. Telephone: (202) 502–7628 or by e-mail: relying on this method, you should check [email protected]. with your local post office. VI. Award Administration Information If you use a TDD, call the FRS, toll c. Submission of Paper Applications free, at 1–800–877–8339. by Hand Delivery. 1. Award Notices: If your application If you qualify for an exception to the is successful, we notify your U.S. VIII. Other Information electronic submission requirement, you Representative and U.S. Senators and Accessible Format: Individuals with (or a courier service) may deliver your send you a Grant Award Notification disabilities can obtain this document paper application to the Department by (GAN). We may notify you informally, and a copy of the application package in hand. You must deliver the original and also. an accessible format (e.g., braille, large two copies of your application by hand, If your application is not evaluated or print, audiotape, or computer diskette) on or before the application deadline not selected for funding, we notify you. on request to the program contact date, to the Department at the following 2. Administrative and National Policy person listed under FOR FURTHER address: U.S. Department of Education, Requirements: We identify INFORMATION CONTACT in Section VII of Application Control Center, Attention: administrative and national policy this notice. (CFDA Number 84.337A) 550 12th requirements in the application package Electronic Access to This Document: Street, SW., Room 7041, Potomac Center and reference these and other You can view this document, as well as Plaza, Washington, DC 20202–4260. requirements in the Applicable all other documents of this Department The Application Control Center Regulations section of this notice. published in the Federal Register, in accepts hand deliveries daily between We reference the regulations outlining text or Adobe Portable Document 8:00 a.m. and 4:30:00 p.m., Washington, the terms and conditions of an award of Format (PDF), on the Internet at the DC time, except Saturdays, Sundays, the Applicable Regulations section of following site: http://www.ed.gov/news/ and Federal holidays. this notice and include these and other fedregister.

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To use PDF, you must have Adobe DEPARTMENT OF EDUCATION undergraduate and graduate students to Acrobat Reader, which is available free help pay for their education and to [CFDA Nos. 84.038, 84.033, and 84.007] at this site. If you have questions about involve the students in community using PDF, call the U.S. Government Federal Perkins Loan, Federal Work- service activities. Printing Office (GPO), toll free, at 1– Study, and Federal Supplemental The FSEOG Program encourages 888–293–6498; or in the Washington, Educational Opportunity Grant institutions to provide grants to DC area at (202) 512–1530. Programs exceptionally needy undergraduate students to help pay for their cost of Note: The official version of this document ACTION: Notice of the 2009–2010 award is the document published in the Federal education. year deadline dates for the campus- The Federal Perkins Loan, FWS, and Register. Free Internet access to the official based programs. edition of the Federal Register and the Code FSEOG programs are authorized by of Federal Regulations is available on GPO SUMMARY: The Secretary announces the parts E and C, and part A, subpart 3, Access at: http://www.gpoaccess.gov/nara/ 2009–2010 award year deadline dates respectively, of title IV of the Higher index.html. for the submission of requests and Education Act of 1965, as amended. documents from postsecondary Throughout the year, in its Delegation of Authority: The Secretary institutions for the campus-based ‘‘Electronic Announcements,’’ the of Education has delegated authority to programs. Department will continue to provide Daniel T. Madzelan, Director, SUPPLEMENTARY INFORMATION: The additional information for the Forecasting and Policy Analysis for the Federal Perkins Loan, Federal Work- individual deadline dates listed, via the Office of Postsecondary Education to Study (FWS), and Federal Supplemental Information for Financial Aid perform the functions of the Assistant Educational Opportunity Grant (FSEOG) Professionals (IFAP) Web site at http:// Secretary for Postsecondary Education. programs are collectively known as the www.ifap.ed.gov. Dated: March 12, 2009. campus-based programs. Deadline Dates: The following table Daniel T. Madzelan, The Federal Perkins Loan Program provides the 2009–2010 award year deadline dates for the submission of Director, Forecasting and Policy Analysis. encourages institutions to make low- interest, long-term loans to needy applications, reports, and waiver [FR Doc. E9–5760 Filed 3–16–09; 8:45 am] undergraduate and graduate students to requests for the campus-based programs. BILLING CODE 4000–01–P help pay for their education. Institutions must meet the established The FWS Program encourages the deadline dates to ensure consideration part-time employment of needy for funding or a waiver, as appropriate.

2009–2010 AWARD YEAR DEADLINE DATES

What is the dead- What does an institution submit? How is it submitted? line for submission?

1. The Campus-Based Reallocation Form designated for the The Reallocation Form must be submitted electronically via August 21, 2009. return of 2008–2009 funds and the request of supple- the Internet and is located in the ‘‘Setup’’ section of the mental FWS funds for the 2009–2010 award year. FISAP on the Web at: http://www.cbfisap.ed.gov. 2. The 2008–2009 Fiscal Operations Report and 2010–2011 The FISAP is located on the Internet at the following Web October 1, 2009. Application to Participate (FISAP). site: http://www.cbfisap.ed.gov. The FISAP must be submitted electronically via the Inter- net, and the FISAP’s signature page must be mailed to: FISAP Administrator, 2020 Company, LLC, 3110 Fairview Park Drive, Suite 950, Falls Church, VA 22042. 3. The Work Colleges Program Report of 2008–2009 award The Work Colleges Program Report can be found in the October 1, 2009. year expenditures. ‘‘Setup’’ section of the FISAP on the Web at: http:// www.cbfisap.ed.gov. The report must be submitted electronically via the Internet, and a printed copy with an original signature must be submitted by one of the following methods: Hand deliver to: United States Department of Education, Federal Student Aid Grants & Campus-Based Division, 830 First Street, NE., Room 62E3, ATTN: Work Colleges Coordinator, Washington, DC 20002, or Mail to: The address listed above for hand delivery. How- ever, please use ZIP Code 20202–5453. 4. The 2008–2009 FISAP Edit Corrections and Perkins The FISAP is located on the Internet at the following Web December 15, Cash on Hand Update. site: http://www.cbfisap.ed.gov. 2009. The FISAP Edit Corrections and Perkins Cash on Hand Update must be submitted electronically via the Internet. 5. A request for a waiver of the 2010–2011 award year pen- The request for a waiver can be found in Part II, Section C February 12, 2010. alty for the underuse of 2008–2009 award year funds. of the FISAP on the Web at: http://www.cbfisap.ed.gov. The request and justification must be submitted electroni- cally via the Internet.

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2009–2010 AWARD YEAR DEADLINE DATES—Continued

What is the dead- What does an institution submit? How is it submitted? line for submission?

6. The Institutional Application and Agreement for Participa- The Institutional Application and Agreement for Participa- March 12, 2010. tion in the Work Colleges Program for the 2010–2011 tion in the Work Colleges Program can be found in the award year. ‘‘Setup’’ section of the FISAP on the Web at: http:// www.cbfisap.ed.gov. The application and agreement must be submitted elec- tronically via the Internet, and a printed copy with original signature must be submitted by one of the following methods: Hand deliver to: United States Department of Education, Federal Student Aid Grants & Campus-Based Division, 830 First Street, NE., Room 62E3, ATTN: Work Colleges Coordinator, Washington, DC 20002, or Mail to: The address listed above for hand delivery. How- ever, please use ZIP Code 20202–5453. 7. A request for a waiver of the FWS Community Service The FWS Community Service waiver request can be found April 23, 2010. Expenditure Requirement for the 2010–2011 award year. in the ‘‘Setup’’ section of the FISAP on the Web at: http:// www.cbfisap.ed.gov.. The request and justification must be submitted electroni- cally via the Internet. Note: • The deadline for electronic submissions is 11:59 p.m. (Eastern time) on the applicable deadline date. Transmissions must be completed and accepted by 12:00 midnight to meet the deadline. • Paper documents that are sent through the U.S. Postal Service must be postmarked by the applicable deadline date. • Paper documents that are hand delivered by a commercial courier must be received no later than 4:30 p.m. (Eastern time) on the applicable deadline date. • The Secretary may consider on a case-by-case basis the effect that a major disaster, as defined in section 102(2) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122(2)) or another unusual circumstance has on an institution in meeting the deadlines.

Proof of Mailing or Hand Delivery of Sources for Detailed Information on (9) Governmentwide Debarment and Paper Documents These Requests Suspension (Nonprocurement), 34 CFR A more detailed discussion of each part 85. If you submit paper documents when (10) Drug and Alcohol Abuse permitted by mail or by hand delivery request for funds or waiver is provided in specific ‘‘Electronic Prevention, 34 CFR part 86. from a commercial courier, we accept as FOR FURTHER INFORMATION CONTACT: proof one of the following: Announcements,’’ which are posted on the Department’s IFAP Web site Kathleen Wicks, Director of Grants & (1) A legible mail receipt with the (http://www.ifap.ed.gov) at least 30 days Campus-Based Division, U.S. date of mailing stamped by the U.S. before the established deadline date for Department of Education, Federal Postal Service. the specific request. Information on Student Aid, 830 First Street, NE., (2) A legibly dated U.S. Postal Service these items is also found in the Federal Union Center Plaza, room 62E3, postmark. Student Aid Handbook. Washington, DC 20202–5453. Applicable Regulations: The Telephone: (202) 377–3110 or via the (3) A legibly dated shipping label, following regulations apply to these Internet: [email protected]. invoice, or receipt from a commercial programs: If you use a telecommunications courier. (1) Student Assistance General device for the deaf (TDD), you may call (4) Other proof of mailing or delivery Provisions, 34 CFR part 668. the Federal Relay Service (FRS) at 1– acceptable to the Secretary. (2) General Provisions for the Federal 800–877–8339. If the paper documents are sent Perkins Loan Program, Federal Work- Individuals with disabilities can through the U.S. Postal Service, we do Study Program, and Federal obtain this document in an accessible not accept either of the following as Supplemental Educational Opportunity format (e.g. braille, large print, proof of mailing: (1) A private metered Grant Program, 34 CFR part 673. audiotape, or computer diskette) on postmark, or (2) a mail receipt that is (3) Federal Perkins Loan Program, 34 request to the program contact person FOR FURTHER INFORMATION not dated by the U.S. Postal Service. An CFR part 674. listed under institution should note that the U.S. (4) Federal Work-Study Programs, 34 CONTACT. CFR part 675. Postal Service does not uniformly Electronic Access to This Document (5) Federal Supplemental Educational provide a dated postmark. Before Opportunity Grant Program, 34 CFR part You can view this document, as well relying on this method, an institution 676. as all other documents of this should check with its local post office. (6) Institutional Eligibility under the Department published in the Federal All institutions are encouraged to use Higher Education Act of 1965, as Register, in text or Adobe Portable certified or at least first-class mail. amended, 34 CFR part 600. Document Format (PDF) on the Internet The Department accepts hand (7) New Restrictions on Lobbying, 34 at the following site: http://www.ed.gov/ deliveries from commercial couriers CFR part 82. news/fedregister. between 8:00 a.m. and 4:30 p.m., (8) Governmentwide Requirements for To use PDF you must have Adobe Eastern time, Monday through Friday Drug-Free Workplace (Financial Acrobat Reader, which is available free except Federal holidays. Assistance), 34 CFR part 84. at this site. If you have questions about

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using PDF, call the U.S. Government • Committee Updates, including: DEPARTMENT OF ENERGY Printing Office (GPO), toll free, at 1– Tank Waste Committee; River and 888–293–6498; or in the Washington, Plateau Committee; Health, Safety and Notice of Changes to Public Hearings DC area at (202) 512–1530. Environmental Protection Committee; for the Revised Draft Environmental Note: The official version of this document Public Involvement Committee; and Impact Statement for is the document published in the Federal Budgets and Contracts Committee. Decommissioning and/or Long-Term Register. • Draft Advice: Tri-Party Agreement Stewardship at the West Valley Demonstration Project and Western Free Internet access to the official Change Package, Beryllium Exposure, New York Nuclear Service Center, edition of the Federal Register and the RL System Criteria to Guide Selection of DOE/EIS–0226D (Revised) Code of Federal Regulations is available Optimum Paths for Remediation on on GPO Access at: http:// Hanford Waste, Draft Advice on AGENCY: Department of Energy. Environmental Restoration Disposal www.gpoaccess.gov/nara/index.html. ACTION: Notice of changes to public Facility Record of Decision Program Authority: 20 U.S.C. 1087aa et hearings. seq.; 42 U.S.C. 2751 et seq.; and 20 U.S.C. Amendment. 1070b et seq. • Plutonium Toxicity Tutorial. SUMMARY: This notice announces Dated: March 12, 2009. • Landscape View of Public changes to the public hearings initially James F. Manning, Involvement. published in the December 5, 2008 Acting Chief Operating Officer, Federal • Spring Budget Meetings. Notice of Availability (73 FR 74160) for Student Aid. • Tank Closure Tutorial. the Revised Draft Environmental Impact Statement for Decommissioning and/or [FR Doc. E9–5759 Filed 3–16–09; 8:45 am] • Issue Manager Training. Long-Term Stewardship at the West BILLING CODE 4000–01–P • Board Self-Evaluation Report. Valley Demonstration Project and • Updates to Hanford Advisory Board Western New York Nuclear Service Process Manual. Center [DOE/EIS–0226–D (Revised)] DEPARTMENT OF ENERGY • Vice Chair Nominations. (referred to as the ‘‘Draft Environmental Management Site- Public Participation: The meeting is Decommissioning and/or Long-Term Specific Advisory Board, Hanford open to the public. The EM SSAB, Stewardship EIS’’ or ‘‘Draft EIS.’’). An Hanford, welcomes the attendance of additional public hearing will be held in AGENCY: Department of Energy. the public at its advisory committee Albany, NY and the location for the ACTION: Notice of open meeting. meetings and will make every effort to Blasdell, NY hearing has been changed accommodate persons with physical to Buffalo, NY. SUMMARY: This notice announces a disabilities or special needs. If you DATES meeting of the Environmental : Public hearings on the Draft EIS require special accommodations due to Management Site-Specific Advisory will be held on March 30, 2009; March a disability, please contact Paula Call at Board (EM SSAB), Hanford. The Federal 31, 2009; April 1, 2009; and April 2, least seven days in advance of the Advisory Committee Act (Pub. L. No. 2009. meeting at the phone number listed 92–463, 86 Stat. 770) requires that ADDRESSES: Public hearings will be held above. Written statements may be filed public notice of this meeting be at the following locations: Monday, with the Board either before or after the announced in the Federal Register. March 30, 2009, from 6:30 p.m. to 9:30 meeting. Individuals who wish to make DATES: p.m. at the Crowne Plaza Albany Hotel, Thursday, April 2, 2009, 9 a.m.– oral statements pertaining to agenda State and Lodge Street, Albany, NY 5 p.m., Friday, April 3, 2009, 8:30 a.m.– items should contact Paula Call at the 12207; Tuesday, March 31, 2009, from 4 p.m. address or telephone number listed 6 p.m. to 9 p.m. at the Seneca Nation of ADDRESSES: Red Lion Hotel on the above. Requests must be received five Indians, William Seneca Building, River, Jantzen Beach, 909 N. Hayden days prior to the meeting and reasonable 12837 Route 438, Irving, NY 14081; Island Drive, Portland, Oregon 97217, provision will be made to include the Wednesday, April 1, 2009, from 6:30 Phone: (503) 978–4586, Fax: (503) 735– presentation in the agenda. The Deputy p.m. to 9:30 p.m. at the Ashford Office 4847. Designated Federal Officer is Complex, 9030 Route 219, West Valley, FOR FURTHER INFORMATION CONTACT: empowered to conduct the meeting in a NY 14177; and Thursday, April 2, 2009, Paula Call, Federal Coordinator, fashion that will facilitate the orderly from 6:30 p.m. to 9:30 p.m. at the Erie Department of Energy Richland conduct of business. Individuals Community College/City Campus Operations Office, 825 Jadwin Avenue, wishing to make public comment will Auditorium, 121 Ellicott Street, Buffalo, P.O. Box 550, A7–75, Richland, WA be provided a maximum of five minutes NY 14203. 99352; Phone: (509) 376–2048; or to present their comments. _ _ FOR FURTHER INFORMATION CONTACT: Oral e-mail: Paula K [email protected]. Minutes: Minutes will be available by and written comments on the Draft EIS SUPPLEMENTARY INFORMATION: writing or calling Paula Call’s office at will be accepted at the public hearings, Purpose of the Board: The purpose of the address or phone number listed or written comments may be mailed to the Board is to make recommendations above. Minutes will also be available at Catherine Bohan, EIS Document to DOE in the areas of environmental the following Web site: http:// Manager, West Valley Demonstration restoration, waste management, and www.hanford.gov/ Project, U.S. Department of Energy, P.O. related activities. ?page=413&parent=397. Box 2368, Germantown, MD 20874. Tentative Agenda Issued at Washington, DC, on March 12, Comments must be received by June 8, • Agency Updates (Department of 2009. 2009 to be considered in the Final EIS. Energy Office of River Protection and LaTanya Butler, Comments may also be submitted via e- Richland Operations Office (RL); Acting Deputy Committee Management mail at http://www.westvalleyeis.com or Washington State Department of Officer. by faxing toll-free to 866–306–9094. Ecology; and the U.S. Environmental [FR Doc. E9–5705 Filed 3–16–09; 8:45 am] Please mark all envelopes, faxes, and e- Protection Agency). BILLING CODE 6450–01–P mail: ‘‘Draft Decommissioning and/or

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Long-Term Stewardship EIS this application. First, any person and the instructions on the Comments.’’ wishing to obtain legal status by Commission’s Web site (http:// Issued in Washington, DC on March 11, becoming a party to this proceeding www.ferc.gov) under the ‘‘e-Filing’’ link. 2009. should file with the Federal Energy Persons unable to file electronically Michael C. Moore, Regulatory Commission, 888 First should submit an original and 14 copies Acting Director, Office of Small Sites Projects. Street, NE., Washington, DC 20426, a of the protest or intervention to the motion to intervene in accordance with [FR Doc. E9–5701 Filed 3–16–09; 8:45 am] Federal Energy Regulatory Commission, the requirements of the Commission’s 888 First Street, NE., Washington, DC BILLING CODE 6450–01–P Rules of Practice and Procedure (18 CFR 20426. 385.214 or 385.211) and the Regulations Comment Date: March 31, 2009. DEPARTMENT OF ENERGY under the NGA (18 CFR 157.10) by the comment date, below. A person Kimberly D. Bose, Secretary. Federal Energy Regulatory obtaining party status will be placed on Commission the service list maintained by the [FR Doc. E9–5684 Filed 3–16–09; 8:45 am] Secretary of the Commission and will BILLING CODE 6717–01–P [Docket No. CP04–48–002] receive copies of all documents filed by the applicant and by all other parties. A Chandeleur Pipe Line Company; DEPARTMENT OF ENERGY Notice of Application for Amendment party must submit 14 copies of filings made with the Commission and must Federal Energy Regulatory mail a copy to the applicant and to March 10, 2009. Commission Take notice that on March 3, 2009, every other party in the proceeding. Chandeleur Pipe Line Company Only parties to the proceeding can ask [Project Nos. 2175–000,120–000, 67–000] (Chandeleur) filed with the Commission for court review of Commission orders an application pursuant to section 7(c) in the proceeding. Southern California Edison Company; of the Natural Gas Act (NGA), as However, a person does not have to Notice of Authorization for Continued amended, and part 157 of the intervene in order to have comments Project Operation Commission’s regulations seeking an considered. The second way to participate is by filing with the March 10, 2009. amendment of the existing authorization On February 23, 2007, the Southern 1 Secretary of the Commission, as soon as issued to Chandeleur on May 11, 2004 California Edison Company, licensee for in Docket No CP04–48–000 (May 11 possible, an original and two copies of the Big Creek Nos.1, 2, (FERC No. 2175), Order) for the acquisition from Chevron comments in support of or in opposition 3 (FERC No.120), and 2A, 8, and Natural Gas Pipe Line LLC (Chevron) of to the project. The Commission will Eastwood Project (FERC No. 67), filed Chevron’s interest in the Mobile Area consider these comments in Applications for New license(s) Gathering System (MAGS), an offshore determining the appropriate action to be pursuant to the Federal Power Act gathering pipeline. taken, but the filing of a comment alone Specifically, by the application, will not serve to make the filer a party (FPA) and the Commission’s regulations Chandeleur requests that the to the proceeding. The Commission’s thereunder. The Big Creek Nos. 1 and 2 Commission amend the Certificate of rules require that persons filing are situated along Big Creek, No. 3 is Public Convenience and Necessity comments in opposition to the project situated on the San Joaquin River, and issued in the May 11 Order to authorize provide copies of their protests only to the Nos. 2A, 8, and Eastwood Project is Chandeleur to acquire the interest of the party or parties directly involved in situated on the South Fork San Joaquin Murphy Exploration & Production the protest. River. The nearest communities are Big Company (Murphy) in the MO 908 Persons who wish to comment only Creek, Shaver Lake, North Fork, City of Segment of the MAGS System. The on the environmental review of this Fresno, and Auberry. acquisition by Chandeleur of this project should submit an original and The licenses for Project Nos. 2175, remaining interest will complete two copies of their comments to the 120, and 67 were issued for a period Chandeleur’s ownership of the MAGS Secretary of the Commission. ending February, 28, 2009. Section System. Environmental commenters will be 15(a)(1) of the FPA, 16 U.S.C. 808(a)(1), Copies of this filing are available for placed on the Commission’s requires the Commission, at the review at the Commission’s environmental mailing list, will receive expiration of a license term, to issue Washington, DC offices, or may be copies of the environmental documents, from year-to-year an annual license to viewed on the Web at http:// and will be notified of meetings the then licensee under the terms and www.ferc.gov using the ‘‘eLibrary’’ link. associated with the Commission’s conditions of the prior license until a Enter the docket number excluding the environmental review process. new license is issued, or the project is last three digits in the docket number Environmental commenters will not be otherwise disposed of as provided in field to access the document. For required to serve copies of filed section 15 or any other applicable assistance, contact FERC at documents on all other parties. section of the FPA. If the project’s prior [email protected] or call However, the non-party commenters license waived the applicability of toll-free, (801) 584–6851. will not receive copies of all documents section 15 of the FPA, then, based on Any questions regarding this filed by other parties or issued by the section 9(b) of the Administrative application should be directed to Jeffrey Commission (except for the mailing of Procedure Act, 5 U.S.C. 558(c), and as L. Kirk, at 4800 Fournace Place, environmental documents issued by the set forth at 18 CFR 16.21(a), if the Bellaire, Texas 77401, or by telephone at Commission) and will not have the right licensee of such project has filed an (713) 432–6753, or via e-mail at to seek court review of the application for a subsequent license, the [email protected]. Commission’s final order. licensee may continue to operate the There are two ways to become The Commission strongly encourages project in accordance with the terms involved in the Commission’s review of electronic filings of comments, protests, and conditions of the license after the and interventions via the Internet in lieu minor or minor part license expires, 1 107 FERC ¶ 61,162 (2004). of paper. See 18 CFR 385.2001(a) (1) (iii) until the Commission acts on its

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application. If the licensee of such a amendment with a negotiated rate Docket Numbers: RP99–176–191. project has not filed an application for exhibit to an existing recourse rate Applicants: Natural Gas Pipeline a subsequent license, then it may be Storage Rate Schedule NSS Agreement Company of America. required, pursuant to 18 CFR 16.21(b), with JP Morgan Ventures Energy Corp Description: Natural Gas Pipeline to continue project operations until the etc. Company of America, LLC submits an Commission issues someone else a Filed Date: 03/05/2009. amendment with a negotiated rate license for the project or otherwise Accession Number: 20090306–0038. exhibit to an existing recourse rate orders disposition of the project. Comment Date: 5 p.m. Eastern Time Transportation Rate Schedule FTS If the project is subject to section 15 on Tuesday, March 17, 2009. Agreement with Black Hills Utility of the FPA, notice is hereby given that Docket Numbers: RP99–176–186. Holdings, Inc etc. an annual license for Project Nos. 2175, Applicants: Natural Gas Pipeline Filed Date: 03/05/2009. 120, and 67 is issued to the Southern Company of America. Accession Number: 20090306–0036. California Edison Company for a period Description: Natural Gas Pipeline Comment Date: 5 p.m. Eastern Time effective March 1, 2009 through Company of America, LLC submits an on Tuesday, March 17, 2009. February 28, 2010, or until the issuance amendment with negotiated rate exhibit Docket Numbers: RP04–274–017. of a new license for the project or other to an existing negotiated Storage Rate Applicants: Kern River Gas disposition under the FPA, whichever Schedule NSS Agreement etc with Transmission Company. comes first. If issuance of a new license Oneok Energy Services Company, LP. Description: Kern River Gas (or other disposition) does not take Filed Date: 03/05/2009. Transmission Company submits its place on or before February 28, 2010, Accession Number: 20090306–0039. FERC Gas Tariff, Second Revised notice is hereby given that, pursuant to Comment Date: 5 p.m. Eastern Time Volume 1 the tariff sheets, the tariff 18 CFR 16.18(c), an annual license on Tuesday, March 17, 2009. sheets listed on Appendix A effective under section 15(a)(1) of the FPA is Docket Numbers: RP99–176–187 dates indicated. renewed automatically without further Applicants: Natural Gas Pipeline Filed Date: 03/02/2009. Accession Number: 20090306–0107. order or notice by the Commission, Company of America. Comment Date: 5 p.m. Eastern Time unless the Commission orders Description: Natural Gas Pipeline on Monday, March 16, 2009. otherwise. If the project is not subject to Company of America, LLC submits an section 15 of the FPA, notice is hereby amendment with negotiated rate exhibit Docket Numbers: RP08–257–004. given that the Southern California to an existing discount Transportation Applicants: Saltville Gas Storage Edison Company is authorized to Rate Schedule FTS Agreement. Company L.L.C. Description: Saltville Gas Storage continue operation of the Big Creek Nos. Filed Date: 03/05/2009. 1 and 2, 3, and 2A, 8, and Eastwood Accession Number: 20090306–0040. Company LLC submits their refund Projects, until such time as the Comment Date: 5 p.m. Eastern Time report pursuant to Sections 154.501 and Commission acts on its application for on Tuesday, March 17, 2009. 154.502 of the Commission’s a subsequent license. regulations. Docket Numbers: RP99–176–188. Filed Date: 03/06/2009. Kimberly D. Bose, Applicants: Natural Gas Pipeline Accession Number: 20090309–0140. Company of America. Secretary. Comment Date: 5 p.m. Eastern Time Description: Natural Gas Pipeline on Wednesday, March 18, 2009. [FR Doc. E9–5681 Filed 3–16–09; 8:45 am] Company of America, LLC submits an BILLING CODE 6717–01–P Docket Numbers: RP08–484–002. amendment with negotiated rate exhibit Applicants: Colorado Interstate Gas to an existing discounted Storage Rate Company. Schedule NSS Agreement. DEPARTMENT OF ENERGY Description: Colorado Interstate Gas Filed Date: 03/05/2009. Co submits Sixth Revised Sheet 318 et Federal Energy Regulatory Accession Number: 20090306–0041. al to FERC Gas Tariff, First Revised Commission Comment Date: 5 p.m. Eastern Time Volume 1, to be effective 2/1/09. on Tuesday, March 17, 2009. Filed Date: 02/27/2009. Combined Notice of Filings Docket Numbers: RP99–176–189. Accession Number: 20090304–0153. Applicants: Natural Gas Pipeline Comment Date: 5 p.m. Eastern Time March 10, 2009. Company of America. on Friday, March 13, 2009. Take notice that the Commission has Description: Natural Gas Pipeline Docket Numbers: RP06–540–007. received the following Natural Gas Company of America, LLC submits a Applicants: High Island Offshore Pipeline Rate and Refund Report filings: new Transportation Rate Schedule FTS System, L.L.C. Docket Numbers: RP96–312–188. Agreement et al. Filed Date: 03/05/2009. Description: Second annual report of Applicants: Tennessee Gas Pipeline Accession Number: 20090306–0042. non-routine expenditures pursuant to its Company. Comment Date: 5 p.m. Eastern Time O&M Agreement for calendar year 2008 Description: Tennessee Gas Pipeline on Tuesday, March 17, 2009. of High Island Offshore System, L.L.C.. Company submits notice of the Docket Numbers: RP99–176–190. Filed Date: 03/02/2009. termination of a Negotiated Rate Applicants: Natural Gas Pipeline Accession Number: 20090302–5186. Arrangement. Company of America. Comment Date: 5 p.m. Eastern Time Filed Date: 03/02/2009. Description: Natural Gas Pipeline on Monday, March 16, 2009. Accession Number: 20090309–0168. Company of America, LLC submits an Docket Numbers: RP09–435–000. Comment Date: 5 p.m. Eastern Time amendment with negotiated rate exhibit Applicants: Chandeleur Pipe Line on Monday, March 16, 2009. to an existing recourse rate Storage Rate Company. Docket Numbers: RP99–176–185. Schedule NSS Agreement. Description: Chandeleur Pipe Line Applicants: Natural Gas Pipeline Filed Date: 03/05/2009. Company submits Petition For Approval Company of America. Accession Number: 20090306–0043. of Settlement requesting Commission Description: Natural Gas Pipeline Comment Date: 5 p.m. Eastern Time approval of an Offer of Settlement and Company of America, LLC submits an on Tuesday, March 17, 2009. Stipulation and Agreement etc.

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Filed Date: 03/04/2009. again in a subdocket related to a Applicants: Tennessee Gas Pipeline Accession Number: 20090305–0081. compliance filing if you have previously Company. Comment Date: 5 p.m. Eastern Time intervened in the same docket. Protests Description: Tennessee Gas Pipeline on Monday, March 16, 2009. will be considered by the Commission Co submits an amended gas Docket Numbers: RP09–437–000. in determining the appropriate action to transportation agreement. Applicants: Young Gas Storage be taken, but will not serve to make Filed Date: 03/02/2009. Company, Ltd. protestants parties to the proceeding. Accession Number: 20090304–0081. Description: Young Gas Storage Anyone filing a motion to intervene or Comment Date: 5 p.m. Eastern Time Company, LTD submits Eighth Revised protest must serve a copy of that on Monday, March 16, 2009. Sheet No 96 et al to FERC Gas Tariff, document on the Applicant. In reference Docket Numbers: RP96–320–101. Original Volume No 1. to filings initiating a new proceeding, Applicants: Gulf South Pipeline Filed Date: 03/06/2009. interventions or protests submitted on Company, LP. Accession Number: 20090309–0163. or before the comment deadline need Description: Gulf South Pipeline Co, Comment Date: 5 p.m. Eastern Time not be served on persons other than the LP submits the capacity release on Wednesday, March 18, 2009. Applicant. agreement. Docket Numbers: RP09–438–000. The Commission encourages Filed Date: 02/27/2009. Applicants: Wyoming Interstate electronic submission of protests and Accession Number: 20090304–0150. Company, Ltd. interventions in lieu of paper, using the Comment Date: 5 p.m. Eastern Time Description: Wyoming Interstate FERC Online links at http:// on Wednesday, March 11, 2009. Company, Ltd submits Eighth Revised www.ferc.gov. To facilitate electronic Docket Numbers: RP96–272–088. Sheet No 72 et al to FERC Gas Tariff, service, persons with Internet access Applicants: Northern Natural Gas Second Revised Volume No 2. who will eFile a document and/or be Company. Filed Date: 03/06/2009. listed as a contact for an intervenor Description: Northern Natural Gas Co Accession Number: 20090309–0164. must create and validate an submits 50 Revised Sheet 66 et al to Comment Date: 5 p.m. Eastern Time eRegistration account using the FERC Gas Tariff, Fifth Revised Volume on Wednesday, March 18, 2009. eRegistration link. Select the eFiling 1, to be effective 3/1/09. link to log on and submit the Docket Numbers: RP09–439–000. Filed Date: 02/27/2009. intervention or protests. Accession Number: 20090304–0155. Applicants: Cheyenne Plains Gas Persons unable to file electronically Pipeline Company LLC. Comment Date: 5 p.m. Eastern Time should submit an original and 14 copies on Wednesday, March 11, 2009. Description: Cheyenne Plains Gas of the intervention or protest to the Company, LLC submits First Revised Federal Energy Regulatory Commission, Docket Numbers: RP96–383–092. Sheet No 244 et al to FERC Gas Tariff, 888 First St. NE., Washington, DC Applicants: Dominion Transmission, Original Volume No 1. 20426. Inc. Filed Date: 03/06/2009. Description: Dominion Transmission, The filings in the above proceedings Accession Number: 20090309–0165. Inc submits Sixteenth Revised Sheet are accessible in the Commission’s Comment Date: 5 p.m. Eastern Time 1405 to FERC Gas Tariff, Third Revised eLibrary system by clicking on the on Wednesday, March 18, 2009. Volume 1, to be effective 3/1/09. appropriate link in the above list. They Filed Date: 02/27/2009. Docket Numbers: RP09–440–000. are also available for review in the Accession Number: 20090304–0154. Applicants: Colorado Interstate Gas Commission’s Public Reference Room in Comment Date: 5 p.m. Eastern Time Company. Washington, DC. There is an on Wednesday, March 11, 2009. Description: Colorado Interstate Gas eSubscription link on the Web site that Co submits Fifth Revised Sheet No. enables subscribers to receive email Docket Numbers: RP99–176–183. 330B et al to FERC Gas Tariff, First notification when a document is added Applicants: Natural Gas Pipeline Co Revised Volume No. 1, to be effective 5/ to a subscribed dockets(s). For of America LLC. 1/09. assistance with any FERC Online Description: Natural Gas Pipeline Filed Date: 03/06/2009. service, please e-mail Company of America, LLC submits the Accession Number: 20090309–0166. [email protected]. or call Firm Transportation and Storage Comment Date: 5 p.m. Eastern Time (866) 208–3676 (toll free). For TTY, call Negotiated Rate Agreement with on Wednesday, March 18, 2009. (202) 502–8659. Northern Illinois Gas Co. Docket Numbers: RP09–441–000. Filed Date: 02/27/2009. Applicants: Transcontinental Gas Nathaniel J. Davis, Sr., Accession Number: 20090304–0152. Pipe Line Company. Deputy Secretary. Comment Date: 5 p.m. Eastern Time Description: Fee Collection Report by [FR Doc. E9–5685 Filed 3–16–09; 8:45 am] on Wednesday, March 11, 2009. Transcontinental Gas Pipeline: Petitions BILLING CODE 6717–01–P Docket Numbers: RP99–176–184. for issuance of declaratory order. Applicants: Natural Gas Pipeline Co Filed Date: 03/06/2009. of America LLC. Accession Number: 20090309–0142. DEPARTMENT OF ENERGY Description: Natural Gas Pipeline Co Comment Date: 5 p.m. Eastern Time Federal Energy Regulatory of America, LLC submits two on Wednesday, March 18, 2009. Commission amendments to the Transportation Rate Any person desiring to intervene or to Schedule FTS Agreement. protest in any of the above proceedings Combined Notice of Filings Filed Date: 02/27/2009. must file in accordance with Rules 211 Accession Number: 20090304–0151. and 214 of the Commission’s Rules of March 5, 2009. Comment Date: 5 p.m. Eastern Time Practice and Procedure (18 CFR 385.211 Take notice that the Commission has on Wednesday, March 11, 2009. and 385.214) on or before 5 p.m. Eastern received the following Natural Gas Docket Numbers: RP06–540–007. time on the specified comment date. It Pipeline Rate and Refund Report filings: Applicants: High Island Offshore is not necessary to separately intervene Docket Numbers: RP96–312–189. System, L.L.C.

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Description: Second annual report of Sheet 8 et al to FERC Gas Tariff, to a subscribed dockets(s). For non-routine expenditures pursuant to its Original Volume 1. assistance with any FERC Online O&M Agreement for calendar year 2008 Filed Date: 02/27/2009. service, please email of High Island Offshore System, L.L.C.. Accession Number: 20090304–0079. [email protected]. or call Filed Date: 03/02/2009. Comment Date: 5 p.m. Eastern Time (866) 208–3676 (toll free). For TTY, call Accession Number: 20090302–5186. on Wednesday, March 11, 2009. (202) 502–8659. Comment Date: 5 p.m. Eastern Time Docket Numbers: RP09–434–000. Nathaniel J. Davis, Sr., on Monday, March 16, 2009. Applicants: Sabine Pipe Line, LLC. Deputy Secretary. Docket Numbers: RP09–285–001. Description: Sabine Pipe Line, LLC Applicants: Central Kentucky submits Twelfth Revised Sheet 20 to [FR Doc. E9–5686 Filed 3–16–09; 8:45 am] Transmission Company. FERC Gas Tariff, Original Volume 1 BILLING CODE 6717–01–P Description: Central Kentucky under RP09–434. Transmission Co submits Second Filed Date: 03/03/2009. DEPARTMENT OF ENERGY Revised Sheet No. 134 et al to FERC Gas Accession Number: 20090304–0078. Tariff, Second Revised Volume No. 1, to Comment Date: 5 p.m. Eastern Time Federal Energy Regulatory be effective 2/26/09. on Monday, March 16, 2009. Commission Filed Date: 03/03/2009. Any person desiring to intervene or to Accession Number: 20090304–0129. protest in any of the above proceedings [Docket No. OR09–3–000] Comment Date: 5 p.m. Eastern Time must file in accordance with Rules 211 on Monday, March 16, 2009. Western Refining Southwest, Inc. and and 214 of the Commission’s Rules of Western Refining Pipeline Company v. Docket Numbers: RP09–427–000. Practice and Procedure (18 CFR 385.211 Applicants: Southern Natural Gas TEPPCO Crude Pipeline, LLC; Notice and 385.214) on or before 5 p.m. Eastern of Complaint Amendmemt Company. time on the specified comment date. It Description: Southern Natural Gas is not necessary to separately intervene March 10, 2009. submits Third Revised Sheet 1 et al to again in a subdocket related to a Take notice that on March 4, 2009, FERC Gas Tariff, Seventh Revised compliance filing if you have previously Western Refining Southwest, Inc. Volume 1. intervened in the same docket. Protests (Western) and Western Refining Filed Date: 03/02/2009. will be considered by the Commission Pipeline Company (Western Pipeline) Accession Number: 20090304–0082. in determining the appropriate action to amended their complaint dated Comment Date: 5 p.m. Eastern Time be taken, but will not serve to make February 9, 2009 against TEPPCO Crude on Monday, March 16, 2009. protestants parties to the proceeding. Pipeline, LLC (TEPPCO). Western and Docket Numbers: RP09–429–000. Anyone filing a motion to intervene or Western Pipeline have amended their Applicants: Florida Gas Transmission protest must serve a copy of that Complaint in order to address their Company, LLC. document on the Applicant. In reference allegations regarding TEPPCO’s Description: Florida Gas Transmission to filings initiating a new proceeding, continued violation of the Interstate Company LLC submits their Capital interventions or protests submitted on Commerce Act and the Commission’s Surcharge Filing. or before the comment deadline need Rules and Regulations by refusing to Filed Date: 02/27/2009. not be served on persons other than the honor nominations made by Western Accession Number: 20090304–0073. Applicant. subsequent to filing of the Complaint. Comment Date: 5 p.m. Eastern Time The Commission encourages Any person desiring to intervene or to on Wednesday, March 11, 2009. electronic submission of protests and protest this filing must file in Docket Numbers: RP09–431–000. interventions in lieu of paper, using the accordance with Rules 211 and 214 of Applicants: Vector Pipeline, L.P. FERC Online links at http:// the Commission’s Rules of Practice and Description: Vector Pipeline, LP www.ferc.gov. To facilitate electronic Procedure (18 CFR 385.211 and submits proposed tariff sheets for the service, persons with Internet access 385.214). Protests will be considered by purpose of effecting a general system- who will eFile a document and/or be the Commission in determining the wide rate decrease. listed as a contact for an intervenor appropriate action to be taken, but will Filed Date: 02/27/2009. must create and validate an not serve to make protestants parties to Accession Number: 20090304–0074. eRegistration account using the the proceeding. Any person wishing to Comment Date: 5 p.m. Eastern Time eRegistration link. Select the eFiling become a party must file a notice of on Wednesday, March 11, 2009. link to log on and submit the intervention or motion to intervene, as Docket Numbers: RP09–432–000. intervention or protests. appropriate. Such notices, motions, or Applicants: El Paso Natural Gas Persons unable to file electronically protests must be filed on or before the Company. should submit an original and 14 copies date as indicated below. Anyone filing Description: El Paso Natural Gas Co of the intervention or protest to the an intervention or protest must serve a submits a transportation service Federal Energy Regulatory Commission, copy of that document on the Applicant. agreement and Twentieth Revised Sheet 888 First St. NE., Washington, DC Anyone filing an intervention or protest 2 to FERC Gas Tariff, Second Revised 20426. on or before the intervention or protest Volume 1A under RP09–432. The filings in the above proceedings date need not serve motions to intervene Filed Date: 03/02/2009. are accessible in the Commission’s or protests on persons other than the Accession Number: 20090304–0077. eLibrary system by clicking on the Applicant. Comment Date: 5 p.m. Eastern Time appropriate link in the above list. They The Commission encourages on Monday, March 16, 2009. are also available for review in the electronic submission of protests and Docket Numbers: RP09–433–000. Commission’s Public Reference Room in interventions in lieu of paper using the Applicants: Dominion Cove Point Washington, DC. There is an ‘‘eFiling’’ link at http://www.ferc.gov. LNG, LP. eSubscription link on the Web site that Persons unable to file electronically Description: Dominion Cove Point enables subscribers to receive email should submit an original and 14 copies LNG, LP submits Eleventh Revised notification when a document is added of the protest or intervention to the

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Federal Energy Regulatory Commission, agencies; elected officials; Land Requirements for Construction 888 First Street, NE., Washington, DC environmental and public interest Construction of the compressor 20426. groups; Native American Tribes; other station expansions would occur This filing is accessible on-line at interested parties; and local libraries completely within the fenced property http://www.ferc.gov, using the and newspapers. State and local boundaries of the existing 19.4-acre Big ‘‘eLibrary’’ link and is available for government representatives are asked to Hole and 10.8-acre Arlington review in the Commission’s Public notify their constituents of this planned Compressor Stations. Land required for Reference Room in Washington, DC. project and encourage them to comment operation of the new compressor units There is an ‘‘eSubscription’’ link on the on their areas of concern. would be 0.7 acre within the existing Web site that enables subscribers to A fact sheet prepared by the FERC compressor station sites. Existing public receive email notification when a entitled ‘‘An Interstate Natural Gas roads would be used to access the document is added to a subscribed Facility On My Land? What Do I Need facilities. docket(s). For assistance with any FERC To Know?’’ is available for viewing on CP&L’s planned transmission line Online service, please e-mail the FERC Internet Web site (http:// would be about 4.2 miles long with a [email protected], or call www.ferc.gov). This fact sheet addresses 150-foot wide right of way (ROW). (866) 208–3676 (toll free). For TTY, call a number of typically asked questions, Support structures would be (202) 502–8659. including the use of eminent domain ‘‘H∼Frame’’ wooden poles which would Comment Date: 5 p.m. Eastern Time and how to participate in the be placed every 650 feet apart for a total on Tuesday, March 24, 2009. Commission’s proceedings. of about 34 structures. Land disturbance Kimberly D. Bose, Summary of the Proposed Project during construction would be approximately 2800 square feet per Secretary. REX proposes to design, construct, structure. At each structure there would [FR Doc. E9–5680 Filed 3–16–09; 8:45 am] and maintain (a) a new 17,500- be a 100-foot by 100-foot area that BILLING CODE 6717–01–P horsepower (hp) electric-driven would be permanently cleared of trees compressor unit at the existing or shrubbery. Arlington Compressor Station in Carbon DEPARTMENT OF ENERGY County, Wyoming; and (b) a new The EA Process 20,500-hp gas-fired compressor unit at The National Environmental Policy Federal Energy Regulatory the existing Big Hole Compressor Act (NEPA) requires the Commission to Commission Station in Moffat County, Colorado. take into account the environmental [Docket No. CP09–58–000] Carbon Power and Light, Inc. (CP&L) impacts that could result from an action would construct a 230-kilovolt electric whenever it considers the issuance of a Rockies Express Pipeline LLC; Notice transmission line about three (3) miles Certificate of Public Convenience and of Intent To Prepare an Environmental long to serve the electric compressor Necessity. NEPA also requires us to Assessment for the Proposed Meeker units at the Arlington Compressor discover and address concerns the to Cheyenne Expansion Project and Station. The proposed transmission line public may have about proposals. This Request for Comments on would begin at the Foot Creek process is referred to as ‘‘scoping.’’ The Environmental Issues Substation and follow a route to the main goal of the scoping process is to southwest along Wyoming State focus the analysis in the EA on the March 10, 2009. Highway 13 to CP&L’s planned important environmental issues. By this The staff of the Federal Energy Arlington substation site adjacent to the NOI, the Commission staff requests Regulatory Commission (FERC or Arlington Compressor Station.1 public comments on the scope of the Commission) will prepare an The additional compression issues to address in the EA. All environmental assessment (EA) that will expansion would provide an additional comments received are considered discuss the environmental impacts of 200,000 dekatherms per day (Dth/day) during the preparation of the EA. State the Meeker to Cheyenne Expansion of natural gas from the Meeker Hub and local government representatives Project involving construction and northward to the Wamsutter Hub and are encouraged to notify their operation of facilities by Rockies continuing eastward to the Cheyenne constituents of this proposed action and Express Pipeline LLC (REX) in Moffat Hub as a result of a ‘‘ramp-up’’ encourage them to comment on their County, Colorado, and Carbon County, contractual agreement with EnCana areas of concern. Wyoming. This EA will be used by the Marketing USA. If approved, REX In the EA we 3 will discuss impacts Commission in its decision-making proposes to commence construction of that could occur as a result of the process to determine whether the the proposed facilities in July 2010. construction and operation of the project is in the public convenience and The general location map of REX’s proposed project under these general necessity. Meeker to Cheyenne Expansion Project headings: This Notice of Intent (NOI) announces and CP&L’s facilities are shown in • Geology and soils. • the opening of the scoping process we Appendix 1.2 Land use. will use to gather input from the public • Water resources, fisheries, and and interested agencies on the project. 1 This NOI is also being sent to affected wetlands. Your input will help the Commission landowners along the planned CP&L non- • Cultural resources. staff determine which issues need to be jurisdictional transmission line. • Vegetation and wildlife. 2 • evaluated in the EA. Please note that the The appendices referenced in this notice are not Air quality and noise. being printed in the Federal Register. Copies of all • Endangered and threatened species. scoping period will close on April 9, appendices, other than appendix 1 (maps) are • 2009. Public safety. available on the Commissions Web site at the We will also evaluate possible This notice is being sent to ‘‘eLibrary’’ link or from the Commission’s Public alternatives to the proposed project or landowners of property within 2.5 mile Reference Room, 888 First Street, NE., Washington, of the Big Hole and Arlington DC 20426, or call (202) 502–8371. For instruction on connecting to eLibrary, refer to the last page of 3 ‘‘We,’’ ‘‘us,’’ and ‘‘our’’ refer to the Compressor Stations; Federal, State, and this notice. Copies of the appendices were sent to environmental staff of the Office of Energy Projects local government representatives and all those receiving this notice in the mail. (OEP).

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portions of the project, and make that file as your submission. New or toll free at 1–866–208–3676, or for recommendations on how to lessen or eFiling users must first create an TTY, contact (202)502–8659. The avoid impacts on the various resource account by clicking on ‘‘Sign up’’ or eLibrary link also provides access to the areas. ‘‘eRegister.’’ You will be asked to select texts of formal documents issued by the Our independent analysis of the the type of filing you are making. A Commission, such as orders, notices, issues will be in the EA. Depending on comment on a particular project is and rulemakings. the comments received during the considered a ‘‘Comment on a Filing;’’ or In addition, the Commission now scoping process, the EA may be (3) You may file your comments via offers a free service called eSubscription published and mailed to federal, state, mail to the Commission by sending an which allows you to keep track of all and local agencies; public interest original and two copies of your letter to: formal issuances and submittals in groups; interested individuals; affected Kimberly D. Bose, Secretary, Federal specific dockets. This can reduce the landowners; newspapers; libraries; and Energy Regulatory Commission, 888 amount of time you spend researching the Commission’s official service list for First Street, NE., Room 1A, Washington, proceedings by automatically providing this proceeding. A comment period will DC 20426. you with notification of these filings, be allotted for review if the EA is Label one copy of the comments for document summaries and direct links to published. We will consider all the attention of Gas Branch 1, PJ11.1. the documents. Go to http:// comments on the EA before we make Environmental Mailing List www.ferc.gov/esubscribenow.htm. our recommendations to the Finally, public meetings or site visits Commission. To ensure your comments An effort is being made to send this will be posted on the Commission’s are considered, please carefully follow notice to all individuals, organizations, calendar located at http://www.ferc.gov/ the instructions in the public and government entities interested in EventCalendar/EventsList.aspx along participation section below. and/or potentially affected by the with other related information. proposed project. This includes all Public Participation landowners who are potential right-of- Kimberly D. Bose, You can make a difference by way grantors, whose property may be Secretary. providing us with your specific used temporarily for project purposes, [FR Doc. E9–5679 Filed 3–16–09; 8:45 am] comments or concerns about the Meeker or who own homes within distances BILLING CODE 6717–01–P to Cheyenne Expansion Project. Your defined in the Commission’s regulations comments should focus on the potential of certain aboveground facilities. environmental effects, reasonable If you do not want to send comments DEPARTMENT OF ENERGY alternatives, and measures to avoid or at this time but still want to remain on lessen environmental impacts. The more our mailing list, please return the Federal Energy Regulatory specific your comments, the more useful Information Request (Appendix 2). If Commission they will be. To ensure that your you do not return the Information [Docket No. RM98–1–000] comments are timely and properly Request, you will be taken off the recorded, please send in your comments mailing list. Records Governing Off-the-Record so that they will be received in Communications; Public Notice Washington, DC on or before April 9, Becoming an Intervenor 2009. In addition to involvement in the EA March 10, 2009. For your convenience, there are three scoping process, you may want to This constitutes notice, in accordance methods in which you can use to submit become an ‘‘intervenor,’’ which is an with 18 CFR 385.2201(b), of the receipt your comments to the Commission. In official party to the proceeding. of prohibited and exempt off-the-record all instances please reference the project Intervenors play a more formal role in communications. docket number CP09–58–000 with your the process and are able to file briefs, Order No. 607 (64 FR 51222, submission. The docket number can be appear at hearings, and be heard by the September 22, 1999) requires found on the front of this notice. The courts if they choose to appeal the Commission decisional employees, who Commission encourages electronic filing Commission’s final ruling. An make or receive a prohibited or exempt of comments and has dedicated eFiling intervenor formally participates in a off-the-record communication relevant expert staff available to assist you at Commission proceeding by filing a to the merits of a contested proceeding, 202–502–8258 or [email protected]. request to intervene. Instructions for to deliver to the Secretary of the (1) You may file your comments becoming an intervenor are included in Commission, a copy of the electronically by using the Quick the User’s Guide under the ‘‘e-filing’’ communication, if written, or a Comment feature, which is located on link on the Commission’s Internet Web summary of the substance of any oral the Commission’s Internet Web site at site. communication. http://www.ferc.gov under the link to Prohibited communications are Documents and Filings. A Quick Additional Information included in a public, non-decisional file Comment is an easy method for Additional information about the associated with, but not a part of, the interested persons to submit text-only project is available from the decisional record of the proceeding. comments on a project; Commission’s Office of External Affairs, Unless the Commission determines that (2) You may file your comments at 1–866–208–FERC or on the FERC the prohibited communication and any electronically by using the eFiling Internet Web site (http://www.ferc.gov) responses thereto should become a part feature, which is located on the using the eLibrary link. Click on the of the decisional record, the prohibited Commission’s Internet website at http:// eLibrary link, click on ‘‘General Search’’ off-the-record communication will not www.ferc.gov under the link to and enter the docket number excluding be considered by the Commission in Documents and Filings. eFiling involves the last three digits in the Docket reaching its decision. Parties to a preparing your submission in the same Number field. Be sure you have selected proceeding may seek the opportunity to manner as you would if filing on paper, an appropriate date range. For respond to any facts or contentions and then saving the file on your assistance, please contact FERC Online made in a prohibited off-the-record computer’s hard drive. You will attach Support at [email protected] communication, and may request that

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the Commission place the prohibited Exempt off-the-record available for review at the Commission communication and responses thereto communications are included in the in the Public Reference Room or may be in the decisional record. The decisional record of the proceeding, viewed on the Commission’s Web site at Commission will grant such a request unless the communication was with a http://www.ferc.gov using the eLibrary only when it determines that fairness so cooperating agency as described by 40 link. Enter the docket number, requires. Any person identified below as CFR 1501.6, made under 18 CFR excluding the last three digits, in the having made a prohibited off-the-record 385.2201(e)(1)(v). docket number field to access the communication shall serve the The following is a list of off-the- document. For assistance, please contact document on all parties listed on the record communications recently FERC, Online Support at received by the Secretary of the official service list for the applicable [email protected] or toll Commission. The communications proceeding in accordance with Rule free at (866) 208–3676, or for TTY, listed are grouped by docket numbers in 2010, 18 CFR 385.2010. contact (202) 502–8659. ascending order. These filings are

Docket No. File date Presenter or requester

Prohibited: 1. CP09–54–000 ...... 3–4–09 Commission Staff.1 Exempt: 1. CP04–36–000 ...... 3–4–09 Hon. Walter S. Felag, Jr. 2. CP08–458–000 ...... 3–4–09 Kenneth Warn. 3. CP07–444–000 ...... 3–9–09 Kenneth Warn. 4. CP09–54–000 ...... 2–12–09 Hon. Dave Freudenthal. 5. CP09–54–000 ...... 3–10–09 David Swearington. 6. EL09–29–000, EL09–30–000 ...... 2–27–09 Hon. Brad Molnar. 7. P–2210–169 ...... 2–23–09 T. P. Rogers.2 8. P–12429–000 ...... 3–9–09 Dan Jewell. 1 Memorandum to the File, Summary of Meeting. 2 E-mail attaching informational filing.

Kimberly D. Bose, 98501. For directions please contact electronically. The first technical Secretary. Audrey Desserault of Energy Northwest conference was held on December 3, [FR Doc. E9–5678 Filed 3–16–09; 8:45 am] at (509) 377–8468, or via e-mail at: 2008. BILLING CODE 6717–01–P AJDESSERAULT@energy- This conference will cover: the data northwest.com. For further information fields and formatting to be included in about the meeting please contact the Table of Contents on the DEPARTMENT OF ENERGY Carolyn Templeton of the Commission’s Commission’s public viewer; issues that staff at (202) 502–8785, or via e-mail at: have arisen with respect to the testing Federal Energy Regulatory [email protected]. site, including the need for dates or Commission Kimberly D. Bose, versioning in the comma separated value files and the error codes and [Project No. 2244–022] Secretary. descriptions; and a discussion of the Energy Northwest; Notice of Staff [FR Doc. E9–5682 Filed 3–16–09; 8:45 am] means by which companies may, if they Participation in Meeting BILLING CODE 6717–01–P choose, include pending compliance tariff provisions in their baseline filings. March 10, 2009. Time permitting, participants also will On April 27, 2009, Office of Energy DEPARTMENT OF ENERGY be free to ask questions about other Projects staff (staff) will host a meeting issues related to electronic tariff filing. in Olympia, Washington to: (1) Discuss Federal Energy Regulatory the Packwood Lake Hydroelectric Commission Background material on the standards and requirements can be found on the Project (project) draft environmental [Docket No. RM01–5–000] assessment (EA) (issued on February 5, Commission’s Web site (http:// 2009), and comments filed therein; (2) Electronic Tariff Filings; Notice of www.ferc.gov; click on eTariff under the to discuss and attempt to resolve Technical Conference Regarding Documents and Filings Heading). differences between the staff’s Electronic Tariff Filing The technical conference is open to recommended alternative in the draft the public. The conference will be held EA with the 10(j) recommendation filed March 10, 2009. at the Federal Energy Regulatory by the Washington Department of Fish Take notice that on April 28, 2009, Commission, 888 First Street, NE., and Wildlife; and (3) facilitate the from 9 a.m. to 12 noon, a technical Washington, DC 20426. In addition, the processing of the National Marine conference will be held to discuss the conference will be accessible via implementation of electronic tariff telephone. Staff anticipates posting any Fisheries Service’s biological opinion, 1 the Washington State Department of filing. In Order No. 714, the documents that may be referenced Ecology’s water quality certification, Commission adopted regulations during the conference on the eTariff and the Forest Service’s modified 4(e) requiring that, as of April 1, 2010, tariff Web site so that they will be accessible conditions for the project. and tariff related filings must be made to those using the telephone. The meeting will start at 9 a.m. at the The telephone number for the 1 Electronic Tariff Filings, Order No. 714, 73 FR Washington Public Utility District 57,515 (Oct. 3, 2008), 124 FERC ¶ 61,270, FERC conference will be posted on http:// Association building, located at 212 Stats. & Regs [Regulations Preambles] ¶ 31,276 www.ferc.gov/docs-filing/etariff.asp and Union Avenue SE., Olympia, WA (2008) (Sept. 19, 2008). an RSS alert of the posting will be

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issued. No preregistration is needed to Instructions: Direct your comments to Reading Room is 202–566–1744, and the access the conference by telephone. Docket ID No. EPA–HQ–OA–2006– telephone number for the OEI Docket is For more information, contact Keith 0074. EPA’s policy is that all comments 202–566–1752. Pierce, Office of Energy Market received will be included in the public Use www.regulations.gov to obtain a Regulation at (202) 502–8525 or send an docket without change and may be copy of the draft collection of e-mail to [email protected]. made available online at information, submit or view public www.regulations.gov, including any comments, access the index listing of Kimberly D. Bose, personal information provided, unless the contents of the docket, and to access Secretary. the comment includes information those documents in the public docket [FR Doc. E9–5683 Filed 3–16–09; 8:45 am] claimed to be Confidential Business that are available electronically. Once in BILLING CODE 6717–01–P Information (CBI) or other information the system, select ‘‘search,’’ then key in whose disclosure is restricted by statute. the docket ID number identified in this Do not submit information that you document. ENVIRONMENTAL PROTECTION consider to be CBI or otherwise What Information Is EPA Particularly AGENCY protected through www.regulations.gov Interested in? or e-mail. The www.regulations.gov Web [EPA–HQ–OA–2006–0074; FRL–8782–4] site is an ‘‘anonymous access’’ system, Pursuant to section 3506(c)(2)(A) of which means EPA will not know your the PRA, EPA specifically solicits Agency Information Collection comments and information to enable it Activities; Proposed Collection; identity or contact information unless you provide it in the body of your to: Comment Request; Volunteer (i) Evaluate whether the proposed Customer Satisfaction Surveys; ICR comment. If you send an e-mail comment directly to EPA without going collection of information is necessary Number 1711.06, OMB Control No. for the proper performance of the 2090–0019 through www.regulations.gov, your e- mail address will be automatically functions of the Agency, including whether the information will have AGENCY: Environmental Protection captured and included as part of the Agency (EPA). comment that is placed in the public practical utility; (ii) Evaluate the accuracy of the ACTION: Notice. docket and made available on the Internet. If you submit an electronic Agency’s estimate of the burden of the proposed collection of information, SUMMARY: In compliance with the comment, EPA recommends that you including the validity of the Paperwork Reduction Act (PRA) (44 include your name and other contact information in the body of your methodology and assumptions used; U.S.C. 3501 et seq.), this document (iii) Enhance the quality, utility, and comment and with any disk or CD–ROM announces that EPA is planning to clarity of the information to be you submit. If EPA cannot read your submit a request to renew an existing collected; and approved Information Collection comment due to technical difficulties (iv) Minimize the burden of the Request (ICR) to the Office of and cannot contact you for clarification, collection of information on those who Management and Budget (OMB). This EPA may not be able to consider your are to respond, including through the ICR is scheduled to expire on August comment. Electronic files should avoid use of appropriate automated electronic, 30, 2009. Before submitting the ICR to the use of special characters, any form mechanical, or other technological OMB for review and approval, EPA is of encryption, and be free of any defects collection techniques or other forms of soliciting comments on specific aspects or viruses. For additional information information technology, e.g., permitting of the proposed information collection about EPA’s public docket visit the EPA electronic submission of responses. In as described below. Docket Center homepage at http:// particular, EPA is requesting comments DATES: Comments must be submitted on www.epa.gov/epahome/dockets.htm. from very small businesses (those that or before May 18, 2009. FOR FURTHER INFORMATION CONTACT: employ less than 25) on examples of ADDRESSES: Submit your comments, Patricia Bonner, National Center for specific additional efforts that EPA identified by Docket ID No. EPA–HQ– Environmental Innovation [Mail Code could make to reduce the paperwork OA–2006–0074 by one of the following 1807T], Environmental Protection burden for very small businesses methods: Agency, 1200 Pennsylvania Ave., NW., affected by this collection. • www.regulations.gov: Follow the Washington, DC 20460; telephone number: 202–566–2204; fax number: What Should I Consider When I online instructions for submitting Prepare My Comments for EPA? comments. 202–566–2200; e-mail address: • E-mail: [email protected]. [email protected]. You may find the following suggestions helpful for preparing your • Fax: 202–566–1753. SUPPLEMENTARY INFORMATION: • Mail: OEI Docket, Environmental comments: 1. Explain your views as clearly as Protection Agency, Mailcode: 2822T, How Can I Access the Docket and/or Submit Comments? possible and provide specific examples. 1200 Pennsylvania Ave., NW., 2. Describe any assumptions that you Washington, DC 20460. EPA has established a public docket • used. Hand Delivery: OEI Docket in the for this ICR under Docket ID No. EPA– 3. Provide copies of any technical EPA Docket Center [EPA/DC], EPA HQ–OA–2006–0074 is available for information and/or data you used that West, Room B102, 1301 Constitution online viewing at www.regulations.gov, support your views. Avenue, NW., Washington, DC. The or in person viewing at the OEI Docket 4. If you estimate potential burden or EPA Reading Room is open from 8 a.m. in the EPA Docket Center (EPA/DC), costs, explain how you arrived at the to 4:30 p.m., Monday through Friday, EPA West, Room 3334, 1301 estimate that you provide. excluding legal holidays. Such Constitution Ave., NW., Washington, 5. Offer alternative ways to improve deliveries are only accepted during the DC. The EPA/DC Public Reading Room the collection activity. Docket’s normal hours of operation, and is open from 8:30 a.m. to 4:30 p.m., 6. Make sure to submit your special arrangements should be made Monday through Friday, excluding legal comments by the deadline identified for deliveries of boxed information. holidays. The telephone number for the under DATES.

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7. To ensure proper receipt by EPA, this collection of information is and approval pursuant to 5 CFR be sure to identify the docket ID number estimated to average not more than eight 1320.12. At that time, EPA will issue assigned to this action in the subject minutes. Response development time another Federal Register notice line on the first page of your response. will range from several minutes to two pursuant to 5 CFR 1320.5(a)(1)(iv) to You may also provide the name, date, hours per response, depending whether announce the submission of the ICR to and Federal Register citation. the instrument is a short series of OMB and the opportunity to submit What Information Collection Activity or feedback questions or a more complex additional comments to OMB. If you ICR Does This Apply to? discussion session for a focus group. have any questions about this ICR or the Burden means the total time, effort, or approval process, please contact the Voluntary Customer Satisfaction financial resources expended by persons technical person listed under FOR Surveys to generate, maintain, retain, or disclose FURTHER INFORMATION CONTACT. Docket ID No.: EPA–HQ–OA–2006– or provide information to or for a Dated: March 11, 2009. 0074. Federal agency. This includes the time David Widawsky, needed to review instructions; develop, Affected entities: Entities potentially Acting Director, National Center for affected by this action are primarily acquire, install, and utilize technology Environmental Innovation, Office of Policy, individuals and households. and systems for the purposes of Economics and Innovation, Office of the Title: Voluntary Customer Satisfaction collecting, validating, and verifying Administrator. Surveys. information, processing and [FR Doc. E9–5729 Filed 3–16–09; 8:45 am] ICR numbers: EPA ICR No. 1711.06. maintaining information, and disclosing BILLING CODE 6560–50–P OMB Control No. 2090–0019. and providing information; adjust the ICR status: This ICR is currently existing ways to comply with any scheduled to expire on August 30, 2009. previously applicable instructions and An Agency may not conduct or sponsor, requirements which have subsequently FEDERAL RESERVE SYSTEM and a person is not required to respond changed; train personnel to be able to to, a collection of information, unless it respond to a collection of information; Change in Bank Control Notices; displays a currently valid OMB control search data sources; complete and Acquisition of Shares of Bank or Bank number. The OMB control numbers for review the collection of information; Holding Companies EPA’s regulations in title 40 of the CFR, and transmit or otherwise disclose the after appearing in the Federal Register information. The notificants listed below have when approved, are listed in 40 CFR The ICR now available uses estimates applied under the Change in Bank part 9, and are displayed either by that may change as the Agency updates Control Act (12 U.S.C. 1817(j)) and publication in the Federal Register or information about survey planning for § 225.41 of the Board’s Regulation Y (12 by other appropriate means, such as on the next three years. Further CFR 225.41) to acquire a bank or bank the related collection instrument or information will be provided when the holding company. The factors that are form, if applicable. The display of OMB Second Federal Register Notice is considered in acting on the notices are control numbers in certain EPA published. The Agency’s estimates are set forth in paragraph 7 of the Act (12 regulations is consolidated in 40 CFR summarized briefly here: U.S.C. 1817(j)(7)). part 9. Estimated total number of potential The notices are available for Abstract: EPA uses voluntary surveys respondents: 15,000–16,000. immediate inspection at the Federal to learn how satisfied EPA customers Frequency of response: On occasion. Reserve Bank indicated. The notices are with our services, and how we can Estimated total average number of also will be available for inspection at improve services, products and responses for each respondent: One. the office of the Board of Governors. processes. EPA surveys individuals who Estimated total annual burden hours: Interested persons may express their use services or could have. During the 1,500–1,700. views in writing to the Reserve Bank next three years, EPA plans up to 56 Estimated total annual costs: $8,000. indicated for that notice or to the offices surveys, and will use results to target/ This includes an estimated burden cost of the Board of Governors. Comments measure service delivery improvements. of $8,000 and an estimated cost of $0 for must be received not later than March By seeking renewal of the generic capital investment or maintenance and 31, 2009. clearance for customer surveys, EPA operational costs. A. Federal Reserve Bank of will have the flexibility to gather the Minneapolis (Jacqueline G. King, views of our customers to better Are There Changes in the Estimates From the Last Approval? Community Affairs Officer) 90 determine the extent to which our Hennepin Avenue, Minneapolis, services, products and processes satisfy EPA expects that the number of Minnesota 55480–0291: their needs or need to be improved. The respondent burden hours will decrease 1. Louis A. Welle, Naples, Florida, and generic clearance will speed the review by 10–15%, from 2,000 hours in the Kenneth M. Welle and Lori M. Welle, and approval of customer surveys that current ICR to 1,700 hours or less over both of Dayton, Minnesota, as a group solicit opinions from EPA customers on the next three years. This decrease is acting in concert, to acquire voting a voluntary basis, and do not involve because the Agency continues its move shares of Community Pride Bank ‘‘fact-finding’’ for the purposes of from all other types of surveys to online Corporation, Ham Lake, Minnesota, and regulatory development or enforcement. surveys and the total number of surveys thereby indirectly acquire voting shares An Agency may not conduct or submitted for processing continues to of Community Pride Bank, Isanti, sponsor, and a person is not required to decrease. Minnesota. respond to a collection of information unless it has a currently valid OMB What Is the Next Step in the Process for Board of Governors of the Federal Reserve System, March 11, 2009. control number. The OMB control This ICR? numbers for EPA’s regulations are listed EPA will consider the comments Robert deV. Frierson, in 40 CFR part 9 and 48 CFR chapter 15. received and amend the ICR as Deputy Secretary of the Board. Burden Statement: The annual public appropriate. The final ICR package will [FR Doc. E9–5651 Filed 3–16–09; 8:45 am] reporting and recordkeeping burden for then be submitted to OMB for review BILLING CODE 6210–01–S

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FEDERAL RESERVE SYSTEM 1. Beartooth Financial Corporation, determined by Order to be closely Billings, Montana, to become a bank related to banking and permissible for Formations of, Acquisitions by, and holding company by acquiring 100 bank holding companies. Unless Mergers of Bank Holding Companies percent of the voting shares of Beartooth otherwise noted, these activities will be Bank, Billings, Montana. conducted throughout the United States. The companies listed in this notice Each notice is available for inspection have applied to the Board for approval, Board of Governors of the Federal Reserve at the Federal Reserve Bank indicated. pursuant to the Bank Holding Company System, March 12, 2009. The notice also will be available for Act of 1956 (12 U.S.C. 1841 et seq.) Robert deV. Frierson, inspection at the offices of the Board of (BHC Act), Regulation Y (12 CFR Part Deputy Secretary of the Board. Governors. Interested persons may 225), and all other applicable statutes [FR Doc. E9–5693 Filed 3–16–09; 8:45 am] express their views in writing on the and regulations to become a bank BILLING CODE 6210–01–S question whether the proposal complies holding company and/or to acquire the with the standards of section 4 of the assets or the ownership of, control of, or BHC Act. Additional information on all the power to vote shares of a bank or FEDERAL RESERVE SYSTEM bank holding companies may be bank holding company and all of the obtained from the National Information banks and nonbanking companies Formations of, Acquisitions by, and Center website at www.ffiec.gov/nic/. owned by the bank holding company, Mergers of Bank Holding Companies; Unless otherwise noted, comments including the companies listed below. Correction regarding the applications must be The applications listed below, as well This notice corrects a notice (FR Doc. received at the Reserve Bank indicated as other related filings required by the E9-4588) published on page 9403 of the or the offices of the Board of Governors Board, are available for immediate issue for Wednesday, March 4, 2009. not later than April 1, 2009. inspection at the Federal Reserve Bank Under the Federal Reserve Bank of A. Federal Reserve Bank of San indicated. The applications also will be Atlanta heading, the entry for RMB Francisco (Kenneth Binning, Vice available for inspection at the offices of Holdings, LLC, and ATB Management, President, Applications and the Board of Governors. Interested LLC, both of Birmingham, Alabama, is Enforcement) 101 Market Street, San persons may express their views in revised to read as follows: Francisco, California 94105–1579: writing on the standards enumerated in A. Federal Reserve Bank of Atlanta 1. Manhattan Bancorp, El Segundo, the BHC Act (12 U.S.C. 1842(c)). If the (Steve Foley, Vice President) 1000 California; and Carpenter Fund Manager proposal also involves the acquisition of Peachtree Street, N.E., Atlanta, Georgia GP, LLC; Carpenter Fund Management, a nonbanking company, the review also 30309: LLC; Carpenter Community Bancfund, includes whether the acquisition of the 1. RMB Holdings, LLC, and ATB L.P.; Carpenter Community Bancfund– nonbanking company complies with the Management, LLC, both of Birmingham, A, L.P.; Carpenter Community standards in section 4 of the BHC Act Alabama, to acquire up to 30 percent of Bancfund–CA, L.P.; CCFW, Inc.; and (12 U.S.C. 1843). Unless otherwise the voting shares of Americus Financial SCJ, Inc., all of Irvine, California, to noted, nonbanking activities will be Services, Inc., and thereby indirectly form a new wholly owned subsidiary, conducted throughout the United States. acquire voting shares of Red Mountain MB Financial Services, Inc., El Segundo, Additional information on all bank Bank, N.A., both of Birmingham, California, which will enter into a de holding companies may be obtained Alabama. novo joint venture with Bodi Advisors, from the National Information Center Comments on this application must Inc., El Segundo, California, by website at www.ffiec.gov/nic/. be received by March 30, 2009. acquiring approximately 70 percent of Unless otherwise noted, comments Board of Governors of the Federal Reserve the voting shares of Bodi Capital LLC, regarding each of these applications System, March 11, 2009. and thereby engage in riskless principal must be received at the Reserve Bank Robert deV. Frierson, transactions, pursuant to section indicated or the offices of the Board of Deputy Secretary of the Board. 225.28(b)(7), and mortgage brokerage Governors not later than April 10, 2009. and loan origination activities, pursuant A. Federal Reserve Bank of New [FR Doc. E9–5652 Filed 3–16–09 8:45 am] to section 225.28(b)(1), both of York (Ivan Hurwitz, Bank Applications BILLING CODE 6210–01–S Regulation Y. Officer) 33 Liberty Street, New York, New York 10045–0001: Board of Governors of the Federal Reserve FEDERAL RESERVE SYSTEM 1. Chemung Financial Corporation, System, March 12, 2009. Robert deV. Frierson, Elmira, New York, to acquire, by Notice of Proposals to Engage in merger, Canton Bancorp, Inc., and Permissible Nonbanking Activities or Deputy Secretary of the Board. thereby indirectly acquire The Bank of to Acquire Companies that are [FR Doc. E9–5692 Filed 3–16–09; 8:45 am] Canton, both of Canton, Pennsylvania. Engaged in Permissible Nonbanking BILLING CODE 6210–01–S B. Federal Reserve Bank of Chicago Activities (Colette A. Fried, Assistant Vice President) 230 South LaSalle Street, The companies listed in this notice FEDERAL TRADE COMMISSION Chicago, Illinois 60690–1414: have given notice under section 4 of the 1. OSB Financial Corporation, Bank Holding Company Act (12 U.S.C. [File No. 082 3114] Brooklyn, Michigan, to become a bank 1843) (BHC Act) and Regulation Y (12 American Telecom Services, Inc.; holding company by acquiring 100 CFR Part 225) to engage de novo, or to Analysis of Proposed Consent Order percent of the voting shares of OSB acquire or control voting securities or to Aid Public Comment Community Bank, Brooklyn, Michigan. assets of a company, including the C. Federal Reserve Bank of companies listed below, that engages AGENCY: Federal Trade Commission. Minneapolis (Jacqueline G. King, either directly or through a subsidiary or ACTION: Proposed Consent Agreement. Community Affairs Officer) 90 other company, in a nonbanking activity Hennepin Avenue, Minneapolis, that is listed in § 225.28 of Regulation Y SUMMARY: The consent agreement in this Minnesota 55480–0291: (12 CFR 225.28) or that the Board has matter settles alleged violations of

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federal law prohibiting unfair or ensure that the Commission considers approval, by the Commission, has been deceptive acts or practices or unfair an electronic comment, you must file it placed on the public record for a period methods of competition. The attached on the web-based form at the weblink: of thirty (30) days. The following Analysis to Aid Public Comment (https://secure.commentworks.com/ftc- Analysis to Aid Public Comment describes both the allegations in the AmericanTelecom). If this Notice describes the terms of the consent complaint and the terms of the consent appears at (http://www.regulations.gov/ agreement, and the allegations in the order—embodied in the consent search/index.jsp), you may also file an complaint. An electronic copy of the agreement—that would settle these electronic comment through that full text of the consent agreement allegations. website. The Commission will consider package can be obtained from the FTC DATES: Comments must be received on all comments that regulations.gov Home Page (for March 11, 2009), on the or before April 9, 2009. forwards to it. You may also visit the World Wide Web, at (http:// FTC website at http://www.ftc.gov to www.ftc.gov/os/2009/03/index.htm). A ADDRESSES: Interested parties are paper copy can be obtained from the invited to submit written comments read the Notice and the news release FTC Public Reference Room, Room 130- electronically or in paper form. describing it. A comment filed in paper form H, 600 Pennsylvania Avenue, NW, Comments should refer to‘‘American should include the ‘‘American Telecom Washington, D.C. 20580, either in Telecom Services, File No. 082 3114’’ to Services, Inc., File No. 082 3114‘‘ person or by calling (202) 326-2222. facilitate the organization of comments. reference both in the text and on the Public comments are invited, and may Please note that your comment— be filed with the Commission in either including your name and your state— envelope, and should be mailed or paper or electronic form. All comments will be placed on the public record of delivered to the following address: should be filed as prescribed in the this proceeding, including on the Federal Trade Commission, Office of the ADDRESSES section above, and must be publicly accessible FTC website, at Secretary, Room H-135, 600 received on or before the date specified (http://www.ftc.gov/os/ Pennsylvania Avenue, NW, Washington, in the DATES section. publiccomments.shtm). DC 20580. The FTC is requesting that Because comments will be made any comment filed in paper form be sent Analysis of Agreement Containing public, they should not include any by courier or overnight service, if Consent Order to Aid Public Comment possible, because U.S. postal mail in the sensitive personal information, such as The Federal Trade Commission has an individual’s Social Security Number; Washington area and at the Commission is subject to delay due to heightened accepted, subject to final approval, an date of birth; driver’s license number or agreement containing a consent order other state identification number, or security precautions. The Federal Trade Commission Act from American Telecom Services, Inc. foreign country equivalent; passport (‘‘ATS’’). ATS, with headquarters in number; financial account number; or (‘‘FTC Act’’) and other laws the Commission administers permit the Atlanta, Georgia, is a distributor of credit or debit card number. Comments telephones and phone services. also should not include any sensitive collection of public comments to consider and use in this proceeding as The proposed consent order has been health information, such as medical placed on the public record for thirty records or other individually appropriate. The Commission will consider all timely and responsive (30) days for reception of comments by identifiable health information. In interested persons. Comments received addition, comments should not include public comments that it receives, whether filed in paper or electronic during this period will become part of any ‘‘[t]rade secret or any commercial or the public record. After thirty (30) days, form. Comments received will be financial information which is obtained the Commission will again review the available to the public on the FTC from any person and which is privileged agreement and the comments received website, to the extent practicable, at or confidential. . .,’’ as provided in and will decide whether it should (http://www.ftc.gov/os/ Section 6(f) of the FTC Act, 15 U.S.C. withdraw from the agreement or make publiccomments.shtm). As a matter of 46(f), and Commission Rule 4.10(a)(2), final the agreement’s proposed order. 16 CFR 4.10(a)(2). Comments containing discretion, the Commission makes every This matter concerns ATS’s cash material for which confidential effort to remove home contact rebate promotions. To make its products treatment is requested must be filed in information for individuals from the more attractive to retailers and their paper form, must be clearly labeled public comments it receives before customers, ATS has offered numerous ‘‘Confidential,’’ and must comply with placing those comments on the FTC mail-in rebates ranging from $5 to $50 FTC Rule 4.9(c).1 website. More information, including in value. In implementing these Because paper mail addressed to the routine uses permitted by the Privacy promotions, ATS used third party FTC is subject to delay due to Act, may be found in the FTC’s privacy fulfillment houses to process and pay heightened security screening, please policy, at (http://www.ftc.gov/ftc/ rebate requests received from its consider submitting your comments in privacy.shtm). customers. The complaint alleges that electronic form. Comments filed in FOR FURTHER INFORMATION CONTACT: ATS engaged in deceptive practices electronic form should be submitted by Linda K. Badger, FTC Western Region, relating to these rebate offers. using the following weblink: (https:// San Francisco, 600 Pennsylvania Specifically, the complaint alleges that secure.commentworks.com/ftc- Avenue, NW, Washington, D.C. 20580, ATS falsely represented that purchasers AmericanTelecom) (and following the (415) 848-5151. of eligible ATS products will receive instructions on the web-based form). To SUPPLEMENTARY INFORMATION: Pursuant rebate checks within eight weeks after to section 6(f) of the Federal Trade receipt of their properly completed 1 FTC Rule 4.2(d), 16 CFR 4.2(d). The comment must be accompanied by an explicit request for Commission Act, 38 Stat. 721, 15 U.S.C. requests. The proposed complaint confidential treatment, including the factual and 46(f), and § 2.34 of the Commission further alleges that tens of thousands of legal basis for the request, and must identify the Rules of Practice, 16 CFR 2.34, notice is consumers who submitted properly specific portions of the comment to be withheld hereby given that the above-captioned completed requests for rebates since from the public record. The request will be granted or denied by the Commission’s General Counsel, consent agreement containing a consent 2006 have experienced substantial consistent with applicable law and the public order to cease and desist, having been delays, including delays of one year or interest. See FTC Rule 4.9(c), 16 CFR 4.9(c). filed with and accepted, subject to final longer. According to the complaint,

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these delays have been due, in part, to twenty (20) years, with certain OMB No.: 0970–0247. ATS’s inability to pay its third party exceptions. Description: This information fulfillment houses, as well as its refusal The purpose of this analysis is to collection is authorized under Section to timely pay third party fulfillment facilitate public comment on the 411(a)(3) of the Social Security Act. This houses with which it had proposed order, and it is not intended request is for renewal of approval to use to constitute an official interpretation of disagreements. the Administration for Children and the agreement and proposed order or to The proposed order contains Families’ (ACF) 196 form for periodic modify in any way their terms. provisions designed to prevent ATS By direction of the Commission. financial reporting under the Temporary from engaging in similar acts and Assistance for Needy Families (TANF) practices in the future. Part I of the Donald S. Clark program. Approval of this information proposed order prohibits ATS from Secretary collection expires on March 31, 2009. misrepresenting the time in which any [FR Doc. E9–5733 Filed 3–16–09: 8:45 am] States participating in the TANF rebate will be mailed and from failing to [BILLING CODE 6750–01–S] program are required by statute to report provide any rebate within the time financial data on a quarterly basis. This specified, or if no time is specified, form meets the legal standard and within thirty days. This provision also DEPARTMENT OF HEALTH AND provides essential data on the use of prohibits the company from HUMAN SERVICES Federal funds. Failure to collect the data misrepresenting any material terms of would seriously compromise ACF’s any rebate program, including the status Administration for Children and ability to monitor program of or reasons for any delay in providing Families expenditures, estimate funding needs, any rebate. and to prepare budget submissions Submission for OMB Review; required by Congress. Financial Parts II through V of the proposed Comment Request order are standard reporting and reporting under the TANF program is compliance provisions. Part VI provides Title: TANF Quarterly Financial governed by 45 CFR part 265. that the order will terminate after Report, ACF–196. Respondents: TANF Agencies.

ANNUAL BURDEN ESTIMATES

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

ACF–196TT ...... 20 4 2 160 ACF–196 ...... 51 4 8 1,632 Estimated Total Annual Burden Hours: ...... 1,792

Additional Information: Dated: March 11, 2009. Date and Time: The meeting will be Copies of the proposed collection may Robert Sargis, held on April 1, 2009, from 8 a.m. to 6 be obtained by writing to the Reports Clearance Officer. p.m. and on April 2, 2009, from 8 a.m. Administration for Children and [FR Doc. E9–5641 Filed 3–16–09; 8:45 am] to 4:45 p.m. Families, Office of Administration, BILLING CODE 4184–01–P Location: Hilton Washington DC Office of Information Services, 370 North/Gaithersburg, Grand Ballroom, L’Enfant Promenade, SW., Washington, 620 Perry Pkwy., Gaithersburg, MD DEPARTMENT OF HEALTH AND DC 20447, Attn: ACF Reports Clearance 20877, 301–977–8900. HUMAN SERVICES Officer. All requests should be Contact Person: William Freas or identified by the title of the information Food and Drug Administration Pearline K. Muckelvene, Center for collection. E-mail address: Biologics Evaluation and Research [email protected]. [Docket No. FDA–2009–N–0664] (CBER), Food and Drug Administration, OMB Comment: 1401 Rockville Pike (HFM–71), Blood Products Advisory Committee; OMB is required to make a decision Rockville, MD 20852, 301–827–0314, or Notice of Meeting concerning the collection of information FDA Advisory Committee Information Line, 1–800–741–8138 (301–443–0572 between 30 and 60 days after AGENCY: Food and Drug Administration, publication of this document in the HHS. in the Washington, DC area), code 3014519516. Please call the Information Federal Register. Therefore, a comment ACTION: Notice. is best assured of having its full effect Line for up-to-date information on this meeting. A notice in the Federal if OMB receives it within 30 days of This notice announces a forthcoming Register about last minute modifications publication. Written comments and meeting of a public advisory committee that impact a previously announced recommendations for the proposed of the Food and Drug Administration advisory committee meeting cannot information collection should be sent (FDA). At least one portion of the always be published quickly enough to directly to the following: Office of meeting will be closed to the public. provide timely notice. Therefore, you Management and Budget, Paperwork Name of Committee: Blood Products should always check the agency’s Web Reduction Project. Fax: 202–395–6974. Advisory Committee. General Function of the Committee: site and call the appropriate advisory Attn: Desk Officer for the To provide advice and committee hot line/phone line to learn Administration for Children and recommendations to the agency on about possible modifications before Families. FDA’s regulatory issues. coming to the meeting.

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Agenda: On April 1, 2009, the participants, and an indication of the Reform and Terrorism Prevention Act of committee will hear updates on the approximate time requested to make 2004 (Pub. L. 108–458), as amended by following topics: National Biovigilance their presentation on or before March section 546 of the Department of Data Collection and Analysis Program; a 23, 2009. Time allotted for each Homeland Security Appropriations Act, summary of the December 16 and 17, presentation may be limited. If the 2007 (Pub. L. 109–295), section 723 of 2008, meeting of the Department of number of registrants requesting to the Implementing Recommendations of Health and Human Services Advisory speak is greater than can be reasonably the 9/11 Commission Act of 2007 (Pub. Committee on Blood Safety and accommodated during the scheduled L. 110–53), and section 545 of title V of Availability; and a summary of the open public hearing session, FDA may Div. E of the Consolidated September 12, 2008, FDA Workshop on conduct a lottery to determine the Appropriations Act of 2008 (Pub. L. Approaches to Minimize the Risk of speakers for the scheduled open public 110–161), we hereby certify that Transfusion-Transmitted Babesiosis in hearing session. The contact person will (i) The National Institute of Standards the United States. The committee will notify interested persons regarding their and Technology certifies that the then discuss blood donor screening and request to speak by March 24, 2009. Departments of Homeland Security and testing donors of human cells, tissues Closed Committee Deliberations: On State have selected a card architecture and cellular and tissue-based products April 2, 2009, between 4 p.m. and 4:45 that meets or exceeds International (HCT/Ps) for hepatitis B virus infection p.m., the meeting will be closed to Organization for Standardization (ISO) by nucleic acid testing. In the afternoon, permit discussion where disclosure security standards and meets or exceeds the committee will discuss potential would constitute a clearly unwarranted best available practices for protection of testing strategies for Trypanosoma cruzi invasion of personal privacy (5 U.S.C. personal identification documents: That infection in blood donors. On April 2, 552b(c)(6)). The committee will discuss the National Institute of Standards and 2009, the committee will discuss FDA’s reports of intramural research programs Technology has also assisted the current considerations on plasma and make recommendations regarding Departments of Homeland Security and obtained from a Whole Blood donor for personnel staffing decisions. State to incorporate into the architecture further manufacturing use and in the Persons attending FDA’s advisory of the card the best available practices afternoon will review the research committee meetings are advised that the to prevent the unauthorized use of programs in the Laboratory of Molecular agency is not responsible for providing information on the card: That to Virology, Division of Emerging and access to electrical outlets. facilitate efficient cross-border travel, Transfusion Transmitted Diseases, FDA welcomes the attendance of the the Departments of Homeland Security CBER Site Visit held on October 22, public at its advisory committee and State have, to the maximum extent 2008. meetings and will make every effort to possible, developed an architecture that FDA intends to make background accommodate persons with physical is compatible with information material available to the public no later disabilities or special needs. If you technology systems and infrastructure than 2 business days before the meeting. require special accommodations due to used by United States Customs and If FDA is unable to post the background a disability, please contact William Border Protection; material on its Web site prior to the Freas or Pearline K. Muckelvene at least (ii) The technology to be used by the meeting, the background material will 7 days in advance of the meeting. United States for the passport card, and be made publicly available at the FDA is committed to the orderly any subsequent change to that location of the advisory committee conduct of its advisory committee technology, has been shared with the meeting, and the background material meetings. Please visit our Web site at governments of Canada and Mexico; will be posted on FDA’s Web site after http://www.fda.gov/oc/advisory/ (iii) An agreement has been reached the meeting. Background material is default.htm for procedures on public with the United States Postal Service on available at http://www.fda.gov/ohrms/ conduct during advisory committee the fee to be charged individuals for the dockets/ac/acmenu.htm, click on the meetings. passport card, and a detailed year 2009 and scroll down to the Notice of this meeting is given under justification has been submitted to the appropriate advisory committee link. the Federal Advisory Committee Act (5 Committees on Appropriations of the Procedure: On April 1, 2009, from 8 U.S.C. app. 2). Senate and the House of a.m. to 6 p.m. and on April 2, 2009, Representatives; from 8 a.m. to 3:45 p.m, the meeting is Dated: March 10, 2009. (iv) An alternative procedure has been open to the public. Interested persons Randall W. Lutter, developed for groups of children may present data, information, or views, Deputy Commissioner for Policy. traveling across an international border orally or in writing, on issues pending [FR Doc. E9–5734 Filed 3–16–09; 8:45 am] under adult supervision with parental before the committee. Written BILLING CODE 4160–01–S consent; submissions may be made to the contact (v) The necessary technological person on or before March 25, 2009. infrastructure to process the passport Oral presentations from the public will DEPARTMENT OF STATE cards has been installed, and all be scheduled between approximately employees at ports of entry have been 11:30 a.m. and 12 noon and between [Public Notice 6545] properly trained in the use of the new approximately 4:15 p.m. and 4:45 p.m. DEPARTMENT OF HOMELAND technology; on April 1, 2009, and between (vi) The passport card has been made SECURITY approximately 10:45 a.m. and 11:45 a.m. available for the purpose of and between approximately 3:15 p.m. Certification Related to Implementation international travel by United States and 3:45 p.m. on April 2, 2009. Those of The Western Hemisphere Travel citizens through land and sea ports of desiring to make formal oral Initiative entry between the United States and presentations should notify the contact Canada, Mexico, the Caribbean and person and submit a brief statement of Pursuant to the authorities vested in Bermuda; the general nature of the evidence or the Secretary of State and the Secretary (vii) A single implementation date for arguments they wish to present, the of Homeland Security, including under sea and land borders has been names and addresses of proposed section 7209(b)(1)(B) of the Intelligence established; and

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(viii) The signing of a memorandum hours (8:45 a.m. to 5:15 p.m.) in the INTERNATIONAL TRADE of agreement to initiate a pilot program Office of the Secretary, U.S. COMMISSION with not less than one State to International Trade Commission, 500 E [Investigation Nos. 701–TA–454 and 731– determine if an enhanced driver’s Street, SW., Washington, DC 20436, TA–1144 (Final)] license, which is machine-readable and telephone 202–205–2000. Hearing- tamper proof, not valid for certification impaired persons are advised that Welded Stainless Steel Pressure Pipe of citizenship for any purpose other information on this matter can be From China than admission into the United States obtained by contacting the Determination from Canada or Mexico, and issued by Commission’s TDD terminal on 202– such State to an individual, may permit 205–1810. General information On the basis of the record 1 developed the individual to use the driver’s license concerning the Commission may also be in the subject investigations, the United to meet the documentation requirements obtained by accessing its Internet server States International Trade Commission under subparagraph (A) of section (http://www.usitc.gov). The public (Commission) determines, pursuant to 7209(b)(1) for entry into the United record for this investigation may be section 705(b) and 735(b) of the Tariff States from Canada or Mexico at land Act of 1930 (19 U.S.C. 1671d(b) and and sea ports of entry. viewed on the Commission’s electronic docket (EDIS) at http://edis.usitc.gov. 1673d(b)) (the Act), that an industry in This certification and related the United States is materially injured Memorandum of Justification shall be SUPPLEMENTARY INFORMATION: The by reason of imports from China of provided to the Committees on Commission instituted this investigation welded stainless steel pressure pipe, Appropriations of the Senate and House on November 25, 2008, based on the provided for in subheadings 7306.40.50 of Representatives. This certification complaint of Masai Marketing & Trading and 7306.40.10 of the Harmonized Tariff shall be published in the Federal AG of Romanshorn, Switzerland and Schedule of the United States, that have Register. Masai USA Corp. of Haley, Idaho been found by the Department of Dated: February 24, 2009. (‘‘Complainants’’). 73 FR 73884 (Nov. Commerce (Commerce) to be subsidized Janet Napolitano, 25, 2008). The complaint, as by the Government of China and sold in Secretary of Homeland Security. supplemented, alleges violations of the United States at less than fair value Dated: February 24, 2009. section 337 of the Tariff Act of 1930 (19 (LTFV). Hillary Rodham Clinton, U.S.C. 1337) in the importation into the Background United States, the sale for importation, Secretary of State. The Commission instituted these [FR Doc. E9–5742 Filed 3–16–09; 8:45 am] and the sale within the United States after importation of certain active investigations effective January 30, BILLING CODE 4710–06–P 2008, following receipt of a petition comfort footwear that infringes certain filed with the Commission and claims of U.S. Patent No. 6,341,432. Commerce by Bristol Metals (Bristol, Complainants named as respondents INTERNATIONAL TRADE TN), Felker Brothers Corp. (Marshfield, RYN Korea Co., Ltd. of Seoul, Korea; COMMISSION WI), Marcegaglia USA, Inc. (Munhall, Main d/b/a WalkingShoesPlus.com of [ Inv. No. 337–TA–660] PA), Outokumpu Stainless Pipe, Inc. Los Angeles, California; and Feet First (Schaumburg, IL), and The United Steel Inc. of Boca Raton, Florida. In the Matter of Certain Active Comfort Workers (Pittsburgh, PA).2 The final Footwear; Notice of Commission On January 30, 2009, Complainants filed a phase of the investigations was Determination Not To Review an Initial motion seeking leave to amend the complaint scheduled by the Commission following Determination Granting In Part and notice of investigation to add three notification of preliminary Complainants’ Amended Motion To additional respondents to the investigation. determinations by Commerce that Amend the Complaint and Notice of On February 11, 2009, the ALJ issued an ID imports of welded stainless steel Investigation (Order No. 4) in which he determined to pressure pipe from China were being grant the motion in part and amend the subsidized by the Government of China AGENCY: U.S. International Trade notice of investigation to add as respondents and being sold at LTFV within the Commission. The Tannery of Cambridge, Massachusetts meaning of section 703(b) and 733(b) of ACTION: Notice. and A Better Way to Health of West the Act (19 U.S.C. 1671b(b) and Melbourne, Florida. No party petitioned for 1673b(b)). Notice of the scheduling of SUMMARY: Notice is hereby given that review of the ID. the final phase of the Commission’s the U.S. International Trade The Commission has determined not to investigations and of a public hearing to Commission has determined not to review the ID. be held in connection therewith was review an initial determination (‘‘ID’’) given by posting copies of the notice in The authority for the Commission’s (Order No. 4) of the presiding the Office of the Secretary, U.S. determination is contained in section administrative law judge (‘‘ALJ’’) International Trade Commission, 337 of the Tariff Act of 1930, as granting in part an amended motion to Washington, DC, and by publishing the amend the complaint and notice of amended (19 U.S.C. 1337), and in notice in the Federal Register of investigation. section 210.42(h) of the Commission’s October 6, 2008 (73 FR 58265). The Rules of Practice and Procedure (19 CFR FOR FURTHER INFORMATION: Mark B. Rees, hearing was held in Washington, DC, on Esq., Office of the General Counsel, U.S. 210.42(h)). January 13, 2009, and all persons who International Trade Commission, 500 E By order of the Commission. requested the opportunity were Street, SW., Washington, DC 20436, Issued: March 11, 2009. 1 The record is defined in section 207.2(f) of the telephone 202–205–3116. Copies of the Marilyn R. Abbott, ID and all other nonconfidential Commission’s Rules of Practice and Procedure (19 Secretary to the Commission. CFR 207.2(f)). documents filed in connection with this [FR Doc. E9–5670 Filed 3–16–09; 8:45 am] 2 United Steel, Paper and Forestry, Rubber, investigation are or will be available for Manufacturing Energy, Allied Industrial and inspection during official business BILLING CODE 7020–02–P Service Workers International Union.

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permitted to appear in person or by DATES: Written comments must be II. Desired Focus of Comments counsel. submitted to the office shown in the The Department is particularly The Commission transmitted its address section below on or before May interested in comments which: determination in these investigations to 18, 2009. • Evaluate whether the collection of the Secretary of Commerce on March 11, ADDRESSES: Richard Horne, U.S. 2009. The views of the Commission are Department of Labor, Office of Disability information is necessary for the proper contained in USITC Publication 4064 Employment Policy, 200 Constitution performance of the functions of the (March 2009), entitled Welded Stainless Avenue, NW., Suite S–1303, agency, including whether the Steel Pressure Pipe from China: Washington, DC 20210. Telephone: information will have practical utility; • Investigation Nos. 701–TA–454 and (202) 693–7880. This is not a toll-free Evaluate the accuracy of the 731–TA–1144 (Final). number. agency’s estimate of the burden of the collection of information, including the Issued: March 11, 2009. FOR FURTHER INFORMATION CONTACT: validity of the methodology and By order of the Commission. Richard Horne, telephone: (202) 693– assumptions used; 7880, e-mail: [email protected]. Marilyn R. Abbott, • Enhance the quality, utility, and SUPPLEMENTARY INFORMATION: Secretary to the Commission. clarity of the information to be [FR Doc. E9–5720 Filed 3–16–09; 8:45 am] I. Background collected; and BILLING CODE 7020–02–P • The Employer Assistance Referral Minimize the burden of the Network (EARN) is a nationwide service collection of information on those who designed to provide employers with a are to respond, including through the DEPARTMENT OF LABOR technical, educational, and use of appropriate automated, informational resource to simplify and electronic, mechanical, or other Office of Disability Employment Policy encourage the hiring of qualified technological collection techniques or workers. Historically, disability other forms of information technology, [OMB Number 1230–0003] programs required employers to do e.g., permitting electronic submissions much of the work in the finding and of responses. Notice of Extension of Approved Data hiring of people with disabilities. The III. Current Action Collection Office of Disability Employment Policy (ODEP) of the Department of Labor has This extended ICR covers four forms: SUMMARY: The U.S. Department of designed EARN to alleviate these EARN Provider Enrollment Form, EARN Labor, as part of its continuing effort to barriers and do much of the work for the Employer Enrollment Form, EARN reduce paperwork and respondent employer. Employer Survey and EARN Provider burden, conducts a pre-clearance EARN is a service from the Office of Survey. The enrollment forms consultation process to provide the Disability Employment Policy (ODEP) of (Employer Enrollment and Provider general public and Federal agencies the Department of Labor. This referral Enrollment) will be used to enroll with an opportunity to comment on service links employers with providers provider and employers who wish to proposed and/or continuing collections who refer appropriate candidates with participate and use this service. The of information in accordance with the disabilities. The service is provided by surveys (Employer Survey and Provider Paperwork Reduction Act of 1995 means of a nationwide toll-free Call Survey) will collect quantitative data on (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This Center. participants’ levels of satisfaction with process helps ensure that requested data EARN is a service of the Office of individual service elements and their can be provided in the desired format, Disability Employment Policy which satisfaction with the service as a whole. reporting burdens are minimized, was established pursuant to section The surveys will also solicit free-text collection instruments are clearly 1(a)(1) of the Consolidated comments from participants regarding understood, and the impact of collection Appropriations Act, 2001 (Pub. L. 106– the service. requirements on respondents can be 554) H.R. 5656, see Title I, Agency: Office of Disability properly assessed. Currently the Office ‘‘Departmental Management’’) 29 U.S.C. Employment Policy. of Disability Employment Policy (ODEP) 551 et seq.; 5 U.S.C. 301; and Executive Titles: EARN Provider Enrollment is soliciting comments concerning an Order 13187, ‘‘The President’s Disability already approved data collection for the Form, EARN Employer Enrollment Employment Partnership Board Form, EARN Employer Survey, EARN following Employer Assistance Referral (PDEPB)’’ (January 10, 2001). Provider Survey. Network (EARN) forms: EARN Provider This service and the data collection Enrollment Form; EARN Employer component is authorized pursuant to OMB Number: 1230–0003. Enrollment Form; EARN Employer and Public Law 106–554 which direct the Frequency: On occasion. Provider Surveys. A copy of the Office of Disability Policy to provide Affected Public: Businesses or other approved information collection request initiatives such as EARN to ‘‘further the for-profit; not-for-profit institutions; (ICR) can be obtained by contacting the objective of eliminating employment farms; Federal Government; and State, office listed below in the address barriers to the training and employment Local, or Tribal Government. section of this notice. of people with disabilities’’. Number of Respondents: 13,500.

Estimated number Form of annual Average response Estimated burden responses time (hours) hours

EARN Provider Enrollment Form ...... 6,000 0.33 1,980 EARN Employer Enrollment Form ...... 7,500 0.33 2,475 EARN Employer Survey ...... 300 0.33 99 EARN Provider Survey ...... 300 0.33 99

Total ...... 14,100 ...... 4,653

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Total Burden Cost (capital/startup): financial resources) is minimized, III. Current Actions $0. collection instruments are clearly Total Burden Cost (operating/ understood, and the impact of collection This is a request for OMB approval maintaining): $0. requirements on respondents can be under the Paperwork Reduction Act of Description: These surveys are properly assessed. 1995 (44 U.S.C. 3506(c)(2)(A)) for designed to collect data from service A copy of the proposed information continuing an existing collection of providers and employers. For each collection request (ICR) can be obtained information previously approved and provider, we will collect Point of by contacting the office listed below in assigned OMB Control No. 1205–0010. Contact (POC) information and the addressee section of this notice or by Type of Review: Extension. information about the types of clients accessing: http://www.doleta.gov/ Agency: Employment and Training the provider serves. We also request OMBCN/OMBControlNumber.cfm. Administration information about the size of the DATES: Written comments must be Title: Claims and Payment Activities. provider organization, whether a fee is submitted to the office listed in the OMB Number: 1205–0010. charged for placement services, and addressee section below on or before Agency Number: ETA 5159. employer references. For each employer, May 18, 2009. we will collect information about the Affected Public: State Government. ADDRESSES: Send comments to Scott number of employees, geographic Gibbons, U.S. Department of Labor, Cite/Reference/Form/etc: ETA 5159. location, industry, specific jobs offered, Employment and Training Total Respondents: 53. and Point of Contact (POC) information. Administration, Office of Workforce The Employer Survey and Provider Frequency: Monthly. Security, 200 Constitution Avenue, Total Responses: 636. Survey will collect quantitative data on NW., Frances Perkins Bldg. Room S– participants’ levels of satisfaction with 4531, Washington, DC 20210, telephone Average Time per Response: 2 hours. individual service elements and their number (202)–693–3308 (this is not a Estimated Total Burden Hours: 1272 satisfaction with the service as a whole. toll-free number) or by e-mail: hours per year. The surveys will also solicit free-text [email protected]. Total Burden Cost (capital/startup): comments from participants regarding $0. the service. We will present survey data SUPPLEMENTARY INFORMATION: Total Burden Cost (operating/ in the aggregate for all Employers and I. Background Providers. We will combine survey data maintaining): $0. with system-generated data reports The ETA 5159 report contains Comments submitted in response to containing demographic data for the information on claims activities this notice will be summarized and/or sample groups as well as performance including the number of initial claims, included in the request for Office of data for the Call Center. first payments, weeks claimed, weeks Management and Budget approval of the compensated, benefit payments and Signed at Washington, DC, this 11th day of information collection request; they will final payments. also become a matter of public record. March 2009. These data are used in budgetary and John R. Davey, administrative planning, program Dated: March 11, 2009. Deputy Assistant Secretary. evaluation, actuarial and program Cheryl Atkinson, [FR Doc. E9–5688 Filed 3–16–09; 8:45 am] research, and reports to Congress and Administrator, Office of Workforce Security. BILLING CODE 4510–CX–P the public. [FR Doc. E9–5673 Filed 3–16–09; 8:45 am] BILLING CODE 4510–FW–P II. Desired Focus of Comments DEPARTMENT OF LABOR Currently, the Employment and Training Administration is soliciting DEPARTMENT OF LABOR Employment and Training comments concerning the proposed Administration extension of the ETA 5159, Claims and Office of the Assistant Secretary for Payment Activites report. Comments are Veterans’ Employment and Training Proposed Information Collection requested to: Request on the ETA 5159, Claims and • Evaluate whether the proposed The Advisory Committee on Veterans’ Payment Activities; Comment Request collection of information is necessary to Employment, Training and Employer for Extension Without Change describe claims and payment activities, Outreach (ACVETEO); Notice of Cancellation of Open Meeting AGENCY: Employment and Training including whether the information will Administration, Labor. have practical utility; • The quarterly the Advisory ACTION: Notice. Evaluate the accuracy of the Committee on Veterans’ Employment, agency’s estimate of the burden of the Training and Employer Outreach SUMMARY: The Department of Labor, as proposed collection of information, (ACVETEO) meeting scheduled for part of its continuing effort to reduce including the validity of the Friday, March 20, 2009 from 8:30 a.m. paperwork and respondent burden, methodology and assumptions used; to 3:30 p.m., at the Omni Hotel, 401 conducts a preclearance consultation • Enhance the quality, utility, and Chestnut Street, second floor meeting program to provide the general public clarity of the information to be room, Philadelphia, PA, has been and Federal agencies with an collected; and postponed until further notice. opportunity to comment on proposed • Minimize the burden of the and/or continuing collection of collection of information on those who Signed in Washington, DC, this 11th day of information in accordance with the are to respond, including the use of March 2009. Paperwork Reduction Act of 1995 appropriate automated, electronic, John M. McWilliam, (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This mechanical, or other technological Deputy Assistant Secretary, Veterans’ program helps to ensure that requested collection techniques or other forms of Employment and Training Service. data can be provided in the desired information technology, e.g., permitting [FR Doc. E9–5659 Filed 3–16–09; 8:45 am] format, reporting burden (time and electronic submissions of responses. BILLING CODE 4510–79–P

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NATIONAL FOUNDATION ON THE the Division of Public Programs, at the 11. Date: April 23, 2009. ARTS AND THE HUMANITIES January 28, 2009 deadline. Time: 9 a.m. to 5:30 p.m. 3. Date: April 6, 2009. Room: 315. Meetings of Humanities Panel Time: 8:30 a.m. to 5:30 p.m. Program: This meeting will review Room: 421. applications for Seminars and Institutes, AGENCY: The National Endowment for Program: This meeting will review submitted to the Division of Education the Humanities. applications for America’s Historical Programs, at the March 3, 2009 ACTION: Notice of meetings. and Cultural Organizations in U.S. deadline. History II, submitted to the Division of 12. Date: April 24, 2009. SUMMARY: Pursuant to the provisions of Public Programs, at the January 28, 2009 Time: 9 a.m. to 5:30 p.m. the Federal Advisory Committee Act deadline. Room: 315. (Pub. L. 92–463, as amended), notice is 4. Date: April 7, 2009. Program: This meeting will review hereby given that the following Time: 8:30 a.m. to 5:30 p.m. applications for Seminars and Institutes, meetings of Humanities Panels will be Room: 421. submitted to the Division of Education held at the Old Post Office, 1100 Program: This meeting will review Programs, at the March 3, 2009 Pennsylvania Avenue, NW., applications for America’s Media deadline. Washington, DC 20506. Makers in American Studies, submitted 13. Date: April 28, 2009. FOR FURTHER INFORMATION CONTACT: to the Division of Public Programs, at Time: 9 a.m. to 5:30 p.m. Michael P. McDonald, Advisory the January 28, 2009 deadline. Room: 315. Committee Management Officer, 5. Date: April 13, 2009. Program: This meeting will review National Endowment for the Time: 8:30 a.m. to 5:30 p.m. applications for Seminars and Institutes, Humanities, Washington, DC 20506; Room: 421. submitted to the Division of Education telephone (202) 606–8322. Hearing- Program: This meeting will review Programs, at the March 3, 2009 impaired individuals are advised that applications for America’s Historical deadline. information on this matter may be and Cultural Organizations in U.S. 14. Date: April 29, 2009. obtained by contacting the History III, submitted to the Division of Time: 9 a.m. to 5:30 p.m. Public Programs, at the January 28, 2009 Room: 315. Endowment’s TDD terminal on (202) Program: This meeting will review 606–8282. deadline. 6. Date: April 14, 2009. applications for Seminars and Institutes, SUPPLEMENTARY INFORMATION: The submitted to the Division of Education proposed meetings are for the purpose Time: 8:30 a.m. to 5:30 p.m. Room: 421. Programs, at the March 3, 2009 of panel review, discussion, evaluation Program: This meeting will review deadline. and recommendation on applications applications for America’s Historical 15. Date: April 30, 2009. for financial assistance under the and Cultural Organizations in Museums Time: 9 a.m. to 5:30 p.m. National Foundation on the Arts and the and Miscellaneous, submitted to the Room: 315. Humanities Act of 1965, as amended, Division of Public Programs, at the Program: This meeting will review including discussion of information January 28, 2009 deadline. applications for Seminars and Institutes, given in confidence to the agency by the 7. Date: April 14, 2009. submitted to the Division of Education grant applicants. Because the proposed Time: 9 a.m. to 5 p.m. Programs, at the March 3, 2009 meetings will consider information that Room: 402. deadline. is likely to disclose trade secrets and Program: This meeting will review Michael P. McDonald, commercial or financial information applications for Institutes for Advanced Advisory Committee Management Officer. obtained from a person and privileged Topics in the Digital Humanities, [FR Doc. E9–5704 Filed 3–16–09; 8:45 am] or confidential and/or information of a submitted to the Office of the Digital personal nature the disclosure of which Humanities, at the February 18, 2009 BILLING CODE 7536–01–P would constitute a clearly unwarranted deadline. invasion of personal privacy, pursuant 8. Date: April 21, 2009. to authority granted me by the Time: 9 a.m. to 5 p.m. NUCLEAR REGULATORY Chairman’s Delegation of Authority to Room: 415. COMMISSION Close Advisory Committee meetings, Program: This meeting will review [NRC–2009–0117] dated July 19, 1993, I have determined applications for We the People that these meetings will be closed to the Challenge Grants, submitted to the Notice of Issuance of Regulatory Guide public pursuant to subsections (c)(4), Office of Challenge Grants, at the and (6) of section 552b of Title 5, United February 3, 2009 deadline. AGENCY: Nuclear Regulatory States Code. 9. Date: April 21, 2009. Commission. 1. Date: April 2, 2009. Time: 9 a.m. to 5:30 p.m. ACTION: Notice of Issuance and Time: 8:30 a.m. to 5:30 p.m. Room: 315. Availability of Regulatory Guide 1.200, Room: 421. Program: This meeting will review Revision 2. Program: This meeting will review applications for Seminars and Institutes, applications for America’s Historical submitted to the Division of Education FOR FURTHER INFORMATION CONTACT: and Cultural Organizations in American Programs, at the March 3, 2009 Mary Drouin, Office of Nuclear Studies, submitted to the Division of deadline. Regulatory Research, U.S. Nuclear Public Programs, at the January 28, 2009 10. Date: April 22, 2009. Regulatory Commission, Washington, deadline. Time: 9 a.m. to 5:30 p.m. DC 20555–0001, telephone (301) 251– 2. Date: April 3, 2009. Room: 315. 7574 or e-mail to [email protected]. Time: 8:30 a.m. to 5:30 p.m. Program: This meeting will review SUPPLEMENTARY INFORMATION: Room: 421. applications for Seminars and Institutes, Program: This meeting will review submitted to the Division of Education I. Introduction applications for America’s Media Programs, at the March 3, 2009 The U.S. Nuclear Regulatory Makers in U.S. History II, submitted to deadline. Commission (NRC) is issuing a revision

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to an existing guide in the agency’s NRC’s public Web site under to Process Source Material,’’ was issued ‘‘Regulatory Guide’’ series. This series ‘‘Regulatory Guides’’ at http:// for public comment with a temporary was developed to describe and make www.nrc.gov/reading-rm/doc- identification as Draft Regulatory Guide available to the public information such collections/. (DG)–0020. RG 10.4 directs the reader to as methods that are acceptable to the In addition, regulatory guides are the type of information acceptable to the NRC staff for implementing specific available for inspection at the NRC’s NRC staff for the review of an parts of the agency’s regulations, Public Document Room (PDR), which is application for new licenses, license techniques that the staff uses in located at Room O–1F21, One White amendments, and license renewals for Flint North, 11555 Rockville Pike, evaluating specific problems or the processing and use of source postulated accidents, and data that the Rockville, Maryland 20852–2738. The material in such activities as research staff needs in its review of applications PDR’s mailing address is USNRC PDR, and development; shielding; for permits and licenses. Washington, DC 20555–0001. The PDR Revision 2 of Regulatory Guide 1.200, can also be reached by telephone at manufacturing depleted uranium and ‘‘An Approach for Determining the (301) 415–4737 or (800) 397–4209, by thorium-magnesium alloy products; Technical Adequacy of Probabilistic fax at (301) 415–3548, and by e-mail to manufacturing glass containing Risk Assessment Results for Risk- [email protected]. uranium; manufacturing and Informed Activities,’’ was issued with a Regulatory guides are not distributing other products containing temporary identification as Draft copyrighted, and NRC approval is not source material; or shaping, grinding, Regulatory Guide, DG–1200. In 1995, required to reproduce them. and polishing lenses containing the NRC issued a Policy Statement on Dated at Rockville, Maryland, this 10th day thorium. RG 10.4 does not apply to (1) the use of probabilistic risk analysis of March 2009. activities related to the reactor fuel cycle (PRA), encouraging its use in all For the Nuclear Regulatory Commission. such as uranium and thorium mill regulatory matters. That Policy Andrea D. Valentin, operation and uranium hexafluoride Statement states that ‘‘ * * * the use of Chief, Regulatory Guide Development Branch, production or (2) large-scale processing PRA technology should be increased to Division of Engineering, Office of Nuclear of source material for extraction of the extent supported by the state-of-the- Regulatory Research. metallic compounds such as zirconium art in PRA methods and data and in a [FR Doc. E9–5698 Filed 3–16–09; 8:45 am] or hafnium. manner that complements the NRC’s BILLING CODE 7590–01–P deterministic approach.’’ Since that II. Further Information time, many uses have been In September 2008, DG–0020 was implemented or undertaken, including NUCLEAR REGULATORY published with a public comment modification of the NRC’s reactor safety COMMISSION inspection program and initiation of period of 60 days from the issuance of work to modify reactor safety [NRC–2009–0114] the guide. The public comment period closed on November 10, 2008. No regulations. Consequently, confidence Notice of Issuance of Regulatory Guide in the information derived from a PRA comments were received. Electronic is an important issue, in that the AGENCY: Nuclear Regulatory copies of RG 10.4, Revision 3 are accuracy of the technical content must Commission. available through the NRC’s public Web be sufficient to justify the specific ACTION: Notice of issuance and site under ‘‘Regulatory Guides’’ at results and insights that are used to availability of Regulatory Guide (RG) http://www.nrc.gov/reading-rm/doc- support the decision under 10.4, Revision 3. collections/. consideration. In addition, regulatory guides are This regulatory guide describes one FOR FURTHER INFORMATION CONTACT: acceptable approach for determining Mark Orr, Regulatory Guide available for inspection at the NRC’s whether the technical adequacy of the Development Branch, Division of Public Document Room (PDR), which is PRA, in total or the parts that are used Engineering, Office of Nuclear located at Room O–1F21, One White to support an application, is sufficient Regulatory Research, U.S. Nuclear Flint North, 11555 Rockville Pike, to provide confidence in the results, Regulatory Commission, Washington, Rockville, Maryland 20852–2738. The such that the PRA can be used in DC 20555–0001, telephone (301) 251– PDR’s mailing address is USNRC PDR, regulatory decision-making for light- 7495 or e-mail to [email protected]. Washington, DC 20555–0001. The PDR water reactors. This guidance is SUPPLEMENTARY INFORMATION: can also be reached by telephone at intended to be consistent with the (301) 415–4737 or (800) 397–4209, by NRC’s PRA Policy Statement. It is also I. Introduction fax at (301) 415–3548, and by e-mail to intended to reflect and endorse The U.S. Nuclear Regulatory [email protected]. guidance provided by standards-setting Commission (NRC) is issuing a revision Regulatory guides are not to an existing guide in the agency’s and nuclear industry organizations. copyrighted, and NRC approval is not ‘‘Regulatory Guide’’ series. This series II. Further Information was developed to describe and make required to reproduce them. In June 2008, DG–1200 was published available to the public information such Dated at Rockville, Maryland, this 27th day for public comment. The public as methods that are acceptable to the of January 2009. comment period closed on December NRC staff for implementing specific For the Nuclear Regulatory Commission. 31, 2008. The staff’s responses to the parts of the agency’s regulations, Andrea D. Valentin, public comments that were received are techniques that the staff uses in located in the NRC’s Agencywide Chief, Regulatory Guide Development Branch, evaluating specific problems or Division of Engineering, Office of Nuclear Documents Access and Management postulated accidents, and data that the Regulatory Research. System (ADAMS) under Accession staff needs in its review of applications [FR Doc. E9–5703 Filed 3–16–09; 8:45 am] Number ML090410020. Electronic for permits and licenses. copies of Regulatory Guide 1.200, Revision 3 of RG 10.4, ‘‘Guide for the BILLING CODE 7590–01–P Revision 2 are available through the Preparation of Applications for Licenses

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NUCLEAR REGULATORY Week of April 20, 2009—Tentative DATES: Comments must be in writing COMMISSION There are no meetings scheduled for and received by March 31, 2009. the week of April 20, 2009. ADDRESSES: Submit comments by one of Federal Register Notice of Sunshine the following methods: Act Meeting * * * * * • *The schedule for Commission meetings is E-mail: subject to change on short notice. To verify [email protected]. AGENCY HOLDING THE MEETINGS: Nuclear the status of meetings, call (recording)—(301) • Fax: (202) 395–7245. Regulatory Commission. 415–1292. Contact person for more • Mail: Office of Information and DATES: Weeks of March 16, 23, 30, April information: Rochelle Bavol, (301) 415–1651. Regulatory Affairs Records Management 6, 13, 20, 2009. * * * * * Center, Office of Management and PLACE: Commissioners’ Conference The NRC Commission Meeting Budget, Attn: Mabel Echols, 10th Floor Room, 11555 Rockville Pike, Rockville, Schedule can be found on the Internet NEOB, 725 17th Street, NW., Maryland. at: http://www.nrc.gov/about-nrc/policy- Washington, DC 20503. We are still STATUS: Public and Closed. making/schedule.html. experiencing delays in the regular mail, * * * * * including first class and express mail. Week of March 16, 2009 The NRC provides reasonable To ensure that your comments are Monday, March 16, 2009 accommodation to individuals with received on time, we recommend that disabilities where appropriate. If you comments be electronically submitted. 9:30 a.m. Briefing on State of Nuclear need a reasonable accommodation to All comments submitted in response Materials and Waste Programs participate in these public meetings, or to this notice will be made available to (Public Meeting) (Contact: Tammy need this meeting notice or the the public on OMB’s Web site, http:// Bloomer, 301–415–1725) transcript or other information from the www.reginfo.gov. For this reason, please This meeting will be webcast live at public meetings in another format (e.g., do not include in your comments the Web address—http://www.nrc.gov. Braille, large print), please notify the information of a confidential nature, NRC’s Disability Program Coordinator, such as sensitive personal information Tuesday, March 17, 2009 Rohn Brown, at 301–492–2279, TDD: or proprietary information. If you send 1:30 p.m. Briefing on State of Nuclear 301–415–2100, or by e-mail at an e-mail comment directly to OMB, Reactor Safety Programs (Public [email protected]. Determinations on your e-mail address will be Meeting) (Contact: Tammy Bloomer, requests for reasonable accommodation automatically captured and included as 301–415–1725) will be made on a case-by-case basis. part of the comment that is placed in the This meeting will be webcast live at * * * * * public docket and made available on the the Web address—http://www.nrc.gov. This notice is distributed by mail to Internet. several hundred subscribers; if you no FOR FURTHER INFORMATION CONTACT: Friday, March 20, 2009 longer wish to receive it, or would like Mabel Echols, Office of Information and 9:30 a.m. Briefing on the Nuclear to be added to the distribution, please Regulatory Affairs, Records Education Program (Public Meeting) contact the Office of the Secretary, Management Center, Office of (Contact: John Gutteridge, 301–492– Washington, DC 20555 (301–415–1969). Management and Budget, 10th Floor 2313) In addition, distribution of this meeting NEOB, 725 17th Street, NW., This meeting will be webcast live at notice over the Internet system is Washington, DC 20503. Telephone: the Web address—http://www.nrc.gov. available. If you are interested in (202) 395–6880. receiving this Commission meeting SUPPLEMENTARY INFORMATION: Consistent Week of March 23, 2009—Tentative schedule electronically, please send an with the President’s Memorandum for There are no meetings scheduled for electronic message to the Heads of Executive Departments and the week of March 23, 2009. [email protected]. Agencies, published in the Federal Register [74 FR 5977], the Director of Week of March 30, 2009—Tentative Dated: March 12, 2009. Rochelle C. Bavol, OMB is developing a set of recommendations for a new Executive There are no meetings scheduled for Office of the Secretary. the week of March 30, 2009. Order on Federal regulatory review. [FR Doc. E9–5807 Filed 3–13–09; 11:15 am] Among other things, the President Week of April 6, 2009—Tentative BILLING CODE 7590–01–P stated that the recommendations should There are no meetings scheduled for offer suggestions for the following: the week of April 6, 2009. • The relationship between OIRA and OFFICE OF MANAGEMENT AND the agencies; Week of April 13, 2009—Tentative BUDGET • Disclosure and transparency; Wednesday, April 15, 2009 • Encouraging public participation in Federal Regulatory Review agency regulatory processes; 9:30 a.m. Briefing on NRC Corporate • The role of cost-benefit analysis; Support (Public Meeting) (Contact: AGENCY: Office of Management and • The role of distributional Karen Olive, 301–415–2276). Budget, Executive Office of the President. considerations, fairness, and concern for This meeting will be webcast live at ACTION: Extension of request for the interests of future generations; the Web address—http://www.nrc.gov. • comments. Methods of ensuring that regulatory Thursday, April 16, 2009 review does not produce undue delay; SUMMARY: The Director of the Office of • The role of the behavioral sciences 1:30 p.m. Briefing on Human Capital Management and Budget (OMB) extends in formulating regulatory policy; and and EEO (Public Meeting) (Contact: the deadline for public comments on • The best tools for achieving public Kristin Davis, 301–492–2266) how to improve the process and goals through the regulatory process. This meeting will be webcast live at principles governing Federal regulatory On February 26, 2009, the Director of the Web address—http://www.nrc.gov. review. OMB issued a notice, published in the

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Federal Register [74 FR 8819], inviting ACTION: Notice; correction. Federal Register as required by 39 public comments on the principles and U.S.C. 3632(b)(2). Following the procedures governing regulatory review. SUMMARY: The Postal Service published adoption of the Governor’s Decision, it He requested that comments be received in the Federal Register of February 24, was discovered that one of the rate by March 16, 2009. Today’s action 2009 (74 FR 8434), in accordance with tables, pertaining to International extending the comment period to March 39 U.S.C. 3632(b)(2), a Notice document Surface Air Lift M-Bag ISC (ISC Drop 31, 2009 was prompted by requests from providing the February 3, 2009 Decision Shipment), set out in section 2230.6 of a number of interested members of the of the Governors of the United States the Mail Classification Schedule, public. The Director of OMB believes Postal Service on Changes in Rates and included seven incorrect incremental that, due to the unusually high level of Classes of General Applicability for rates for Rate Group 11. The Postal public interest, additional time is Certain Competitive Products Service advised the Governors of the warranted. (Governors Decision No. 09–01), and a errors and provided them with a revised This public process is not intended to, record of the proceedings in connection copy of the table incorporating the and does not, create any right or benefit, with the Decision. One of the tables in correct rates. The corrected rate table substantive or procedural, enforceable at the document contained seven incorrect subsequently was filed by the Postal law or in equity by any party against the rates. This document sets forth the table Service with the Postal Regulatory United States, its departments, agencies, with the correct rates. Commission on February 20, 2009. or entities, its officers, employees, or DATES: This correction is effective Need for Correction agents, or any other person. March 17, 2009 and is applicable on May 11, 2009. Kevin F. Neyland, One of the rate tables contained in FOR FURTHER INFORMATION CONTACT: section 2230.6 of the Mail Classification Acting Administrator, Office of Information and Regulatory Affairs. Daniel J. Foucheaux, 202–268–2989. Schedule, as adopted by Governors’ Decision No. 09–01, did not incorporate [FR Doc. E9–5763 Filed 3–16–09; 8:45 am] SUPPLEMENTARY INFORMATION: the correct incremental rates for BILLING CODE 3110–01–P Background International Surface Air Lift (ISAL) M- On February 3, 2009, the Governors of Bag drop-shipment in Rate Group 11. the Postal Service established prices and Correction POSTAL SERVICE classification changes for competitive Change in Rates of General products, pursuant to their authority Correct table b, International Surface Applicability for Competitive Products; under 39 U.S.C. 3632. On February 24, Air Lift M-Bag ISC (ISC Drop Shipment) Correction 2009, the Governors’ Decision and the that appears on page 8455 of the Federal record of proceedings in connection Register of February 24, 2009, to read as AGENCY: Postal Service.TM with the Decision were published in the follows:

Each addi- Price group 5 lbs. 6 lbs. 7 lbs. 8 lbs. 9 lbs. 10 lbs. 11 lbs. tional pound

1 ...... 15.90 16.00 16.10 16.20 16.30 16.40 16.50 1.50 2 ...... 14.30 14.85 15.40 15.95 16.50 17.05 17.60 1.60 3 ...... 11.45 12.75 14.05 15.35 16.65 17.95 19.25 1.75 4 ...... 11.45 12.75 14.05 15.35 16.65 17.95 19.25 1.75 5 ...... 11.45 12.75 14.05 15.35 16.65 17.95 19.25 1.75 6 ...... 11.45 12.75 14.05 15.35 16.65 17.95 19.25 1.75 7 ...... 11.45 12.75 14.05 15.35 16.65 17.95 19.25 1.75 8 ...... 11.45 12.75 14.05 15.35 16.65 17.95 19.25 1.75 9 ...... 18.25 20.25 22.25 24.25 26.25 28.25 30.25 2.75 10 ...... 16.25 18.40 20.55 22.70 24.85 27.00 29.15 2.65 11 ...... 11.65 12.99 14.33 15.67 17.01 18.35 19.69 1.79 12 ...... 12.90 14.60 16.30 18.00 19.70 21.40 23.10 2.10 13 ...... 14.40 15.85 17.30 18.75 20.20 21.65 23.10 2.10 14 ...... 12.05 14.35 16.65 18.95 21.25 23.55 25.85 2.35 15 ...... 16.20 19.00 21.80 24.60 27.40 30.20 33.00 3.00 Note: ISC Drop Shipment M-bags are subject to the minimum price for 5 lbs.

Neva R. Watson, Attorney, Legislative. [FR Doc. E9–5671 Filed 3–16–09; 8:45 am] BILLING CODE 7710–12–P

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SECURITIES AND EXCHANGE (A) Self-Regulatory Organization’s Repo service have requested that FICC COMMISSION Statement of the Purpose of, and add the FDIC-guaranteed debt securities Statutory Basis for, the Proposed Rule to the service. [Release No. 34–59558; File No. SR–FICC– Change All current GCF Repo processing will 2009–04] The GCF Repo service allows remain unchanged. The fact that the product is a DTC-eligible security will Government Securities Division 5 Self-Regulatory Organizations; Fixed (‘‘GSD’’) dealer members to trade not affect GCF Repo processing. FICC Income Clearing Corporation; Notice of general collateral repurchase agreements has determined that with respect to its Filing and Immediate Effectiveness of (‘‘repos’’) throughout the day without risk management processes, the FDIC- Proposed Rule Change To Add Debt requiring intraday, trade-for-trade insured securities will be treated the Securities That Are Issued Under the settlement on a DVP basis. The service same as all other GCF Repo-eligible Debt Guarantee Program Component allows the dealers to trade such general collateral. FICC believes that the proposed rule of the Federal Deposit Insurance collateral repos, based on rate and term, change is consistent with the Corporation’s Temporary Liquidity throughout the day with interdealer requirements of Section 17A of the Act 6 broker netting members on a blind basis. Guarantee Program to the GCF Repo and the rules and regulations Standardized, generic CUSIP numbers Service thereunder applicable to FICC because have been established exclusively for the proposed rule change enables FICC March 11, 2009. GCF Repo processing and are used to to expand an important service that specify the acceptable type of Pursuant to Section 19(b)(1) of the provides members with a continuing underlying eligible collateral. Securities Exchange Act of 1934 ability to engage in general collateral FICC is proposing to add an (‘‘Act’’),1 notice is hereby given that on trading activity in a safe and efficient additional collateral type to the GCF February 25, 2009, the Fixed Income manner. As such, the proposed rule Repo service. Specifically, FICC Clearing Corporation (‘‘FICC’’) filed filing facilitates the prompt and accurate proposes to add debt securities that are with the Securities and Exchange clearance and settlement of securities issued under the Debt Guarantee Commission (‘‘Commission’’) the transactions. Program component of FDIC’s TLGP to proposed rule change described in Items the GCF Repo service. These securities (B) Self-Regulatory Organization’s I, II, and III below, which items have are DTC-eligible securities.4 Statement on Burden on Competition been prepared primarily by FICC. The The TLGP, one of the steps taken by Commission is publishing this notice to FICC does not believe that the the U.S. Government to stabilize the proposed rule change will have any solicit comments on the proposed rule credit markets and to stimulate lending, change from interested parties. impact on or impose any burden on was designed to allow banks to issue competition. I. Self-Regulatory Organization’s FDIC-insured debt to ensure that the Statement of the Terms of Substance of banks would be able to roll over any (C) Self-Regulatory Organization’s the Proposed Rule Change debt coming due in the coming months. Statement on Comments on the The guarantee consists of timely Proposed Rule Change Received From The purpose of the proposed rule payment of principal and interest. The Members, Participants, or Others change is to add debt securities that are expiration of the FDIC’s guarantee is the No written comments relating to the issued under the Debt Guarantee earlier of either the maturity date of the proposed rule change have been Program component of the Federal issued debt or June 2012. solicited or received. FICC will notify Deposit Insurance Corporation’s The Financial Industry Regulatory the Commission of any written (‘‘FDIC’s’’) Temporary Liquidity Authority (‘‘FINRA’’) has recently comments received by FICC. Guarantee Program (‘‘TLGP’’) to FICC’s advised the Securities Industry and III. Date of Effectiveness of the GCF Repo service.2 Financial Markets Association (‘‘SIFMA’’) on the capital charge Proposed Rule Change and Timing for II. Self-Regulatory Organization’s treatment that FINRA plans to employ Commission Action Statement of the Purpose of, and with respect to the guaranteed debt The foregoing rule change has become Statutory Basis for, the Proposed Rule securities that are issued by an affiliate effective upon filing pursuant to Section Change of a broker-dealer and that are held in 19(b)(3)(A)(iii) of the Act 7 and Rule inventory by the broker-dealer. 19b–4(f)(4) 8 thereunder because the In its filing with the Commission, Specifically, FINRA has stated that proposed rule change effects a change in FICC included statements concerning broker-dealers that may be allocated the an existing service of FICC that (i) does the purpose of and basis for the FDIC-guaranteed debt securities issued not adversely affect the safeguarding of proposed rule change and discussed any by affiliated entities as part of the GCF securities or funds in the custody or comments it received on the proposed Repo service will not need to take a 100 control of FICC or for which it is rule change. The text of these statements percent capital charge on the reverse responsible and (ii) does not may be examined at the places specified repo contract because they have no in Item IV below. FICC has prepared control over the collateral allocated by 5 Specifically, if a GCF Repo participant engages summaries, set forth in sections (A), (B), FICC and because the allocated in a trade using the new GCF Repo CUSIP, the and (C) below, of the most significant collateral is returned the next morning. participant will need to pledge the security free of 3 payment to its clearing bank using the mechanism aspects of these statements. Given this favorable treatment, members available at DTC. Once the security is pledged to of SIFMA that are active in the GCF the dealer’s clearing bank, it is available for tri-party 1 15 U.S.C. 78s(b)(1). or GCF Repo processing. No additional processing 2 This filing pertains only to the GCF Repo service 4 The present rule filing applies only to these is being introduced to the GCF Repo service by this and does not propose to add the FDIC-guaranteed specific FDIC-insured securities. In the future, if rule filing. The present filing does not require a securities to the GSD’s Delivery Versus Payment FICC determines to add additional DTC-eligible change to the text of the rules of GSD. (‘‘DVP’’) service. securities to the GCF Repo service, FICC would 6 15 U.S.C. 78q–1. 3 The Commission has modified the text of the submit a proposed rule change filing to the 7 15 U.S.C. 78s(b)(3)(A)(iii). summaries prepared by FICC. Commission for this purpose. 8 17 CFR 240.19b–4(f)(4).

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significantly affect the respective rights not edit personal identifying site at http://nasdaq.cchwallstreet.com, of the clearing agency or persons using information from submissions. You at Nasdaq’s principal office, and at the the service. At any time within sixty should submit only information that Commission’s Public Reference Room. days of the filing of such rule change, you wish to make available publicly. All II. Self-Regulatory Organization’s the Commission may summarily submissions should refer to File Statement of the Purpose of, and abrogate such rule change if it appears Number SR–FICC–2009–04 and should Statutory Basis for, the Proposed Rule to the Commission that such action is be submitted on or before April 7, 2009. Change necessary or appropriate in the public For the Commission by the Division of interest, for the protection of investors, Trading and Markets, pursuant to delegated In its filing with the Commission, or otherwise in furtherance of the authority.9 Nasdaq included statements concerning purposes of the Act. Florence E. Harmon, the purpose of, and basis for, the proposed rule change. The text of these IV. Solicitation of Comments Deputy Secretary. [FR Doc. E9–5687 Filed 3–16–09; 8:45 am] statements may be examined at the Interested persons are invited to places specified in Item III below, and BILLING CODE 8011–01–P submit written data, views, and is set forth in Sections A, B, and C arguments concerning the foregoing, below. including whether the proposed rule SECURITIES AND EXCHANGE A. Self-Regulatory Organization’s change is consistent with the Act. COMMISSION Comments may be submitted by any of Statement of the Purpose of, and the following methods: [Release No. 34–59547; File No. SR– Statutory Basis for, the Proposed Rule NASDAQ–2009–014] Change Electronic Comments 1. Purpose • Use the Commission’s Internet Self-Regulatory Organizations; The comment form (http://www.sec.gov/ NASDAQ Stock Market LLC; Notice of Nasdaq proposes to adopt new rules rules/sro.shtml) or Filing and Immediate Effectiveness of that make clear Nasdaq members’ • Send an e-mail to rule- Proposed Rule Change To Establish responsibility to input accurate [email protected]. Please include File New Rules Applicable to the Nasdaq quotation and order information into the Number SR–FICC–2009–04 on the Market Center and Nasdaq Options Nasdaq Market Center and Nasdaq subject line. Market That Explicitly Require Options Market (collectively the Members To Input Accurate ‘‘Nasdaq Markets’’). The Nasdaq Paper Comments Information Into Nasdaq Systems Markets require entry of certain • Send paper comments in triplicate information to post a quote or to enter to Elizabeth M. Murphy, Secretary, March 10, 2009. an order. Such information, among Securities and Exchange Commission, Pursuant to Section 19(b)(1) of the other things, identifies the member, the Securities Exchange Act of 1934 size and price of the order or quote, and 100 F Street, NE., Washington, DC 1 2 20549–1090. (‘‘Act’’) and Rule 19b–4 thereunder, the member’s capacity in placing an notice is hereby given that on February All submissions should refer to File order. Accurate trade and quote 23, 2009, The NASDAQ Stock Market Number SR–FICC–2009–04. This file information is fundamental to the LLC (‘‘Nasdaq’’) filed with the Securities number should be included on the operation of an efficient and fair market. and Exchange Commission subject line if e-mail is used. To help the Moreover, the information input by (‘‘Commission’’) the proposed rule Commission process and review your members when posting a quote or change as described in Items I and II comments more efficiently, please use placing an order is used for purposes of below, which Items have been prepared only one method. The Commission will policing the Nasdaq Markets. For by Nasdaq. Nasdaq filed the proposed post all comments on the Commission’s example, the Financial Industry rule change as a ‘‘non-controversial’’ Internet Web site (http://www.sec.gov/ Regulatory Authority, Inc. (‘‘FINRA’’) proposed rule change pursuant to conducts trade abuse surveillances of rules/sro.shtml). Copies of the 3 Section 19(b)(3)(A) of the Act and Rule the Nasdaq Markets on Nasdaq’s behalf. submission, all subsequent 4 amendments, all written statements 19b–4(f)(6) thereunder, which renders The trade abuse surveillances use with respect to the proposed rule the proposal effective upon filing with capacity information input by members. changes that are filed with the the Commission. The Commission is A member’s capacity in a trade concerns Commission, and all written publishing this notice to solicit whether the member is acting as an communications relating to the comments on the proposed rule change agent, principal, or ‘‘riskless’’ principal proposed rule change between the from interested persons. in the transaction. Accordingly, accurate Commission and any person, other than I. Self-Regulatory Organization’s input of capacity information is of those that may be withheld from the Statement of the Terms of Substance of fundamental regulatory importance. public in accordance with the the Proposed Rule Change Nasdaq does not have a rule that makes an explicit statement regarding a provisions of 5 U.S.C. 552, will be Nasdaq proposes to establish new member’s obligation to input accurate available for inspection and copying in rules applicable to the Nasdaq Market information into the Nasdaq Markets. the Commission’s Public Reference Center and Nasdaq Options Market that Notwithstanding, Nasdaq believes that Section, 100 F Street, NE., Washington, explicitly require members to input disciplinary cases against members DC 20549, on official business days accurate information into Nasdaq entering inaccurate or incomplete between the hours of 10 a.m. and 3 p.m. systems. The text of the proposed rule information may be brought Copies of such filings also will be change is available from Nasdaq’s Web available for inspection and copying at appropriately under Nasdaq Rule 2110, the principal office of FICC and on 9 17 CFR 200.30–3(a)(12). which requires members to observe high FICC’s Web site at http://www.dtcc.com/ 1 standards of commercial honor and just _ 15 U.S.C. 78s(b)(1). legal/rule filings/ficc/2009.php. All 2 17 CFR 240.19b–4. and equitable principles of trade. Rule comments received will be posted 3 15 U.S.C. 78s(b)(3)(A). 2110 protects the investing public and without change; the Commission does 4 17 CFR 240.19b–4(f)(6). the securities industry from dishonest

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practices that are unfair to investors or C. Self-Regulatory Organization’s only one method. The Commission will hinder the functioning of a free and Statement on Comments on the post all comments on the Commission’s open market, even though those Proposed Rule Change Received From Internet Web site (http://www.sec.gov/ practices may not be illegal or violate a Members, Participants, or Others rules/sro.shtml ). Copies of the specific rule or regulation. Because of Written comments were neither submission, all subsequent the regulatory importance of accurate solicited nor received. amendments, all written statements information input into the Nasdaq with respect to the proposed rule Markets, Nasdaq believes rules that III. Date of Effectiveness of the change that are filed with the directly address members’ obligation to Proposed Rule Change and Timing for Commission, and all written provide accurate information are Commission Action communications relating to the warranted. The proposed rules make This the foregoing proposed rule proposed rule change between the clear members’ obligation to input change does not: (i) significantly affect Commission and any person, other than accurate information into the Nasdaq the protection of investors or the public those that may be withheld from the Markets, and that failure to do so would interest; (ii) impose any significant public in accordance with the be considered a violation of Nasdaq burden on competition; and (iii) become provisions of 5 U.S.C. 552, will be rules. operative for 30 days from the date on available for inspection and copying in Nasdaq notes that FINRA has rules which it was filed, or such shorter time the Commission’s Public Reference that require the accurate entry of certain as the Commission may designate, it has Room, 100 F Street, NE., Washington, trade information into its systems. For become effective pursuant to Section DC 20549, on official business days example, FINRA Rule 7330(d) requires 19(b)(3)(A) of the Act 8 and Rule 19b– between the hours of 10 a.m. and 3 p.m. FINRA members to report to the OTC 4(f)(6) thereunder.9 Copies of such filing also will be Reporting Facility certain specific trade- At any time within 60 days of the available for inspection and copying at related information. A failure to provide filing of the proposed rule change, the the principal office of the Nasdaq. All such information represents a violation Commission may summarily abrogate comments received will be posted of FINRA Rules, and may result in such rule change if it appears to the without change; the Commission does disciplinary action. FINRA has Commission that such action is not edit personal identifying substantially similar requirements for necessary or appropriate in the public information from submissions. You other trade reporting systems it interest, for the protection of investors, should submit only information that operates.5 or otherwise in furtherance of the you wish to make available publicly. All purposes of the Act. submissions should refer to File 2. Statutory Basis Number SR–NASDAQ–2009–014 and Nasdaq believes that the proposed IV. Solicitation of Comments should be submitted on or before April rule change is consistent with the Interested persons are invited to 7, 2009. 6 provisions of Section 6 of the Act, in submit written data, views, and For the Commission, by the Division of general, and with Section 6(b)(5) of the arguments concerning the foregoing, Trading and Markets, pursuant to delegated Act,7 in particular, in that the proposal including whether the proposed rule authority.10 is designed to prevent fraudulent and change is consistent with the Act. Florence E. Harmon, manipulative acts and practices, to Comments may be submitted by any of Deputy Secretary. promote just and equitable principles of the following methods: [FR Doc. E9–5714 Filed 3–16–09; 8:45 am] trade, to foster cooperation and BILLING CODE 8011–01–P coordination with persons engaged in Electronic Comments regulating, clearing, settling, processing • Use the Commission’s Internet information with respect to, and comment form (http://www.sec.gov/ SECURITIES AND EXCHANGE facilitating transactions in securities, to rules/sro.shtml); or COMMISSION remove impediments to and perfect the • Send an e-mail to rule- mechanism of a free and open market [email protected]. Please include File [Release No. 34–59549; File No. SR– NASDAQ–2009–021] and a national market system, and, in Number SR–NASDAQ–2009–014 on the general, to protect investors and the subject line. Self-Regulatory Organizations; Notice public interest. The amendments Paper Comments of Filing and Immediate Effectiveness proposed herein will serve to promote of Proposed Rule Change by the • Send paper comments in triplicate the accuracy of information input into NASDAQ Stock Market LLC Regarding the Nasdaq Markets. Accurate to Elizabeth M. Murphy, Secretary, a Clerical Change to Nasdaq Rules information is necessary for the efficient Securities and Exchange Commission, and fair operation of the Nasdaq 100 F Street, NE., Washington, DC March 10, 2009. Markets, and will assist Nasdaq in 20549–1090. Pursuant to Section 19(b)(1) of the surveilling the markets for fraudulent All submissions should refer to File Securities Exchange Act of 1934 (the activity. Number SR-NASDAQ–2009–014. This ‘‘Act’’),1 and Rule 19b–4 thereunder,2 file number should be included on the notice is hereby given that on March 4, B. Self-Regulatory Organization’s subject line if e-mail is used. To help the 2009, The NASDAQ Stock Market LLC Statement on Burden on Competition Commission process and review your (‘‘Nasdaq’’) filed with the Securities and Nasdaq does not believe that the comments more efficiently, please use Exchange Commission (the proposed rule change will result in any ‘‘Commission’’) the proposed rule burden on competition that is not 8 15 U.S.C. 78s(b)(3)(A). change as described in Items I, II, and necessary or appropriate in furtherance 9 17 CFR 240.19b–4(f)(6). The Exchange also III below, which Items have been of the purposes of the Act, as amended. provided the Commission with written notice of its prepared by Nasdaq. Nasdaq proposes to intent to file the proposed rule change, along with a brief description and text of the proposed rule 5 See FINRA Rules 7230A and 7230B. change, at least five business days prior to the date 10 17 CFR 200.30–3(a)(12). 6 15 U.S.C. 78f. of filing the proposed rule change as required by 1 15 U.S.C. 78s(b)(1). 7 15 U.S.C. 78f(b)(5). Rule 19b–4(f)(6). 2 17 CFR 240.19b–4.

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make a clerical correction to the Nasdaq Nasdaq proposes to implement the 7050. NASDAQ Options Market rulebook under Rule 19b–4(f)(3) under proposed rule change immediately. the Act,3 which renders the proposal The following charges shall apply to The text of the proposed rule change the use of the order execution and effective upon filing with the is available on Nasdaq’s Web site Commission. The Commission is routing services of the NASDAQ (http://www.complinet.com/nasdaq), at publishing this notice to solicit Options Market [by members] for all Nasdaq’s principal office, and at the comments on the proposed rule change securities [that it trades]. Commission’s Public Reference Room. from interested persons. (1) Fees for Execution of Contracts on The text of the proposed rule change I. Self-Regulatory Organization’s the NASDAQ Options Market is below. Proposed new language is Statement of the Terms of Substance of underlined; proposed deletions are in the Proposed Rule Change [brackets].4 Nasdaq proposes to make clerical * * * * * corrections to Nasdaq Rule 7050.

Except as specified below, the charge to member entering order that executes in the NASDAQ Options $0.45 per executed contract. Market. For a pilot period ending July 31, 2009, charge for members or non-members entering order via the $0.45 per executed contract. Options Intermarket Linkage that executes in the Nasdaq Options Market. Charge to members entering orders in options on QQQQ, SPY, DIA, IWM, AAPL BAC, C, GS, JPM, No fee. RIMM, XLE, XLF, and XOM with an account type ‘‘Customer’’ that executes and remove liquidity entered by another member. Credit to member providing liquidity through the NASDAQ Options Market ...... $0.30 per executed contract. Credit to member providing liquidity using price-improving orders through the NASDAQ Options Mar- $0.35 per executed contract. ket.

(2)–(4) No change. 2. Statutory Basis III. Date of Effectiveness of the * * * * * Proposed Rule Change and Timing for Nasdaq believes that the proposed Commission Action II. Self-Regulatory Organization’s rule change is consistent with the Statement of the Purpose of, and provisions of Section 6 of the Act,6 in Pursuant to Section 19(b)(3)(A) of the 8 9 Statutory Basis for, the Proposed Rule general, and with Section 6(b)(5) of the Act and Rule 19b–4(f)(3) thereunder, 7 Change Act, in particular, in that the proposal Nasdaq has designated this proposal as is designed to prevent fraudulent and one that is concerned solely with the In its filing with the Commission, the manipulative acts and practices, to administration of the self-regulatory self-regulatory organization included promote just and equitable principles of organization. Accordingly, Nasdaq statements concerning the purpose of trade, to foster cooperation and believes that its proposal should become and basis for the proposed rule change coordination with persons engaged in immediately effective. and discussed any comments it received regulating, clearing, settling, processing At any time within 60 days of the on the proposed rule change. The text information with respect to, and filing of the proposed rule change, the of those statements may be examined at facilitating transactions in securities, to Commission may summarily abrogate the places specified in Item IV below remove impediments to and perfect the such rule change if it appears to the and is set forth in sections A, B, and C mechanism of a free and open market Commission that such action is below. and a national market system, and, in necessary or appropriate in the public general, to protect investors and the interest, for the protection of investors, A. Self-Regulatory Organization’s public interest. The proposed rule or otherwise in furtherance of the Statement of the Purpose of, and change makes a minor clerical change to purposes of the Act. Statutory Basis for, the Proposed Rule an existing Nasdaq rule. Change IV. Solicitation of Comments B. Self-Regulatory Organization’s 1. Purpose Statement on Burden on Competition Interested persons are invited to submit written data, views, and Nasdaq proposes to make clerical Nasdaq does not believe that the arguments concerning the foregoing, corrections to Nasdaq Rule 7050. proposed rule change will result in any including whether the proposed rule Nasdaq proposes to modify the prefatory burden on competition that is not change is consistent with the Act. language of Rule 7050 to eliminate the necessary or appropriate in furtherance Comments may be submitted by any of phrases ‘‘by members’’ and ‘‘that it of the purposes of the Act, as amended. the following methods: trades’’ to reflect the fact that Rule 7050 C. Self-Regulatory Organization’s Electronic Comments contains fees applicable to non- Statement on Comments on the members and to options that Nasdaq • Use the Commission’s Internet Proposed Rule Change Received From comment form (http://www.sec.gov/ routes but does not trade. These changes Members, Participants, or Others had previously been proposed by rules/sro.shtml); or Nasdaq, but were not reflected in Written comments were neither • Send an e-mail to rule- subsequent Nasdaq filings.5 solicited nor received. [email protected]. Please include File

3 17 CFR 240.19b–4(f)(3). 5 See Exchange Act Release No. 58298, 73 FR 7 15 U.S.C. 78f(b)(5). 4 Changes are marked to the rules of The 46695 (Aug. 11, 2008) (SR–NASDAQ–2008–055); 8 15 U.S.C. 78s(b)(3)(A). NASDAQ Stock Market LLC as set forth in SR– Exchange Act Release No. 58081, 73 FR 39755 (July 9 17 CFR 240.19b–4(f)(3). NASDAQ–2009–008. The proposed changes will be 10, 2008) (SR–NASDAQ–2008–058). reflected in the NASDAQ Online manual found at 6 15 U.S.C. 78f. http://nasdaq.complinet.com.

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Number SR–NASDAQ–2009–021 on the SECURITIES AND EXCHANGE (1)–(4) No Change. subject line. COMMISSION (5) ‘‘WAIT’’ shall mean for orders so designated, that upon entry into the Paper Comments [Release No. 34–59557; File No. SR– System, the order is held for one second NASDAQ–2009–017] without processing for potential display • Send paper comments in triplicate and/or execution. After one second, the to Elizabeth M. Murphy, Secretary, Self-Regulatory Organizations; The order is processed for potential display Securities and Exchange Commission, NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of and/or execution in accordance with all 100 F Street, NE., Washington, DC order entry instructions as determined 20549–1090. a Proposed Rule Change To Modify the Processing of Orders on the NASDAQ by the entering party. All submissions should refer to File Options Market (h) No Change. Number SR–NASDAQ–2009–021. This * * * * * March 11, 2009. file number should be included on the Sec. 6. Acceptance of Quotes and Pursuant to Section 19(b)(1) of the subject line if e-mail is used. To help the Orders Commission process and review your Securities Exchange Act of 1934 1 2 All bids or offers made and accepted comments more efficiently, please use (‘‘Act’’), and Rule 19b–4 thereunder, notice is hereby given that on March 6, on NOM in accordance with the NOM only one method. The Commission will Rules shall constitute binding contracts, post all comments on the Commission’s 2009, The NASDAQ Stock Market LLC (‘‘Nasdaq’’) filed with the Securities and subject to applicable requirements of the Internet Web site (http://www.sec.gov/ Exchange Commission (‘‘Commission’’) Rules of the Exchange and the Rules of rules/sro.shtml). Copies of the the proposed rule change as described the Clearing Corporation. submission, all subsequent in Items I, II, and III below, which Items (a) General—A System order is an amendments, all written statements have been prepared by Nasdaq. order that is entered into the System for with respect to the proposed rule Pursuant to Section 19(b)(3)(A) of the display and/or execution as appropriate. change that are filed with the Act 3 and Rule 19b–4(f)(5) thereunder,4 Such orders are executable against Commission, and all written Nasdaq has designated this proposal as marketable contra-side orders in the communications relating to the one effecting a change in an existing System. proposed rule change between the order-entry or trading system of a self- (1) All System Orders shall indicate Commission and any person, other than regulatory organization. The limit price and whether they are a call those that may be withheld from the Commission is publishing this notice to or put and buy or sell. Systems Orders public in accordance with the solicit comments on the proposed rule can be designated as Immediate or provisions of 5 U.S.C. 552, will be change from interested persons. Cancel (‘‘IOC’’), Good-till-Cancelled available for inspection and copying in (‘‘GTC’’), Day (‘‘DAY’’), [or] WAIT or I. Self-Regulatory Organization’s the Commission’s Public Reference Expire Time (‘‘EXPR’’). Statement of the Terms of Substance of (2) No change. Room, 100 F Street, NE., Washington, the Proposed Rule Change (b) No change. DC 20549, on official business days * * * * * between the hours of 10 a.m. and 3 p.m. Nasdaq is filing a proposed rule Copies of the filing will also be available change to offer the ‘‘WAIT’’ order II. Self-Regulatory Organization’s for inspection and copying at the modifier for use with orders entered Statement of the Purpose of, and principal office of the self-regulatory into the NASDAQ Options Market Statutory Basis for, the Proposed Rule organization. All comments received (‘‘NOM’’). This modifier is designed to Change enhance compliance with the Order will be posted without change; the Exposure requirement set forth at In its filing with the Commission, Commission does not edit personal Chapter VII, Section 12 of the NOM Nasdaq included statements concerning identifying information from Rules. the purpose of, and basis for, the submissions. You should submit only The text of the proposed rule change proposed rule change. The text of these information that you wish to make is available from Nasdaq’s Web site at statements may be examined at the available publicly. All submissions http://cchwallstreet.com/nasdaqomx/ at places specified in Item III below, and should refer to File Number SR– Nasdaq’s principal office, and at the is set forth in Sections A, B, and C NASDAQ–2009–021 and should be Commission’s Public Reference Room. below. submitted on or before April 7, 2009. Proposed new language is italicized; A. Self-Regulatory Organization’s 5 For the Commission, by the Division of proposed deletions are in brackets. Statement of the Purpose of, and Trading and Markets, pursuant to delegated * * * * * Statutory Basis for, the Proposed Rule authority.3 Change Chapter VI, Trading Systems Florence E. Harmon, Sec. 1. Definitions 1. Purpose Deputy Secretary. On February 19, 2009, the Securities The following definitions apply to [FR Doc. E9–5715 Filed 3–16–09; 8:45 am] Exchange Commission approved Chapter VI for the trading of options BILLING CODE 8011–01–P Nasdaq’s proposal to reduce the Order listed on NOM. (a)–(f) No Change. Exposure requirement set forth at (g) Chapter VII, Section 12 of the NOM Rules from three seconds to one 6 1 15 U.S.C. 78s(b)(1). second. Chapter VII, Section 12 2 17 CFR 240.19b–4. prohibits Options Participants from 3 15 U.S.C. 78s(b)(3)(A). executing as principal orders they 4 17 CFR 240.19b–4(f)(5). 5 Changes are marked to the rule text that appears 6 See Exchange Act Release No. 59421 (Feb. 19, in the electronic manual of Nasdaq found at 2009) (accelerated approval of SR–Nasdaq–2009– 317 CFR 200.30–3(a)(12). http://www.complinet.com/nasdaq. 005).

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represent as agent unless (i) agency rule change modifying Nasdaq order and the public interest by enhancing orders are first exposed on NOM for at entry options will enhance compliance market quality and protecting investors least one (1) second or (ii) the Options with NOM rules and also preserve order and market participants from execution Participant has been bidding or offering execution opportunities on NOM. that violate Chapter VII, Section 12 of on NOM for at least one (1) second prior 2. Statutory Basis NOM Rules. The proposed rule change to receiving an agency order that is does not place a burden on competition executable against such bid or offer. Nasdaq believes that the proposed but rather enhances competition among This rule ensures that Options rule change is consistent with the the markets. The proposed rule change Participant do not gain at the expense of provisions of Section 6 of the Act,7 in does not limit access to or availability customers by depriving them of the general, and with Section 6(b)(5) of the of the system. opportunity to interact with orders in Act,8 in particular, in that the proposal Nasdaq believes that this proposal the NOM System. is designed to prevent fraudulent and with respect to the WAIT modifier is NOM Participants that enter agency manipulative acts and practices, to properly designated as a change to an orders into the NOM System have asked promote just and equitable principles of existing order entry system because the Nasdaq to develop an automated trade, to foster cooperation and proposal modifies the timing of mechanism that permits them to enter coordination with persons engaged in processing but not the manner in which orders into NOM as soon as the orders regulating, clearing, settling, processing orders are displayed, prioritized, are received but that also prevents them information with respect to, and executed, routed or otherwise processed from interacting with their own agency facilitating transactions in securities, to within the System. Nasdaq has orders in violation of the order exposure remove impediments to and perfect the designated similar proposals in this requirement. Nasdaq believes this is an mechanism of a free and open market fashion in the past, including a proposal efficient use of resources because it will and a national market system, and, in to delay the operation of the Opening allow Nasdaq to program its NOM general, to protect investors and the Cross on NOM.11 Systems once rather than have multiple public interest. The proposed rule At any time within 60 days of the Options Participant re-program their change promotes these goals by filing of the proposed rule change, the systems. enhancing market quality and protecting Commission may summarily abrogate In order to accomplish that request, investors and market participants from such rule change if it appears to the Nasdaq has developed the ‘‘WAIT’’ executions that violate Chapter VII, Commission that such action is modifier which can be appended to an Section 12 of NOM Rules. necessary or appropriate in the public order prior to entry into NOM Systems. B. Self-Regulatory Organization’s interest, for the protection of investors, The WAIT modifier will instruct NOM Statement on Burden on Competition or otherwise in furtherance of the Systems to wait precisely one second purposes of the Act. from the time of order entry before Nasdaq does not believe that the processing the order in accordance with proposed rule change will result in any IV. Solicitation of Comments burden on competition that is not the other instructions attached to that Interested persons are invited to necessary or appropriate in furtherance order. Upon expiration of the one- submit written data, views, and of the purposes of the Act, as amended. second WAIT period, the System will arguments concerning the foregoing, To the contrary, Nasdaq fully expects time stamp, route, display, or execute including whether the proposed rule that other options exchanges will copy the order in accordance with the change, as amended, is consistent with this proposed rule change shortly after entering party’s other order entry the Act. Comments may be submitted by its implementation. instructions. Thus, the WAIT modifier any of the following methods: does not affect the existing display, C. Self-Regulatory Organization’s Electronic Comments routing, or execution priorities of the Statement on Comments on the NOM Systems or any other obligations Proposed Rule Change Received From • Use the Commission’s Internet of NOM Participants as set forth in the Members, Participants or Others comment form (http://www.sec.gov/ NOM rules. rules/sro.shtml); or Orders designated with the WAIT Written comments were neither • solicited nor received. Send an e-mail to rule- modifier are independent of all other [email protected]. Please include File orders, including an agency order that is III. Date of Effectiveness of the Number SR–NASDAQ–2009–017 on the being exposed pursuant to Chapter VII, Proposed Rule Change and Timing for subject line. Section 12. WAIT orders are not Commission Action associated or in any way linked to Paper Comments The foregoing rule change has become another order entered into the System, • effective pursuant to Section 19(b)(3)(A) Send paper comments in triplicate as is the case with certain facilitation of the Act 9 and subparagraph (f)(5) of to Elizabeth M. Murphy, Secretary, orders at other options exchanges. The Rule 19b–4 thereunder 10 as one that Securities and Exchange Commission, System will process the WAIT order effects a change that: (A) Does not Station Place, 100 F Street, NE., even if a customer order entered into the significantly affect the protection of Washington, DC 20549–1090. System simultaneously with the WAIT investors or the public interest; (B) does All submissions should refer to File order has been executed or cancelled not impose any significant burden on Number SR–NASDAQ–2009–017. This during the WAIT second, unless the competition; and (C) does not have the file number should be included on the WAIT order itself is modified or effect of limiting the access to or subject line if e-mail is used. To help the cancelled pursuant to System rules. As availability of the system. Commission process and review your a result, there is no guarantee that an Specifically, the proposed rule change comments more efficiently, please use order designated as WAIT will execute will benefit the protection of investors only one method. The Commission will against another specific order. Use of post all comments on the Commission’s the WAIT modifier is completely 7 15 U.S.C. 78f. voluntary. 8 15 U.S.C. 78f(b)(5). 11 Exchange Act Release No. 57822 (May 15, Nasdaq believes that the 9 15 U.S.C. 78s(b)(3)(A). 2008) (SR–NASDAQ–2008–045); 73 FR 29800 (May implementation of the aforementioned 10 17 CFR 240.19b–4(f)(5). 22, 2008).

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Internet Web site (http://www.sec.gov/ 703.21 and 703.22 and are traded on investors. Because these purchasers are rules/sro.shtml). Copies of the NYSE Bonds. The proposed rule change less concerned that securities they submission, all subsequent was published for comment in the invest in should have an exchange amendments, all written statements Federal Register on February 4, 2009.3 listing, the Exchange notes that these with respect to the proposed rule The Commission received no comments securities are generally not listed on a change that are filed with the on the proposal. This order approves the national securities exchange. In Commission, and all written proposed rule change. addition, the Exchange notes that communications relating to the securities listed on NYSE Bonds do not II. Description of the Proposal proposed rule change between the have the benefit of a Designated Market Commission and any person, other than Currently, securities listed on the Maker and, as such, the Exchange incurs those that may be withheld from the NYSE pursuant to Sections 703.21 lower regulatory and administrative public in accordance with the (Equity-Linked Debt Securities) and costs in connection with such securities provisions of 5 U.S.C. 552, will be 703.22 of the Manual (Equity Index- than would be the case with floor-traded available for inspection and copying in Linked Securities, Commodity-Linked securities. For the reasons noted above, the Commission’s Public Reference Securities and Currency-Linked the Exchange asserts that the proposed Room on official business days between Securities) and traded on NYSE Bonds fees are set at a level that reflects the the hours of 10 a.m. and 3 p.m. Copies are subject to the fees set forth in lower costs incurred by the Exchange in of such filing also will be available for Section 902.09 of the Manual.4 Section connection with the trading of securities inspection and copying at the principal 902.09 establishes various levels of fees on NYSE Bonds than on the equities office of Nasdaq. All comments received based on the number of shares trading floor, while remaining attractive will be posted without change; the outstanding, with a minimum initial to issuers for whom an exchange listing Commission does not edit personal listing fee of $5,000 (for one million is not crucial. securities or fewer) and a maximum identifying information from III. Discussion submissions. You should submit only initial listing fee of $45,000 (for over 15 information that you wish to make million securities). The minimum After careful review, the Commission available publicly. annual listing fee under Section 902.09 finds that the proposed rule change is All submissions should refer to File is $10,000 (for 6 million securities or consistent with the requirements of the Number SR–NASDAQ–2009–017 and fewer), and the maximum annual listing Act and the rules and regulations should be submitted on or before April fee is $55,000 (for more than 50 million thereunder applicable to a national 7, 2009. securities). securities exchange and, in particular, The Exchange proposes to establish a the requirements of Section 6(b) of the For the Commission, by the Division of new section, proposed Section 902.10, 6 Trading and Markets, pursuant to delegated Act and the rules and regulations authority.12 in the Manual establishing fees payable thereunder. Specifically, the in connection with the listing of Florence E. Harmon, Commission finds that the proposal is securities that are listed under Section consistent with Sections 6(b)(4) 7 and Deputy Secretary. 703.21 and Section 703.22 and are 6(b)(5) 8 of the Act, which require that [FR Doc. E9–5722 Filed 3–16–09; 8:45 am] traded on NYSE Bonds.5 Under an exchange have rules that provide for BILLING CODE 8011–01–P proposed Section 902.10, the initial the equitable allocation of reasonable listing fee for securities listed under dues, fees, and other charges among its Sections 703.21 and 703.22 and traded members and other persons using its SECURITIES AND EXCHANGE on NYSE Bonds will be a flat fee of facilities, and are designed, among other COMMISSION $5,000 and the annual fee will be a flat things, to promote just and equitable [Release No. 34–59559; File No. SR–NYSE– fee of $5,000, regardless of the number just and equitable principles of trade, to 2009–03] of securities outstanding. remove impediments to, and perfect the The Exchange stated that it is mechanism of, a free and open market Self-Regulatory Organizations; New adopting a low level of listing fees for and a national market system, to protect York Stock Exchange LLC; Order these securities because it believes investors and the public interest, and Approving Proposed Rule Change To doing so will make an exchange listing are not designed to permit unfair Adopt Listing Fees for Securities attractive in connection with offerings discrimination between customers, Listed Under Section 703.21 and where listing is not crucial to a issuers, brokers or dealers.9 703.22 and Traded on NYSE Bonds successful marketing of the securities. The Commission believes that the March 11, 2009. The Exchange notes that, in order to be new fees set forth for securities listed listed on NYSE Bonds, a security must under Sections 703.21 and 703.22 of the I. Introduction have a $1,000 denomination, and Manual and traded on NYSE Bonds are On January 9, 2009, the New York typically, index-linked securities and consistent with the Act. The Stock Exchange LLC (‘‘NYSE’’ or equity-linked securities with $1,000 Commission notes that the adoption of ‘‘Exchange’’) filed with the Securities denominations are marketed to new Section 902.10 will not result in and Exchange Commission institutional investors rather than retail any issuer paying higher initial listing (‘‘Commission’’), pursuant to Section fees, as the proposed flat initial listing 19(b)(1) of the Securities Exchange Act 3 See Securities Exchange Act Release No. 59313 fee of $5,000 is the same as the current of 1934 (‘‘Act’’) 1 and Rule 19b–4 (January 28, 2009), 74 FR 6067. minimum charged under Section 4 The Exchange recently added securities listed 2 902.09. Accordingly, most issuers will thereunder, a proposed rule change to under Sections 703.21 and 703.22 and traded on modify the listing fees for securities that NYSE Bonds to those securities subject to the fees are listed under the Exchange’s Listed set forth in Section 902.09. See Securities Exchange 6 15 U.S.C. 78f(b). 7 Company Manual (‘‘Manual’’) Sections Act Release No. 58599 (September 19, 2008), 73 FR 15 U.S.C. 78f(b)(4). 55883 (September 26, 2008) (SR–NYSE–2008–56). 8 15 U.S.C. 78f(b)(5). 5 The proposed rule change also amends Section 9 In approving this proposed rule change, the 12 17 CFR 200.30–3(a)(12). 902.09 to remove references to the securities that Commission has considered the proposed rule’s 1 15 U.S.C. 78s(b)(1). will be subject to the fees under proposed Section impact on efficiency, competition, and capital 2 17 CFR 240.19b–4. 902.10. formation. See 15 U.S.C. 78c(f).

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pay less than would currently be the SECURITIES AND EXCHANGE conform the initial listing fees charged case under Section 902.09. Similarly, all COMMISSION to non-U.S. companies to those charged to domestic companies. issuers will be subject to lower annual [Release No. 34–59560; File No. SR– fees, as the proposed flat rate of $5,000 NYSEALTR–2009–02] Effective January 1, 2010, the is less than the current minimum of Exchange proposes to increase the $10,000 charged under Section 902.09. Self-Regulatory Organizations; NYSE annual fee for issuers that have between The Commission notes that the Alternext US LLC.; Order Approving 50,000,001 and 75 million shares Exchange represents that, since it added Proposed Rule Change To Revise outstanding from $32,500 to $36,500 securities listed under Sections 703.21 Listing Fees and for issuers with an excess of 75 and 703.22 and traded on NYSE Bonds million shares outstanding the annual March 11, 2009. to Section 902.09 of the Manual,10 the fee would be raised from $34,000 to Exchange has not listed any such I. Introduction $40,000.5 Moreover, as of the date of securities, and therefore no issuers have On January 8, 2009, NYSE Alternext approval of this rule filing, issuers been charged those higher fees.11 The US LLC (‘‘NYSE Alternext’’ or would be required to pay a Commission also notes that the ‘‘Exchange’’) filed with the Securities supplemental annual fee equal to the Exchange has stated that it incurs lower and Exchange Commission difference between the amount they regulatory and administrative costs in (‘‘Commission’’), pursuant to Section would pay in 2009 based on the current connection with such securities and that 19(b)(1) of the Securities Exchange Act annual fee rates and the amount they the proposed fees are set at a level that of 1934 (‘‘Act’’) 1 and Rule 19b–4 would be required to pay if the 2010 annual fee rates were in place on reflects these lower costs. Therefore, the thereunder,2 a proposed rule change to January 1, 2009. Commission expects that the reduced revise its listing fees. The proposed rule fees should not affect the Exchange’s change was published in the Federal The Exchange further proposes ability to finance its regulatory Register on February 4, 2009.3 The eliminating Section 146 in its entirety activities. Based on the above, the Commission received no comments on and the provisions in Sections 140 and Commission believes the proposed fee the proposal. This order approves the 142(g) that grants the Board of Directors of the Exchange the discretion to defer, changes meet the statutory standards 12 proposed rule change. waive or rebate all or any part of the that exchange rules provide for an II. Description of the Proposal initial listing fee payable in connection equitable allocation of reasonable dues, The Exchange proposes amending its with any listing of securities or fees and other charges among issuers, initial listing fees for common stock or additional shares. The Exchange also and do not unfairly discriminate common stock equivalents. The initial proposes amending Section 142 of the between issuers. listing fees set forth in Section 140 of Company Guide by (i) increasing from For the reasons set forth above, the the Exchange’s Company Guide for $60,000 to $65,000 the maximum fee Commission finds that the proposed issuances of (i) less than five million per issuer for listing additional shares in rule change is consistent with the Act. shares would be increased from $40,000 a calendar year and (ii) increasing from to $50,000, (ii) five million to 10 million $2,000 to $2,500 the fee charged in IV. Conclusion shares would be increased from $50,000 connection with a company changing its It is therefore ordered, pursuant to to $55,000, (iii) 10,000,001 shares to 15 name or ticker symbol. Section 19(b)(2) of the Act,13 that the million shares would be increased from The Exchange also proposes to adopt proposed rule change (SR–NYSE–2009– $55,000 to $60,000 and (iv) in excess of a fee of $7,500 for technical original 03) be, and hereby is, approved. 15 million shares would be increased listings (‘‘Technical Original Listings’’) from $65,000 to $70,000. The Exchange and reverse stock splits. The Exchange For the Commission, by the Division of further proposes eliminating its $5,000 would apply the proposed $7,500 Trading and Markets, pursuant to delegated application fee in connection with a 14 application fee for a Technical Original authority. company’s initial listing on the Listing if the change in the company’s Florence E. Harmon, Exchange.4 status is technical in nature and the Deputy Secretary. The Exchange also proposes shareholders of the original company [FR Doc. E9–5717 Filed 3–16–09; 8:45 am] eliminating the $5,000 application receive or retain a share-for-share processing fee in Section 140, payable BILLING CODE 8011–01–P interest in the new company without in connection with the initial listing of any change in their equity position or a class of bonds of an issuer that does rights.6 The $7,500 application fee not have another class of securities would also apply to reverse stock splits. listed on the Exchange. Additionally, The Technical Original Listing fee will Section 140 currently provides that, in replace the current $5,000 fee for the case of non-U.S. issuers listed on ‘‘substitution listings’’ set forth in foreign stock exchanges, the fee, Section 142(d). The Technical Original including the one-time, non-refundable Listing fee is intended to apply only to application-processing fee of $5,000, is those events that would have previously $40,000. The Exchange proposes to 10 See supra note 4. 5 The Exchange proposes to retain the minimum 1 11 See e-mail from John Carey, Chief Counsel— 15 U.S.C. 78s(b)(1). annual fee of $27,500 for issuers with 50 million U.S. Equities, NYSE, to Sara Hawkins, Special 2 17 CFR 240.19b–4. shares or less outstanding. Therefore, issuers with Counsel, Division of Trading and Markets, 3 See Securities Exchange Act Release No. 59304 50 million shares or less outstanding will not be Commission, dated March 9, 2009. (January 27, 2009), 74 FR 6077 (February 4, 2009) subject to any annual fee increase for 2009. (hereinafter referred to as ‘‘Notice’’). 6 Minor technical amendments are being made to 12 See Sections 6(b)(4) and 6(b)(5) of the Act, 15 4 The Exchange proposes to make conforming Rule 142(e) to reflect the fact that reincorporation U.S.C. 78f(b)(4) and 78f(b)(5). changes to Section 144 of the Company Guide to will be explicitly included in the categories of 13 15 U.S.C. 78s(b)(2). eliminate references to the application processing events subject to the proposed Technical Original 14 17 CFR 200.30–3(a)(12). fee. Listing fee.

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been subject to the substitution listing choose to list with NYSE Alternext and been prepared by the self-regulatory fee. the increased regulatory oversight costs organization. The Commission is Finally, the Exchange is amending the noted by the Exchange. The publishing this notice to solicit language of Section 142 to state that the Commission also believes it is comments on the proposed rule change fees in the section apply to non-U.S. reasonable for the Exchange to charge from interested persons. companies. According to the Exchange, non-U.S. companies the same initial I. Self-Regulatory Organization’s they have always applied the fees in listing fees as domestic companies Statement of the Terms of Substance of Section 142 to non-U.S. companies, and since, according to the Exchange, they the Proposed Rule Change therefore, this amendment clarifies the receive the same level of service from Exchange’s policy. the Exchange. For these reasons, the The Exchange proposes to eliminate Commission believes the proposed fee the ability to enter orders on the III. Discussion and Commission’s Exchange with the settlement Findings changes meet the statutory standard of an equitable allocation of reasonable instructions of ‘‘cash’’, ‘‘next day’’ and After careful review, the Commission dues, fees and other charges among ‘‘seller’s option’’ to conform to finds that the proposed rule change is issuers. amendments filed by the New York consistent with the requirements of the For the foregoing reasons, the Stock Exchange (‘‘NYSE’’). Act and the rules and regulations Commission finds that the proposed II. Self-Regulatory Organization’s thereunder applicable to a national rule change is consistent with the Act.11 securities exchange. Specifically, the Statement of the Purpose of, and Commission finds that the proposal is IV. Conclusion Statutory Basis for, the Proposed Rule consistent with Section 6(b)(4) of the It is therefore ordered, pursuant to Change Act,7 which requires, among other Section 19(b)(2) of the Act,12 that the In its filing with the Commission, the things, that the rules of an exchange proposed rule change (SR–NYSEALTR– self-regulatory organization included provide for equitable allocation of 2009–02) be, and it hereby is, approved. statements concerning the purpose of, reasonable dues, fees, and other charges For the Commission, by the Division of and basis for, the proposed rule change among its members and issuers and Trading and Markets, pursuant to delegated and discussed any comments it received other persons using its facilities. authority.13 on the proposed rule change. The text As discussed in the Notice, many of Florence E. Harmon, of those statements may be examined at the Exchange’s proposed fees, such as Deputy Secretary. the places specified in Item IV below. the initial listing fees for common stock The Exchange has prepared summaries, [FR Doc. E9–5718 Filed 3–16–09; 8:45 am] or common stock equivalents, the set forth in sections A, B, and C below, maximum fee per issuer for listing BILLING CODE 8011–01–P of the most significant parts of such additional shares in a calendar year, the statements. fee charged in connection with a SECURITIES AND EXCHANGE A. Self-Regulatory Organization’s company changing its name or ticker COMMISSION Statement of the Purpose of, and symbol, and the Technical Original Statutory Basis for, the Proposed Rule Listing fees are competitive with or [Release No. 34–59561; File No. SR– Change substantially similar to the fees already NYSEALTR–2009–25] in place at Nasdaq.8 The Commission 1. Purpose Self-Regulatory Organizations; Notice recognizes that competition for listings of Filing and Immediate Effectiveness Through this filing the Exchange is becoming increasingly vigorous, and of Proposed Rule Change by NYSE seeks to amend several NYSE Alternext that such competition may help to Alternext US LLC Eliminating the Equities rules to conform these rules ensure the reasonableness of fees among Ability To Enter Orders on the with amendments filed by the New York the markets vying for new listings.9 4 Exchange With the Settlement Stock Exchange to remove references Moreover, as described in the Notice, Instructions of ‘‘Cash’’, ‘‘Next Day’’ to certain settlement instructions that the Exchange represented that it had and ‘‘Seller’s Option’’ To Conform to are no longer compatible with the increased services to listed companies Amendments Filed by the New York Exchange’s more electronic market. and incurred increased costs for services These include instructions to settle on and regulatory programs, which Stock Exchange 10 ‘‘cash’’, ‘‘next day’’ or ‘‘seller’s option’’ required changes to its listing fees. March 11, 2009. basis. The Exchange also cited different levels Pursuant to Section 19(b)(1) 1 of the of services based on the number of Securities Exchange Act of 1934 I. Background outstanding shares to support the higher (‘‘Act’’) 2 and Rule 19b–4 thereunder,3 As described more fully in a related fees generally paid to the Exchange by notice is hereby given that, on March 5, rule filing,5 NYSE Euronext acquired larger companies and to provide 2009, NYSE Alternext US LLC (the The Amex Membership Corporation justification for the proposed increases. ‘‘Exchange’’ or ‘‘NYSE Alternext’’) filed (‘‘AMC’’) pursuant to an Agreement and Accordingly, the Commission believes with the Securities and Exchange Plan of Merger, dated January 17, 2008 that the Exchange’s proposed fee Commission (‘‘Commission’’) the (the ‘‘Merger’’). In connection with the increases are reasonable, given the proposed rule change as described in Merger, the Exchange’s predecessor, the current competitive landscape, the Items I and II below, which Items have American Stock Exchange LLC listing fees charged by Nasdaq, the (‘‘Amex’’), a subsidiary of AMC, became services the Exchange offers issuers that 11 15 U.S.C. 78f(b)(4). In approving the proposed a subsidiary of NYSE Euronext called rule change, the Commission has considered the 7 proposed rule’s impact in efficiency, competition 15 U.S.C. 78f(b)(4). 4 See Securities Exchange Act Release No. 34– and capital formation. See 15 U.S.C. 78c(f). 8 See Notice, supra note 3. 59446 (February 25, 2009), 74 FR 9323 (March 3, 12 9 See Securities Exchange Act Release No. 55202 15 U.S.C. 78s(b)(2). 2009) (SR–NYSE–2009–17). 13 (January 30, 2007), 72 FR 6017 (February 8, 2007). 17 CFR 200.30–3(a)(12). 5 See Securities Exchange Act Release No. 58673 10 See Notice, supra note 3. Additionally, some 1 15 U.S.C. 78s(b)(1). (September 29, 2008), 73 FR 57707 (October 3, costs were offset by the elimination of the $5,000 2 15 U.S.C. 78a. 2008) (SR–NYSE–2008–60 and SR–Amex–2008–62) application fee. 3 17 CFR 240.19b–4. (approving the Merger).

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NYSE Alternext U.S. LLC, and third business day. Next day settlement Exchange. These instructions result in continues to operate as a national instructions require delivery of the these orders printing to paper at the securities exchange registered under securities on the first business day trading Post 10 when they are submitted Section 6 of the Securities Exchange Act following the transaction. Orders that electronically in Exchange systems. The of 1934, as amended (the ‘‘Act’’) [sic].6 have settlement instructions of seller’s DMM and the trading assistant must The effective date of the Merger was option afford the seller the right to realize that the document printed was in October 1, 2008. In connection with the deliver the security or bond at any time fact an order thus causing delay in the Merger, on December 1, 2008, the within a specified period, ranging from execution of the order. The DMM is Exchange relocated all equities trading not less than two business days to not then responsible for the manual conducted on the Exchange legacy more than 180 days for stocks and not execution of the order. The manual trading systems and facilities located at less than two business days and no intervention required of the DMM and 86 Trinity Place, New York, New York, more than sixty days for U.S. trading assistant at the Post in the to trading systems and facilities located government securities. processing of these orders puts the at 11 Wall Street, New York, New York Orders that include cash, next and orders at the very real risk of ‘‘missing (the ‘‘Equities Relocation’’). The seller’s option settlement instructions the market’’ as a result of the current Exchange’s equity trading systems and may be submitted electronically to the speed of order execution in the facilities at 11 Wall Street (the ‘‘NYSE Exchange; however, the orders Exchange market. In addition, since Alternext Trading Systems’’) are containing any of those settlement orders with these settlement operated by the NYSE on behalf of the instructions cannot be immediately and instructions will no longer be supported Exchange.7 automatically executed. Rather, the by New York Stock Exchange systems, As part of the Equities Relocation, orders must bypass the Exchange NYSE Alternext will also no longer be NYSE Alternext adopted NYSE Rules matching/execution engine, Display able to accept them for the securities 1–1004, subject to such changes as Book, and are literally printed on paper traded in the NYSE Alternext market. necessary to apply the Rules to the at the trading post for manual The Exchange now seeks to eliminate Exchange, as the NYSE Alternext processing on the Floor. cash, next day and seller’s option as Equities Rules to govern trading on the valid settlement instructions for orders NYSE Alternext Trading Systems.8 The Proposed Elimination of Cash, Next submitted to the Exchange. The NYSE Alternext Equities Rules, which Day, Seller’s Option Settlement Exchange therefore proposes to delete became operative on December 1, 2008, Instructions the references to those settlement are substantially identical to the current In the Exchange’s current more instructions from NYSE Alternext Rules NYSE Rules 1–1004 and the Exchange electronic market, orders received by 12 (‘‘Business Day’’), 64 (Bonds, Rights continues to update the NYSE Alternext Exchange systems that are marketable and 100-Share-Unit Stocks), 66 (U.S. Equities Rules as necessary to conform upon entry are eligible to be Government Securities) 11, 123 (Records with rule changes to corresponding immediately and automatically of Orders), 124 (Odd-Lot Orders), 130 NYSE Rules filed by the NYSE. executed. Order types and settlement (Overnight Comparison of Exchange instructions that require manual Transactions), 137 (Written Contracts), II. Proposed Amendments intervention pose significant 137A (Samples of Written Contracts), Currently, in addition to regular way impediments to the efficient functioning 189 (Unit of Delivery), 235 (Ex- settlement (i.e., settlement on the third of the NYSE Alternext Trading Systems Dividends, Ex-Rights), 236 (Ex- business day following trade date), a operated by the NYSE on behalf of the Warrants), 241 (Interest—Added to customer may submit an order with Exchange. To this end the NYSE filed Contract Price), 257 (Deliveries After settlement instructions for cash, next with the Commission to remove legacy ‘‘Ex’’ Date), 282 (Buy-In Procedures) and day or seller’s option. An order with orders that require manual processing. 440G (Transactions in Stocks and cash settlement instructions requires Specifically, on January 31, 2008, the Warrants for the Accounts of Members, delivery of the securities the same day NYSE filed with the Commission to Principal Executives and Member as the transaction in contrast to a regular amend NYSE Rule 13 to invalidate the Organizations). In addition, the way transaction, where the seller is use of the manual order types Exchange seeks to eliminate entirely required to deliver the securities on the ‘‘Alternative Order—Either/Or Order’’, NYSE Alternext Rules 73 (‘‘Seller’s ‘‘Orders Good Until a Specified Time’’, Option’’), 177 (Delivery Time—‘‘Cash’’ 6 15 U.S.C. 78f. ‘‘Scale Order’’ and ‘‘Switch Order— Contracts) and 179 (‘‘Seller’s Option’’). 7 See Securities Exchange Act Release No. 58705 Contingent Order’’ and Rule 124’s order In addition, the Exchange proposes to (October 1, 2008), 73 FR 58995 (October 8, 2008) types ‘‘Limited Order, With or Without remove language in NYSE Alternext (SR–Amex–2008–63) (approving the Equities Rules 64 and 66 that provide for the Relocation). Sale’’ and ‘‘Basis Price Order’’ as being 8 See Securities Exchange Act Release No. 58705 incompatible with the more electronic possibility of using multiple settlement (October 1, 2008), 73 FR 58995 (October 8, 2008) NYSE market environment.9 These periods for bids and offers entered on (SR–Amex–2008–63) (approving the Equities changes were already reflected in NYSE the Exchange since, for all practical Relocation); Securities Exchange Act Release No. purposes, the Exchange will now only 58833 (October 22, 2008), 73 FR 64642 (October 30, Alternext’s rules following the merger 2008) (SR–NYSE–2008–106) and Securities with the NYSE. accept orders for regular way settlement. Exchange Act Release No. 58839 (October 23, 2008), The Exchange’s commitment to The Exchange also proposes to amend 73 FR 64645 (October 30, 2008) (SR–NYSEALTR– provide its market participants with the NYSE Alternext Rule 66 to add the 2008–03) (together, approving the Bonds ability to have their orders executed in provision that exists in NYSE Alternext Relocation); Securities Exchange Act Release No. Rule 64 to allow the Exchange, in its 59022 (November 26, 2008), 73 FR 73683 the most efficient manner necessitates (December 3, 2008) (SR–NYSEALTR–2008–10) the elimination of cash, next day and (adopting amendments to NYSE Alternext Equities seller’s option as valid settlement 10 Trading Posts are the horseshoe shaped Rules to track changes to corresponding NYSE counters manned by DMMs and trading assistants Rules); Securities Exchange Act Release No. 59027 instructions for orders submitted to the on the Trading Floor of the NYSE where individual (November 28, 2008), 73 FR 73681 (December 3, stocks are bought and sold. 2008) (SR–NYSEALTR–2008–11) (adopting 9 See Securities and [sic] Exchange Act Release 11 The Exchange does not have the capability to amendments to Rule 62—NYSE Alternext Equities No. 57295 (February 8, 2008), 73 FR 8731 (February accept these order types for U.S. Government to track changes to corresponding NYSE Rule 62). 14, 2008) (SR–NYSE–2008–11). securities.

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discretion, to provide for additional III. Date of Effectiveness of the necessary or appropriate in the public settlement periods. The Exchange is Proposed Rule Change and Timing for interest, for the protection of investors, proposing this addition to bring the Commission Action or otherwise in furtherance of the provisions of the two rules into Because the proposed rule change purposes of the Act. harmony as they address similar does not: (i) Significantly affect the IV. Solicitation of Comments procedures with respect to different protection of investors or the public types of securities admitted to dealings interest, (ii) impose any significant Interested persons are invited to on the Exchange. The Exchange, burden on competition, and (iii) become submit written data, views, and however, recognizes that any additional operative for 30 days after the date of arguments concerning the foregoing, settlement periods it proposes to add the filing, or such shorter time as the including whether the proposed rule will be subject to the rule filing process Commission may designate, if change is consistent with the Act. under Section 19(b) of the Securities consistent with the protection of Comments may be submitted by any of Exchange Act of 1934 (the ‘‘Act’’) [sic].12 investors and the public interest, it has the following methods: become effective pursuant to Section The Exchange will commence 19(b)(3)(A) 14 of the Act and Rule 19b– Electronic Comments implementation of the proposed 4(f)(6) thereunder.15 • elimination of the settlement A proposed rule change filed under Use the Commission’s Internet instructions discussed herein on March Rule 19b–4(f)(6) normally does not comment form (http://www.sec.gov/ 13, 2009. The Exchange intends to become operative until 30 days after the rules/sro.shtml); or progressively implement this date of filing.16 However, Rule 19b– • Send an e-mail to rule- elimination on a security by security 4(f)(6)(iii) 17 permits the Commission to [email protected]. Please include File basis as it gains experience with the designate a shorter time if such action Number SR–NYSEALTR–2009–25 on implementation until it is operative in is consistent with the protection of the subject line. all securities traded on the Floor. During investors and the public interest. The Paper Comments the implementation, the Exchange will Exchange has requested that the identify on its website which securities Commission waive the 30-day operative • Send paper comments in triplicate will no longer be eligible for these delay so that the proposed rule change to Elizabeth M. Murphy, Secretary, settlement instructions. may become operative on March 13, Securities and Exchange Commission, 2009. Specifically, the Exchange states 100 F Street, NE., Washington, DC 2. Statutory Basis that the proposal will rescind legacy 20549–1090. settlement instructions that are not The basis under the Securities compatible with the Exchange’s All submissions should refer to File Exchange Act of 1934 (the ‘‘Act’’) [sic] electronic market. The Commission Number SR–NYSEALTR–2009–25. This for this proposed rule change is the believes that allowing the proposed rule file number should be included on the requirement under Section 6(b)(5) 13 change to become operative on March subject line if e-mail is used. To help the that an exchange have rules that are 13, 2009 is consistent with the Commission process and review your designed to promote just and equitable protection of investors and the public comments more efficiently, please use principles of trade, to remove interest, because it will enable the only one method. The Commission will impediments to and perfect the Exchange to implement pending post all comments on the Commission’s mechanism of a free and open market technological enhancements that require Internet Web site (http://www.sec.gov/ and a national market system and, in the rescission of these legacy settlement rules/sro.shtml). Copies of the general, to protect investors and the instructions. The Exchange expects submission, all subsequent public interest. The instant filing these enhancements to make its order amendments, all written statements accomplishes these goals by rescinding processing operations more efficient and with respect to the proposed rule legacy settlement instructions that place thereby strengthen and advance the change that are filed with the customers at risk of missing the market quality of the Exchange’s market. Commission, and all written and possibly receiving inferior priced Accordingly, the Commission communications relating to the executions. designates the proposed rule change to proposed rule change between the be operative on March 13, 2009.18 Commission and any person, other than B. Self-Regulatory Organization’s At any time within 60 days of the those that may be withheld from the Statement on Burden on Competition filing of the proposed rule change, the public in accordance with the Commission may summarily abrogate provisions of 5 U.S.C. 552, will be The Exchange does not believe that such rule change if it appears to the available for inspection and copying in the proposed rule change will impose Commission that such action is the Commission’s Public Reference any burden on competition that is not Room, 100 F Street, NE., Washington, necessary or appropriate in furtherance 14 15 U.S.C. 78s(b)(3)(A). DC 20549, on official business days of the purposes of the Act. 15 17 CFR 240.19b–4(f)(6). between the hours of 10 a.m. and 3 p.m. 16 17 CFR 240.19b–4(f)(6). Copies of the filing also will be available C. Self-Regulatory Organization’s 17 17 CFR 240.19b–4(f)(6)(iii). In addition, Rule Statement on Comments on the 19b–4(f)(6)(iii) requires a self-regulatory for inspection and copying at the Proposed Rule Change Received From organization to give the Commission written notice principal office of the Exchange. All of its intent to file the proposed rule change at least Members, Participants, or Others comments received will be posted five business days prior to the date of filing of the without change; the Commission does proposed rule change, or such shorter time as No written comments were solicited designated by the Commission. The Exchange has not edit personal identifying or received with respect to the proposed satisfied this requirement. information from submissions. You rule change. 18 For purposes only of waiving the 30-day should submit only information that operative delay of the proposal, the Commission you wish to make available publicly. All has considered the proposed rule’s impact on 12 15 U.S.C. 78s(b). efficiency, competition, and capital formation. 15 submissions should refer to File 13 15 U.S.C. 78f(b)(5). U.S.C. 78c(f). Number SR–NYSEALTR–2009–25 and

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should be submitted on or before April and discussed any comments it received determination in accordance with Rule 7, 2009. on the proposed rule change. The text 6.87(a)(6); however, a determination by For the Commission, by the Division of of those statements may be examined at an Exchange officer not to review a Trading and Markets, pursuant to delegated the places specified in Item IV below. transaction, or a determination not to authority.19 The Exchange has prepared summaries, nullify or adjust a transaction for which Florence E. Harmon, set forth in sections A, B, and C below, a review was requested or conducted, is Deputy Secretary. of the most significant parts of such not appealable. NYSE Arca believes it is [FR Doc. E9–5719 Filed 3–16–09; 8:45 am] statements. appropriate to limit review on appeal to only those situations in which a BILLING CODE 8011–01–P A. Self-Regulatory Organization’s transaction is actually nullified or Statement of the Purpose of, and adjusted. Statutory Basis for, the Proposed Rule This new provision is not intended to SECURITIES AND EXCHANGE Change COMMISSION replace a party’s obligation to request a 1. Purpose review, within the required time periods [Release No. 34–59556; File No. SR– under Rule 6.87(a)(3), of any transaction NYSEArca–2009–17] NYSE Arca proposes to amend Rule that it believes meets the criteria for an 6.87 pertaining to the nullification and obvious error. And, if a transaction is Self-Regulatory Organizations; NYSE adjustment of options transactions. reviewed and a determination has been Arca, Inc.; Notice of Filing and Specifically, the Exchange proposes to rendered pursuant to Rules 6.87(a)(1)– Immediate Effectiveness of a Proposed adopt a new provision which provides (5) or Commentary .04 thereof, no Rule Change Amending Rule 6.87— that in the interest of maintaining a fair additional relief may be granted under Obvious Errors and orderly market and for the this new provision. Moreover, NYSE protection of investors, the Chief Arca does not anticipate exercising this March 11, 2009. Executive Officer of NYSE Arca Inc. Pursuant to Section 19(b)(1) of the new authority in every situation in (‘‘CEO’’) or his/her designee which a party fails to make a timely Securities Exchange Act of 1934 (collectively ‘‘Exchange officer’’),5 may, (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 request for review of a transaction on his or her own motion or upon pursuant to Rule 6.87(a)(3). NYSE Arca notice is hereby given that on February request, determine to review any 27, 2009, NYSE Arca, Inc. (‘‘NYSE believes this provision will help to transaction occurring on the Exchange protect the integrity of its marketplace Arca’’ or ‘‘Exchange’’) filed with the that is believed to be erroneous.6 A Securities and Exchange Commission by vesting an Exchange officer with the transaction reviewed pursuant to this authority to review a transaction that (‘‘Commission’’) the proposed rule new provision may be nullified or change as described in Items I and II may be erroneous, in those situations adjusted only if it is determined by the where a party failed to make a timely below, which Items have been prepared Exchange officer that the transaction is by the self-regulatory organization. request for a review. erroneous as provided in Rule The Exchange also proposes at this NYSE Arca filed the proposed rule 6.87(a)(1)–(5) or Commentary .04 time to revise Rule 6.87(a)(3)(A) in order change as a ‘‘non-controversial’’ thereof. A transaction would be adjusted to clarify that the time period in which proposal pursuant to Section 19(b)(3)(A) or nullified in accordance with the a Market Maker or other OTP Holder of the Act 3 and Rule 19b–4(f)(6) provision under which it is deemed an must notify the Exchange, when thereunder,4 which renders the proposal erroneous transaction. The Exchange requesting relief from a possible effective upon filing with the officer may be assisted by a Trading erroneous transaction, applies to all Commission. The Commission is Official in reviewing a transaction. transactions that are subject to publishing this notice to solicit The Exchange officer shall act adjustment or nullification, pursuant to comments on the proposed rule change pursuant to this paragraph as soon as Rule 6.87(a)(1)–(5). from interested persons. possible after receiving notification of 2. Statutory Basis I. Self-Regulatory Organization’s the transaction, and ordinarily would be Statement of the Terms of Substance of expected to act on the same day as the This proposed rule change is designed the Proposed Rule Change transaction occurred. However, because to allow an Exchange officer to review a transaction in order to provide the The Exchange proposes to amend a transaction under review may have opportunity for potential relief to a Rule 6.87—Obvious Errors. A copy of occurred near the close of trading or due party affected by an obvious error. The this filing is available on the Exchange’s to unusual circumstances, the rule Exchange believes that for these reasons Web site at http://www.nyse.com, at the provides that the Exchange officer shall the proposed rule change is consistent Exchange’s principal office and at the act no later than 9:30 a.m. (ET) on the with Section 6(b) of the Act 7 in general, Commission’s Public Reference Room. next trading day following the date of the transaction in question. An OTP and furthers the objectives of Section II. Self-Regulatory Organization’s Holder affected by a determination to 6(b)(5) of the Act 8 in particular, because Statement of the Purpose of, and nullify or adjust a transaction pursuant it is designed to prevent fraudulent and Statutory Basis for, the Proposed Rule to this new provision may appeal such manipulative acts and practices, to Change promote just and equitable principles of In its filing with the Commission, the 5 The Exchange represents that a CEO designee trade, to foster cooperation and will be an officer of the Exchange, who has also coordination with persons engaged in self-regulatory organization included been designated as a Trading Official, such as the statements concerning the purpose of, Executive Vice President of Trading Operations or facilitating transactions in securities, and basis for, the proposed rule change the Vice President of Trading Services. Exchange and to remove impediments to and officers are employees of the Exchange, and are not perfect the mechanism of a free and affiliated with OTP Holders or OTP Firms. 19 17 CFR 200.30–3(a)(12). open market and a national market 6 In the event a party to a transaction requests that 1 system. NYSE Arca notes that the 15 U.S.C. 78s(b)(1). the CEO or his/her designee review a transaction, 2 17 CFR 240.19b–4. the Exchange officer nonetheless would need to 3 15 U.S.C. 78s(b)(3)(A). determine, on his or her own motion, whether to 7 15 U.S.C. 78f(b). 4 17 CFR 240.19b–4(f)(6). review the transaction. 8 15 U.S.C. 78f(b)(5).

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Exchange officer can adjust or nullify a including whether the proposed rule SMALL BUSINESS ADMINISTRATION transaction under the authority granted change is consistent with the Act. [Disaster Declaration #11643 and #11644] by this new provision only if the Comments may be submitted by any of transaction meets the objective criteria the following methods: Kentucky Disaster Number KY–00019 for an obvious error under NYSE Arca Electronic Comments rules. AGENCY: U.S. Small Business • Use the Commission’s Internet Administration. B. Self-Regulatory Organization’s comment form (http://www.sec.gov/ ACTION: Amendment 2. Statement on Burden on Competition rules/sro.shtml); or The Exchange does not believe that • Send an e-mail to rule- SUMMARY: This is an amendment of the the proposed rule change will impose [email protected]. Please include File Presidential declaration of a major any burden on competition that is not Number SR–NYSEArca–2009–17 on the disaster for Public Assistance Only for necessary or appropriate in furtherance subject line. the State of Kentucky (FEMA–1818– of the purposes of the Act. Paper Comments DR), dated 02/05/2009. Incident: Severe winter storm and C. Self-Regulatory Organization’s • Send paper comments in triplicate flooding. Statement on Comments on the to Elizabeth M. Murphy, Secretary, Incident Period: 01/26/2009 through Proposed Rule Change Received From Securities and Exchange Commission, 02/13/2009. Members, Participants, or Others 100 F Street, NE., Washington, DC Effective Date: 03/09/2009. No written comments were solicited 20549–1090. Physical Loan Application Deadline or received with respect to the proposed All submissions should refer to File Date: 04/06/2009. rule change. Number SR–NYSEArca–2009–17. This Economic Injury (EIDL) Loan III. Date of Effectiveness of the file number should be included on the Application Deadline Date: 11/05/2009. Proposed Rule Change and Timing for subject line if e-mail is used. To help the ADDRESSES: Submit completed loan Commission Action Commission process and review your applications to: U.S. Small Business comments more efficiently, please use The Exchange has filed the proposed Administration, Processing and only one method. The Commission will Disbursement Center, 14925 Kingsport rule change pursuant to Section post all comments on the Commission’s 9 Road, Fort Worth, TX 76155. 19(b)(3)(A)(iii) of the Act and Rule Internet Web site (http://www.sec.gov/ 10 FOR FURTHER INFORMATION CONTACT: A. 19b–4(f)(6) thereunder. Because the rules/sro.shtml). Copies of the proposed rule change does not: (i) Escobar, Office of Disaster Assistance, submission, all subsequent U.S. Small Business Administration, Significantly affect the protection of amendments, all written statements investors or the public interest; (ii) 409 3rd Street, SW., Suite 6050, with respect to the proposed rule Washington, DC 20416. impose any significant burden on change that are filed with the competition; and (iii) become operative Commission, and all written SUPPLEMENTARY INFORMATION: The notice prior to 30 days from the date on which communications relating to the of the President’s major disaster it was filed, or such shorter time as the proposed rule change between the declaration for private non-profit Commission may designate, if Commission and any person, other than organizations in the State of Kentucky, consistent with the protection of those that may be withheld from the dated 02/05/2009, is hereby amended to investors and the public interest, the public in accordance with the include the following areas as adversely proposed rule change has become provisions of 5 U.S.C. 552, will be affected by the disaster. effective pursuant to Section 19(b)(3)(A) available for inspection and copying in Primary Counties: Boone, Casey, 11 of the Act and Rule 19b–4(f)(6)(iii) the Commission’s Public Reference Gallatin, Hancock, Henry, Kenton, 12 thereunder. Room, 100 F Street, NE., Washington, Simpson, Taylor, Wolfe, Trimble At any time within 60 days of the DC 20549, on official business days All other information in the original filing of the proposed rule change, the between the hours of 10 a.m. and 3 p.m. declaration remains unchanged. Commission may summarily abrogate Copies of the filing also will be available such rule change if it appears to the (Catalog of Federal Domestic Assistance for inspection and copying at the Numbers 59002 and 59008) Commission that such action is principal office of the Exchange. All necessary or appropriate in the public comments received will be posted Herbert L. Mitchell, interest, for the protection of investors, without change; the Commission does Associate Administrator for Disaster or otherwise in furtherance of the not edit personal identifying Assistance. purposes of the Act. information from submissions. You [FR Doc. E9–5736 Filed 3–16–09; 8:45 am] IV. Solicitation of Comments should submit only information that BILLING CODE 8025–01–P Interested persons are invited to you wish to make available publicly. All submissions should refer to File submit written data, views, and SMALL BUSINESS ADMINISTRATION arguments concerning the foregoing, Number SR–NYSEArca–2009–17 and should be submitted on or before April [Disaster Declaration #11690 and #11691] 9 15 U.S.C. 78s(b)(3)(A)(iii). 7, 2009. 10 17 CFR 240.19b–4(f)(6). For the Commission, by the Division of Texas Disaster Number TX–00334 11 15 U.S.C. 78s(b)(3)(A). Trading and Markets, pursuant to delegated AGENCY: Small Business Administration. 12 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– authority.13 ACTION: Notice. 4(f)(6)(iii) requires the Exchange to give the Florence E. Harmon, Commission written notice of the Exchange’s intent to file the proposed rule change along with a brief Deputy Secretary. SUMMARY: This is a notice of an description and text of the proposed rule change, [FR Doc. E9–5716 Filed 3–16–09; 8:45 am] Administrative declaration of a disaster at least five business days prior to the date of filing of the proposed rule change, or such shorter time BILLING CODE 8011–01–P for the State of Texas dated: 03/10/2009. as designated by the Commission. The Exchange Incident: Bastrop County Wildland has satisfied the pre-filing requirement. 13 17 CFR 200.30–3(a)(12). Fire.

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Incident Period: 02/28/2009 and SMALL BUSINESS ADMINISTRATION waiver of the Nonmanufacturer Rule for continuing. PSC 3930, Warehouse Trucks and [License No. 02/72–0627] Effective Date: 03/10/2009. Tractors, Self-Propelled based on SBA’s Accretive Investors SBIC, L.P.; Notice recent discovery of small business Physical Loan Application Deadline manufacturers. Terminating this waiver Date: 5/11/2009. Seeking Exemption Under Section 312 of the Small Business Investment Act, will require recipients of contracts set Economic Injury (EIDL) Loan Conflicts of Interest aside for small businesses, service- Application Deadline Date: 12/10/2009. disabled veteran-owned small Notice is hereby given that Accretive businesses, or participants in SBA’s 8(a) ADDRESSES: Submit completed loan Investors SBIC, L.P., 51 Madison Business Development (BD) Program to applications to: U.S. Small Business Avenue, 31st Floor, New York, NY, provide the products of small business Administration, Processing And 10010, a Federal Licensee under the manufacturers or processors on such Disbursement Center, 14925 Kingsport Small Business Investment Act of 1958, contracts. Road, Fort Worth , TX 76155. as amended (‘‘the Act’’), in connection DATE: This waiver is effective April 1, FOR FURTHER INFORMATION CONTACT: A with the financing of a small concern, 2009. Escobar, Office of Disaster Assistance, has sought an exemption under Section FOR FURTHER INFORMATION CONTACT: Ms. U.S. Small Business Administration, 312 of the Act and Section 107.730, Edith G. Butler, by telephone at (202) 409 3rd Street, SW., Suite 6050, Financings which Constitute Conflicts 619–0422; by FAX at (202) 481–1788; or Washington, DC 20416. of Interest of the Small Business Administration (‘‘SBA’’) Rules and by e-mail at [email protected]. SUPPLEMENTARY INFORMATION: Notice is Regulations (13 CFR 107.730). Accretive SUPPLEMENTARY INFORMATION: Section hereby given that as a result of the Investors SBIC, L.P. proposes to provide 8(a)(17) of the Small Business Act (Act), Administrator’s disaster declaration, equity financing to Axiant, LLC, 2727 15 U.S.C. 637(a)(17), and SBA’s applications for disaster loans may be Paces Ferry Road, Atlanta, GA 30339. implementing regulations require that filed at the address listed above or other The financing is contemplated for recipients of Federal contracts set aside locally announced locations. working capital and debt repurchase. for small businesses, service-disabled The following areas have been The financing is brought within the veteran-owned small businesses, or determined to be adversely affected by purview of 107.730(a)(1) of the participants in the SBA’s 8(a) Business the disaster: Regulations because Accretive II, LP; Development Program, provide the Accretive Blocker, LP; Accretive II product of a small business Primary Counties: Coinvestment Partners, LP and manufacturer or processor, if the Bastrop. Accretive Coinvestment Partners, LLC, recipient is other than the actual manufacturer or processor of the Contiguous Counties: Texas. all Associates of Accretive Investors SBIC, L.P., in the aggregate own more product. This requirement is commonly Caldwell, Fayette, Lee, Travis, than ten percent of Axiant, LLC. referred to as the Nonmanufacturer Williamson. Therefore, this transaction is Rule. 13 CFR 121.406(b), 125.15(c). Section 8(a)(17)(b)(iv) of the Act The Interest Rates are: considered a financing of an Associate requiring an exemption. Notice is authorizes SBA to waive the Nonmanufacturer Rule for any ‘‘class of Percent hereby given that any interested person may submit written comments on the products’’ for which there are no small Homeowners With Credit Avail- transaction within fifteen days of the business manufacturers or processors able Elsewhere ...... 4.375 date of this publication to the Acting available to participate in the Federal Homeowners Without Credit Associate Administrator for Investment, market. Available Elsewhere ...... 2.187 U.S. Small Business Administration, In order to be considered available to Businesses With Credit Available 409 Third Street, SW., Washington, DC participate in the Federal market for a Elsewhere ...... 6.000 20416. class of products, a small business Businesses & Small Agricultural manufacturer must have submitted a Cooperatives Without Credit Dated: February 5, 2009. proposal for a contract solicitation or Available Elsewhere ...... 4.000 Harry Haskins, received a contract from the Federal Other (Including Non-Profit Orga- Acting Associate Administrator for government within the last 24 months. nizations) With Credit Available Investment. Elsewhere; ...... 4.500 13 CFR 121.1202(c). [FR Doc. E9–5738 Filed 3–16–09; 8:45 am] Businesses And Non-Profit Orga- The SBA defines ‘‘class of products’’ nizations Without Credit Avail- BILLING CODE 8025–01–P based on a six digit coding system. The able Elsewhere ...... 4.000 coding system is the Office of Management and Budget North SMALL BUSINESS ADMINISTRATION American Industry Classification The number assigned to this disaster System (NAICS). In addition, SBA uses for physical damage is 11690 5 and for Small Business Size Standards: Product Service Codes (PSC) to identify economic injury is 11691 0. Waiver of the Nonmanufacturer Rule particular products within the NAICS The States which received an EIDL AGENCY: U.S. Small Business code to which a waiver would apply. Declaration # are Texas. Administration. SBA announced its decision to grant (Catalog of Federal Domestic Assistance ACTION: Notice to terminate the the waiver for PSC 3930 in the Federal Numbers 59002 and 59008) Nonmanufacturer Rule Class Waiver for Register on September 13, 1990. 55 Federal Register 38313 (1990). SBA Dated: March 10, 2009. Product Service Code (PSC) 3930, received a request on December 18, Darryl K. Hairston, Warehouse Trucks and Tractors, Self- Propelled. 2008, to terminate the waiver to the Acting Administrator. nonmanufacturer rule for Warehouse [FR Doc. E9–5735 Filed 3–16–09; 8:45 am] SUMMARY: The U.S. Small Business Trucks and Tractors, Self-Propelled, BILLING CODE 8025–01–P Administration (SBA) has terminated a under PSC 3930. In response, on

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February 12, 2009, SBA issued a notice Meeting Date: June 4, 2009 from 2 of Private International Law, 2430 E of intent to terminate the wavier of the p.m. to about 5 p.m. (open to the Street, NW., Washington, DC on Nonmanufacturer Rule for Warehouse public). Tuesday, April 8, 2009, from 11 a.m. Trucks and Tractors, Self-Propelled. Location: The American Institute of EST to 1 p.m. EST. Comments were received from this Architects (Boardroom), 1735 New York Public Participation: Advisory notice and SBA has determined that Ave., NW., Washington, DC 20006. Committee Study Group meetings are there are small business manufacturers, Dated: March 9, 2009. open to the public, subject to the and is therefore terminating the waiver Dennis M. Delehanty, capacity of the meeting room. Access to for Warehouse Trucks and Tractors, Designated Federal Officer, Advisory the meeting building is controlled; Self-Propelled, PSC 3930, under NAICS Committee on International Postal and persons wishing to attend should code 333319. Delivery Services, Foreign Affairs Officer, contact Tricia Smeltzer or Niesha Toms Dated: March 10, 2009. Department of State. of the Department of State Legal Adviser’s Office at Karen C. Hontz, [FR Doc. E9–5747 Filed 3–16–09; 8:45 am] BILLING CODE 4710–19–P [email protected] or Director for Government Contracting. [email protected] and provide your [FR Doc. E9–5737 Filed 3–16–09; 8:45 am] name, e-mail address, and mailing BILLING CODE 8025–01–P DEPARTMENT OF STATE address to get admission into the meeting or to get directions to the office. [Public Notice 6542] Persons who cannot attend but who wish to comment are welcome to do so DEPARTMENT OF STATE U.S. Department of State Advisory Committee on Private International by e-mail to Michael Dennis at Law Study Group Notice of Meeting on [email protected]. If you are unable to [Public Notice 6543] the United Nations Commission on attend the public meeting and you International Trade Law (UNCITRAL) would like to participate by Advisory Committee International Draft Legislative Guide on Secured teleconferencing, please contact Tricia Postal and Delivery Services Transactions and Its Treatment of Smeltzer or Niesha Toms at 202–776– AGENCY: Department of State. Security Rights in Intellectual Property 8420 to receive the conference call-in number and the relevant information. ACTION: Notice; FACA Committee (IP) meeting announcement. The Department of State Advisory Dated: March 9, 2009. Committee on Private International Law Michael J. Dennis, SUMMARY: As required by the Federal (ACPIL) will be holding a public Attorney-Adviser, Office of Private Advisory Committee Act, Public Law meeting to continue to discuss the International Law, Department of State. 92–463, the Department of State gives treatment of IP-secured financing [FR Doc. E9–5751 Filed 3–16–09; 8:45 am] notice of the fifth meeting of the practices in the UNCITRAL Draft BILLING CODE 4710–08–P Advisory Committee on International Legislative Guide on Secured Postal and Delivery Services. This Transactions (Guide). At the 40th Committee has been formed in Session of the UNCITRAL in December DEPARTMENT OF TRANSPORTATION fulfillment of the provisions of the 2006 2007, the Commission adopted a Postal Accountability and Enhancement legislative guide on secured Federal Aviation Administration Act (Pub. L. 109–435) and in accordance transactions, including with the Federal Advisory Committee recommendations dealing with the Fourth Plenary Meeting, NextGen Mid- Act. scope of the Guide as it relates to IP law Term Implementation Task Force Public Input: Any member of the and secured financing, as well as the AGENCY: public interested in providing public Federal Aviation inclusion in the commentary to the Administration (FAA), DOT. input to the meeting should contact Mr. Guide of explanatory statements on the Chris Wood, Office of Technical ACTION: Notice of NextGen Mid-Term treatment of IP as secured financing. Implementation Task Force meeting. Specialized Agencies (IO/T), Bureau of The Commission also approved a work International Organization Affairs, U.S. project on IP law matters as they relate SUMMARY: The FAA is issuing this notice Department of State, at (202) 647–1044, to secured financing law. Earlier to advise the public of a meeting of the [email protected]. sessions for that work project were held NextGen Mid-Term Implementation Each individual providing oral input in May and October of 2008. A third Task Force. is requested to limit his or her session of that work project is scheduled DATES: comments to five minutes. Requests to The meeting will be held May for April 27–May 1, 2009 in New York. 12, 2009 starting at 9 a.m. to 12 p.m. be added to the speaker list must be The ACPIL will use this public meeting received in writing (letter, e-mail or fax) Arrive in FAA Lobby at 8:30 a.m. for to continue to exchange thoughts on the visitor check in. prior to the close of business on May 29, relationship between secured finance ADDRESSES: FAA Auditorium, Federal 2009; written comments from members and IP and how this matter should be Aviation Administration, 800 of the public for distribution at this addressed in the new draft IP annex to meeting must reach Mr. Wood by letter, the Guide. The report of the first two Independence Avenue, SW., e-mail or fax by this same date. sessions of the working group and the Washington, DC 20591. Meeting Agenda: The agenda of the papers prepared by the Secretariat for FOR FURTHER INFORMATION CONTACT: meeting will include a review of the the next session of the working group RTCA Secretariat, 1828 L Street, NW., results of the March-April 2009 session can be obtained at http:// Suite 850, Washington, DC, 20036; of the UPU Postal Operations Council www.uncitral.org/uncitral/en/ telephone (202) 833–9339; fax (202) and other subjects related to commission/working_groups/ 833–9434; Web site http://www.rtca.org. international postal and delivery 6Security_Interests.html. SUPPLEMENTARY INFORMATION: Pursuant services of interest to Advisory Time: The public meeting will take to section 10(a)(2) of the Federal Committee members and the public. place at the Department of State, Office Advisory Committee Act (P.L. 92–463, 5

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U.S.C., Appendix 2), notice is hereby compatibility program is March 2, 2009. Interested persons are invited to given for a NextGen Mid-Term The public comment period ends May 1, comment on the proposed program with Implementation Task Force meeting. 2009. specific reference to these factors. All The agenda will include: comments relating to these factors, other • FOR FURTHER INFORMATION CONTACT: Mr. Opening Plenary (Welcome and Ernest Gubry, Detroit Airports District than those properly addressed to local Introductions). Office, 11677 South Wayne Road, Suite land use authorities, will be considered • Work Group and Subgroup Status 107, Romulus, Michigan 48174, 734– by the FAA to the extent practicable. Reports and Planned Activities. 229–2905. Comments on the proposed Copies of the noise exposure maps and • Discussion and Next Steps. the proposed noise compatibility • Closing Plenary (Other Business, noise compatibility program should also be submitted to the above office. program are available for examination at Document Production, Date and Place of the following locations: Next Meeting, Adjourn). SUPPLEMENTARY INFORMATION: This Federal Aviation Administration, Attendance is open to the interested notice announces that the FAA is Detroit Airports District Office, 11677 public but limited to space availability. reviewing a proposed noise South Wayne Road, Suite 107, Romulus, With the approval of the chairman, compatibility program for Detroit Michigan 48174. members of the public may present oral Metropolitan Wayne County Airport Wayne County Airport Authority, statements at the meeting. Persons which will be approved or disapproved Michelle Plawecki, Authority Noise wishing to present statements or obtain on or before August 29, 2009. This Manager, Noise Compatibility Office, LC information should contact the person notice also announces the availability of Smith Terminal, Main Floor, Detroit, MI listed in the FOR FURTHER INFORMATION this program for public review and 48242. Phone: 734–942–1503. CONTACT section. Members of the public comment. Questions may be directed to the may present a written statement to the An airport operator who has individual named above under the committee at any time. submitted noise exposure maps that are heading, FOR FURTHER INFORMATION Issued in Washington, DC, on March 10, found by FAA to be in compliance with CONTACT. 2009. the requirements of Federal Aviation Dated: March 2, 2009. Francisco Estrada C., Regulations (FAR) Part 150, Issued in Romulus, Michigan. RTCA Advisory Committee. promulgated pursuant to the Act, may Matthew J. Thys, [FR Doc. E9–5666 Filed 3–16–09; 8:45 am] submit a noise compatibility program Manager, Detroit Airports District Office, BILLING CODE 4910–13–P for FAA approval which sets forth the Great Lakes Region. measures the operator has taken or [FR Doc. E9–5674 Filed 3–16–09; 8:45 am] proposes to reduce existing non- BILLING CODE 4910–13–P DEPARTMENT OF TRANSPORTATION compatible uses and prevent the introduction of additional non- Federal Aviation Administration compatible uses. DEPARTMENT OF TRANSPORTATION The FAA has formally received the Receipt of Noise Compatibility noise compatibility program for Detroit Federal Highway Administration Program and Request for Review; Metropolitan Wayne County Airport, Detroit Metropolitan Wayne County effective on March 2, 2009. The airport Buy America Waiver Notification Airport, Detroit, MI operator has requested that the FAA AGENCY: Federal Highway AGENCY: Federal Aviation review this material and that the noise Administration (FHWA), DOT. Administration, DOT. mitigation measures, to be implemented ACTION: Notice. ACTION: Notice. jointly by the airport and surrounding communities, be approved as a noise SUMMARY: This notice provides SUMMARY: The Federal Aviation compatibility program under section information regarding the FHWA’s Administration (FAA) announces that it 47504 of the Act. Preliminary review of finding that a Buy America waiver is is reviewing a proposed noise the submitted material indicates that it appropriate for the span lock linear compatibility program that was conforms to FAR Part 150 requirements electric actuators used in rehabilitation submitted for Detroit Metropolitan for the submittal of noise compatibility of the Robert Moses causeway NB and Wayne County Airport under the programs, but that further review will be SB structures in New York. provisions of 49 U.S.C. 47504 et. seq necessary prior to approval or DATES: The effective date of the waiver (the Aviation Safety and Noise disapproval of the program. The formal is March 18, 2009. Abatement Act, hereinafter referred to review period, limited by law to a FOR FURTHER INFORMATION CONTACT: For as ‘‘the Act’’) and 14 CFR part 150 by maximum of 180 days, will be questions about this notice, please Wayne County Airport Authority. This completed on or before August 29, 2009. contact Mr. Gerald Yakowenko, FHWA program was submitted subsequent to a The FAA’s detailed evaluation will be Office of Program Administration, (202) determination by FAA that associated conducted under the provisions of 14 366–1562, [email protected]. noise exposure maps submitted under CFR part 150, section 150.33. The For legal questions, please contact Mr. 14 CFR part 150 for Detroit Metropolitan primary considerations in the Michael Harkins, FHWA Office of the Wayne County Airport were in evaluation process are whether the Chief Counsel, (202) 366–4928, compliance with applicable proposed measures may reduce the level [email protected]. Office hours requirements, effective March 7, 2006 of aviation safety or create an undue for the FHWA are from 7:45 a.m. to 4:15 and was published in the Federal burden on interstate or foreign p.m., e.t., Monday through Friday, Register on March 21, 2006. The commerce, and whether they are except Federal holidays. proposed noise compatibility program reasonably consistent with obtaining the SUPPLEMENTARY INFORMATION: will be approved or disapproved on or goal of reducing existing non- before August 29, 2009. compatible land uses and preventing the Electronic Access DATES: Effective Date: The effective date introduction of additional non- An electronic copy of this document of the start of FAA’s review of the noise compatible land uses. may be downloaded from the Federal

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Register’s home page at: http:// Issued on: March 9, 2009. available if requested 10 calendar days www.archives.gov and the Government Jeffrey F. Paniati, before the meeting. Printing Office’s database at: http:// Acting Deputy Administrator, Federal FOR FURTHER INFORMATION CONTACT: www.access.gpo.gov/nara. Highway Administration. Larry Woolverton, RSAC Administrative [FR Doc. E9–5752 Filed 3–16–09; 8:45 am] Officer/Coordinator, FRA, 1200 New Background BILLING CODE 4910–22–P Jersey Avenue, SE., Mailstop 25, The FHWA’s Buy America policy in Washington, DC 20590, (202) 493–6212; 23 CFR 635.410 requires a domestic or Grady Cothen, Deputy Associate manufacturing process for any steel or DEPARTMENT OF TRANSPORTATION Administrator for Safety, FRA, 1200 New Jersey Avenue, SE., Mailstop 25, iron products (including protective Federal Railroad Administration coatings) that are permanently Washington, DC 20590, (202) 493–6302. incorporated in a Federal-aid [Docket No. FRA–2000–7257; Notice No. 51] SUPPLEMENTARY INFORMATION: Pursuant construction project. The regulation also to Section 10(a)(2) of the Federal provides for a waiver of the Buy Railroad Safety Advisory Committee; Advisory Committee Act (Pub. L. 92– America requirements when the Notice of Meeting 463), FRA is giving notice of a meeting application would be inconsistent with of the RSAC. The RSAC was established AGENCY: Federal Railroad the public interest or when satisfactory to provide advice and recommendations Administration (FRA), Department of to the FRA on railroad safety matters. quality domestic steel and iron products Transportation (DOT). are not sufficiently available. This The RSAC is composed of 54 voting notice provides information regarding ACTION: Announcement of Railroad representatives from 31 member the FHWA’s findings that a Buy Safety Advisory Committee (RSAC) organizations, representing various rail America waiver is appropriate for a Meeting. industry perspectives. In addition, there are non-voting advisory representatives span lock linear electric actuator in the SUMMARY: FRA announces the thirty- State of New York. from the agencies with railroad safety eighth meeting of the RSAC, a Federal regulatory responsibility in Canada and In accordance with section 130 of Advisory Committee that develops Mexico, the National Transportation Division K of the ‘‘Consolidated railroad safety regulations through a Safety Board, and the Federal Transit Appropriations Act, 2008’’ (Pub. L. 110– consensus process. The RSAC meeting Administration. The diversity of the 161), the FHWA published on its Web topics will include opening remarks Committee ensures the requisite range site a notice of intent to issue a Buy from the FRA Acting Deputy of views and expertise necessary to America waiver for the span lock linear Administrator, and status reports will be discharge its responsibilities. See the electric actuator in New York http:// provided by the following Working RSAC Web site for details on pending www.fhwa.dot.gov/construction/ Groups: Positive Train Control, Hours of tasks at: http://rsac.fra.dot.gov/. Please contracts/waivers.cfm?id=28 on Service, Passenger Safety, Locomotive refer to the notice published in the February 4. The FHWA received one Safety Standards, Railroad Bridge Federal Register on March 11, 1996, 61 comment in response to the span lock Safety, Medical Standards, Railroad FR 9740) for additional information linear electric actuator. The comment Operating Rules, and Track Safety about the RSAC. was ‘‘Buy America needs to be Standards. The Committee may be asked maintained in every instance possible.’’ to approve recommendations Issued in Washington, DC, on March 11, 2009. During the 15-day comment period, the concerning a final rule on revision of FHWA conducted an additional recordkeeping and reporting Grady C. Cothen, Jr., nationwide review to locate potential requirements for hours of service of Deputy Associate Administrator for Safety domestic manufacturers for the product. safety-critical railroad employees. The Standards and Program Development. Based on all the information available to Committee may be asked to approve a [FR Doc. E9–5675 Filed 3–16–09; 8:45 am] the agency, including the response proposed rule on Railroad Bridge Safety BILLING CODE 4910–06–P received to the notice as well as the and to consent to a mail ballot on Agency’s nationwide review, the FHWA recommendations for a proposed rule on DEPARTMENT OF TRANSPORTATION concludes that there are no domestic Positive Train Control. The Committee may also be asked to accept a Task manufacturers for the span lock linear Federal Railroad Administration electric actuator. concerning hours of service for train, engine and yard employees of intercity [Docket No. FRA–2000–7257; Notice No. 52] In accordance with the provisions of and commuter passenger railroads. This section 117 of the ‘‘SAFETEA–LU agenda is subject to change, including Railroad Safety Advisory Committee; Technical Corrections Act of 2008’’ the possible addition of further Working Group Activity Update (Pub. L. 110–244, 122 Stat. 1572), the proposed tasks under the Rail Safety AGENCY: Federal Railroad FHWA is providing this notice as its and Improvement Act of 2008. finding that a waiver of the Buy Administration (FRA), Department of DATES: America requirements is appropriate The meeting of the RSAC is Transportation (DOT). pursuant to 23 CFR 635.410(c)(1). The scheduled to commence at 9:30 a.m. and ACTION: Announcement of Railroad will adjourn by 4:30 p.m. on Thursday, FHWA invites public comment on this Safety Advisory Committee (RSAC) April 2, 2009. finding for an additional 15 days Working Group Activities. following the effective date of the ADDRESSES: The RSAC meeting will be held at the Washington Marriott Hotel, SUMMARY: The FRA is updating its finding. Comments may be submitted to announcement of RSAC’s Working the FHWA’s Web site via the link located at 1221 22nd Street, NW., Washington, DC 20005. The meeting is Group activities to reflect its current provided to the New York waiver page status. noted above. open to the public on a first-come, first- serve basis, and is accessible to FOR FURTHER INFORMATION CONTACT: (Authority: 23 U.S.C. 313; Pub. L. 110– individuals with disabilities. Sign and Larry Woolverton, RSAC Coordinator, 161, 23 CFR 635.410.) oral interpretation can be made FRA, 1200 New Jersey Avenue, SE.,

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Mailstop 25, Washington, DC 20590, agreed to establish a task force on were approved by the full Committee on (202) 493–6212; or Grady Cothen, General Passenger Safety. The full January 26, 2005. At the Working Group Deputy Associate Administrator for Passenger Safety Working Group met on meeting of September 7–8, 2005, the Safety, FRA, 1200 New Jersey Avenue, April 17–18, 2007, December 11–12, Task Force presented additional SE., Mailstop 25, Washington, DC 2007, and November 13, 2008. The next perfecting amendments and the full 20590, (202) 493–6302. meeting is to be scheduled in June 2009. RSAC approved them on October 11, SUPPLEMENTARY INFORMATION: This Contact: Charles Bielitz, (202) 493–6314. 2005. An NPRM was published in the notice serves to update FRA’s last (Emergency Preparedness Task Force) Federal Register on December 8, 2005, announcement of working group At the Working Group meeting of March (70 FR 73070). Public comments were activities and status reports of August 9–10, 2005, the Working Group received due by February 17, 2006. The final rule 29, 2008 (73 FR 51041). The 37th full and approved the consensus report of was published in the Federal Register RSAC Committee meeting was held the Emergency Preparedness Task Force on October 19, 2006, (71 FR 61835) December 10, 2008, and the 38th related to emergency communication, effective December 18, 2006. meeting is scheduled for April 2, 2009, emergency egress and rescue access. (Crashworthiness Task Force) Among at the Washington Marriott Hotel These recommendations were presented its efforts, the Crashworthiness Task located at 1221 22nd Street, NW., in to and approved by the full RSAC Force provided consensus Washington, DC. Committee on May 18, 2005. The recommendations on static end strength Since its first meeting in April of Working Group met on September 7–8, that were adopted by the Working 1996, the RSAC has accepted 30 tasks. 2005, and additional, supplementary Group on September 7–8, 2005. The full The status for each of the open tasks recommendations were presented to and Committee accepted the (neither completed nor terminated) is accepted by the full RSAC on October recommendations on October 11, 2005. provided below: 11, 2005. The Notice of Proposed The Front-End Strength of Cab Cars and Rulemaking (NPRM) was published on Open Tasks Multiple-Unit Locomotives NPRM was August 24, 2006, (71 FR 50275) and was published in the Federal Register on Task 96–4—Tourist and Historic open for comment until October 23, August 1, 2007, (72 FR 42016) with Railroads. Reviewing the 2006. The Working Group agreed upon comments due by October 1, 2007. A appropriateness of the agency’s current recommendations for the final rule, number of comments were entered into policy regarding the applicability of including resolution of final comments the docket, and a Crashworthiness Task existing and proposed regulations to received, during the April 17–18, 2007, Force meeting was held September 9, tourist, excursion, scenic, and historic meeting. The recommendations were 2008, to resolve comments on the railroads. This Task was accepted on presented to and approved by the full NPRM. Based on the consensus April 2, 1996, and a Working Group was RSAC on June 26, 2007. The Passenger language agreed to at the meeting, FRA established. The Working Group Train Emergency Systems final rule, has prepared the text of the final rule monitored the steam locomotive focusing on emergency communication, incorporating the resolutions made at regulation task. Planned future activities emergency egress, and rescue access, the Task Force meeting and the final involve the review of other regulations was published on February 1, 2008 (73 rule language was adopted at the for possible adaptation to the safety FR 6370). The Task Force met on Passenger Safety Working Group needs of tourist and historic railroads. October 17–18, 2007, and reached meeting, held on November 13, 2008. Contact: Grady Cothen, (202) 493–6302. consensus on draft rule text for a Task 03–01—Passenger Safety. This followup NPRM on Passenger Train The language was presented and task includes updating and enhancing Emergency Systems, focusing on low- approved at the December 10, 2008, full the regulations pertaining to passenger location emergency exit path marking, RSAC meeting and the rule will go safety, based on research and emergency lighting, and emergence forward with a target publication date of experience. This Task was accepted on signage. The Task Force presented the April 2009. Contact: Gary Fairbanks, May 20, 2003, and a Working Group was draft rule text to the Passenger Safety (202) 493–6322. established. Prior to embarking on Working Group on December 11–12, (Vehicle/Track Interaction Task substantive discussions of a specific 2007, and the consensus draft rule text Force) The Task Force is developing task, the Working Group set forth in was presented to and approved by full proposed revisions to 49 CFR parts 213 writing a specific description of the RSAC vote during the February 20, and 238 principally regarding high- task. The Working Group reports 2008, meeting. At its most recent speed passenger service. The Task Force planned activities to the full Committee meeting, held May 13–14, 2008, the met on October 9–11, 2007, and again at each scheduled full RSAC meeting, Task Force recommended clarifying the on November 19–20, 2007, in including milestones for completion of applicability of backup emergency Washington, DC and presented the final projects and progress toward communication system requirements in Task Force Report and final completion. At the first meeting, held the February 1, 2008, final rule, and recommendations and proposed rule September 9–10, 2003, a consolidated FRA announced its intention to exercise text for approval by the Passenger Safety list of issues was completed. At the limited enforcement discretion for a Working Group at the December 11–12, second meeting, held November 6–7, new provision amending instruction 2007, meeting. The final report and the 2003, four task groups were established: requirements for emergency window proposed rule text were approved by the Emergency Preparedness; Mechanical; exit removal. The Working Group Working Group and was presented to Crashworthiness; and Track/Vehicle ratified these recommendations on June and approved by full RSAC vote during Interaction. The task forces met and 19, 2008. No additional Task Force the February 20, 2008, meeting. The reported on activities for Working meetings are currently scheduled. group last met on February 27–28, 2008, Group consideration at the third Contact: Brenda Moscoso, (202) 493– and FRA is currently crafting an NPRM meeting, held May 11–12, 2004, and a 6282. with a target publication date of fourth meeting was held October 26–27, (Mechanical Task Force) (Completed) September 2009. No additional Task 2004. The Working Group met on March Initial recommendations on mechanical Force meetings are currently scheduled. 21–22, 2006, and again on September issues (revisions to Title 49 Code of Contact: John Mardente, (202) 493– 12–13, 2006, at which time the group Federal Regulations (CFR) Part 238) 1335.

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(General Passenger Safety Task Force) review. In order to address the electronic devices while on duty) and At the Passenger Safety Working Group heightened concerns raised with the ‘‘after arrival mandatory directives,’’ meeting on April 17–18, 2007, the Task current regulations for adjacent-track among other issues. The working group Force presented a progress report to the on-track safety, an NPRM was published continues to work on After Arrival Working Group. The Task Force met on on July 17, 2008, that focused on this Orders and at the September 25, 2008, July 18–19, 2007, and afterwards, it element of the RWP rule alone. As this meeting voted to create a Highway-Rail reported proposed reporting cause codes was an NPRM, FRA sought comment on Grade Crossing Task Force to review for injuries involving the platform gap, the entire proposal, including those highway-rail grade crossing accident which were approved by the Working portions that FRA sought to clarify. reports regarding incidents of crossing Group by mail ballot in September 2007. However, on August 13, 2008, the warning systems providing ‘‘short or no The full RSAC approved the NPRM was withdrawn to permit further warning’’ resulting from or contributed recommendations for changes to 49 CFR consideration of the RSAC-reported to ‘‘by train operational issues’’ with the part 225 accident/incident cause codes consensus language. FRA has decided to intent to recommend new accident/ on October 25, 2007. The Task Force separately issue a second proposed rule incident reporting codes that would continues work on passenger train door on adjacent track protection, which will better explain such events, and which securement, ‘‘second train in station,’’ be handled on an accelerated basis. The may provide information for remedial trespasser incidents, and System-Safety second NPRM concerning adjacent action going forward. A follow-on task based solutions by developing a controlled track safety is under final is to review and provide regulatory approach to System Safety. review and is expected to be published recommendations regarding The General Passenger Safety Task by mid-year 2009. The remaining larger supplementary reporting of train Force presented draft guidance material NPRM for the various revisions, operations-related, no-warning or short- for management of the gap that was clarifications, and additions to 31 warning incidents that are not considered and approved by the separate items in 19 sections of the rule technically warning system activation Working Group during the December and FRA’s recommendations for the failures but which result in an accident/ 11–12, 2007, meeting and was presented eight non-consensus items is planned incident or a near miss. The Task Force to and approved by full RSAC vote for late 2009. Contact: Christopher has been formed and is scheduled to during the February 20, 2008, meeting. Schulte, (610) 521–8201. meet in the May/June 2009 timeframe. The group met April 23–24, 2008, and Task 05–02—Reduce Human Factor- Contact: Douglas Taylor, (202) 493– December 3–4, 2008. The next meeting Caused Train Accident/Incidents. This 6255. is scheduled for April 21–23, 2009. Task was accepted on May 18, 2005, to Task 06–01—Locomotive Safety Contact: Dan Knote, (631) 567–1596. reduce the number of human factor- Standards. This task was accepted on Task 05–01—Review of Roadway caused train accidents/incidents and February 22, 2006, to review 49 CFR Worker Protection (RWP) Issues. This related employee injuries. The Railroad Part 229, Railroad Locomotive Safety Task was accepted on January 26, 2005, Operating Rules Working Group was Standards, and revise as appropriate. A to review 49 CFR part 214, subpart C, formed and the Group extensively Working Group was established with Roadway Worker Protection, and related reviewed the issues presented. The final the mandate to report any planned sections of Subpart A; recommend Working Group meeting devoted to activity to the full Committee at each consideration of specific actions to developing a proposed rule was held scheduled full RSAC meeting, to advance the on-track safety of railroad February 8–9, 2006. The Working Group include milestones for completion of employees and contractors engaged in was not able to deliver a consensus projects and progress toward maintenance-of-way activities regulatory proposal, but did recommend completion. The first Working Group throughout the general system of that it be used to review comments on meeting was held May 8–10, 2006. railroad transportation, including FRA’s NPRM, which was published in Working Group meetings were held on clarification of existing requirements. A the Federal Register on October 12, August 8–9, 2006, September 25–26, Working Group was established and 2006, (FR 71 60372) with public 2006, and October 30–31, 2006, and the reported to the RSAC any specific comments due by December 11, 2006. Working Group presented actions identified as appropriate. The Two reviews were held, one on recommendations regarding revisions to first meeting of the Working Group was February 8–9, 2007, the other on April requirements for locomotive sanders to held on April 12–14, 2005. The group 4–5, 2007. Consensus was reached on the full RSAC on September 21, 2006. drafted and accepted regulatory four items and those items were The NPRM regarding sanders was language for various revisions, presented and accepted by the full published in the Federal Register on clarifications, and additions to 32 RSAC Committee at the June 26, 2007, March 6, 2007 (72 FR 9904). Comments separate items in 19 sections of the rule. meeting. A final rule was published in received were discussed by the Working However, two parties raised technical the Federal Register on February 13, Group for clarification, and FRA concerns regarding the draft language 2008 (73 FR 8442) with an effective date published a final rule on October 19, concerning electronic display of track of April 14, 2008. FRA received four 2007 (72 FR 59216). The Working Group authorities. The Working Group petitions for reconsideration of that final is continuing the review of Part 229 reported recommendations to the full rule. The final rule that responded to with work in the areas of locomotive cab Committee at the June 26, 2007, the petitions for consideration was temperature standards, alerters, remote meeting. The FRA, through the NPRM published in the Federal Register on control locomotives, and critical process, is to address this issue along June 16, 2008, and concluded the locomotive electronics with a view to with eight additional items on which rulemaking. Working group meetings proposing further revisions to update the Working Group was unable to reach were held September 27–28, 2007, the standards. The Working Group met a consensus. Comments were received January 17–18, 2008, May 21–22, 2008, on January 9–10, 2007, November 27– and were considered during the drafting and September 25–26, 2008. The 28, 2007, February 5–6, 2008, May 20– of the NPRM. In early 2008, the external Working Group has considered issues 21, 2008, August 5–6, 2008, October 22– working group members were solicited related to issuance of Emergency Order 23, 2008, and January 6–7, 2009. The to review the consensus text for errata No. 26 (prohibition on use of certain next meeting is scheduled for April 15–

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16, 2009. Contact: George Scerbo, (202) railroad operating environment and the ensure a common understanding within 493–6249. public by establishing standards and the regulated community concerning Task 06–02—Track Safety Standards procedures for determining the medical requirements for internal rail flaw and Continuous Welded Rail (CWR). fitness for duty of personnel engaged in inspections. The tasks were assigned to Section 9005 of the Safe, Accountable, safety-critical functions. A Working the Track Safety Standards Working Flexible, Efficient Transportation Equity Group has been established and will Group. The Working Group will report Act: A Legacy for Users (Pub. L. 109– report any planned activity to the full any planned activity to the full 59), the 2005 Surface Transportation Committee at each scheduled full RSAC Committee at each scheduled full RSAC Authorization Act, requires FRA to meeting, including milestones for meeting, including milestones for issue requirements for inspection of completion of projects and progress completion of projects and progress joint bars in CWR to detect cracks that toward completion. The first Working toward completion. The first Working could affect the integrity of the track Group meeting was held December 12– Group meeting was held on June 27–28, structure (49 U.S.C. 20142(e)). FRA 13, 2006. The Working Group has held 2007, and the group met again on published an interim final rule (IFR) follow-on meetings on the following August 15–16, 2007, and October 23–24, establishing new requirements for dates: February 20–21, 2007, July 24–25, 2007. Two Task Forces were created inspections on November 2, 2005 (70 FR 2007, August 29–30, 2007, October 31– under the Working Group: The Concrete 66288). On October 11, 2005, FRA November 1, 2007, December 4–5, 2007, Ties and Rail Integrity Task Forces. The offered the RSAC a task to review February 13–14, 2008, March 26–27, Concrete Ties Task force met on comments on this IFR, but the 2008, and April 22–23, 2008. At the November 26–27, 2007, February 13–14, conditions could not be established latest meeting, FRA announced that the 2008, April 16–17, 2008, July 9–10, under which the Committee could have agency would prepare an NPRM draft 2008, and September 17–18, 2008. The undertaken this with a view toward based on the discussions to date and Concrete Ties Task Force finalized consensus. Comments on the IFR were schedule a further meeting for review of consensus language regarding concrete received through December 19, 2005. the document. The draft NPRM is crossties (49 CFR Part 213) and FRA reviewed the comments, and on currently in FRA coordination and the presented a recommendation to the February 22, 2006, the RSAC accepted language is being revised based on Track Standards Working Group at the this task to review and revise the CWR comments. The draft NPRM will be November 20, 2008, Working Group related to provisions of the Track Safety presented to the RSAC Medical meeting. The language was approved by Standards, with particular emphasis on Standards Working Group when both the Working Group and the reduction of derailments and completed. A Doctors Task Force, December 10, 2008, RSAC meeting and consequent injuries and damage caused established by the Working Group in the Task Force was dissolved. FRA is by defective conditions, including joint May 2007, is proceeding to develop preparing an NPRM with a target failures, in track using CWR. A Working accompanying medical guidelines publication date of April, 2009. Contact: Group was established, and the first which will be used to provide Ken Rusk, (202) 493–6236. Working Group meeting was held April consistent criteria for determining the Task 08–03—Track Safety Standards 3–4, 2006, at which time the Working medical fitness for duty of the safety- Rail Integrity. This task was accepted on Group reviewed comments on the IFR. critical positions. These guidelines will September 10, 2008, to consider specific The second Working Group meeting was be presented for Working Group improvements to the Track Safety Standards or other responsive actions held April 26–28, 2006. The Working consideration when complete. When Group also met May 24–25, 2006, and designed to enhance rail integrity. The accepted by the Medical Standards July 19–20, 2006. The Working Group Rail Integrity Task Force was created in Working Group, the two parts of the reported consensus recommendations October 2007 under Task 07–01 and rulemaking will be presented to the full for the final rule that were accepted by first met on November 28–29, 2007. The RSAC for approval. The target date for the full RSAC Committee by mail ballot Task Force met on February 12–13, publishing the NPRM is May, 2009. The on August 11, 2006. The final rule was 2008, April 15–16, 2008, July 8–9, 2008, Task Force of Physicians has had published in the Federal Register on September 16–17, 2008, and February meetings or conference calls on July 24, October 11, 2006 (71 FR 59677). The 3–4, 2009. Consensus has been achieved 2007, August 20, 2007, October 15, Working Group continued review of on bond wires and a common 2007, October 31, 2007, June 23–24, Section 213.119 with a view to understanding on internal rail flaw proposing further revisions to update 2008, September 8–10, 2008, October 8, inspections has been reached; however, the standards. The Working Group met 2008, November 12–13, 2008, December more work remains before a January 30–31, 2007, April 10–11, 2007, 8–10, 2008, January 27–28, 2009, and recommendation for possible regulatory June 27–28, 2007, August 15–16, 2007, February 24–25, 2009. The next meeting action is made. The next Rail Integrity October 23–24, 2007, and January, 8–9, of the Task Force is scheduled for Task Force meeting is scheduled for 2008. The Working Group reported March 11–12, 2009. Contact: Dr. June 16–17, 2009. Contact: Ken Rusk, consensus recommendations for Bernard Arseneau, (202) 493–6002. (202) 493–6236. revisions to Section 213.119 regulations Task 07–01—Track Safety Standards. Task No. 08–04—Positive Train to the full RSAC Committee on February This task was accepted on February 22, Control (PTC). This task was accepted 20, 2008, and the recommendations 2007, to consider specific improvements on December 10, 2008, to provide were accepted. FRA published an to the Track Safety Standards or other advice regarding development of NPRM on December 1, 2008, and is responsive actions, supplementing work implementing regulations for PTC preparing a final rule with a target already underway on continuous systems and their deployment under the publication date of April 2009. See task welded rail (CWR) specifically to: Rail Safety Improvement Act of 2008 07–01 and 08–03, below. Contact: Ken review controls applied to reuse of rail (RSIA, Pub. L. 110–432). The task Rusk, (202) 493–6236. in CWR ‘‘plug rail’’; review the issue of included a requirement to convene an Task 06–03—Medical Standards for cracks emanating from bond wire initial meeting not later than January Safety-Critical Personnel. This task was attachments; consider improvements in 2009 and to report recommendations accepted on September 21, 2006, to the Track Safety Standards related to back to the RSAC no later than April 24, enhance the safety of persons in the fastening of rail to concrete ties; and 2009. The PTC Working Group was

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created in December 2008 by Working Management and Budget) by October 16, Task 97–7—(Completed) Determining Group member nominations from 2009. The Conductor Certification damages qualifying an event as a Committee member organizations under Working Group will be officially formed reportable train accident. Task 08–04, and the kickoff meeting was at a later date by nominations from Task 00–1—(Task withdrawn) held on January 26–27, 2009. The group member organizations and work will Determining the need to amend met again on February 11–13, 2009, and begin as time and schedules will permit regulations protecting persons who February 25–27, 2009. The next meeting in 2009 after other Congressional RSAC work on, under, or between rolling is scheduled for March 17–19, 2009. priorities are met. equipment and persons applying, Contact: Grady Cothen, (202) 493–6302. removing or inspecting rear end Task No. 08–05—Railroad Bridge Completed Tasks marking devices (Blue Signal Safety Assurance. This task was Task 96–1—(Completed) Revising the Protection). accepted on December 10, 2008, to Freight Power Brake Regulations. Task 01–1—(Completed) Developing develop a draft rule encompassing the Task 96–2—(Completed) Reviewing conformity of FRA’s regulations for requirements of Section 417, of the and recommending revisions to the accident/incident reporting (49 CFR Part RSIA (Division A), Railroad Bridge Track Safety Standards (49 CFR Part 225) to revised regulations of the Safety Assurance. This Section directs 213). Occupational Safety and Health the Secretary of Transportation to Task 96–3—(Completed) Reviewing Administration (OSHA), U.S. promulgate regulations, not later than and recommending revisions to the Department of Labor, and to make 12 months after the October 16, 2008, Radio Standards and Procedures (49 appropriate revisions to the FRA Guide date of enactment, requiring owners of CFR Part 220). for Preparing Accident/Incident Reports track carried on one or more railroad (Reporting Guide). bridges to adopt a bridge safety Task 96–5—(Completed) Reviewing Task 08–01—(Completed) Report on management program to reduce the risk and recommending revisions to Steam the Nation’s Railroad Bridges. of human casualties, environmental Locomotive Inspection Standards (49 Please refer to the notice published in damage, and disruption to the Nation’s CFR Part 230). the Federal Register on March 11, 1996, railroad transportation system that Task 96–6—(Completed) Reviewing (61 FR 9740) for more information about would result from a catastrophic bridge and recommending revisions to the RSAC. failure. The Railroad Bridge Working miscellaneous aspects of the regulations addressing Locomotive Engineer Issued in Washington, DC, on March 11, Group created under Task 08–01 was 2009. Certification (49 CFR Part 240). directed to reconvene and the kickoff Grady C. Cothen, Jr., meeting was held January 28–29, 2009. Task 96–7—(Completed) Developing Roadway Maintenance Machines (On- Deputy Associate Administrator for Safety The working group also met on Standards and Program Development. February 23–24, 2009, where they Track Equipment) Safety Standards. [FR Doc. E9–5676 Filed 3–16–09; 8:45 am] reached agreement on consensus Task 96–8—(Completed) This language covering all but two issues that Planning Task evaluated the need for BILLING CODE 4910–06–P remain to be resolved pending action responsive to recommendations comments on the NPRM. The group will contained in a report to Congress present the draft language to the full entitled, Locomotive Crashworthiness & DEPARTMENT OF THE TREASURY committee at the April 2, 2009, meeting. Working Conditions. United States Mint Contact: Gordon Davids, (202) 230– Task 97–1—(Completed) Developing 6320. crashworthiness specifications (49 CFR Notification of Pricing for the United Task No. 08–06—Hours of Service Part 229) to promote the integrity of the States Mint 2009 American Presidency Recordkeeping and Reporting. This task locomotive cab in accidents resulting $1 Coin Cover Series, and the United was accepted on December 10, 2008, to from collisions. States Mint 2009 District of Columbia develop revised recordkeeping and Task 97–2—(Completed) Evaluating and U.S. Territories Quarters Official reporting requirements for hours of the extent to which environmental, First Day Coin Cover Series service of railroad employees. The sanitary, and other working conditions Hours of Service Working Group was in locomotive cabs affect the crew’s ACTION: Notification of Pricing for the formed in January 2009 by member health and the safe operation of United States Mint 2009 American nominations from committee member locomotives, proposing standards where Presidency $1 Coin Cover Series, and organizations and the first meeting was appropriate. the United States Mint 2009 District of held on January 22–23, 2009. The Task 97–3—(Completed) Developing Columbia and U.S. Territories Quarters working group met again on February 4– Official First Day Coin Cover Series. 6, 2009, and February 18–20, 2009, and event recorder data survivability is scheduled to meet for the final time standards. SUMMARY: The United States Mint is on March 23–25, 2009. Contact: Mark Task 97–4 and Task 97–5— announcing pricing for the 2009 McKeon, (202) 493–6350. (Completed) Defining Positive Train American Presidency $1 Coin Cover Task No. 08–07—Conductor Control (PTC) functionalities, describing Series and the 2009 District of Columbia Certification. This task was accepted on available technologies, evaluating costs and U.S. Territories Quarters Official December 10, 2008, to develop and benefits of potential systems, and First Day Coin Cover Series. regulations for certification of railroad considering implementation The 2009 American Presidency $1 conductors, as required by the RSIA, opportunities and challenges, including Coin Cover Series will be priced at and to consider any appropriate related demonstration and deployment. $14.95 each. Each cover includes two amendments to existing regulations and Task 97–6—(Completed) Revising Presidential $1 Coins, one each from the report recommendations for the various regulations to address the safety United States Mint facilities at Denver proposed or interim final rule (as implications of processor-based signal and Philadelphia, on a display card determined by FRA in consultation with and train control technologies, with a stamp and a postmark marking the Office of the Secretary of including communications-based the day the coins were first released to Transportation and the Office of operating systems. the public.

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The 2009 District of Columbia and Dated: March 11, 2009. Quarters Silver Proof Set will be U.S. Territories Quarters Official First Edmund C. Moy, released this spring, and will be priced Day Coin Covers will be priced at Director, United States Mint. at $29.95. $14.95 each. Each cover includes two [FR Doc. E9–5724 Filed 3–16–09; 8:45 am] The 2009 United States Mint Proof Set quarters, one each from the United BILLING CODE 4810–37–P will be released this summer, and will States Mint facilities at Denver and be priced at $29.95. Philadelphia, on a display card with a The 2009 United States Mint stamp and a postmark marking the day DEPARTMENT OF THE TREASURY Uncirculated Coin Set will be released the quarters were first released to the this summer, and will be priced at United States Mint public. $27.95. The 2009 United States Mint Silver The first 2009 American Presidency Notification of Pricing for United States Proof Set will be released this summer, $1 Coin Cover Series, featuring the Mint 2009 Annual Sets and will be priced at $52.95. William Henry Harrison Presidential $1 FOR FURTHER INFORMATION CONTACT: B.B. Coin, and the first 2009 District of ACTION: Notification of Pricing for United States Mint 2009 Annual Sets. Craig, Associate Director for Sales and Columbia and U.S. Territories Quarters Marketing; United States Mint, 801 First Day Coin Cover, featuring the SUMMARY: The United States Mint is Ninth Street, NW., Washington, DC District of Columbia Quarter, will be announcing pricing for the 2009 United 20220; or call 202–354–7500. offered for sale this spring. States Mint District of Columbia and Authority: 31 U.S.C. 5111, 5112, 5132 & FOR FURTHER INFORMATION CONTACT: B.B. U.S. Territories Quarters Silver Proof 9701. SetTM, the 2009 United States Mint Craig, Associate Director for Sales and ® Dated: March 11, 2009. Marketing; United States Mint; 801 Proof Set , the 2009 United States Mint Uncirculated Coin Set®, and the 2009 Edmund C. Moy, Ninth Street, NW., Washington, DC United States Mint Silver Proof SetTM. Director, United States Mint. 20220; or call 202–354–7500. The 2009 United States Mint District [FR Doc. E9–5723 Filed 3–16–09; 8:45 am] Authority: 31 U.S.C. 5111, 5112 & 9701. of Columbia and U.S. Territories BILLING CODE 4810–37–P

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Part II

Department of Labor Employment and Training Administration 20 CFR Part 655

Wage and Hour Division 29 CFR Parts 501, 780, and 788

Temporary Employment of H–2A Aliens in the United States; Proposed Rule

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DEPARTMENT OF LABOR submissions) to Thomas Dowd, appropriate aids such as readers or print Administrator, Office of Policy magnifiers. The Department will make Employment and Training Development and Research, copies of this notice available, upon Administration Employment and Training request, in large print and as an Administration, U.S. Department of electronic file on a computer disk. The 20 CFR Part 655 Labor, 200 Constitution Avenue, NW., Department will consider providing this Room N–5641, Washington, DC 20210. notice in other formats upon request. To Wage and Hour Division Hand Delivery/Courier: Please submit schedule an appointment to review the all comments to Thomas Dowd, comments and/or obtain this notice in 29 CFR Parts 501, 780, and 788 Administrator, Office of Policy an alternate format, contact the Office of Development and Research, RIN 1205–AB55 Policy Development and Research at Employment and Training (202) 693–3700 (VOICE) (this is not a Temporary Employment of H–2A Administration, U.S. Department of toll-free number) or 1–877–889–5627 Aliens in the United States Labor, 200 Constitution Avenue, NW., (TTY/TDD). Room N–5641, Washington, DC 20210. FOR FURTHER INFORMATION CONTACT: For AGENCY: Please submit your comments by only Employment and Training further information regarding 20 CFR one method. The Department will post Administration and Wage and Hour part 655, contact William Carlson, PhD, all comments received on http:// Division, Employment Standards Administrator, Office of Foreign Labor www.regulations.gov without making Administration, Labor. Certification, Employment and Training any change to the comments, including ACTION: Notice of proposed suspension Administration (ETA), U.S. Department any personal information provided. The of rule. of Labor, 200 Constitution Avenue, http://www.regulations.gov Web site is NW., Room C–4312, Washington, DC SUMMARY: The Department of Labor the Federal e-Rulemaking portal and all 20210; Telephone (202) 693–3010 (this (DOL or the Department) proposes to comments posted there are available is not a toll-free number). For further suspend for 9 months the H–2A and accessible to the public. The information regarding 29 CFR parts 501, regulations published on December 18, Department cautions commenters not to 780 and 788, contact James Kessler, 2008, which became effective on include their personal information such Farm Labor Team Leader, Wage and January 17, 2009, that amended the as Social Security numbers, personal Hour Division, Employment Standards rules governing the certification for addresses, telephone numbers, and e- Administration, U.S. Department of temporary employment of mail addresses in their comments as Labor, 200 Constitution Avenue, NW., nonimmigrant workers in agricultural such submitted information will become Room S–3510, Washington, DC 20210; occupations on a temporary or seasonal viewable by the public via the http:// Telephone (202) 693–0070 (this is not a basis, and the enforcement of www.regulations.gov Web site. It is the toll-free number). Individuals with contractual obligations applicable to responsibility of the commenter to hearing or speech impairments may employers of such nonimmigrant safeguard his or her information. access the telephone numbers above via workers. A suspension would provide Comments submitted through http:// TTY by calling the toll-free Federal the Department with an opportunity to www.regulations.gov will not include Information Relay Service at 1–800– review and reconsider the new the commenter’s e-mail address unless 877–8339. requirements in light of issues that have the commenter chooses to include that arisen since the publication of the H–2A information as part of his or her SUPPLEMENTARY INFORMATION: Final Rule, while minimizing the comment. I. Background and Proposed Action disruption to the Department, State Please provide written comments only Workforce Agencies (SWAs), employers, on whether the Department should On December 18, 2008, the and workers. To avoid the regulatory suspend the December 18, 2008 final Department published final regulations vacuum that would result from a rule for further review and revising title 20 of the Code of Federal suspension, the Department proposes to consideration of the issues that have Regulations (20 CFR) part 655 and title reinstate on an interim basis the rules arisen since the final rule’s publication. 29 of the Code of Federal Regulations that were in place on January 16, 2009, Comments concerning the substance or (29 CFR) parts 501, 780, and 788 (the the day before the revised rules became merits of the December 18, 2008 final ‘‘H–2A Final Rule’’). See 73 FR 77110, effective, by reprinting those previous rule or the prior rule will not be Dec. 18, 2008. The H–2A Final Rule regulations. considered. replaced the previous versions of 20 Postal delivery in Washington, DC CFR part 655 (2008) and 29 CFR part DATES: Interested persons are invited to may be delayed due to security 501 (2008) that, for the most part, were submit written comments on the concerns. Therefore, the Department published at 52 FR 20507, Jun. 1, 1987. proposed suspension on or before encourages the public to submit With respect to the provisions under 29 March 27, 2009. The Department will comments via the Web site indicated CFR parts 780 and 788 that were not necessarily consider any comments above. amended by the H–2A Final Rule, the received after the above date in making Docket: For access to the docket to previous versions of 29 CFR 780.115, its decisions on the final rule. read background documents or 780.201, 780.205, and 780.208 were ADDRESSES: You may submit comments, comments received, go to the Federal published at 37 FR 12084, Jun. 17, 1972, identified by Regulatory Information eRulemaking portal at http:// and the previous version of 29 CFR Number (RIN) 1205–AB55, by any one www.regulations.gov. The Department 788.10 was published at 34 FR 15784, of the following methods: will also make all the comments it Oct. 14, 1969. Federal e-Rulemaking Portal: http:// receives available for public inspection Following the issuance of the H–2A www.regulations.gov: Follow the Web during normal business hours at the Final Rule, a lawsuit was filed in the site instructions for submitting ETA Office of Policy Development and U.S. District Court for the District of comments. Research at the above address. If you Columbia on January 12, 2009 (brought Mail: Please submit all written need assistance to review the comments, by the United Farm Workers and others) comments (including disk and CD–ROM the Department will provide you with challenging the H–2A Final Rule.

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United Farm Workers, et al. v. Chao, et implementation of a complex new unstable economic environment. Given al., Civil No. 09–00062 RMU (D.D.C.). regulatory program applicable to the that the H–2A Final Rule has already The plaintiffs asserted that in temporary employment of been in effect for more than 6 weeks, promulgating the H–2A Final Rule, the nonimmigrant workers in agricultural time is of the essence, especially since Department violated section 218 of the occupations before additional H–2A applications for the upcoming Immigration and Nationality Act as well examination of the relevant legal and growing season are now being filed with as the Administrative Procedure Act. economic concerns is proving the Department under the new The plaintiffs requested a temporary unnecessarily disruptive and confusing regulations. It is imperative that the restraining order and preliminary to the Department’s administration of regulations and positions taken in the injunction, along with a permanent the H–2A program, SWAs, agricultural preamble of the H–2A Final Rule be injunction that would prohibit DOL employers, and domestic and foreign reviewed to ensure that they effectively from implementing the H–2A Final workers. It is particularly important to carry out the statutory objectives and Rule. On January 15, 2009, Judge avoid such disruption, if possible, in requirements of the program; there is a Ricardo M. Urbina denied the plaintiffs’ light of the severe economic conditions compelling need to undertake that request for a temporary restraining order the country is now facing. review as soon as possible so that any and preliminary injunction on the basis Furthermore, development of the H– changes in the H–2A Final Rule can be that the plaintiffs failed to show ‘‘likely, 2A Final Rule was based in part on implemented in time to avoid imminent and irreparable harm’’; the policy positions of the prior jeopardizing the program’s use by its court did not address the merits of the Administration with which the current stakeholders and workers. It is also case or whether the plaintiffs Administration may differ. Relatedly, imperative that during the time such a demonstrated the substantial likelihood the Department may wish to reconsider review is undertaken, the Department, of success on the merits. Accordingly, these policy positions in light of the SWAs, employers, and workers the H–2A Final Rule went into effect as rising unemployment among U.S. experience minimal disruption as to scheduled on January 17, 2009. workers and their availability for these how applications are processed and the Although the court concluded that the jobs, and continuing economic problems terms and conditions that apply. plaintiffs were not entitled to a in this country. It would not be an To avoid confusion for the readers of temporary restraining order and efficient use of limited agency resources the Code of Federal Regulations (CFR), preliminary injunction, plaintiffs’ and it would be confusing and if the suspension continues on April 1, challenges to the H–2A Final Rule are disruptive to program users to engage in 2009, the previous regulations that were still pending before the district court. the steps necessary to make the current in effect on April 1, 2008 would appear The Department’s Answer is due in rule operational if the Department were in the next published version of the CFR district court on March 13, 2009. then to soon after issue a different rule. as 20 CFR 655.1 and 20 CFR part 655, As we move forward with Suspending the H–2A Final Rule would subpart B. Additionally, if the implementing the Final Rule, however, prevent all parties from having to incur suspension continues on July 1, 2009, it is rapidly becoming evident that the the costs of learning, filing, the previous regulations that were in Department and the SWAs may lack implementing, and operating under a effect on July 8, 2008 would appear in sufficient resources to effectively and new program that will likely be subject the next published version of the CFR efficiently implement the H–2A Final to further changes. as 29 CFR part 501, 29 CFR 780.115, Rule. This has already resulted in The 10 day comment period on 780.201, 780.205, 780.208, and 788.10. processing delays; the delays will whether to suspend the new H–2A Final The suspended regulations also would become even greater as applications for Rule and reinstate on an interim basis appear in the CFR and would be the upcoming growing season are now the prior rules is necessary due to the designated as 20 CFR 655.5, 20 CFR part being filed with the Department. The time constraints and concerns inherent 655, subpart C, 20 CFR part 655, subpart Department has been unable to in the Department’s administration of N, 29 CFR part 502, and 29 CFR implement the sequence of operational the H–2A program, and in the use of the 780.159, 780.216, 780.217, and 788.217 events required to avoid confusion and H–2A program by the agricultural for clarity of citation purposes and application processing delays. These community. Growers require clear and because two distinct regulations cannot include developing an automated consistent guidance on the rules use the same regulation number. review system before the H–2A Final governing the processing of their If a final decision is reached to Rule went into effect, and training applications so that they can plan and suspend the H–2A Final Rule, DOL program users, State Workforce Agency staff their operations appropriately for would reinstate the previous rules staff, and Federal agency staff. Without the impending growing season. The verbatim on an interim basis to avoid a such an automated system the statute requires the Department to regulatory vacuum while judicial and Department must process each process H–2A applications within a administrative review of the H–2A Final application manually, which already is strict timeframe, and the Department’s Rule proceed. The rulemaking causing a significant strain on the timely ability to meet the statutory mandate document would thus include review and approval of H–2A has been undermined by the provisions identifying the suspended applications. The Department believes uncertainties and technical deficiencies provisions and interim regulatory text that it has a responsibility to employers, in the administration of the program. A identical to the previous H–2A rule. workers, SWAs, and the public to longer comment period would stretch Although the Department cannot predict ensure that a new regulatory regime has the uncertainty over the applicable rules the outcome of its review of the issues a sound basis and is capable of effective further into the upcoming growing that have been raised or the outcome of implementation. Suspending the new season. Confusion or delay in the the legal challenge to the H–2A Final H–2A Final Rule and reinstating the administration of the program will Rule, either DOL will engage in further prior rule on an interim basis will allow result in the disruption of agricultural rulemaking or the suspension will be this examination to occur while production, sales and market conditions lifted after 9 months. If a final decision maintaining the previous status quo. in areas traditionally served by H–2A is reached to suspend the H–2A Final In addition, DOL has increasing workers, which could have further Rule, any H–2A application for which evidence that undertaking deleterious effects on an already pre-filing positive recruitment was

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initiated in accordance with the H–2A Subparts F and G issued under 8 U.S.C. Subpart B—Labor Certification Final Rule prior to the date of 1184 and 1288(c); and 29 U.S.C. 49 et seq. Process for Temporary Agricultural suspension will continue to be governed Subparts H and I issued under 8 U.S.C. Employment in the United States (H– by the H–2A Final Rule. 1101(a)(15)(H)(i)(b) and (b1), 1182(n), 1182(t), 2A Workers) and 1184; 29 U.S.C. 49 et seq.; sec 303(a)(8), List of Subjects Pub. L. 102–232, 105 Stat. 1733, 1748 (8 § 655.90 Scope and purpose of subpart B. U.S.C. 1182 note); and Title IV, Pub. L. 105– (a) General. This subpart sets out the 20 CFR Part 655 277, 112 Stat. 2681. Subparts J and K issued under 29 U.S.C. 49 procedures established by the Secretary Administrative practice and of Labor to acquire information procedure, Foreign workers, et seq.; and sec. 221(a), Pub. L. 101–649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note). sufficient to make factual Employment, Employment and training, Subparts L and M issued under 8 U.S.C. determinations of: (1) Whether there are Enforcement, Forest and forest products, 1101(a)(15)(H)(i)(c), 1182(m), and 1184; and sufficient able, willing, and qualified Fraud, Health professions, Immigration, 29 U.S.C. 49 et seq. U.S. workers available to perform the Labor, Passports and visas, Penalties, temporary and seasonal agricultural Reporting and recordkeeping 2. Revise the heading to part 655 to read as set forth above. employment for which an employer requirements, Unemployment, Wages, desires to import nonimmigrant foreign Working conditions. 3. Redesignate § 655.1 as § 655.5 and suspend newly designated § 655.5. workers (H–2A workers); and (2) 29 CFR Part 501 4. Add § 655.1 to read as follows: whether the employment of H–2A workers will adversely effect the wages Administrative practice and § 655.1 Scope and purpose of subpart A. and working conditions of workers in procedure, Agriculture, Aliens, the U.S. similarly employed. Under the Employment, Housing, Housing This subpart sets forth the procedures governing the labor certification process authority of the INA, the Secretary of standards, Immigration, Labor, Migrant Labor has promulgated the regulations labor, Penalties, Transportation, Wages. for the temporary employment of nonimmigrant aliens in the United in this subpart. This subpart sets forth 29 CFR Part 780 States in occupations other than the requirements and procedures agriculture, logging, or registered applicable to requests for certification Agricultural commodities, by employers seeking the services of Agriculture, Employment, Forests and nursing. 5. Redesignate subpart B, consisting of temporary foreign workers in forest products, Labor, Minimum wages, agriculture. This subpart provides the Nursery stock, Overtime pay, Wages. §§ 655.90, 655.92, 655.93, and 655.100 through 655.119, as subpart N, Secretary’s methodology for the two- 29 CFR Part 788 consisting of §§ 655.1290, 655.1292, fold determination of availability of 655.1293, and 655.1300 through domestic workers and of any adverse Employment, Forests and forest effect which would be occasioned by products, Labor, Overtime pay, Wages. 655.1319, and suspend newly designated subpart N. the use of foreign workers, for particular Accordingly, the Department of Labor temporary and seasonal agricultural jobs 6. Add subpart B to read as follows: proposes that 20 CFR part 655 and 29 in the United States. CFR parts 501, 780, and 788 be Subpart B—Labor Certification Process for (b) The statutory standard. (1) A amended as follows: Temporary Agricultural Employment in the petitioner for H–2A workers must apply United States (H–2A Workers) to the Secretary of Labor for a Title 20—Employees’ Benefits Sec. certification that, as stated in the INA: 655.90 Scope and purpose of subpart B. PART 655—TEMPORARY (A) There are not sufficient workers who 655.92 Authority of the Office of Foreign EMPLOYMENT OF ALIENS IN THE are able, willing, and qualified, and who will Labor Certification (OFLC) UNITED STATES be available at the time and place needed, to Administrator. perform the labor or services involved in the 1. The authority citation for part 655 655.93 Special circumstances. petition, and 655.100 Overview of this subpart and is revised to read as follows: (B) The employment of the alien in such definition of terms. labor or services will not adversely affect the Authority: Section 655.0 issued under 8 655.101 Temporary alien agricultural labor wages and working conditions of workers in U.S.C. 1101(a)(15)(H)(i) and (ii), 1182(m), (n), certification applications. the United States similarly employed. and (t), 1184, 1188, and 1288(c) and (d); 29 655.102 Contents of job offers. U.S.C. 49 et seq.; sec. 3(c)(1), Pub. L. 101– 655.103 Assurances. (2) Section 216(b) of the INA further 238, 103 Stat. 2099, 2102 (8 U.S.C. 1182 655.104 Determinations based on requires that the Secretary may not issue note); sec. 221(a), Pub. L. 101–649, 104 Stat. acceptability of H–2A applications. a certification if the conditions 4978, 5027 (8 U.S.C. 1184 note); sec. 323, 655.105 Recruitment period. regarding U.S. worker availability and Pub. L. 103–206, 107 Stat. 2149; Title IV, 655.106 Referral of U.S. workers; adverse effect are not met, and may not Pub. L. 105–277, 112 Stat. 2681; Pub. L. 106– determinations based on U.S. worker issue a certification if, as stated in the 95, 113 Stat. 1312 (8 U.S.C. 1182 note); and availability and adverse effect; activities INA: 8 CFR 213.2(h)(4)(i). after receipt of the temporary alien Section 655.00 issued under 8 U.S.C. agricultural labor certification. (1) There is a strike or lockout in the course 1101(a)(15)(H)(ii), 1184, and 1188; 29 U.S.C. 655.107 Adverse effect wage rates (AEWRs). of a labor dispute which, under the 49 et seq.; and 8 CFR 214.2(h)(4)(i). 655.108 H–2A applications involving fraud regulations, precludes such certification. Subparts A and C issued under 8 U.S.C. or willful misrepresentation. (2)(A) The employer during the previous 1101(a)(15)(H)(ii)(b) and 1184; 29 U.S.C. 49 et 655.110 Employer penalties for two-year period employed H–2A workers and seq.; and 8 CFR 214.2(h)(4)(i). noncompliance with terms and the Secretary has determined, after notice Subpart B issued under 8 U.S.C. conditions of temporary alien and opportunity for a hearing, that the 1101(a)(15)(H)(ii)(a), 1184, and 1188; and 29 agricultural labor certifications. employer at any time during that period U.S.C. 49 et seq. 655.111 Petition for higher meal charges. substantially violated a material term or Subparts D and E issued under 8 U.S.C. 655.112 Administrative review and de novo condition of the labor certification with 1101(a)(15)(H)(i)(a), 1182(m), and 1184; 29 hearing before an administrative law respect to the employment of domestic or U.S.C. 49 et seq. ; and sec. 3(c)(1), Pub. L. judge. non-immigrant workers. 101–238, 103 Stat. 2099, 2103 (8 U.S.C. 1182 655.113 Job Service Complaint System; (B) No employer may be denied note). enforcement of work contracts. certification under subparagraph (A) for more

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than three years for any violation described Usery, 531 F. 2d 299 (5th Cir. 1976). conditions, particularly weather and in such subparagraph. Once a determination of no adverse sunshine; and (3) The employer has not provided the effect has been made, the availability of (4) A reasonably regular workday or Secretary with satisfactory assurances that if U.S. workers can be tested only if U.S. workweek. the employment for which the certification is (b) Establishment of special sought is not covered by State workers’ workers are actively recruited through compensation law, the employer will the offer of wages, terms, benefits, and procedures. In order to provide for a provide, at no cost to the worker, insurance conditions at least at the minimum level limited degree of flexibility in carrying covering injury and disease arising out of and or the level offered to the aliens, out the Secretary’s responsibilities in the course of the worker’s employment whichever is higher. The regulations in under the INA, while not deviating from which will provide benefits at least equal to this subpart set forth requirements for the statutory requirements to determine those provided under the State workers’ recruiting U.S. workers in accordance U.S. worker availability and make a compensation law for comparable with this principle. determination as to adverse effect, the employment. OFLC Administrator has the authority to (4) The Secretary determines that the (d) Construction. This subpart shall be employer has not made positive recruitment construed to effectuate the purpose of establish special procedures for efforts within a multistate region of the INA that U.S. workers rather than processing H–2A applications when traditional or expected labor supply where aliens be employed wherever possible. employers can demonstrate upon the Secretary finds that there are a significant Elton Orchards, Inc. v. Brennan, 508 F. written application to and consultation number of qualified United States workers 2d 493, 500 (1st Cir. 1974); Flecha v. with the OFLC Administrator that who, if recruited, would be willing to make special procedures are necessary. In a themselves available for work at the time and Quiros, 567 F.2d 1154, 1156 (1st Cir. 1977). Where temporary alien workers like manner, for work in occupations place needed. Positive recruitment under this characterized by other than a reasonably paragraph is in addition to, and shall be are admitted, the terms and conditions conducted within the same time period as, of their employment must not result in regular workday or workweek, such as the circulation through the interstate a lowering of the wages, terms, and the range production of sheep or other employment service system of the employer’s conditions of domestic workers livestock, the OFLC Administrator has job offer. The obligation to engage in positive similarly employed. Williams v. Usery, the authority to establish monthly, recruitment * * * shall terminate on the date 531 F. 2d 305, 306 (5th Cir. 1976), cert. weekly, or bi-weekly adverse effect the H–2A workers depart for the employer’s wage rates for those occupations, for a place of employment. denied, 429 U.S. 1000, and the job benefits extended to any U.S. workers Statewide or other geographical area, (3) Regarding the labor certification shall be at least those extended to the other than the rates established determination itself, section 216(c)(3) of alien workers. pursuant to § 655.107 of this part, the INA, as quoted in the following, provided that the OFLC Administrator specifically directs the Secretary to § 655.92 Authority of the Office of Foreign uses a methodology to establish such make the certification if: Labor Certification (OFLC) Administrator. adverse effect wage rates which is (i) The employer has complied with the Under this subpart, the accepting for consistent with the methodology in criteria for certification (including criteria for consideration and the making of § 655.107(a). Prior to making the recruitment of eligible individuals as temporary alien agricultural labor determinations under this paragraph (b), prescribed by the Secretary), and certification determinations are the OFLC Administrator may consult (ii) The employer does not actually have, ordinarily performed by the Office of with employer representatives and or has not been provided with referrals of, worker representatives. qualified individuals who have indicated Foreign Labor Certification (OFLC) Administrator (OFLC Administrator), (c) Construction. This subpart shall be their availability to perform such labor or construed to permit the OFLC services on the terms and conditions of a job who, in turn, may delegate this offer which meets the requirements of the responsibility to a designated staff Administrator to continue and, where Secretary. member. The OFLC Administrator will the OFLC Administrator deems appropriate, to revise the special (c) The Secretary’s determinations. informally advise the employer or agent of the name of the official who will procedures previously in effect for the Before any factual determination can be handling of applications for made concerning the availability of U.S. make determinations with respect to the application. sheepherders in the Western States (and workers to perform particular job to adapt such procedures to occupations opportunities, two steps must be taken. § 655.93 Special circumstances. in the range production of other First, the minimum level of wages, (a) Systematic process. The livestock) and for custom combine terms, benefits, and conditions for the crews. particular job opportunities below regulations under this subpart are which similarly employed U.S. workers designed to provide a systematic § 655.100 Overview of this subpart and would be adversely affected must be process for handling applications from definition of terms. established. (The regulations in this the kinds of employers who have (a) Overview—(1) Filing applications. subpart establish such minimum levels historically utilized nonimmigrant alien This subpart provides guidance to an for wages, terms, benefits, and workers in agriculture, usually in employer who desires to apply for conditions of employment). Second, the relation to the production or harvesting temporary alien agricultural labor wages, terms, benefits, and conditions of a particular agricultural crop for certification for the employment of H– offered and afforded to the aliens must market, and which normally share such 2A workers to perform agricultural be compared to the established characteristics as: employment of a temporary or seasonal minimum levels. If it is concluded that (1) A fixed-site farm, ranch, or similar nature. The regulations in this subpart adverse effect would result, the ultimate establishment; provide that such employer shall file an determination of availability within the (2) A need for workers to come to H–2A application, including a job offer, meaning of the INA cannot be made their establishment from other areas to on forms prescribed by the Employment since U.S. workers cannot be expected perform services or labor in and around and Training Administration (ETA), to accept employment under conditions their establishment; which describes the material terms and below the established minimum levels. (3) Labor needs which will normally conditions of employment to be offered Florida Sugar Cane League, Inc. v. be controlled by environmental and afforded to U.S. workers and H–2A

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workers, with the OFLC Administrator. (ii) Granted applications. This subpart alien agricultural labor certification, the The entire application shall be filed provides that the application for action by the OFLC Administrator to with the OFLC Administrator no less temporary alien agricultural labor notify the employer that a filed than 45 calendar days before the first certification is granted if the OFLC temporary alien agricultural labor date of need for workers, and a copy of Administrator finds that the employer certification application meets the the job offer shall be submitted at the has not offered foreign workers higher adverse effect criteria necessary for same time to the local office of the State wages or better working conditions (or processing. An application accepted for employment service agency which has imposed less restrictions on foreign consideration ultimately will be serves the area of intended employment. workers) than those offered and afforded approved or denied in a temporary alien Under the regulations, the OFLC to U.S. workers; that sufficient U.S. agricultural labor certification Administrator will promptly review the workers who are able, willing, and determination. application and notify the applicant in qualified will not be available at the Administrative law judge means a writing if there are deficiencies which time and place needed to perform the person within the Department of Labor render the application not acceptable for work for which H–2A workers are being Office of Administrative Law Judges consideration, and afford the applicant requested; and that the employment of appointed pursuant to 5 U.S.C. 3105; or a five-calendar-day period for such aliens will not adversely affect the a panel of such persons designated by resubmittal of an amended application wages and working conditions of the Chief Administrative Law Judge or an appeal of the OFLC similarly employed U.S. workers. from the Board of Alien Labor Administrator’s refusal to approve the (iii) Fees—(A) Amount. This subpart Certification Appeals established by application as acceptable for provides that each employer (except part 656 of this chapter, but which shall consideration. Employers are joint employer associations) of H–2A hear and decide appeals as set forth in encouraged to file their applications in workers shall pay to the OFLC § 655.112 of this part. ‘‘Chief advance of the 45-calendar-day period Administrator fees for each temporary Administrative Law Judge’’ means the mentioned above in this paragraph alien agricultural labor certification chief official of the Department of Labor (a)(1). Sufficient time should be allowed received. The fee for each employer Office of Administrative Law Judges or for delays that might arise due to the receiving a temporary alien agricultural the Chief Administrative Law Judge’s need for amendments in order to make labor certification is $100 plus $10 for designee. the application acceptable for each job opportunity for H–2A workers Administrator, Office of Foreign Labor consideration. certified, provided that the fee to an Certification (OFLC) means the primary (2) Amendment of applications. This employer for each temporary alien official of the Office of Foreign Labor subpart provides for the amendment of agricultural labor certification received Certification (OFLC Administrator), or applications, at any time prior to the shall be no greater than $1,000. In the the OFLC Administrator’s designee. OFLC Administrator’s certification case of a joint employer association Adverse effect wage rate (AEWR) determination, to increase the number receiving a temporary alien agricultural means the wage rate which the OFLC of workers requested in the initial labor certification, each employer- Administrator has determined must be application; without requiring, under member receiving a temporary alien offered and paid, as a minimum, to certain circumstances, an additional agricultural labor certification shall pay every H–2A worker and every U.S. recruitment period for U.S. workers. a fee of $100 plus $10 for each job worker for a particular occupation and/ (3) Untimely applications. If an H–2A opportunity for H–2A workers certified, or area in which an employer employs application does not satisfy the provided that the fee to an employer for or seeks to employ an H–2A worker so specified time requirements, this each temporary alien agricultural labor that the wages of similarly employed subpart provides for the OFLC certification received shall be no greater U.S. workers will not be adversely Administrator’s advice to the employer than $1,000. The joint employer affected. in writing that the certification cannot association will not be charged a Agent means a legal entity or person, be granted because there is not separate fee. such as an association of agricultural sufficient time to test the availability of (B) Timeliness of payment. The fee employers, or an attorney for an U.S. workers; and provides for the must be received by the OFLC association, which (1) is authorized to employer’s right to an administrative Administrator no later than 30 calendar act on behalf of the employer for review or a de novo hearing before an days after the granting of each temporary alien agricultural labor administrative law judge. Emergency temporary alien agricultural labor certification purposes, and (2) is not situations are provided for, wherein the certification. Fees received any later are itself an employer, or a joint employer, OFLC Administrator may waive the untimely. Failure to pay fees in a timely as defined in this paragraph (b). specified time periods. manner is a substantial violation which Department of Homeland Security (4) Recruitment of U.S. workers; may result in the denial of future (DHS) through the United States determinations—(i) Recruitment. This temporary alien agricultural labor Citizenship and Immigration Services subpart provides that, where the certifications. (USCIS) makes the determination under application is accepted for (iv) Denied applications. This subpart the INA on whether or not to grant visa consideration and meets the regulatory provides that if the application for petitions to employers seeking H–2A standards, the State agency and the temporary alien agricultural labor workers to perform temporary employer begin to recruit U.S. workers. certification is denied, in whole or in agricultural work in the United States. If the employer has complied with the part, the employer may seek review of DOL means the United States criteria for certification, including the denial, or a de novo hearing, by an Department of Labor. recruitment of U.S. workers, by 20 administrative law judge as provided in Eligible worker means a U.S. worker, calendar days before the date of need this subpart. as defined in this section. specified in the application (except as (b) Definitions of terms used in this Employer means a person, firm, provided in certain cases), the OFLC subpart. For the purposes of this corporation or other association or Administrator makes a determination to subpart: organization which suffers or permits a grant or deny, in whole or in part, the Except for consideration means, with person to work and (1) which has a application for certification. respect to an application for temporary location within the United States to

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which U.S. workers may be referred for under the INA concerning alien workers OFLC Administrator to approve or deny, employment, and which proposes to seeking admission to the United States in whole or in part, an application for employ workers at a place within the in order to work under the Immigration temporary alien agricultural labor United States and (2) which has an and Nationality Act, as amended. certification. employer relationship with respect to Positive recruitment means the active United States (U.S.) worker means any employees under this subpart as participation of an employer or its worker who, whether a U.S. national, a indicated by the fact that it may hire, authorized hiring agent in locating and U.S. citizen, or an alien, is legally pay, fire, supervise or otherwise control interviewing applicants in other permitted to work in the job opportunity the work of any such employee. An potential labor supply areas and in the within the United States (as defined at association of employers shall be area where the employer’s § 101(a)(38) of the INA (8 U.S.C. considered the sole employer if it has establishment is located in an effort to 1101(a)(38))). the indicia of an employer set forth in fill specific job openings with U.S. Wages means all forms of cash this definition. Such an association, workers. remuneration to a worker by an however, shall be considered as a joint Prevailing means, with respect to employer in payment for personal employer with an employer member if certain benefits other than wages services. it shares with the employer member one provided by employers and certain (c) Definition of agricultural labor or or more of the definitional indicia. practices engaged in by employers, that: services of a temporary or seasonal (i) Fifty percent or more of employers Employment Service (ES), in this nature. For the purposes of this subpart, in an area and for an occupation engage subpart, refers to the system of federal ‘‘agricultural labor or services of a and state entities responsible for in the practice or offer the benefit; and (ii) This 50 percent or more of temporary or seasonal nature’’ means administration of the labor certification the following: process for temporary and seasonal employers also employs 50 percent or (1) ‘‘Agricultural labor or services’’. agricultural employment of more of U.S. workers in the occupation Pursuant to section 101(a)(15)(H)(ii)(a) nonimmigrant foreign workers. This and area (including H–2A and non-H– of the INA (8 U.S.C. 1101(a)(15)(H)(ii)(a)), includes the State Workforce Agencies 2A employers for purposes of ‘‘agricultural labor or services’’ is (SWAs), the National Processing Centers determinations concerning the defined for the purposes of this subpart (NPCs) and the Office of Foreign Labor provision of family housing, frequency as either ‘‘agricultural labor’’ as defined Certification (OFLC). of wage payments, and workers Employment Standards supplying their own bedding, but non- and applied in section 3121(g) of the Administration means the agency H–2A employers only for Internal Revenue Code of 1954 (26 within the Department of Labor (DOL), determinations concerning the U.S.C. 3121(g)) or ‘‘agriculture’’ as which includes the Wage and Hour provision of advance transportation and defined and applied in section 3(f) of Division, and which is charged with the the utilization of farm labor contractors). the Fair Labor Standards Act of 1938 (29 carrying out of certain functions of the Secretary means the Secretary of U.S.C. 203(f)). An occupation included Secretary under the INA. Labor or the Secretary’s designee. in either statutory definition shall be Employment and Training Solicitor of Labor means the Solicitor, ‘‘agricultural labor or services’’, Administration (ETA) means the agency United States Department of Labor, and notwithstanding the exclusion of that within the Department of Labor (DOL) includes employees of the Office of the occupation from the other statutory which includes the Office of Foreign Solicitor of Labor designated by the definition. For informational purposes, Labor (OFLC). Solicitor to perform functions of the the statutory provisions are quoted Federal holiday means a legal public Solicitor under this subpart. below: holiday as defined at 5 U.S.C. 6103. State Workforce Agency (SWA) means (i) ‘‘Agricultural labor’’. Section H–2A worker means any the State employment service agency 3121(g) of the Internal Revenue Code of nonimmigrant alien admitted to the designated under § 4 of the Wagner- 1954 (26 U.S.C. 3121(g)), quoted as United States for agricultural labor or Peyser Act to cooperate with OFLC in follows, defines the term ‘‘agricultural services of a temporary or seasonal the operation of the ES System. labor’’ to include all service performed: nature under section 101(a)(15)(H)(ii)(a) Temporary alien agricultural labor (1) On a farm, in the employ of any person, of the INA (8 U.S.C. 1101(a)(15)(H)(ii)(a)). certification means the certification in connection with cultivating the soil, or in INA means the Immigration and made by the Secretary of Labor with connection with raising or harvesting any Nationality Act, as amended (8 U.S.C. respect to an employer seeking to file agricultural or horticultural commodity, 1101 et seq.). with DHS a visa petition to import an including the raising, shearing, feeding, Job offer means the offer made by an alien as an H–2A worker, pursuant to caring for, training, and management of employer or potential employer of H–2A sections 101(a)(15)(H)(ii)(a), 214(a) and livestock, bees, poultry, and furbearing workers to both U.S. and H–2A workers (c), and 216 of the INA that (1) there are animals and wildlife; (2) Services performed in the employ of the describing all the material terms and not sufficient workers who are able, owner or tenant or other operator of a farm, conditions of employment, including willing, and qualified, and who will be in connection with the operation, or those relating to wages, working available at the time and place needed, maintenance of such farm and its tools and conditions, and other benefits. to perform the agricultural labor or equipment, or in salvaging timber or clearing Job opportunity means a job opening services involved in the petition, and (2) land of brush and other debris left by a for temporary, full-time employment at the employment of the alien in such hurricane, if the major part of such service a place in the United States to which agricultural labor or services will not is performed on a farm; U.S. workers can be referred. adversely affect the wages and working (3) In connection with the production or Office of Foreign Labor Certification conditions of workers in the United harvesting of any commodity defined as an (OFLC) means the organizational agricultural commodity in section 15(g) of States similarly employed (8 U.S.C. the Agricultural Marketing Act, as amended component within the ETA that 1101(a)(15)(H)(ii)(a), 1184 (a) and (c), (12 U.S.C. 1141j), or in connection with the provides national leadership and policy and 1186). ginning of cotton, or in connection with the guidance and develops regulations and Temporary alien agricultural labor operation or maintenance of ditches, canals, procedures to carry out the certification determination means the reservoirs, or waterways, not owned or responsibilities of the Secretary of Labor written determination made by the operated for profit, used exclusively for

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supplying and storing water for farming living tree, and the following products as this section refers to any job opportunity purposes; processed by the original producer of the covered by this subpart where the (4)(A) In the employ of the operator of a crude gum (oleoresin) from which derived: employer needs a worker for a position, farm in handling, planting, drying, packing, Gum spirits of turpentine, and gum rosin, as either temporary or permanent, for a packaging, processing, freezing, grading, defined in section 92 of Title 7. storing, or delivering to storage or to market limited period of time, which shall be or to a carrier for transportation to market, in (iv) ‘‘Gum rosin’’. Section 92 of title for less than one year, unless the its unmanufactured state, any agricultural or 7, United States Code, quoted as original temporary alien agricultural horticultural commodity; but only if such follows, defines ‘‘gum spirits of labor certification is extended based on operator produced more than one-half of the turpentine’’ and ‘‘gum rosin’’ as— unforeseen circumstances, pursuant to commodity with respect to which such (c) ‘‘Gum spirits of turpentine’’ means § 655.106(c)(3) of this part. service is performed; spirits of turpentine made from gum (B) In the employ of a group of operators § 655.101 Temporary alien agricultural (oleoresin) from a living tree. labor certification applications. of farms (other than a cooperative (h) ‘‘Gum rosin’’ means rosin remaining organization) in the performance of service after the distillation of gum spirits of (a) General—(1) Filing of application. described in subparagraph (A), but only if turpentine. An employer who anticipates a shortage such operators produced all of the of U.S. workers needed to perform commodity with respect to which such (2) ‘‘Of a temporary or seasonal agricultural labor or services of a service is performed. For purposes of this nature’’—(i) ‘‘On a seasonal or other temporary or seasonal nature may apply subparagraph, any unincorporated group of temporary basis’’. For the purposes of to the OFLC Administrator, for a operators shall be deemed a cooperative this subpart, ‘‘of a temporary or seasonal organization if the number of operators temporary alien agricultural labor nature’’ means ‘‘on a seasonal or other certification for temporary foreign comprising such group is more than 20 at any temporary basis’’, as defined in the time during the calendar quarter in which workers (H–2A workers). A signed such service is performed; Employment Standards application for temporary alien (C) The provisions of subparagraphs (A) Administration’s Wage and Hour agricultural worker certification shall be and (B) shall not be deemed to be applicable Division’s regulation at 29 CFR 500.20 filed by the employer, or by an agent of with respect to service performed in under the Migrant and Seasonal the employer, with the OFLC connection with commercial canning or Agricultural Worker Protection Act Administrator. At the same time, a commercial freezing or in connection with (MSPA). any agricultural or horticultural commodity duplicate application shall be submitted (ii) MSPA definition. For to the SWA serving the area of intended after its delivery to a terminal market for informational purposes, the definition distribution for consumption; or employment. of ‘‘on a seasonal or other temporary (2) Applications filed by agents. If the (5) On a farm operated for profit if such basis’’, as set forth at 29 CFR 500.20, is service is not in the course of the employer’s temporary alien agricultural labor trade or business or is domestic service in a provided below: certification application is filed by an private home of the employer. ‘‘On a seasonal or other temporary basis’’ agent on behalf of an employer, the As used in this subsection, the term ‘‘farm’’ means: agent may sign the application if the includes stock, dairy, poultry, fruit, fur- Labor is performed on a seasonal basis, application is accompanied by a signed bearing animal, and truck farms, plantations, where, ordinarily, the employment pertains statement from the employer which ranches, nurseries, ranges, greenhouses or to or is of the kind exclusively performed at authorizes the agent to act on the other similar structures used primarily for certain seasons or periods of the year and the raising of agricultural or horticultural which, from its nature, may not be employer’s behalf. The employer may commodities, and orchards. continuous or carried on throughout the year. authorize the agent to accept for interview workers being referred to the (ii) ‘‘Agriculture’’ Section 203(f) of A worker who moves from one seasonal job and to make hiring commitments on title 29, United States Code, (section 3(f) activity to another, while employed in agriculture or performing agricultural labor, behalf of the employer. The statement of the Fair Labor Standards Act of 1938, is employed on a seasonal basis even though shall specify that the employer assumes as codified), quoted as follows, defines he may continue to be employed during a full responsibility for the accuracy of ‘‘agriculture’’ to include: major portion of the year. the application, for all representations (f) * * * farming in all its branches and A worker is employed on ‘‘other temporary made by the agent on the employer’s basis’’ where he is employed for a limited among other things includes the cultivation behalf, and for compliance with all and tillage of the soil, dairying, the time only or his performance is contemplated for a particular piece of work, usually of regulatory and other legal requirements. production, cultivation, growing, and (3) Applications filed by associations. harvesting of any agricultural or horticultural short duration. Generally, employment, commodities (including commodities as which is contemplated to continue If an association of agricultural defined as agricultural commodities in indefinitely, is not temporary. producers which uses agricultural labor section 1141j(g) of Title 12), the raising of ‘‘On a seasonal or other temporary basis’’ or services files the application, the livestock, bees, fur-bearing animals, or does not include the employment of any association shall identify whether it is: poultry, and any practices (including any foreman or other supervisory employee who (i) The sole employer; (ii) a joint forestry or lumbering operations) performed is employed by a specific agricultural employer with its employer-member by a farmer or on a farm as an incident to employer or agricultural association employers; or (iii) the agent of its or in conjunction with such farming essentially on a year round basis. ‘‘On a seasonal or other temporary basis’’ employer-members. The association operations, including preparation for market, shall submit documentation sufficient to delivery to storage or to market or to carriers does not include the employment of any for transportation to market. worker who is living at his permanent place enable the OFLC Administrator to verify of residence, when that worker is employed the employer or agency status of the (iii) ‘‘Agricultural commodity’’. by a specific agricultural employer or association; and shall identify by name Section 1141j(g) of title 12, United agricultural association on essentially a year and address each member which will be States Code (section 15(g) of the round basis to perform a variety of tasks for an employer of H–2A workers. Agricultural Marketing Act, as his employer and is not primarily employed (b) Application form. Each H–2A amended), quoted as follows, defines to do field work. application shall be on a form or forms ‘‘agricultural commodity’’ to include: (iii) ‘‘Temporary’’. For the purposes of prescribed by ETA. The application (g) * * * in addition to other agricultural this subpart, the definition of shall state the total number of workers commodities, crude gum (oleoresin) from a ‘‘temporary’’ in paragraph (c)(2)(ii) of the employer anticipates employing in

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the agricultural labor or service activity applicant in writing within seven this part no later than 20 calendar days during the covered period of calendar days of any deficiencies which before the date of need provided that employment. The application shall render the application not acceptable for other regulatory conditions are met. include: consideration and to afford an (3) Early filing. Employers are (1) A copy of the job offer which will opportunity for resubmittal of an encouraged, but not required, to file be used by each employer for the amended application. The employer their applications in advance of the 45- recruitment of U.S. and H–2A workers. shall have five calendar days in which calendar-day minimum period specified The job offer shall state the number of to file an amended application. Section in paragraph (c)(1) of this section, to workers needed by the employer, based 655.106 of this part requires the OFLC afford more time for review and upon the employer’s anticipation of a Administrator to grant or deny the discussion of the applications and to shortage of U.S. workers needed to temporary alien agricultural labor consider amendments, should they be perform the agricultural labor or certification application no later than 20 necessary. This is particularly true for services, and the specific estimated date calendar days before the date on which employers submitting H–2A on which the workers are needed. The the workers are needed, provided that applications for the first time who may job offer shall comply with the the employer has complied with the not be familiar with the Secretary’s requirements of §§ 655.102 and 653.501 criteria for certification, including requirements for an acceptable of this chapter, and shall be signed by recruitment of eligible individuals. Such application or U.S. worker recruitment. the employer or the employer’s agent on recruitment, for the employer, the State Such employers particularly are behalf of the employer; and agencies, and DOL to attempt to locate encouraged to consult with DOL and (2) An agreement to abide by the SWA staff for guidance and assistance U.S. workers locally and through the assurances required by § 655.103 of this well in advance of the minimum 45- circulation of intrastate and interstate part. calendar-day filing period. (c) Timeliness. Applications for agricultural clearance job orders (4) Local recruitment; preparation of temporary alien agricultural labor acceptable under § 653.501 of this clearance orders. At the same time the certification are not required to be filed chapter and under this subpart, shall employer files the H–2A application more than 45 calendar days before the begin on the date that an acceptable with the OFLC Administrator, a copy of first day of need. The employer shall be application is filed, except that the SWA the application shall be submitted to the notified by the OFLC Administrator in shall begin to recruit workers locally SWA which will use the job offer writing within seven calendar days of beginning on the date it first receives portion-of the application to prepare a filing the application if the application the application. The time needed to local job order and begin to recruit U.S. is not approved as acceptable for obtain an application acceptable for workers in the area of intended consideration. The OFLC consideration (including the job offer) employment. The SWA also shall begin Administrator’s temporary alien after the five-calendar-day period preparing an agricultural clearance agricultural labor certification allowed for an amended application order, but such order will not be used determination on the approved will postpone day-for-day the to recruit workers in other geographical application shall be made no later than certification determination beyond the areas until the employer’s H–2A 20 calendar days before the date of need 20 calendar days before the date of application is accepted for if the employer has complied with the need, provided that the OFLC consideration and the clearance order is criteria for certification. To allow for the Administrator notifies the applicant of approved by the OFLC Administrator availability of U.S. workers to be tested, any deficiencies within seven calendar and the SWA is so notified by the OFLC the following process applies: days after receipt of the application. Administrator. (1) Application filing date. The entire Delays in obtaining an application (5) [Reserved] H–2A application, including the job acceptable for consideration which are (d) Amendments to application to offer, shall be filed with the OFLC directly attributable to the OFLC increase number of workers. Administrator, in duplicate, no less than Administrator will not postpone the Applications may be amended at any 45 calendar days before the first date on certification determination beyond the time, prior to an OFLC Administrator which the employer estimates that the 20 calendar days before the date of certification determination, to increase workers are needed. Applications may need. When an employer resubmits to the number of workers requested in the be filed in person; may be mailed to the the OFLC Administrator (with a copy to initial application by not more than 20 OFLC Administrator (Attention: H–2A the SWA) an application with percent (50 percent for employers of less Certifying Officer) by certified mail, modifications required by the OFLC than ten workers) without requiring an return receipt requested; or delivered by Administrator, and the OFLC additional recruitment period for U.S. guaranteed commercial delivery which Administrator approves the modified workers. Requests for increases above will ensure delivery to the OFLC application as meeting necessary the percent prescribed, without Administrator and provide the employer adverse effect standards, the modified additional recruitment, may be with a documented acknowledgment of application will not be rejected solely approved only when the need for receipt of the application by the OFLC because it now does not meet the 45- additional workers could not have been Administrator. Any application received calendar-day filing requirement. If an foreseen, and that crops or commodities 45 calendar days before the date of need application is approved as being will be in jeopardy prior to the will have met the minimum timeliness acceptable for processing without need expiration of an additional recruitment of filing requirement as long as the for any amendment within the seven- period. application is eventually approved by calendar-day review period after initial (e) Minor amendments to the OFLC Administrator as being filing, recruitment of U.S. workers will applications. Minor technical acceptable for processing. be considered to have begun on the date amendments may be requested by the (2) Review of application; recruitment; the application was received by the employer and made to the application certification determination period. OFLC Administrator; and the OFLC and job offer prior to the certification Section 655.104 of this part requires the Administrator shall make the temporary determination if the OFLC OFLC Administrator to promptly review alien agricultural labor certification Administrator determines they are the application, and to notify the determination required by § 655.106 of justified and will have no significant

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effect upon the OFLC Administrator’s U.S. workers shall offer the U.S. workers apply. In the absence of applicable local ability to make the labor certification no less than the same benefits, wages, or State standards, Occupational Safety determination required by § 655.106 of and working conditions which the and Health Administration standards at this part. Amendments described at employer is offering, intends to offer, or 29 CFR 1910.142 shall apply. Any paragraph (d) of this section are not will provide to H–2A workers. charges for rental housing shall be paid ‘‘minor technical amendments’’. Conversely, no job offer may impose on directly by the employer to the owner or (f) Untimely applications—(1) Notices U.S. workers any restrictions or operator of the housing. When such of denial. If an H–2A application, or any obligations which will not be imposed housing is to be supplied by an part thereof, does not satisfy the time on the employer’s H–2A workers. This employer, the employer shall document requirements specified in paragraph (c) does not relieve the employer from to the satisfaction of the OFLC of this section, and if the exception in providing to H–2A workers at least the Administrator that the housing complies paragraph (d) of this section does not same level of minimum benefits, wages, with the local, State, or federal housing apply, the OFLC Administrator may and working conditions which must be standards applicable under this then advise the employer in writing that offered to U.S. workers consistent with paragraph (b)(1)(iii). the certification cannot be granted this section. (iv) Charges for public housing. If because, pursuant to paragraph (c) of (b) Minimum benefits, wages, and public housing provided for migrant this section, there is not sufficient time working conditions. Except when higher agricultural workers under the auspices to test the availability of U.S. workers. benefits, wages or working conditions of a local, county, or State government The notice of denial shall inform the are required by the provisions of is secured by an employer, and use of employer of its right to an paragraph (a) of this section, DOL has the public housing unit normally administrative review or de novo determined that in order to protect requires charges from migrant workers, hearing before an administrative law similarly employed U.S. workers from such charges shall be paid by the judge. adverse effect with respect to benefits, employer directly to the appropriate (2) Emergency situations. wages, and working conditions, every individual or entity affiliated with the Notwithstanding paragraph (f)(1) of this job offer which must accompany an H– housing’s management. section, in emergency situations the 2A application always shall include (v) Deposit charges. Charges in the OFLC Administrator may waive the each of the following minimum benefit, form of deposits for bedding or other time period specified in this section on wage, and working condition similar incidentals related to housing behalf of employers who have not made provisions: shall not be levied upon workers by use of temporary alien agricultural (1) Housing. The employer shall employers who provide housing for workers (H–2 or H–2A) for the prior provide to those workers who are not their workers. However, employers may year’s agricultural season or for any reasonably able to return to their require workers to reimburse them for employer which has other good and residence within the same day housing, damage caused to housing by the substantial cause (which may include without charge to the worker, which individual workers found to have been unforeseen changes in market may be, at the employer’s option, rental responsible for damage which is not the conditions), provided that the OFLC or public accommodation type housing. result of normal wear and tear related to Administrator has an opportunity to (i) Standards for employer-provided habitation. obtain sufficient labor market housing. Housing provided by the (vi) Family housing. When it is the information on an expedited basis to employer shall meet the full set of DOL prevailing practice in the area of make the labor certification Occupational Safety and Health intended employment and the determination required by § 216 of the Administration standards set forth at 29 occupation to provide family housing, INA (8 U.S.C. 1186). In making this CFR 1910.142, or the full set of family housing shall be provided to determination, the OFLC Administrator standards at §§ 654.404–654.417 of this workers with families who request it. will accept information offered by and chapter, whichever are applicable, (2) Workers’ compensation. The may consult with representatives of the except as provided for under paragraph employer shall provide, at no cost to the U.S. Department of Agriculture. (b)(1)(iii) of this section. Requests by worker, insurance, under a State (g) Length of job opportunity. The employers, whose housing does not workers’ compensation law or employer shall set forth on the meet the applicable standards, for otherwise, covering injury and disease application sufficient information conditional access to the intrastate or arising out of and in the course of the concerning the job opportunity to interstate clearance system, shall be worker’s employment which will demonstrate to the OFLC Administrator processed under the procedures set provide benefits at least equal to those that the need for the worker is ‘‘of a forth at § 654.403 of this chapter. provided under the State workers’ temporary or seasonal nature’’, as (ii) Standards for range housing. compensation law, if any, for defined at § 655.100(c)(2) of this part. Housing for workers principally comparable employment. The employer Job opportunities of 12 months or more engaged in the range production of shall furnish the name of the insurance are presumed to be permanent in nature. livestock shall meet standards of the carrier and the insurance policy Therefore, the OFLC Administrator shall DOL Occupational Safety and Health number, or, if appropriate, proof of State not grant a temporary alien agricultural Administration for such housing. In the law coverage, to the OFLC labor certification where the job absence of such standards, range Administrator prior to the issuance of a opportunity has been or would be filled housing for sheepherders and other labor certification. by an H–2A worker for a cumulative workers engaged in the range (3) Employer-provided items. Except period, including temporary alien production of livestock shall meet as provided below, the employer shall agricultural labor certifications and guidelines issued by ETA. provide, without charge including extensions, of 12 months or more, (iii) Standards for other habitation. deposit charge, to the worker all tools, except in extraordinary circumstances. Rental, public accommodation, or other supplies, and equipment required to substantially similar class of habitation perform the duties assigned; the § 655.102 Contents of job offers. must meet local standards for such employer may charge the worker for (a) Preferential treatment of aliens housing. In the absence of applicable reasonable costs related to the worker’s prohibited. The employer’s job offer to local standards, State standards shall refusal or negligent failure to return any

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property furnished by the employer or employment. The amount of the daily fact, worked for the guaranteed number due to such worker’s willful damage or subsistence payment shall be at least as of days. For purposes of this paragraph destruction of such property. Where it is much as the employer will charge the (b)(6), a workday shall mean the number a common practice in the particular worker for providing the worker with of hours in a workday as stated in the area, crop activity and occupation for three meals a day during employment. job order and shall exclude the worker’s workers to provide tools and equipment, If no charges will be made for meals and Sabbath and federal holidays. An with or without the employer free and convenient cooking and employer shall not be considered to reimbursing the workers for the cost of kitchen facilities will be provided, the have met the work guarantee if the providing them, such an arrangement is amount of the subsistence payment employer has merely offered work on permissible if approved in advance by shall be no less than the amount three-fourths of the workdays if each the OFLC Administrator. permitted under paragraph (b)(4) of this workday did not consist of a full (4) Meals. Where the employer has section. number of hours of work time specified centralized cooking and eating facilities (ii) Transportation from place of in the job order. The work shall be designed to feed workers, the employer employment. If the worker completes offered for at least three-fourths of the shall provide each worker with three the work contract period, the employer workdays (that is, 3⁄4 × (number of days) meals a day. When such facilities are shall provide or pay for the worker’s × (specified hours)). Therefore, if, for not available, the employer either shall transportation and daily subsistence example, the contract contains 20 eight- provide each worker with three meals a from the place of employment to the hour workdays, the worker shall be day or shall furnish free and convenient place from which the worker, offered employment for 120 hours cooking and kitchen facilities to the disregarding intervening employment, during the 20 workdays. A worker may workers which will enable the workers came to work for the employer, or, if the be offered more than the specified hours to prepare their own meals. Where the worker has contracted with a of work on a single workday. For employer provides the meals, the job subsequent employer who has not purposes of meeting the guarantee, offer shall state the charge, if any, to the agreed in that contract to provide or pay however, the worker shall not be worker for such meals. Until a new for the worker’s transportation and daily required to work for more than the amount is set pursuant to this paragraph subsistence expenses from the number hours specified in the job order (b)(4), the charge shall not be more than employer’s worksite to such subsequent for a workday, or on the worker’s $5.26 per day unless the OFLC employer’s worksite, the employer shall Sabbath or Federal holidays. Administrator has approved a higher provide or pay for such expenses; (ii) Guarantee for piece-rate-paid charge pursuant to § 655.111 of this except that, if the worker has contracted worker. If the worker will be paid on a part. Each year the charge allowed by for employment with a subsequent piece rate basis, the employer shall use this paragraph (b)(4) will be changed by employer who, in that contract, has the worker’s average hourly piece rate the same percentage as the 12-month agreed to pay for the worker’s earnings or the AEWR, whichever is percent change in the Consumer Price transportation and daily subsistence higher, to calculate the amount due Index for All Urban Consumers for Food expenses from the employer’s worksite under the guarantee. between December of the year just to such subsequent employer’s worksite, (iii) Failure to work. Any hours which concluded and December of the year the employer is not required to provide the worker fails to work, up to a prior to that. The annual adjustments or pay for such expenses. maximum of the number of hours shall be effective on the date of their (iii) Transportation between living specified in the job order for a workday, publication by the OFLC Administrator quarters and worksite. The employer when the worker has been offered an as a notice in the Federal Register. shall provide transportation between the opportunity to do so pursuant to (5) Transportation; daily worker’s living quarters (i.e., housing paragraph (b)(6)(i) of this section and all subsistence—(i) Transportation to place provided by the employer pursuant to hours of work actually performed of employment. The employer shall paragraph (b)(1) of this section) and the (including voluntary work over 8 hours advance transportation and subsistence employer’s worksite without cost to the in a workday or on the worker’s Sabbath costs (or otherwise provide them) to worker, and such transportation will be or federal holidays) may be counted by workers when it is the prevailing in accordance with applicable laws and the employer in calculating whether the practice of non-H–2A agricultural regulations. This paragraph (b)(5)(iii) is period of guaranteed employment has employers in the occupation in the area applicable to the transportation of been met. to do so, or when such benefits are workers eligible for housing, pursuant to (iv) Displaced H–2A worker. The extended to H–2A workers. The amount paragraph (b)(1) of this section. employer shall not be liable for payment of the transportation payment shall be (6) Three-fourths guarantee—(i) Offer under this paragraph (b)(6) with respect no less (and shall not be required to be to worker. The employer shall guarantee to an H–2A worker whom the OFLC more) than the most economical and to offer the worker employment for at Administrator certifies is displaced reasonable similar common carrier least three-fourths of the workdays of because of the employer’s compliance transportation charges for the distances the total periods during which the work with § 655.103(e) of this part. involved. If the employer has not contract and all extensions thereof are (7) Records. (i) The employer shall previously advanced such in effect, beginning with the first keep accurate and adequate records transportation and subsistence costs to workday after the arrival of the worker with respect to the workers’ earnings the worker or otherwise provided such at the place of employment and ending including field tally records, supporting transportation or subsistence directly to on the expiration date specified in the summary payroll records and records the worker by other means and if the work contract or in its extensions, if showing the nature and amount of the worker completes 50 percent of the any. If the employer affords the U.S. or work performed; the number of hours of work contract period, the employer H–2A worker during the total work work offered each day by the employer shall pay the worker for costs incurred contract period less employment than (broken out by hours offered both in by the worker for transportation and that required under this paragraph accordance with and over and above the daily subsistence from the place from (b)(6), the employer shall pay such three-fourths guarantee at paragraph which the worker has come to work for worker the amount which the worker (b)(6) of this section); the hours actually the employer to the place of would have earned had the worker, in worked each day by the worker; the

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time the worker began and ended each in the area of intended employment; (ii) Reimburse the worker the full workday; the rate of pay (both piece rate and amount of any deductions made from and hourly, if applicable); the worker’s (B) If the employer who pays by the the worker’s pay by the employer for earnings per pay period; the worker’s piece rate requires one or more transportation and subsistence expenses home address; and the amount of and minimum productivity standards of to the place of employment, and reasons for any and all deductions made workers as a condition of job retention, (iii) Notwithstanding whether the from the worker’s wages; (1) Such standards shall be specified employment has been terminated prior (ii) If the number of hours worked by in the job offer and be no more than to completion of 50 percent of the work the worker is less than the number those required by the employer in 1977, contract period originally offered by the offered in accordance with the three- unless the OFLC Administrator employer, pay the worker for costs fourths guarantee at paragraph (b)(6) of approves a higher minimum; or incurred by the worker for this section, the records shall state the (2) If the employer first applied for H– transportation and daily subsistence reason or reasons therefore. 2 agricultural or H–2A temporary alien from the place from which the worker, (iii) Upon reasonable notice, the agricultural labor certification after without intervening employment, has employer shall make available the 1977, such standards shall be no more come to work for the employer to the records, including field tally records than those normally required (at the place of employment. Daily subsistence and supporting summary payroll time of the first application) by other shall be computed as set forth in records for inspection and copying by employers for the activity in the area of paragraph (b)(5)(i) of this section. The representatives of the Secretary of intended employment, unless the OFLC amount of the transportation payment Labor, and by the worker and Administrator approves a higher shall be no less (and shall not be representatives designated by the minimum. required to be more) than the most worker; and (10) Frequency of pay. The employer economical and reasonable similar (iv) The employer shall retain the shall state the frequency with which the common carrier transportation charges records for not less than three years after worker will be paid (in accordance with for the distances involved. (13) Deductions. The employer shall the completion of the work contract. the prevailing practice in the area of make those deductions from the (8) Hours and earnings statements. intended employment, or at least twice worker’s paycheck which are required The employer shall furnish to the monthly whichever is more frequent). by law. The job offer shall specify all worker on or before each payday in one (11) Abandonment of employment; or or more written statements the deductions not required by law which termination for cause. If the worker the employer will make from the following information: voluntarily abandons employment (i) The worker’s total earnings for the worker’s paycheck. All deductions shall before the end of the contract period, or pay period; be reasonable. The employer may (ii) The worker’s hourly rate and/or is terminated for cause, and the deduct the cost of the worker’s piece rate of pay; employer notifies the SWA of such transportation and daily subsistence (iii) The hours of employment which abandonment or termination, the expenses to the place of employment have been offered to the worker (broken employer will not be responsible for which were borne directly by the out by offers in accordance with and providing or paying for the subsequent employer. In such cases, the job offer over and above the guarantee); transportation and subsistence expenses shall state that the worker will be (iv) The hours actually worked by the of any worker for whom the employer reimbursed the full amount of such worker; would have otherwise been required to deductions upon the worker’s (v) An itemization of all deductions pay such expenses under paragraph completion of 50 percent of the worker’s made from the worker’s wages; and (b)(5)(ii) of this section, and that worker contract period. However, an employer (vi) If piece rates are used, the units is not entitled to the ‘‘three-fourths subject to the Fair Labor Standards Act produced daily. guarantee’’ (see paragraph (b)(6) of this (FLSA) may not make deductions which (9) Rates of pay. (i) If the worker will section). will result in payments to workers of be paid by the hour, the employer shall (12) Contract impossibility. If, before less than the federal minimum wage pay the worker at least the adverse effect the expiration date specified in the work permitted by the FLSA as determined by wage rate in effect at the time the work contract, the services of the worker are the Secretary at 29 CFR part 531. is performed, the prevailing hourly no longer required for reasons beyond (14) Copy of work contract. The wage rate, or the legal federal or State the control of the employer due to fire, employer shall provide to the worker, minimum wage rate, whichever is hurricane, or other Act of God which no later than on the day the work highest, for every hour or portion makes the fulfillment of the contract commences, a copy of the work contract thereof worked during a pay period; or impossible the employer may terminate between the employer and the worker. (ii)(A) If the worker will be paid on a the work contract. In the event of such The work contract shall contain all of piece rate basis and the piece rate does termination of a contract, the employer the provisions required by paragraphs not result at the end of the pay period shall fulfill the three-fourths guarantee (a) and (b) of this section. In the absence in average hourly piece rate earnings at paragraph (b)(6) of this section for the of a separate, written work contract during the pay period at least equal to time that has elapsed from the start of entered into between the employer and the amount the worker would have the work contract to its termination. In the worker, the required terms of the job earned had the worker been paid at the such cases the employer will make order and application for temporary appropriate hourly rate, the worker’s efforts to transfer the worker to other alien agricultural labor certification pay shall be supplemented at that time comparable employment acceptable to shall be the work contract. so that the worker’s earnings are at least the worker. If such transfer is not (c) Appropriateness of required as much as the worker would have effected, the employer shall: qualifications. Bona fide occupational earned during the pay period if the (i) Offer to return the worker, at the qualifications specified by an employer worker had been paid at the appropriate employer’s expense, to the place from in a job offer shall be consistent with the hourly wage rate for each hour worked; which the worker disregarding normal and accepted qualifications and the piece rate shall be no less than intervening employment came to work required by non-H–2A employers in the the piece rate prevailing for the activity for the employer, same or comparable occupations and

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crops, and shall be reviewed by the rejections or terminations shall be made required by § 655.102 of this part to any OFLC Administrator for their to the SWA. such U.S. worker and shall not treat less appropriateness. The OFLC (d) Recruitment of U.S. workers. The favorably than H–2A workers any U.S. Administrator may require the employer employer shall independently engage in worker referred or transferred pursuant to submit documentation to substantiate positive recruitment until the foreign to this assurance. the appropriateness of the qualification workers have departed for the (f) Other recruitment. The employer specified in the job offer; and shall employer’s place of employment and shall perform the other specific consider information offered by and shall cooperate with the ES System in recruitment and reporting activities may consult with representatives of the the active recruitment of U.S. workers specified in the notice from the OFLC U.S. Department of Agriculture. by: Administrator required by § 655.105(a) (d) Positive recruitment plan. The (1) Assisting the ES System to prepare of this part, and shall engage in positive employer shall submit in writing, as a local, intrastate, and interstate job recruitment of U.S. workers to an extent part of the application, the employer’s orders using the information supplied (with respect to both effort and location) plan for conducting independent, on the employer’s job offer; no less than that of non-H–2A positive recruitment of U.S. workers as (2) Placing advertisements (in a agricultural employers of comparable or required by §§ 655.103 and 655.105(a) of language other than English, where the smaller size in the area of employment. OFLC Administrator determines this part. Such a plan shall include a When it is the prevailing practice in the appropriate) for the job opportunities in description of recruitment efforts (if area of employment and for the newspapers of general circulation and/ any) made prior to the actual submittal occupation for non-H–2A agricultural or on the radio, as required by the OFLC of the application. The plan shall employers to secure U.S. workers Administrator: describe how the employer will engage through farm labor contractors and to (i) Each such advertisement shall compensate farm labor contractors with in positive recruitment of U.S. workers describe the nature and anticipated to an extent (with respect to both effort an override for their services, the duration of the job opportunity; offer at employer shall make the same level of and location(s)) no less than that of non- least the adverse effect wage rate; give H–2A agricultural employers of effort as non-H–2A agricultural the 3⁄4 guarantee; state that work tools, employers and shall provide an override comparable or smaller size in the area supplies and equipment will be of employment. When it is the which is no less than that being provided by the employer; state that provided by non-H–2A agricultural prevailing practice in the area of housing will also be provided, and that employment and for the occupation for employers. Where the employer has transportation and subsistence expenses centralized cooking and eating facilities non-H–2A agricultural employers to to the worksite will be provided or paid secure U.S. workers through farm labor designed to feed workers, the employer by the employer upon completion of shall not be required to provide meals contractors and to compensate farm 50% of the work contract, or earlier, if labor contractors with an override for through an override. The employer shall appropriate; and not be required to provide for housing their services, the employer shall (ii) Each such advertisement shall describe how it will make the same through an override. direct interested workers to apply for (g) Retaliation prohibited. The level of effort as non-H–2A agricultural the job opportunity at the appropriate employer shall not intimidate, threaten, employers and provide an override office of the State Workforce Agency in restrain, coerce, blacklist, discharge, or which is no less than that being their area; in any manner discriminate against, and provided by non-H–2A agricultural (3) Cooperating with the ES System shall not cause any person to intimidate, employers. and independently contacting farm threaten, restrain, coerce, blacklist, § 655.103 Assurances. labor contractors, migrant workers and discharge, or in any manner other potential workers in other areas of As part of the temporary alien discriminate against, any person who the State and/or Nation by letter and/or has with just cause: agricultural labor certification telephone; and application, the employer shall include (1) Filed a complaint under or related (4) Cooperating with the ES System in to section 216 of the INA (8 U.S.C. in the job offer a statement agreeing to contacting schools, business and labor abide by the conditions of this subpart. 1186), or this subpart or any other DOL organizations, fraternal and veterans’ regulation promulgated pursuant to By so doing, the employer makes each organizations, and nonprofit of the following assurances: section 216 of the INA; organizations and public agencies such (2) Instituted or caused to be (a) Labor disputes. The specific job as sponsors of programs under the Job instituted any proceeding under or opportunity for which the employer is Training Partnership Act throughout the related to section 216 of the INA, or this requesting H–2A certification is not area of intended employment and in subpart or any other DOL regulation vacant because the former occupant is other potential labor supply areas in promulgated pursuant to section 216 of on strike or being locked out in the order to enlist them in helping to find the INA (8 U.S.C. 1186); course of a labor dispute. U.S. workers. (3) Testified or is about to testify in (b) Employment-related laws. During (e) Fifty-percent rule. From the time any proceeding under or related to the period for which the temporary the foreign workers depart for the section 216 of the INA (8 U.S.C. 1186), alien agricultural labor certification is employer’s place of employment, the or this subpart or any other DOL granted, the employer shall comply with employer, except as provided for by regulation promulgated pursuant to applicable federal, State, and local § 655.106(e)(1) of this part, shall provide section 216 of the INA; employment-related laws and employment to any qualified, eligible (4) Consulted with an employee of a regulations, including employment- U.S. worker who applies to the legal assistance program or an attorney related health and safety laws. employer until 50% of the period of the on matters related to section 216 of the (c) Rejections and terminations of work contract, under which the foreign INA (8 U.S.C. 1186), or this subpart or U.S. workers. No U.S. worker will be worker who is in the job was hired, has any other DOL regulation promulgated rejected for or terminated from elapsed. In addition, the employer shall pursuant to section 216 of the INA; or employment for other than a lawful job- offer to provide housing and the other (5) Exercised or asserted on behalf of related reason, and notification of all benefits, wages, and working conditions himself/herself or others any right or

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protection afforded by section 216 of the determine whether it is acceptable for further consideration of the employer’s INA (8 U.S.C. 1186), or this subpart or consideration under the timeliness and application for temporary alien any other DOL regulation promulgated adverse effect criteria of §§ 655.101– agricultural labor certification will be pursuant to section 216 of the INA. 655.103 of this part. If the OFLC made by any DOL official. (h) Fees. The application shall Administrator determines that the (d) Appeal procedures. If the include the assurance that fees will be application does not meet the employer timely requests an expedited paid in a timely manner, as follows: requirements of §§ 655.101–655.103, the administrative review or de novo (1) Amount. The fee for each OFLC Administrator shall not accept the hearing before an administrative law employer receiving a temporary alien application for consideration on the judge pursuant to paragraph (c)(3) of agricultural labor certification is $100 grounds that the availability of U.S. this section, the procedures at § 655.112 plus $10 for each job opportunity for H– workers cannot be adequately tested of this part shall be followed. 2A workers certified, provided that the because the benefits, wages and working (e) Required modifications. If the fee for an employer for each temporary conditions do not meet the adverse application is not accepted for alien agricultural labor certification effect criteria; however, if the OFLC consideration by the OFLC received shall be no greater than $1,000. Administrator determines that the Administrator, but the OFLC In the case of a joint employer application is not timely in accordance Administrator’s written notification to association receiving a temporary alien with § 655.101 of this part and that the applicant is not timely as required agricultural labor certification, the fee neither the first-year employer by § 655.101 of this part, the for each employer-member receiving a provisions of § 655.101(c)(5) nor the certification determination will not be temporary alien agricultural labor emergency provisions of § 655.101(f) extended beyond 20 calendar days certification shall be $100 plus $10 for apply, the OFLC Administrator may before the date of need. The notice will each job opportunity for H–2A workers determine not to accept the application specify that the OFLC Administrator’s certified, provided that the fee for an for consideration because there is not temporary alien agricultural labor employer for each temporary alien sufficient time to test the availability of certification determination will be made agricultural labor certification received U.S. workers. no later than 20 calendar days before the shall be no greater than $1,000. The (c) Rejected applications. If the date of need, provided that the joint employer association will not be application is not accepted for applicant submits the modifications to charged a separate fee. Fees shall be consideration, the OFLC Administrator the application which are required by paid by a check or money order made shall notify the applicant in writing (by the OFLC Administrator within five payable to ‘‘Department of Labor’’, and means normally assuring next-day calendar days and in a manner specified are nonrefundable. In the case of delivery) within seven calendar days of by the OFLC Administrator which will employers of H–2A workers which are the date the application was received by enable the test of U.S. worker members of a joint employer association the OFLC Administrator with a copy to availability to be made as required by applying on their behalf, the aggregate the SWA. The notice shall: § 655.101 of this part within the time fees for all employers of H–2A workers (1) State all the reasons the available for such purposes. application is not accepted for under the application may be paid by § 655.105 Recruitment period. one check or money order. consideration, citing the relevant (a) Notice of acceptance of (2) Timeliness. Fees received by the regulatory standards; application for consideration; required OFLC Administrator within 30 calendar (2) Offer the applicant an opportunity recruitment. If the OFLC Administrator days after the date of the temporary for the resubmission within five determines that the H–2A application alien agricultural labor certification calendar days of a modified application, meets the requirements of §§ 655.101– determination are timely. stating the modifications needed in order for the OFLC Administrator to 655.103 of this part, the OFLC § 655.104 Determinations based on accept the application for consideration; Administrator shall promptly notify the acceptability of H–2A applications. (3) Offer the applicant an opportunity employer (by means normally assuring (a) State Workforce Agency activities. to request an expedited administrative next-day delivery) in writing with The State Workforce Agency (SWA), review of or a de novo administrative copies to the State agency. The notice using the job offer portion of the H–2A hearing before an administrative law shall inform the employer and the State application, shall promptly prepare a judge of the nonacceptance; the notice agency of the specific efforts which will local job order and shall begin to recruit shall state that in order to obtain such be expected from them during the U.S. workers in the area of intended a review or hearing, the employer, following weeks to carry out the employment. The OFLC Administrator within seven calendar days of the date assurances contained in § 655.103 with should notify the SWA by telephone no of the notice, shall file by facsimile respect to the recruitment of U.S. later than seven calendar days after the (fax), telegram, or other means normally workers. The notice shall require that application was received by the OFLC assuring next day delivery a written the job order be laced into intrastate Administrator if the application has request to the Chief Administrative Law clearance and into interstate clearance been accepted for consideration. Upon Judge of the Department of Labor (giving to such States as the OFLC receiving such notice or seven calendar the address) and simultaneously serve a Administrator shall determine to be days after the application is received by copy on the OFLC Administrator; the potential sources of U.S. workers. The the SWA, whichever is earlier, the SWA notice shall also state that the employer notice may require the employer to shall promptly prepare an agricultural may submit any legal arguments which engage in positive recruitment efforts clearance order which will permit the the employer believes will rebut the within a multi-State region of traditional recruitment of U.S. workers by the basis of the OFLC Administrator’s or expected labor supply where the Employment Service System on an action; and OFLC Administrator finds, based on intrastate and interstate basis. (4) State that if the employer does not current information provided by a State (b) National Processing Center request an expedited administrative- agency and such information as may be activities. The OFLC Administrator, judicial review or a de novo hearing offered and provided by other sources, upon receipt of the H–2A application, before an administrative law judge that there are a significant number of shall promptly review the application to within the seven calendar days no able and qualified U.S. workers who, if

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recruited, would likely be willing to (d) Final determination. By 20 labor certification determination, the make themselves available for work at calendar days before the date of need OFLC Administrator shall consider as the time and place needed. In making specified in the application, except as available any U.S. worker who has made such a finding, the OFLC Administrator provided for under §§ 655.101(c)(2) and a firm commitment to work for the shall take into account other recent 655.104(e) of this part for untimely employer, including those workers recruiting efforts in those areas and will modified applications, the OFLC committed by other authorized persons attempt to avoid requiring employers to Administrator, when making a such as farm labor contractors and futilely recruit in areas where there are determination of the availability of U.S. family heads. Such a firm commitment a significant number of local employers workers, shall also make a shall be considered to have been made recruiting for U.S. workers for the same determination as to whether the not only by workers who have signed types of occupations. Positive employer has satisfied the recruitment work contracts with the employer, but recruitment is in addition to, and shall assurances in § 655.103 of this part. If also by those whom the OFLC be conducted within the same time the OFLC Administrator concludes that Administrator determines are likely to period as, the circulation through the the employer has not satisfied the sign a work contract. The OFLC interstate clearance system of an requirements for recruitment of U.S. Administrator shall count as available agricultural clearance order. The workers, the OFLC Administrator shall any U.S. worker who has applied to the obligation to engage in such positive deny the temporary alien agricultural employer (or on whose behalf an recruitment shall terminate on the date labor certification, and shall application has been made), but who H–2A workers depart for the employer’s immediately notify the employer in was rejected by the employer for other place of work. In determining what writing with a copy to the SWA. The than lawful job-related reasons or who positive recruitment shall be required, notice shall contain the statements has not been provided with a lawful job- the OFLC Administrator will ascertain specified in § 655.104(d) of this part. related reason for rejection by the the normal recruitment practices of non- (e) Appeal procedure. With respect to employer, as determined by the OFLC H–2A agricultural employers in the area determinations by the OFLC Administrator. The OFLC Administrator and the kind and degree of recruitment Administrator pursuant to this section, shall not grant a temporary alien efforts which the potential H–2A if the employer timely requests an agricultural labor certification request employer made to obtain H–2A workers. expedited administrative review or a de for any H–2A workers if the OFLC The OFLC Administrator shall ensure novo hearing before an administrative Administrator determines that: that the effort, including the location(s) law judge, the procedures in § 655.112 (i) Enough able, willing, and qualified of the positive recruitment required of of this part shall be followed. U.S. workers have been identified as the potential H–2A employer, during being available to fill all the employer’s the period after filing the application § 655.106 Referral of U.S. workers; job opportunities; and before the date the H–2A workers determinations based on U.S. worker (ii) The employer, since the time the depart their prior location to come to availability and adverse effect; activities application was accepted for the place of employment, shall be no after receipt of the temporary alien consideration under § 655.104 of this agricultural labor certification. less than: (1) The recruitment efforts of part, has adversely affected U.S. workers non-H–2A agricultural employers of (a) Referral of able, willing, and by offering to, or agreeing to provide to, comparable or smaller size in the area qualified eligible U.S. workers. With H–2A workers better wages, working of employment; and (2) the kind and respect to the referral of U.S. workers to conditions or benefits (or by offering to, degree of recruitment efforts which the job openings listed on a job order or agreeing to impose on alien workers potential H–2A employer made to accompanying an application for less obligations and restrictions) than obtain H–2A workers. temporary alien agricultural labor those offered to U.S. workers; (b) Recruitment of U.S. workers. After certification, no U.S. worker-applicant (iii) The employer during the previous an application for temporary alien shall be referred unless such U.S. two-year period employed H–2A agricultural labor certification is worker has been made aware of the workers and the OFLC Administrator accepted for processing pursuant to terms and conditions of and has determined, after notice and paragraph (a) of this section, the OFLC qualifications for the job, and has opportunity for a hearing, that the Administrator shall provide overall indicated, by accepting referral to the employer at any time during that period direction to the employer and the SWA job, that she or he meets the substantially violated a material term or with respect to the recruitment of U.S. qualifications required and is able, condition of a temporary alien workers. willing, and eligible to take such a job. agricultural labor certification with (c) Modifications. At any time during (b)(1) Determinations. If the OFLC respect to the employment of U.S. or the recruitment effort, the OFLC Administrator, in accordance with H–2A workers; Administrator may require § 655.105 of this part, has determined (iv) The employer has not complied modifications to a job offer when the that the employer has complied with the with the workers’ compensation OFLC Administrator determines that the recruitment assurances and the adverse requirements at § 655.102(b)(2) of this job offer does not contain all the effect criteria of § 655.102 of this part, part; or provisions relating to minimum by the date specified pursuant to (v) The employer has not satisfactorily benefits, wages, and working § 655.101(c)(2) of this part for untimely complied with the positive recruitment conditions, required by § 655.102(b) of modified applications or 20 calendar requirements specified by this subpart. this part. If any such modifications are days before the date of need specified in Further, the OFLC Administrator, in required after an application has been the application, whichever is making the temporary alien agricultural accepted for consideration by the OFLC applicable, the OFLC Administrator labor certification determination, will Administrator, the modifications must shall grant the temporary alien subtract from any temporary alien be made; however, the certification agricultural labor certification request agricultural labor certification the determination shall not be delayed for enough H–2A workers to fill the specific verified number of job beyond the 20 calendar days prior to the employer’s job opportunities for which opportunities involved which are vacant date of need as a result of such U.S. workers are not available. In because of a strike or other labor dispute modification. making the temporary alien agricultural involving a work stoppage, or a lockout,

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in the occupation at the place of approved by the OFLC Administrator a period longer than the original work employment (and for which H–2A after written application by the contract period of the temporary alien workers have been requested). Upon employer, even if such changes have agricultural labor certification. receipt by the OFLC Administrator of been agreed to by an employee. (ii) Long-term extension. For such labor dispute information from any Temporary alien agricultural labor extensions beyond the period which source, the OFLC Administrator shall certifications shall be for the specific may be granted by DHS pursuant to verify the existence of the strike, labor period of time specified in the paragraph (c)(3)(i) of this section, an dispute, or lockout and any resulting employer’s job offer, which shall be less employer, after 50 percent of the work vacancies prior to making such a than twelve months; shall be limited to contract period has elapsed, may apply determination. the employer’s specific job to the OFLC Administrator for an (2) Fees. A temporary alien opportunities; and may not be extension of the period of the temporary agricultural labor certification transferred from one employer to alien agricultural labor certification, for determination granting an application another, except as provided for by reasons related to weather conditions or shall include a bill for the required fees. paragraph (c)(2) of this section. other external factors beyond the control Each employer (except joint employer (2) Associations—(i) Applications. If of the employer (which may include associations) of H–2A workers under the an association is requesting a temporary unforeseen changes in market application for temporary alien alien agricultural labor certification as a conditions), provided that the agricultural labor certification shall pay joint employer, the temporary alien employer’s need for an extension is in a timely manner a nonrefundable fee agricultural labor certification granted supported in writing by the employer, upon issuance of the temporary alien under this section shall be made jointly with documentation showing that the agricultural labor certification granting to the association and to its employer extension is needed and could not have the application (in whole or in part), as members. Except as provided in been reasonably foreseen by the follows: paragraph (c)(2)(iii) of this section, such employer. The OFLC Administrator (i) Amount. The fee for each employer workers may be transferred among its shall grant or deny the request for receiving a temporary alien agricultural producer members to perform work for extension of the temporary alien labor certification is $100 plus $10 for which the temporary alien agricultural agricultural labor certification based on each job opportunity for H–2A workers labor certification was granted, provided available information, and shall notify certified, provided that the fee to an the association controls the assignment the employer of the decision on the employer for each temporary alien of such workers and maintains a record request in writing. The OFLC agricultural labor certification received of such assignments. All temporary Administrator shall not grant an shall be no greater than $1,000. In the alien agricultural labor certifications to extension where the total work contract case of a joint employer association associations may be used for the period, including past temporary alien receiving a temporary alien agricultural certified job opportunities of any of its labor certifications for the job labor certification, each employer- members. If an association is requesting opportunity and extensions, would be member receiving a temporary alien a temporary alien agricultural labor 12 months or more, except in agricultural labor certification shall pay certification as a sole employer, the extraordinary circumstances. The OFLC a fee of $100 plus $10 for each job temporary alien agricultural labor Administrator shall not grant an opportunity for H–2A workers certified, certification granted pursuant to this extension where the temporary alien provided that the fee to an employer for section shall be made to the association agricultural labor certification has each temporary alien agricultural labor only. already been extended by DHS pursuant certification received shall be no greater (ii) Referrals and transfers. For the to paragraph (c)(3)(i) of this section. than $1,000. The joint employer purposes of complying with the ‘‘fifty- (d) Denials of applications. If the association will not be charged a percent rule’’ at § 655.103(e) of this part, OFLC Administrator does not grant the separate fee. The fees shall be paid by any association shall be allowed to refer temporary alien agricultural labor check or money order made payable to or transfer workers among its members certification (in whole or in part) the ‘‘Department of Labor’’. In the case of (except as provided in paragraph OFLC Administrator shall notify the employers of H–2A workers which are (c)(2)(iii) of this section), and an employer by means reasonably members of a joint employer association association acting as an agent for its calculated to assure next-day delivery. applying on their behalf, the aggregate members shall not be considered a joint The notification shall contain all the fees for all employers of H–2A workers employer merely because of such statements required in § 655.104(c) of under the application may be paid by referral or transfer. this part. If a timely request is made for one check or money order. (iii) Ineligible employer-members. an administrative-judicial review or a de (ii) Timeliness. Fees received by the Workers shall not be transferred or novo hearing by an administrative law OFLC Administrator no more than 30 referred to an association’s member, if judge, the procedures of § 655.112 of calendar days after the date of the that member is ineligible to obtain any this part shall be followed. temporary alien agricultural labor or any additional workers, pursuant to (e) Approvals of applications—(1) certification determination are timely. § 655.110 of this part. Continued recruitment of U.S. workers. (c) Changes to temporary alien (3) Extension of temporary alien After a temporary agricultural labor agricultural labor certifications; agricultural labor certification—(i) certification has been granted, the temporary alien agricultural labor Short-term extension. An employer who employer shall continue its efforts to certifications involving employer seeks an extension of two weeks or less recruit U.S. workers until the actual associations—(1) Changes. Temporary of the temporary alien agricultural labor date the H–2A workers depart for the alien agricultural labor certifications are certification shall apply for such employer’s place of employment. subject to the conditions and assurances extension to DHS. If DHS grants such an (i) Unless the SWA is informed in made during the application process. extension, the temporary alien writing of a different date, the SWA Any changes in the level of benefits, agricultural labor certification shall be shall deem the third day immediately wages, and working conditions an deemed extended for such period as is preceding the employer’s first date of employer may wish to make at any time approved by DHS. No extension granted need to be the date the H–2A workers during the work contract period must be under this paragraph (c)(3)(i) shall be for depart for the employer’s place of

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employment. The employer may notify OFLC Administrator certifies is this paragraph (g)(4) shall be the final the SWA in writing if the workers displaced due to compliance with decision of the Secretary, and no further depart prior to that date. § 655.103(e) of this part. review by any DOL official shall be (ii)(A) If the H–2A workers do not (g) Withholding of U.S. workers given to it. depart for the place of employment on prohibited—(1) Complaints. Any (h) Requests for new temporary alien or before the first date of need (or by the employer who has reason to believe that agricultural labor certification stated date of departure, if the SWA has a person or entity has willfully and determinations based on nonavailability been advised of a different date), the knowingly withheld U.S. workers prior of able, willing, and qualified U.S. employer shall notify the SWA in to the arrival at the job site of H–2A workers—(1) Standards for requests. If a writing (or orally, confirmed in writing) workers in order to force the hiring of temporary alien agricultural labor as soon as the employer knows that the U.S. workers under § 655.103(e) of this certification application has been workers will not depart by the first date part may submit a written complaint to denied (in whole or in part) based on of need, and in no event later than such the SWA. The complaint shall clearly the OFLC Administrator’s determination date of need. At the same time, the identify the person or entity whom the of the availability of able, willing, and employer shall notify the SWA of the employer believes has withheld the U.S. qualified U.S. workers, and, on or after workers’ expected departure date, if workers, and shall specify sufficient 20 calendar days before the date of need known. No further notice is necessary if facts to support the allegation (e.g., specified in the temporary alien the workers depart by the stated date of dates, places, numbers and names of agricultural labor certification departure. U.S. workers) which will permit an determination, such U.S. workers (B) If the employer did not notify the investigation to be conducted by the identified as being able, willing, SWA of the expected departure date SWA. qualified, and available are, in fact, not pursuant to paragraph (e)(1)(ii)(A) of (2) Investigations. The SWA shall able, willing, qualified, or available at this section, or if the H–2A workers do inform the OFLC Administrator by the time and place needed, the not leave for the place of employment telephone that a complaint under the employer may request a new temporary on or before the stated date of departure, provisions of paragraph (g) of this alien agricultural labor certification the employer shall notify the SWA in section has been filed and shall determination from the OFLC writing (or orally, confirmed in writing) immediately investigate the complaint. Administrator. The OFLC Administrator as soon as the employer becomes aware Such investigation shall include shall expeditiously, but in no case later of the expected departure date, or that interviews with the employer who has than 72 hours after the time a request is the workers did not depart by the stated submitted the complaint, the person or received, make a determination on the date and the new expected departure entity named as responsible for request. date, as appropriate. withholding the U.S. workers, and the (2) Filing requests. The employer’s (2) Requirement for Active Job Order. individual U.S. workers whose request for a new determination shall be The employer shall keep an active job availability has purportedly been made directly to the OFLC order on file until the ‘‘50-percent rule’’ withheld. In the event the SWA fails to Administrator. The request may be assurance at § 655.103(e) of this part is conduct such interviews, the OFLC made to the OFLC Administrator by met, except as provided by paragraph (f) Administrator shall do so. telephone, but shall be confirmed by the of this section. (3) Reports of findings. Within five employer in writing as required by (3) Referrals by ES System. The ES working days after receipt of the paragraphs (h)(2)(i) or (ii) of this section. system shall continue to refer to the complaint, the SWA shall prepare a (i) Workers not able, willing, qualified, employer U.S. workers who apply as report of its findings, and shall submit or eligible. If the employer asserts that long as there is an active job order on such report (including any worker who has been referred by file. recommendations) and the original copy the ES System or by any other person (f) Exceptions—(1) ‘‘Fifty-percent of the employer’s complaint to the or entity is not an eligible worker or is rule’’ inapplicable to small employers. OFLC Administrator. not able, willing, or qualified for the job The assurance requirement at (4) Written findings. The OFLC opportunity for which the employer has § 655.103(e) of this part does not apply Administrator shall immediately review requested H–2A workers, the burden of to any employer who: the employer’s complaint and the report proof is on the employer to establish (i) Did not, during any calendar of findings submitted by the local office, that the individual referred is not able, quarter during the preceding calendar and shall conduct any additional willing, qualified, or eligible because of year, use more than 500 ‘‘man-days’’ of investigation the OFLC Administrator lawful job-related reasons. The agricultural labor, as defined in section deems appropriate. No later than 36 employer’s burden of proof shall be met 3(u) of the Fair Labor Standards Act of working hours after receipt of the by the employer’s submission to the 1938 (29 U.S.C. 203(u)), and so certifies employer’s complaint and the local OFLC Administrator, within 72 hours of to the OFLC Administrator in the H–2A office’s report, the OFLC Administrator the OFLC Administrator’s receipt of the application; and shall issue written findings to the local request for a new determination, of a (ii) Is not a member of an association office and the employer. Where the signed statement of the employer’s which has applied for a temporary alien OFLC Administrator determines that the assertions, which shall identify each agricultural labor certification under employer’s complaint is valid and rejected worker by name and shall state this subpart for its members; and justified, the OFLC Administrator shall each lawful job-related reason for (iii) Has not otherwise ‘‘associated’’ immediately suspend the application of rejecting that worker. with other employers who are applying § 655.103(e) of this part to the employer. (ii) U.S. workers not available. If the for H–2A workers under this subpart, Such suspension of § 655.103(e) of this employer telephonically requests the and so certifies to the OFLC part under these circumstances shall not new determination, asserting solely that Administrator. take place, however, until the U.S. workers are not available, the (2) Displaced H–2A workers. An interviews required by paragraph (g)(2) employer shall submit to the OFLC employer shall not be liable for payment of this section have been conducted. Administrator a signed statement under § 655.102(b)(6) of this part with The OFLC Administrator’s confirming such assertion. If such respect to an H–2A worker whom the determination under the provisions of signed statement is not received by the

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OFLC Administrator within 72 hours of § 655.107 Adverse effect wage rates the Department of Justice decides not to the OFLC Administrator’s receipt of the (AEWRs). prosecute an employer or agent, the telephonic request for a new (a) Computation and publication of OFLC Administrator shall not deny the determination, the OFLC Administrator AEWRs. Except as otherwise provided temporary alien agricultural labor may make the determination based in this section, the AEWRs for all certification application on the grounds solely on the information provided agricultural employment (except for of fraud or willful misrepresentation. telephonically and the information (if those occupations deemed The application, of course, may be any) from the SWA. inappropriate under the special denied for other reasons pursuant to this (3) National Processing Center circumstances provisions of § 655.93 of subpart. review—(i) Expeditious review. The this part) for which temporary alien (c) Terminated processing. If a court OFLC Administrator expeditiously shall agricultural labor certification is being or the DHS determines that there was review the request for a new sought shall be equal to the annual fraud or willful misrepresentation determination. The OFLC Administrator weighted average hourly wage rate for involving a temporary alien agricultural may request a signed statement from the field and livestock workers (combined) labor certification application, the SWA in support of the employer’s for the region as published annually by application is thereafter invalid, assertion of U.S. worker nonavailability the U.S. Department of Agriculture consideration of the application shall be or referred U.S. workers not being able, (USDA) based on the USDA quarterly terminated and the OFLC Administrator willing, or qualified because of lawful wage survey. The OFLC Administrator shall return the application to the job-related reasons. shall publish, at least once in each employer or agent with the reasons (ii) New determination. If the OFLC calendar year, on a date or dates to be therefor stated in writing. Administrator determines that the determined by the OFLC Administrator, § 655.110 Employer penalties for employer’s assertion of nonavailability AEWRs for each State (for which USDA is accurate and that no able, willing, or noncompliance with terms and conditions publishes regional data), calculated of temporary alien agricultural labor qualified U.S. worker has been refused pursuant to this paragraph (a) as a certifications. or is being refused employment for notice or notices in the Federal other than lawful job-related reasons, (a) Investigation of violations. If, Register. during the period of two years after a the OFLC Administrator shall, within 72 (b) Higher prevailing wage rates. If, as hours after receipt of the employer’s temporary alien agricultural labor the result of a State agency prevailing certification has been granted (in whole request, render a new determination. wage survey determination, the Prior to making a new determination, or in part), the OFLC Administrator has prevailing wage rate in an area and reason to believe that an employer the OFLC Administrator promptly shall agricultural activity (as determined by ascertain (which may be through the ES violated a material term or condition of the State agency survey and verified by the temporary alien agricultural labor System or other sources of information the OFLC Administrator) is found to be on U.S. worker availability) whether certification, the OFLC Administrator higher that the AEWR computed shall, except as provided in paragraph able, willing, and qualified replacement pursuant to paragraph (a) of this section, U.S. workers are available or can be (b) of this section, investigate the matter. the higher prevailing wage rate shall be If, after the investigation, the OFLC reasonably expected to be present at the offered and paid to all workers by employer’s establishment within 72 Administrator determines that a employers seeking temporary alien substantial violation has occurred, the hours from the date the employer’s agricultural labor certification for that request was received. OFLC Administrator, shall notify the agricultural activity and area. employer that a temporary alien (iii) Notification of new (c) Federal minimum wage rate. In no agricultural certification request will not determination. If the OFLC event shall an AEWR computed be granted for the next period of time in Administrator cannot identify sufficient pursuant to this section be lower than a calendar year during which the able, willing, and qualified U.S. workers the hourly wage rate published in 29 employer would normally be expected who are or who are likely to be U.S.C. 206(a)(1) and currently in effect. available, the OFLC Administrator shall to request a temporary alien agricultural grant the employer’s new determination § 655.108 H–2A applications involving labor certification, and any application request (in whole or in part) based on fraud or willful misrepresentation. subsequently submitted by the employer available information as to replacement (a) Referral for investigation. If for that time period will not be accepted U.S. worker availability. The OFLC possible fraud or willful by the OFLC Administrator. If multiple Administrator’s notification to the misrepresentation involving a or repeated substantial violations are employer on the new determination temporary alien agricultural labor involved, the OFLC Administrator’s shall be in writing (by means normally certification application is discovered notice to the employer shall specify that assuring next-day delivery), and the prior to a final temporary alien the prospective denial of the temporary OFLC Administrator’s determination agricultural labor certification alien agricultural labor certification will under the provisions of this paragraph determination or if it is learned that the apply not only to the next anticipated (h)(3) shall be the final decision of the employer or agent (with respect to an period for which a temporary alien Secretary, and no further review shall be application) is the subject of a criminal agricultural labor certification would given to an employer’s request for a new indictment or information filed in a normally be requested, but also to any H–2A determination by any DOL court, the OFLC Administrator shall periods within the coming two or three official. However, this does not preclude refer the matter to the DHS and DOL years; two years for two violations, or an employer from submitting Office of the Inspector General for repetitions of the same violations, and subsequent requests for new investigation. The OFLC Administrator three years for three or more violations, determinations, if warranted, based on shall continue to process the application or repetitions thereof. The OFLC subsequent facts concerning purported and may issue a temporary alien Administrator’s notice shall be in nonavailability of U.S. workers or agricultural labor certification. writing, shall state the reasons for the referred workers not being eligible (b) Continued processing. If a court determinations, and shall offer the workers or not able, willing, or qualified finds an employer or agent not guilty of employer an opportunity to request an because of lawful job-related reasons. fraud or willful misrepresentation, or if expedited administrative review or a de

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novo hearing before an administrative temporary alien agricultural labor those requested in the previous year) for law judge of the determination within certification. Such requirements shall be a period of one year. seven calendar days of the date of the reasonable, and shall not require the (d) Penalties involving members of notice. If the employer requests an employer to offer better wages, working associations. If, after investigation as expedited administrative review or a de conditions and benefits than those provided for under paragraph (a) of this novo hearing before an administrative specified in § 655.102 of this part, and section, or notification from the law judge, the procedures in § 655.112 shall be no more than deemed necessary Employment Standards Administration of this part shall be followed. to assure employer compliance with the under paragraph (b) of this section, the (b) Employment Standards test of U.S. worker availability and OFLC Administrator determines that a Administration investigations. The adverse effect criteria of this subpart. substantial violation has occurred, and OFLC Administrator may make the The OFLC Administrator shall notify if an individual producer member of a determination described in paragraph the employer in writing of the special joint employer association is (a) of this section based on information procedures which will be required in determined to have committed the and recommendations provided by the violation, the denial of temporary alien the coming year. The notification shall Employment Standards Administration, agricultural labor certification penalty state the reasons for the imposition of after an Employment Standards prescribed in paragraph (a) shall apply the requirements, state that the Administration investigation has been only to that member of the association conducted in accordance with the employer’s agreement to accept the unless the OFLC Administrator Employment Standards Administration conditions will constitute inclusion of determines that the association or other procedures, that an employer has not them as bona fide conditions and terms association member participated in, had complied with the terms and conditions of a temporary alien agricultural labor knowledge of, or had reason to know of of employment prescribed as a certification, and shall offer the the violation, in which case the penalty condition for a temporary alien employer an opportunity to request an shall be invoked against the association agricultural labor certification. In such administrative review or a de novo or other association member as well. instances, the OFLC Administrator need hearing before an administrative law (e) Penalties involving associations not conduct any investigation of his/her judge. If an administrative review or de acting as joint employers. If, after own, and the subsequent notification to novo hearing is requested, the investigation as provided for under the employer and other procedures procedures prescribed in § 655.112 of paragraph (a) of this section, or contained in paragraph (a) of this this part shall apply. notification from the Employment section will apply. Penalties invoked by (2) Failure to comply with special Standards Administration under the Employment Standards procedures. If the OFLC Administrator paragraph (b) of this section, the OFLC Administration for violations of determines that the employer has failed Administrator determines that a temporary alien agricultural labor to comply with special procedures substantial violation has occurred, and certification terms and conditions shall required pursuant to paragraph (c)(1) of if an association acting as a joint be treated and handled separately from this section, the OFLC Administrator employer with its members is sanctions available to the OFLC shall send a written notice to the determined to have committed the Administrator, and an employer’s employer, stating that the employer’s violation, the denial of temporary alien obligations for compliance with the otherwise affirmative temporary alien agricultural labor certification penalty Employment Standards agricultural labor certification prescribed in paragraph (a) of this section shall apply only to the Administration’s enforcement penalties determination will be reduced by association, and shall not be applied to shall not absolve an employer from twenty-five percent of the total number any individual producer member of the sanctions applied by ETA under this of H–2A aliens requested (which cannot association unless the OFLC section (except as noted in paragraph (a) be more than those requested in the of this section). Administrator determines that the previous year) for a period of one year. (c) Less than substantial violations— member participated in, had knowledge (1) Requirement of special procedures. Notice of such a reduction in the of, or reason to know of the violation, If, after investigation as provided for number of workers requested shall be in which case the penalty shall be under paragraph (a) of this section, or an conveyed to the employer by the OFLC invoked against the association member Employment Standards Administration Administrator in the OFLC as well. notification as provided under Administrator’s written temporary alien (f) Penalties involving associations paragraph (b) of this section, the OFLC agricultural labor certification acting as sole employers. If, after Administrator determines that a less determination required by § 655.101 of investigation as provided for under than substantial violation has occurred, this part. The notice shall offer the paragraph (a) of this section, or but the OFLC Administrator has reason employer an opportunity to request an notification from the Employment to believe that past actions on the part administrative review or a de novo Standards Administration under of the employer may have had and may hearing before an administrative law paragraph (b) of this section, the OFLC continue to have a chilling or otherwise judge. If an administrative review or de Administrator determines that a negative effect on the recruitment, novo hearing is requested, the substantial violation has occurred, and employment, and retention of U.S. procedures prescribed in § 655.112 of if an association acting as a sole workers, the OFLC Administrator may this part shall apply, provided that if the employer is determined to have require the employer to conform to administrative law judge affirms the committed the violation, no individual special procedures before and after the OFLC Administrator’s determination producer member of the association temporary alien labor certification that the employer has failed to comply shall be permitted to employ certified determination (including special on-site with special procedures required by H–2A workers in the crop and positive recruitment and streamlined paragraph (c)(1) of this section, the occupation for which the H–2A workers interviewing and referral techniques) reduction in the number of workers had been previously certified for the designed to enhance U.S. worker requested shall be twenty-five percent of sole employer association unless the recruitment and retention in the next the total number of H–2A aliens producer member applies for temporary year as a condition for receiving a requested (which cannot be more than alien agricultural labor certification

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under the provisions of this subpart in substantial violation is an action of OFLC Administrator for a period of one the capacity of an individual employer/ commission or omission on the part of year. applicant or as a member of a joint the employer or the employer’s agent § 655.112 Administrative review and de employer association, and is granted which violates a requirement of this novo hearing before an administrative law temporary alien agricultural labor subpart, but is not a substantial judge. certification by the OFLC Administrator. violation. (g) Types of violations—(1) (a) Administrative review—(1) Consideration. Whenever an employer Substantial violation. For the purposes § 655.111 Petition for higher meal charges. has requested an administrative review of this subpart, a substantial violation is (a) Filing petitions. Until a new before an administrative law judge of a one or more actions of commission or amount is set pursuant to this paragraph decision not to accept for consideration omission on the part of the employer or (a), the OFLC Administrator may permit a temporary alien agricultural labor the employer’s agent, with respect to an employer to charge workers up to certification application, of the denial of which the OFLC Administrator $6.58 for providing them with three a temporary alien agricultural labor determines: meals per day, if the employer justifies (i)(A) That the action(s) is/are certification, or of a penalty under the charge and submits to the OFLC § 655.110 of this part, the OFLC significantly injurious to the wages, Administrator the documentation Administrator shall send a certified benefits, or working conditions of 10 required by paragraph (b) of this section. copy of the ETA case file to the Chief percent or more of an employer’s U.S. In the event the employer’s petition for Administrative Law Judge by means and/or H–2A workforce; and that: a higher meal charge is denied in whole (1) With respect to the action(s), the normally assuring next-day delivery. or in part, the employer may appeal The Chief Administrative Law Judge employer has failed to comply with one such denial. Such appeals shall be filed or more penalties imposed by the shall immediately assign an with the Chief Administrative Law administrative law judge (which may be Employment Standards Administration Judge. Administrative law judges shall for violation(s) of contractual a panel of such persons designated by hear such appeals according to the the Chief Administrative Law Judge obligations found by that agency (if procedures in 29 CFR part 18, except applicable), or with one or more from the Board of Alien Labor that the appeal shall not be considered Certification Appeals established by decisions or orders of the Secretary or as a complaint to which an answer is a court pursuant to section 216 of the part 656 of this chapter, but which shall required. The decision of the hear and decide the appeal as set forth INA (8 U.S.C. 1186), this subpart, or 29 administrative law judge shall be the CFR part 501 (Employment Standards in this section) to review the record for final decision of the Secretary. Each legal sufficiency. The administrative Administration enforcement of year the maximum charge allowed by contractual obligations); or law judge shall not remand the case and this paragraph (a) will be changed by shall not receive additional evidence. (2) The employer has engaged in a the same percentage as the twelve- pattern or practice of actions which are (2) Decision. Within five working days month percent change for the Consumer after receipt of the case file the significantly injurious to the wages, Price Index for all Urban Consumers for benefits, or working conditions of 10 administrative law judge shall, on the Food between December of the year just basis of the written record and after due percent or more of an employer’s U.S. concluded and December of the year and/or H–2A workforce; consideration of any written prior to that. The annual adjustments submissions submitted from the parties (B) That the action(s) involve(s) shall be effective on the date of their impeding an investigation of an involved or amici curiae, either affirm, publication by the OFLC Administrator reverse, or modify the OFLC employer pursuant to section 216 of the as a notice in the Federal Register. INA (8 U.S.C. 1186), this subpart, or 29 Administrator’s denial by written However, an employer may not impose decision. The decision of the CFR part 501 (Employment Standards such a charge on a worker prior to the Administration enforcement of administrative law judge shall specify effective date contained in the OFLC the reasons for the action taken and contractual obligations); Administrator’s written confirmation of (C) That the employer has not paid shall be immediately provided to the the amount to be charged. the necessary fee in a timely manner; employer, OFLC Administrator, and (D) That the employer is not currently (b) Required documentation. DHS by means normally assuring next- eligible to apply for a temporary alien Documentation submitted shall include day delivery. The administrative law agricultural labor certification pursuant the cost of goods and services directly judge’s decision shall be the final to § 655.210 of this part (failure of an related to the preparation and serving of decision of the Secretary and no further employer to comply with the terms of a meals, the number of workers fed, the review shall be given to the temporary temporary alien agricultural labor number of meals served and the number alien agricultural labor certification certification in which the application of days meals were provided. The cost application or the temporary alien was filed under subpart C of this part of the following items may be included: agricultural labor certification prior to June 1, 1987); or Food; kitchen supplies other than food, determination by any DOL official. (E) That there was fraud involving the such as lunch bags and soap; labor costs (b) De novo hearing—(1) Request for application for temporary alien which have a direct relation to food hearing; conduct of hearing. Whenever agricultural labor certification of that service operations, such as wages of an employer has requested a de novo the employer made a material cooks and restaurant supervisors; fuel, hearing before an administrative law misrepresentation of fact during the water, electricity, and other utilities judge of a decision not to accept for application process; and used for the food service operation; and consideration a temporary alien (ii) That there are no extenuating other costs directly related to the food agricultural labor certification circumstances involved with the service operation. Charges for application, of the denial of a temporary action(s) described in paragraph (g)(1)(i) transportation, depreciation, overhead alien agricultural labor certification, or of this section (as determined by the and similar charges may not be of a penalty under § 655.110 of this part, OFLC Administrator). included. Receipts and other cost the OFLC Administrator shall send a (2) Less than substantial violation. For records for a representative pay period certified copy of the case file to the the purposes of this subpart, a less than shall be available for inspection by the Chief Administrative Law Judge by

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means normally assuring next-day 655.202 Contents of job offers. proceed reasonably with the employer delivery. The Chief Administrative Law 655.203 Assurances. recruiting U.S. workers upon such terms Judge shall immediately assign an 655.204 Determinations based on temporary as will accomplish the purposes of the administrative law judge (which may be labor certification applications. INA and the DHS regulations. Where the 655.205 Recruitment period. a panel of such persons designated by 655.206 Determinations of U.S. worker application is timely and meets the the Chief Administrative Law Judge availability and adverse effect on U.S. regulatory standards, the State from the Board of Alien Labor workers. Workforce Agency, the employer, and Certification Appeals established by 655.207 Adverse effect rates. the Department of Labor recruit U.S. part 656 of this chapter, but which shall 655.208 Temporary labor certification workers for 60 days. At the end of the hear and decide the appeal as set forth applications involving fraud or willful 60 days, the OFLC Administrator grants in this section) to conduct the de novo misrepresentation. the temporary labor certification if the hearing. The procedures contained in 29 655.209 Invalidation of temporary labor OFLC Administrator finds that (1) the certifications. CFR part 18 shall apply to such 655.210 Failure of employers to comply employer has not offered foreign hearings, except that: with the terms of a temporary labor workers higher wages or better working (i) The appeal shall not be considered certification. conditions (or less restrictions) than that to be a complaint to which an answer 655.211 Petition for higher meal charges. offered to U.S. workers, and (2) U.S. is required, 655.212 Administrative-judicial reviews. workers are not available for the (ii) The administrative law judge shall 655.215 Territory of Guam. employer’s job opportunities. If the ensure that, at the request of the temporary labor certification is denied, employer, the hearing is scheduled to Subpart C—Labor Certification the employer may seek an take place within five working days Process for Logging Employment and administrative-judicial review of the after the administrative law judge’s Non-H–2A Agricultural Employment denial by an Administrative Law Judge receipt of the case file, and § 655.200 General description of this as provided in these regulations. The (iii) The administrative law judge’s subpart and definition of terms. Department of Labor thereafter advises decision shall be rendered within ten (a) This subpart applies to the United States Citizenship and working days after the hearing. Immigration Services of the Department (2) Decision. After a de novo hearing, applications for temporary alien agricultural labor certification filed of Homeland Security (DHS) of the administrative law judge shall either approvals and denials of temporary affirm, reverse, or modify the OFLC before June 1, 1987, and to applications for temporary alien labor certification labor certifications. The DHS may Administrator’s determination, and the accept or reject this advice. 8 CFR administrative law judge’s decision for logging employment. (b) An employer who desires to use 214.2(h)(3). The DHS makes the final shall be provided immediately to the foreign workers for temporary decision as to whether or not to grant employer, OFLC Administrator, and employment must file a temporary labor visas to the foreign workers. 8 U.S.C. DHS by means normally assuring next- certification application including a job 1184(a). day delivery. The administrative law offer for U.S. workers with an (c) Definitions for terms used in this judge’s decision shall be the final appropriate State Workforce Agency. subpart. decision of the Secretary, and no further The employer should file an application Administrative Law Judge means an review shall be given to the temporary a minimum of 80 days before the official who is authorized to conduct alien agricultural labor certification estimated date of need for the workers. administrative hearings. application or the temporary alien If filed 80 days before need, sufficient Administrator, Office of Foreign Labor agricultural labor certification time is allowed for the 60-day Certification (OFLC Administrator) determination by any DOL official. recruitment period required by the means the primary official of the Office § 655.113 Job Service Complaint System; regulations and a determination by the of Foreign Labor Certification or the enforcement of work contracts. OFLC Administrator as to the OFLC Administrator’s designee. Complaints arising under this subpart availability of U.S. workers 20 days Adverse effect rate means the wage may be filed through the Job Service before the date of need. Shortly after the rate which the OFLC Administrator has Complaint System, as described in 20 application has been filed, the OFLC determined must be offered and paid to CFR part 658, subpart E. Complaints Administrator makes a determination as foreign and U.S. workers for a particular which involve worker contracts shall be to whether or not the application has occupation and/or area so that the referred by the local office to the been filed in enough time to recruit U.S. wages of similarly employed U.S. Employment Standards Administration workers and whether or not the job offer workers will not be adversely affected. for appropriate handling and resolution. for U.S. workers offers wages and The OFLC Administrator may determine See 29 CFR part 501. As part of this working conditions which will not that the prevailing wage rate in the area process, the Employment Standards adversely affect the wages and working and/or occupation is the adverse effect Administration may report the results of conditions of similarly employed U.S. rate, if the use (or non-use) of aliens has its investigation to ETA for workers, as prescribed in the regulations not depressed the wages of similarly consideration of employer penalties in this subpart. If the application does employed U.S. workers. The OFLC under § 655.110 of this part or such not meet the regulatory wage and Administrator may determine that a other action as may be appropriate. working condition standards, the OFLC wage rate higher than the prevailing 7. Add subpart C to read as follows: Administrator shall deny the temporary wage rate is the adverse effect rate if the Subpart C—Labor Certification Process for labor certification application and offer OFLC Administrator determines that the Logging Employment and Non-H–2A the employer an administrative-judicial use of aliens has depressed the wages of Agricultural Employment review of the denial by an similarly employed U.S. workers. Sec. Administrative Law Judge. If the Agent means a legal person, such as 655.200 General description of this subpart application is not timely, the OFLC an association of employers, which (1) and definition of terms. Administrator has discretion, as set is authorized to act as an agent of the 655.201 Temporary labor certification forth in these regulations, to either deny employer for temporary labor applications. the application or permit the process to certification purposes, and (2) which is

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not itself an employer, or a joint Department of Homeland Security with the SWA in duplicate and in employer, as defined in this section. (DHS), pursuant to the regulations of sufficient time to allow the State agency Area of intended employment means that agency at 8 CFR 214.2(h)(3)(i), that to attempt to recruit U.S. workers the area within normal commuting (1) there are not sufficient U.S. workers locally and through the Employment distance of the place (address) of who are qualified and available to Service intrastate and interstate intended employment. If the place of perform the work and (2) the clearance system for 60 calendar days intended employment is within a employment of the alien will not prior to the estimated date of need. Standard Metropolitan Statistical Area adversely affect the wages and working Section 655.206 requires the OFLC (SMSA), any place within the SMSA is conditions of similarly employed U.S. Administrator to grant or deny the deemed to be within normal commuting workers. temporary labor certification application distance of the place of intended United States workers means any by the end of the 60 calendar days, or employment. worker who, whether U.S. national, 20 days from the estimated date of need, Department of Homeland Security citizen or alien, is legally permitted to whichever is later. That section also (DHS) through the United States work permanently within the United requires the OFLC Administrator to Citizenship and Immigration Services States. offer employers an expedited (USCIS) makes the determination under administrative-judicial review in cases the INA on whether or not to grant visa § 655.201 Temporary labor certification of denials of the temporary labor petitions to an alien seeking to perform applications. certification applications. Following an temporary agricultural or logging work (a)(1) An employer who anticipates a administrative-judicial review, the in the United States. labor shortage of workers for employer has a right to contest any Employer means a person, firm, agricultural or logging employment may denial before the DHS pursuant to 8 corporation or other association or request a temporary labor certification CFR 214.2(h)(3)(i). Finally, employers organization (1) which currently has a for temporary foreign workers by filing, need time, after the temporary labor location within the United States to or by having an agent file, in duplicate, certification determination, to complete which U.S. workers may be referred for a temporary labor certification the process for bringing foreign workers employment, and which proposes to application, signed by the employer, into the United States, or to bring an employ a worker at a place within the with a SWA in the area of intended appeal of a denial of an application for United States and (2) which has an employment. the labor certification. Therefore, employer relationship with respect to (2) If the temporary labor certification employers should file their temporary employees under this subpart as application is filed by an agent, labor certification applications at least indicated by the fact that it hires, pays, however, the agent may sign the 80 days before the estimated date of fires, supervises and otherwise controls application if the application is need specified in the application. the work of such employees. An accompanied by a letter from each (d) Applications may be amended at association of employers shall be employer the agent represents, signed any time prior to OFLC Administrator considered an employer if it has all of by the employer, which authorizes the determination to increase the number of the indicia of an employer set forth in agent to act on the employer’s behalf workers requested in the original this definition. Such an association, and which states that the employer application for labor certification by not however, shall be considered as a joint assumes full responsibility for the more than 15 percent without requiring employer with the employer member if accuracy of the application, for all an additional recruitment period for it shares with the employer member one representations made by the agent on U.S. workers. Requests for increases or more of the definitional indicia. the employer’s behalf, and for the beyond 15 percent may be approved Employment and Training fulfillment of all legal requirements only when it is determined that, based Administration (ETA) means the agency arising under this subpart. on past experience, the need for within the Department of Labor (DOL) (3) If an association of employers files additional workers could not be which includes the Office of Foreign the application, the association shall foreseen and that a critical need for the Labor (OFLC). identify and submit documents to verify workers would exist prior to the Job opportunity means a job opening whether, in accordance with the expiration of an additional recruitment for temporary, full-time employment at definitions at § 655.200, it is: (i) The period. a place in the United States to which employer, (ii) a joint employer with its (e) If a temporary labor certification U.S. workers can be referred. member employers, or (iii) the agent of application, or any part thereof, does Office of Foreign Labor Certification its employer members. not satisfy the time requirements (OFLC) means the organizational (b) Every temporary labor certification specified in paragraph (c) of this component within the ETA that application shall include: section, and if the exception in provides national leadership and policy (1) A copy of the job offer which will paragraph (d) of this section does not guidance and develops regulations and be used by the employer (or each apply, the SWA shall immediately send procedures to carry out the employer) for the recruitment of both both copies directly to the appropriate responsibilities of the Secretary of Labor U.S. and foreign workers. The job offer OFLC Administrator. The OFLC under the INA concerning alien workers for each employer shall state the Administrator may then advise the seeking admission to the United States number of workers needed by the employer and the DHS in writing that in order to work under the Immigration employer, and shall be signed by the the temporary labor certification cannot and Nationality Act, as amended. employer. The job offer shall comply be granted because, pursuant to the Secretary means the Secretary of with the requirements of §§ 655.202 and regulations at paragraph (c) of this Labor or the Secretary’s designee. 653.108 of this chapter; section, there is not sufficient time to State Workforce Agency (SWA) means (2) The assurances required by test the availability of U.S. workers. The the State employment service agency. § 655.203; and notice of denial to the employer shall Temporary labor certification means (3) The specific estimated date of inform the employer of the right to the advice given by the Secretary of need of workers. administrative-judicial review and to Labor to the United States Citizenship (c) The entire temporary labor ultimately petition DHS for the and Immigration Services (USCIS) of the certification application shall be filed admission of the aliens. In emergency

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situations, however, the OFLC (ii) If the job opportunity is not employer’s worksite to such subsequent Administrator may waive the time covered by the State workers’ employer’s worksite; and period specified in this section on compensation law, the employer will (iii) The employer will provide behalf of employers who have not made provide at no cost to the worker, transportation between the worker’s use of temporary alien workers for the insurance covering injury and disease living quarters and the employer’s prior year’s harvest or for other good arising out of and in the course of the worksite without cost to the worker, and and substantial cause, provided the worker’s employment which will such transportation will be in OFLC Administrator has sufficient labor provide benefits at least equal to those accordance with applicable laws and market information to make the labor provided under the State workers’ regulations; certification determinations required by compensation law for comparable (6)(i) The employer guarantees to offer 8 CFR 214.2(h)(3)(i). employment; the worker employment for at least (3) The employer will provide three-fourths of the workdays of the (Approved by the Office of Management and total period during which the work Budget under control number 1205–0015) without cost to the worker all tools, supplies and equipment required to contract and all extensions thereof are § 655.202 Contents of job offers. perform the duties assigned and, if any in effect, beginning with the first (a) So that the employment of aliens of these items are provided by the workday after the arrival of the worker will not adversely affect the wages and worker, the employer will reimburse the at the place of employment and ending working conditions of similarly worker for the cost of those so provided; on the termination date specified in the employed U.S. workers, each (4) The employer will provide the work contract, or in its extensions if employer’s job offer to U.S. workers worker with three meals a day, except any. For purposes of this paragraph, a must offer U.S. workers at least the same that where under prevailing practice or workday shall mean any period benefits which the employer is offering, longstanding arrangement at the consisting of 8 hours of work time. An intends to offer, or will afford, to establishment workers prepare their employer shall not be considered to temporary foreign workers. Conversely, meals, employers need furnish only free have met the work guarantee if the and convenient cooking and kitchen employer has merely offered work on no job offer may impose on U.S. workers facilities. Where the employer provides three-fourths of the workdays. The work any restrictions or obligations which the meals, the job offer shall state the must be offered for at least three-fourths will not be imposed on the employer’s cost to the worker for such meals. Until of the 8 hour workdays. (That is, 3⁄4 × foreign workers. For example, if the a new amount is set pursuant to this (number of days × 8 hours.)) Therefore, employer intends to advance paragraph (b)(4), the cost shall not be if, for example, the contract contains 20 transportation costs to foreign workers more than $4.94 per day unless the workdays, the worker must be offered either directly or indirectly (by having OFLC Administrator has approved a employment for 120 hours during the 20 them paid by the foreign government higher cost pursuant to § 655.211 of this workdays. A worker may be offered involved), the employer must offer to part. Each year the charge allowed by more than 8 hours of work on a single advance the transportation costs of U.S. this paragraph (b)(4) will be changed by workday. For purposes of meeting the workers. the 12-month percent change for the guarantee, however, the worker may not (b) Except when higher benefits, Consumer Price Index for All Urban be required to work for more than 8 wages or working conditions are Consumers for Food between December hours per workday, or on the worker’s required by the provisions of paragraph of the year just concluded and Sabbath or Federal holidays; (a) of this section, the OFLC December of the year prior to that. The (ii) If the worker will be paid on a Administrator has determined that, in annual adjustments shall be effective on piece rate basis, the employer will use order to protect similarly employed U.S. their publication by the OFLC the worker’s average hourly earnings to workers from adverse effect with respect Administrator in the Federal Register. calculate the amount due under the to wages and working conditions, every (5)(i) The employer will provide or guarantee; and job offer for U.S. workers must always pay for the worker’s transportation and (iii) Any hours which the worker fails include the following minimal benefit, daily subsistence from the place, from to work when the worker has been wage, and working condition which the worker, without intervening offered an opportunity to do so pursuant provisions: employment, will come to work for the to paragraph (b)(6)(i) of this section, and (1) The employer will provide the employer, to the place of employment, all hours of work actually performed worker with housing without charge to subject to the deductions allowed by (including voluntary work over 8 hours the worker. The housing will meet the paragraph (b)(13) of this section. The in a workday, or on the worker’s full set of standards set forth at 29 CFR amount of the daily subsistence Sabbath or Federal holidays) may be 1910.142 or the full set of standards set payment shall be at least as much as the counted by the employer in calculating forth at part 654, subpart E of this amount the employer will charge the whether the period of guaranteed chapter, whichever is applicable under worker for providing the worker with employment has been met; the criteria of 20 CFR 654.401; except three meals a day during employment; (7)(i) The employer will keep accurate that, for mobile range housing for (ii) If the worker completes the work and adequate records with respect to the sheepherders, the housing shall meet contract period, the employer will workers’ earnings, including field tally existing Departmental guidelines. When provide or pay for the worker’s records, supporting summary payroll it is the prevailing practice in the area transportation and daily subsistence records, and records showing: The of intended employment to provide from the place of employment to the nature and amount of the work family housing, the employer will place, from which the worker, without performed; the number of hours of work provide such housing to such workers. intervening employment, came to work offered each day by the employer (2)(i) If the job opportunity is covered by for the employer, unless the worker has (broken out by hours offered both in the State workers’ compensation law, contracted for employment with a accordance with, and over and above, the worker will be eligible for workers’ subsequent employer who, in that the guarantee); the hours actually compensation for injury and disease contract, has agreed to pay for the worked each day by the worker; the arising out of and in the course of worker’s transportation and daily time the worker began and ended each worker’s employment; or subsistence expenses from the workday; the rate of pay; the worker’s

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earnings per pay period; and the amount (10) The frequency with which the shall include assurances, signed by the of and reasons for any and all worker will be paid (in accordance with employer, that: deductions made from the worker’s the prevailing practice in the area of (a) The job opportunity is not: wages; intended employment, or at least (1) Vacant because the former (ii) If the number of hours worked by biweekly whichever is more frequent); occupant is on strike or being locked out the worker is less than the number (11) If the worker voluntarily in the course of a labor dispute; or offered in accordance with the abandons employment before the end of (2) At issue in a labor dispute guarantee, the records will state the the contract period, or is terminated for involving a work stoppage; reason or reasons therefor; cause, the employer will not be (b) During the period for which the (iii) The records, including field tally responsible for providing or paying for temporary labor certification is granted, records and supporting summary the subsequent transportation and the employer will comply with payroll records, will be made available subsistence expenses of any worker for applicable Federal, State and local for inspection and copying by whom the employer would have employment-related laws, including representatives of the Secretary of otherwise been required to pay such employment related health and safety Labor, and by the worker and the expenses under paragraph (b)(5)(ii) of laws; worker’s representatives; and this section; (c) The job opportunity is open to all qualified U.S. workers without regard to (iv) The employer will retain the (12) If, before the expiration date race, color, national origin, sex, or records for not less than three years after specified in the work contract, the religion, and is open to U.S. workers the completion of the contract; services of the worker are no longer with handicaps who are qualified to (8) The employer will furnish to the required for reasons beyond the control perform the work. No U.S. worker will worker at or before each payday, in one of the employer due to fire or other Act be rejected for employment for other or more written statements: of God which makes the fulfillment of than a lawful job related reason; (i) The worker’s total earnings for the the contract impossible, and the OFLC (d) The employer will cooperate with pay period; Administrator so certifies, the employer (ii) The worker’s hourly rate or piece the employment service system in the may terminate the work contract. In rate of pay; active recruitment of U.S. workers until such cases the employer will make (iii) The hours of employment which the foreign workers have departed for efforts to transfer the worker to other have been offered to the worker (broken the employer’s place of employment by; comparable employment acceptable to out by offers in accordance with, and (1) Allowing the employment service the worker. If such transfer is not over and above, the guarantee); system to prepare local, intrastate and (iv) The hours actually worked by the effected, the worker interstate job orders using the worker; (i) Will be returned to the place from information supplied on the employer’s (v) An itemization of all deductions which the worker, without intervening job offer; made from the worker’s wages; and employment, came to work for the (2) Placing at least two advertisements (vi) If piece rates are used, the units employer at the employer’s expense; for the job opportunities in local produced daily; and newspapers of general circulation. (9)(i) If the worker will be paid by the (ii) Will be reimbursed the full (i) Each such advertisement shall hour, the employer will pay the worker amount of any deductions made from describe the nature and anticipated at least the adverse effect rate; or the worker’s pay by the employer for duration of the job opportunity; offer at (ii)(A) If the worker will be paid on a transportation and subsistence expenses least the adverse effect wage rate; give piece rate basis, and the piece rate does to the place of employment borne the 3⁄4 guarantee; state that work tools, not result at the end of the pay period directly or indirectly by the employer; supplies and equipment will be in average hourly earnings during the (13) The employer will make those provided by the employer; state that pay period at least equal to the amount deductions from the worker’s paycheck housing will also be provided, and that the worker would have earned had the which are required by law. The job offer transportation and subsistence expenses worker been paid at the adverse effect shall specify all deductions, not to the worksite will be provided or paid rate, the worker’s pay will be required by law, which the employer for by the employer; supplemented at that time so that the will make from the worker’s paycheck. (ii) Each advertisement shall direct worker’s earnings are at least as much All deductions shall be reasonable. The interested workers to apply for the job as the worker would have earned during employer may deduct the cost of the opportunity at the appropriate office of the pay period if the worker had been worker’s transportation and daily the State Workforce Agency in their paid at the adverse effect rate. subsistence expenses to the place of area; (B) If the employer who pays on a employment which were borne directly (3) Cooperating with the employment piece rate basis requires one or more by the employer; in such cases, service system in contacting farm labor minimum productivity standards of however, the job offer shall state that the contractors, migrant workers and other workers as a condition of job retention, worker will be reimbursed the full potential workers in other areas of the (1) Such standards shall be no more amount of such deductions upon the State and/or Nation by letter and/or than those applied by the employer in worker’s completion of 50 percent of the telephone; 1977, unless the OFLC Administrator worker’s contract period; and (4) Cooperating with the employment approves a higher minimum; or (14) The employer will provide the service system in contacting schools, (2) If the employer first applied for worker a copy of the work contract business and labor organizations, temporary labor certification after 1977, between the employer and the worker. fraternal and veterans organizations, such standards shall be no more than The work contract shall contain all of and non-profit organizations and public those normally required (at the time of the provisions required by paragraphs agencies such as sponsors of programs that first application) by other (a) and (b) of this section. under the Comprehensive Employment employers for the activity in the area of and Training Act, throughout the area of intended employment, unless the OFLC § 655.203 Assurances. intended employment, in order to enlist Administrator approves a higher As part of the temporary labor them in helping to find U.S. workers; minimum. certification application, the employer and

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(5) If the employer, or an association availability of U.S. workers cannot be will be expected from them during the of employers of which the employer is adequately tested because the wages or following weeks to carry out the a member, intends to negotiate and/or benefits, etc. do not meet the adverse assurances contained in § 655.203 with contract with the Government of a effect criteria. respect to the recruitment of U.S. foreign nation or any foreign (d) If the certification is denied, the workers. The notice shall require that association, corporation or organization OFLC Administrator shall notify the the job order be placed both into in order to secure foreign workers, employer in writing of the intrastate clearance and into interstate making the same kind and degree of determination, with a copy to the SWA. clearance to such States as the OFLC efforts to secure U.S. workers; The notice shall: Administrator shall determine to be (e) From the time the foreign workers (1) State the reasons for the denial, potential sources of U.S. workers. depart for the employer’s place of citing the relevant regulations; and (b) Thereafter, OFLC Administrator, employment, the employer will provide (2) Offer the employer an opportunity shall provide overall direction to the employment to any qualified U.S. to request an expedited administrative- employer and the SWA with respect to worker who applies to the employer judicial review of the denial by an the recruitment of U.S. workers. until fifty percent of the period of the Administrative Law Judge. The notice (c) By the 60th day of the recruitment work contract, under which the foreign shall state that in order to obtain such period, or 20 days before the date of worker who is in the job was hired, has a review, the employer must, within five need specified in the application, elapsed. In addition, the employer will calendar days of the date of the notice, whichever is later, the OFLC offer to provide housing, and the other file by facsimile (fax), telegram, or other Administrator, when making a benefits, wages, and working conditions means normally assuring next day determination of the availability of U.S. required by § 655.202, to any such U.S. delivery a written request for such a workers, shall also make a worker; and review to the Chief Administrative Law determination as to whether the (f) Performing the other specific Judge of the Department of Labor (giving employer has satisfied the recruitment recruitment activities specified in the the address) and simultaneously serve a assurances in § 655.203. If the OFLC notice from the OFLC Administrator copy on the OFLC Administrator. The Administrator concludes that the required by § 655.205(a). notice shall also state that the employer has not satisfied the employer’s request for review should requirement for recruitment of U.S. § 655.204 Determinations based on contain any legal arguments which the temporary labor certification applications. workers, the OFLC Administrator shall employer believes will rebut the basis of deny the temporary labor certification, (a) Within two working days after the the OFLC Administrator’s denial of and shall immediately notify the temporary labor certification application certification; and employer in writing with a copy to the has been filed with it, the SWA shall (3) State that, if the employer does not State agency. The notice shall contain mail the duplicate application directly request an expedited administrative- the statements specified in § 655.204(d). to the appropriate OFLC Administrator. judicial review before an Administrative (d) If the employer timely requests an (b) The SWA, using the job offer Law Judge within the five days: expedited administrative-judicial portion of its copy of the temporary (i) The OFLC Administrator will review before an Administrative Law labor certification application, shall advise the DHS that the certification Judge, the procedures in § 655.212 shall promptly prepare a local job order and cannot be granted, giving the reasons be followed. shall begin to recruit U.S. workers in the therefor, and that an administrative- area of intended employment. judicial review of the denial was offered § 655.206 Determinations of U.S. worker (c) The OFLC Administrator, upon to the employer but not accepted, and availability and adverse effect on U.S. workers. receipt of the duplicate temporary labor enclosing, for DHS review, the entire certification application, shall promptly temporary labor certification application (a) If the OFLC Administrator, in review the application to determine file; and accordance with § 655.205 has whether it meets the requirements of (ii) The employer has the opportunity determined that the employer has §§ 655.201–655.203 in order to to submit evidence to the DHS to rebut complied with the recruitment determine whether the employer’s the bases of the OFLC Administrator’s assurances, the OFLC Administrator, by application is (1) timely, and (2) determination in accordance with the 60th day of the recruitment period, or contains offers of wages, benefits, and DHS regulation at 8 CFR 214.2(h)(3)(i) 20 days before the date of need specified working conditions required to ensure but that no further review of the in the application, whichever is later, that similarly employed U.S. workers employer’s application for temporary shall grant the temporary labor will not be adversely affected. If the labor certification may be made by any certification for enough aliens to fill the OFLC Administrator determines that the Department of Labor official. employer’s job opportunities for which temporary labor certification application (e) If the employer timely requests an U.S. workers are not available. In is not timely in accordance with expedited administrative-judicial making this determination the OFLC § 655.201 of this subpart, the OFLC review pursuant to paragraph (d)(2) of Administrator shall consider as Administrator may promptly deny the this section, the procedures of § 655.212 available for a job opportunity any U.S. temporary labor certification on the shall be followed. worker who has made a firm grounds that, in accordance with that commitment to work for the employer, regulation, there is not sufficient time to § 655.205 Recruitment period. including those workers committed by adequately test the availability of U.S. (a) If the OFLC Administrator other authorized persons such as farm workers. If the OFLC Administrator determines that the temporary labor labor contractors and family heads; such determines that the application does not certification application meets the a firm commitment shall be considered meet the requirements of §§ 655.202– requirements of §§ 655.201 through to have been made not only by workers 655.203 because the wages, working 655.203, the OFLC Administrator shall who have signed work contracts with conditions, benefits, assurances, job promptly notify the employer in the employer, but also by those whom offer, etc. are not as required, the OFLC writing, with copies to the SWA. The the OFLC Administrator determines are Administrator shall deny the notice shall inform the employer and very likely to sign such a work contract. certification on the grounds that the the SWA of the specific efforts which The OFLC Administrator shall also

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count as available any U.S. worker who foreign workers have departed for the is discovered prior to a final temporary has applied to the employer (or on employer’s place of employment. The labor certification determination, or if it whose behalf an application has been employer, however, must keep an active is learned that the employer or agent made), but who was rejected by the job order on file until the assurance at (with respect to an application) is the employer for other than lawful job- § 655.203(e) is met. subject of a criminal indictment or related related reasons unless the OFLC (2) The State Workforce Agency information filed in a court, the OFLC Administrator determines that: (SWA) system shall continue to actively Administrator shall refer the matter to (1) Enough qualified U.S. workers recruit and refer U.S. workers as long as the DHS for investigation and shall have been found to fill all the there is an active job order on file. notify the employer or agent in writing employer’s job opportunities; or of this referral. The OFLC Administrator (2) The employer, since the time of § 655.207 Adverse effect rates. shall continue to process the application the initial determination under (a) Except as otherwise provided in and may issue a qualified temporary § 655.204, has adversely affected U.S. this section, the adverse effect rates for labor certification. workers by offering to, or agreeing to all agricultural and logging employment (b) If a court finds an employer or provide to, alien workers better wages, shall be the prevailing wage rates in the agent innocent of fraud or willful working conditions, or benefits (or by area of intended employment. misrepresentation, or if the Department offering or agreeing to impose on alien (b)(1) For agricultural employment of Justice decides not to prosecute an workers less obligations and (except sheepherding) in the States employer or agent, the OFLC restrictions) than that offered to U.S. listed in paragraph (b)(2) of this section, Administrator shall not deny the workers. and for Florida sugarcane work, the temporary labor certification application (b)(1) Temporary labor certifications adverse effect rate for each year shall be on the grounds of fraud or willful shall be considered subject to the computed by adjusting the prior year’s misrepresentation. The application, of conditions and assurances made during adverse effect rate by the percentage course, may be denied for other reasons the application process. Temporary change (from the second year previous pursuant to this subpart. labor certifications shall be for a limited to the prior year) in the U.S. Department (c) If a court or the DHS determines duration such as for ‘‘the 1978 apple of Agriculture’s (USDA’s) average that there was fraud or willful harvest season’’ or ‘‘until November 1, hourly wage rates for field and livestock misrepresentation involving a 1978’’, and they shall never be for more workers (combined) based on the USDA temporary labor certification than eleven months. They shall be Quarterly Wage Survey. The OFLC application, the application shall be limited to the employer’s specific job Administrator shall publish, at least deemed invalidated, processing shall be opportunities; therefore, they may not once in each calendar year, on a date or terminated, and the application shall be be transferred from one employer to dates he shall determine, adverse effect returned to the employer or agent with another. rates calculated pursuant to this the reasons therefor stated in writing. (2) If an association of employers is paragraph (b) as a notice or notices in itself the employer, as defined in the Federal Register. § 655.209 Invalidation of temporary labor § 655.200, certifications shall be made to (2) List of States. Arizona, Colorado, certifications. the association and may be used for any Connecticut, Florida (other than sugar After issuance, temporary labor of the job opportunities of its employer cane work), Maine, Maryland, certifications are subject to invalidation members and workers may be Massachusetts, New Hamsphire, New by the DHS upon a determination, made transferred among employer members. York, Rhode Island, Texas, Vermont, in accordance with that agency’s (3) If an association of employers is a Virginia, and West Virginia. Other procedures or by a Court, of fraud or joint employer with its employer States may be added as appropriate. willful misrepresentation of a material members, as defined in § 655.200, the (3) Transition. Notwithstanding fact involving the temporary labor certification shall be made jointly to the paragraphs (b)(1) and (2) of this section, certification application. If evidence of association and the employer members. the 1986 adverse effect rate for such fraud or willful misrepresentation In such cases workers may be agricultural employment (except becomes known to the OFLC transferred among the employer sheepherding) in the following States, Administrator, the OFLC Administrator members provided the employer and for Florida sugarcane work, shall be shall notify the DHS in writing. members and the association agree in computed by adjusting the 1981 adverse writing to be jointly and severally liable effect rate (computed pursuant to 20 § 655.210 Failure of employers to comply for compliance with the temporary labor with the terms of a temporary labor CFR 655.207(b)(1), 43 FR 10317; March certification. certification obligations set forth in this 10, 1978) by the percentage change subpart. between 1980 and 1985 in the U.S. (a) If, after the granting of a temporary (c) If the OFLC Administrator denies Department of Agriculture annual labor certification, the OFLC the temporary labor certification in average hourly wage rates for field and Administrator has probable cause to whole or part, the OFLC Administrator livestock workers (combined) based on believe that an employer has not lived shall notify the employer in writing by the USDA Quarterly survey: The States up to the terms of the temporary labor means normally assuring next-day listed at 20 CFR 655.207(b)(2) (1985). certification, the OFLC Administrator delivery. The notice shall contain all of (c) In no event shall an adverse effect shall investigate the matter. If the OFLC the statements required in § 655.204(d). rate for any year be lower than the Administrator concludes that the If a timely request is made for an hourly wage rate published in 29 U.S.C. employer has not complied with the administrative-judicial review by an 206(a)(1) and currently in effect. terms of the labor certification, the Administrative Law Judge, the OFLC Administrator may notify the procedures of § 655.212 shall be § 655.208 Temporary labor certification employer that it will not be eligible to followed. applications involving fraud or willful apply for a temporary labor certification (d)(1) After a temporary labor misrepresentation. in the coming year. The notice shall be certification has been granted, the (a) If possible fraud or willful in writing, shall state the reasons for the employer shall continue its efforts to misrepresentation involving a determination, and shall offer the actively recruit U.S. workers until the temporary labor certification application employer an opportunity to request a

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hearing within 30 days of the date of the record for legal sufficiency, and the 501.6 Prohibition on interference with notice. If the employer requests a OFLC Administrator shall send a Department of Labor officials. hearing within the 30-day period, the certified copy of the case file to the 501.7 Accuracy of information, statements, OFLC Administrator shall follow the data. Chief Administrative Law Judge by 501.10 Definitions. procedures set forth at § 658.421(i)(1), means normally assuring next day (2) and (3) of this chapter. The delivery. The Administrative Law Judge Subpart B—Enforcement of Work Contracts procedures contained in §§ 658.421(j), shall not have authority to remand the 501.15 Enforcement. 658.422 and 658.423 of this chapter case and shall not receive additional 501.16 General. shall apply to such hearings. evidence. Any countervailing evidence 501.17 Concurrent actions. (b) No other penalty shall be imposed advanced after decision by the OFLC 501.18 Representation of the Secretary. by the employment service on such an 501.19 Civil money penalty assessment. Administrator shall be subject to 501.20 Enforcement of Wage and Hour employer other than as set forth in provisions of 8 CFR 214.2(h)(3)(i). investigative authority. paragraph (a) of this section. (b) The Administrative Law Judge, 501.21 Referral of findings to ETA. within five working days after receipt of 501.22 Civil money penalties-payment and § 655.211 Petition for higher meal charges. the case file shall, on the basis of the collection. (a) Until a new amount is set pursuant written record and due consideration of Subpart C—Administrative Proceedings to this paragraph (a), the OFLC any written memorandums of law Administrator may permit an employer 501.30 Applicability of procedures and submitted, either affirm, reverse or rules. to charge workers up to $6.17 for modify the OFLC Administrator’s denial providing them with three meals per by written decision. The decision of the Procedures Relating to Hearing day, if the employer justifies the charge Administrative Law Judge shall specify 501.31 Written notice of determination and submits to the OFLC Administrator the reasons for the action taken and required. the documentary evidence required by shall be immediately provided to the 501.32 Contents of notice. paragraph (b) of this section. A denial in employer, OFLC Administrator, and 501.33 Request for hearing. whole or in part shall be reviewable as DHS by means normally assuring next- Rules of Practice provided in § 655.212 of this part. Each day delivery. The Administrative Law year the maximum charge allowed by 501.34 General. Judge’s decision shall be the final 501.35 Commencement of proceeding. this paragraph (a) will be changed by decision of the Department of Labor and 501.36 Caption of proceeding. the 12-month percent change for the no further review shall be given to the Referral for Hearing Consumer Price Index for All Urban temporary labor certification Consumers for Food between December determination by any Department of 501.37 Referral to Administrative Law Judge. of the year just concluded and Labor official. December of the year prior to that. The 501.38 Notice of docketing. annual adjustments shall be effective on § 655.215 Territory of Guam. 501.39 Service upon attorneys for the Department of Labor—number of copies. their publication by the OFLC Subpart C of this part does not apply Administrator in the Federal Register. to temporary employment in the Procedures Before Administrative Law Judge (b) Evidence submitted shall include Territory of Guam, and the Department 501.40 Consent findings and order. the cost of goods and services directly of Labor does not certify to the United Post-Hearing Procedures related to the preparation and serving of States Citizenship and Immigration meals, the number of workers fed, the Services of the Department of Homeland 501.41 Decision and order of Administrative Law Judge. number of meals served and the number Security (DHS) the temporary of days meals were provided. The cost employment of nonimmigrant aliens Review of Administrative Law Judge’s of the following items may be included: under H–2B visas in the Territory of Decision Food; kitchen supplies other than food, Guam. Pursuant to DHS regulations, that 501.42 Procedures for initiating and such as lunch bags and soap; labor costs function is performed by the Governor undertaking review. which have a direct relation to food of Guam, or the Governor’s designated 501.43 Responsibility of the Office of service operations, such as wages of representative within the Territorial Administrative Law Judges. cooks and restaurant supervisors; fuel, Government. 501.44 Additional information, if required. water, electricity, and other utilities 501.45 Final decision of the Secretary. used for the food service operations; Title 29—Labor Record other costs directly related to the food 8. Redesignate part 501 as part 502 501.46 Retention of official record. service operation. Charges for and suspend newly designated Part 502. 501.47 Certification. 9. Add part 501 to read as follows: transportation, depreciation, overhead, Authority: 8 U.S.C. 1101(a)(15)(H)(ii)(a), and similar charges may not be 1184(c), and 1188. included. Receipts and other cost PART 501—ENFORCEMENT OF records for a representative pay period CONTRACTUAL OBLIGATIONS FOR Subpart A—General Provisions shall be available for inspection by the TEMPORARY ALIEN AGRICULTURAL Secretary’s representatives for a period WORKERS ADMITTED UNDER § 501.0 Introduction. of one year. SECTION 216 OF THE IMMIGRATION These regulations cover the AND NATIONALITY ACT enforcement of all contractual § 655.212 Administrative-judicial reviews. obligations provisions applicable to the Subpart A—General Provisions (a) Whenever an employer has employment of H–2A workers under requested an administrative-judicial Sec. section 216 of the Immigration and review of a denial of an application or 501.0 Introduction. Nationality Act (INA), as amended by 501.1 Purpose and scope. a petition in accordance with 501.2 Coordination of intake between DOL the Immigration Reform and Control Act §§ 655.204(d), 655.205(d), 655.206(c), or agencies. of 1986 (IRCA). These regulations are 655.211, the Chief Administrative Law 501.3 Discrimination prohibited. also applicable to the employment of Judge shall immediately assign an 501.4 Waiver of rights prohibited. other workers hired by employers of H– Administrative Law Judge to review the 501.5 Investigation authority of Secretary. 2A workers in the occupations and for

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the period of time set forth in the job Division. In general, matters concerning INA (8 U.S.C. 1186), or to this subpart order approved by ETA as a condition the obligations of the work contract or any other DOL regulation for granting H–2A certification, between an employer of H–2A workers promulgated pursuant to section 216 of including any extension thereof. Such and the H–2A workers and other the INA. other workers hired by H–2A employers workers in corresponding employment Allegations of discrimination in are hereafter referred to as engaged in hired by H–2A employers are enforced employment against any person will be corresponding employment. by ESA. Included within the investigated by Wage and Hour. Where enforcement responsibility of ESA, Wage and Hour has determined through § 501.1 Purpose and scope. Wage and Hour Division are such investigation that such allegations have (a) Statutory standard. Section 216(a) matters as the payment of required been substantiated appropriate remedies of the INA provides that— wages, transportation, meals and may be sought. Wage and Hour may (1) A petition to import an alien as an H– housing provided during the assess civil money penalties, seek 2A worker (as defined in subsection (i)(2) employment. The Wage and Hour injunctive relief, and/or seek additional may not be approved by the Attorney General Division has the responsibility to carry remedies necessary to make the unless the petitioner has applied to the out investigations, inspections and law employee whole as a result of the Secretary of Labor for a certification that— enforcement functions and in discrimination, as appropriate, and may (A) There are not sufficient workers who appropriate instances impose penalties, recommend to ETA that labor are able, willing, and qualified, and who will certification of any violator be denied in be available at the time and place needed, to seek injunctive relief and specific perform the labor or services involved in the performance of contractual obligations, the future. including recovery of unpaid wages. petition, and § 501.4 Waiver of rights prohibited. (B) The employment of the alien in such (d) Effect of regulations. The labor or services will not adversely affect the amendments to the INA made by title III No person shall seek to have an H–2A wages and working conditions of workers in of the IRCA apply to petitions and worker, or other worker employed in the United States similarly employed. applications filed on and after June 1, corresponding employment by an H–2A employer, waive rights conferred under (b) Role of the ETA, USES. The 1987. Accordingly, the enforcement functions carried out by the Wage and section 216 of the INA or under these issuance and denial of labor regulations. Such waiver is against certification under section 216 of the Hour Division under the INA and these regulations apply to the employment of public policy. Any agreement by an INA has been delegated by the Secretary employee purporting to waive or modify of Labor to the Employment and any H–2A worker and any other workers hired by H–2A employers in any rights inuring to said person under Training Administration (ETA). In the Act or these regulations shall be general, matters concerning the corresponding employment as the result of any petition or application filed with void as contrary to public policy, except obligations of an employer of H–2A that a waiver or modification of rights workers related to the labor certification the Department on and after June 1, 1987. or obligations hereunder in favor of the process are administered and enforced Secretary shall be valid for purposes of by ETA. Included within ETA’s § 501.2 Coordination of intake between enforcement of the provisions of the Act jurisdiction are such issues as whether DOL agencies. or these regulations. This does not U.S. workers were available, whether Complaints received by ETA, or any prevent agreements to settle private positive recruitment was conducted, State Employment Service Agency litigation. whether there was a strike or lockout, regarding contractual H–2A labor the methodology for establishing standards between the employer and the § 501.5 Investigation authority of Secretary. adverse effect wage rates, whether employee will be immediately workers’ compensation insurance was forwarded to the appropriate Wage and (a) General. The Secretary, either provided, whether employment was Hour office for appropriate action under pursuant to a complaint or otherwise, offered to U.S. workers for up to 50 these regulations. shall, as may be appropriate, investigate percent of the contract period and other and, in connection therewith, enter and similar matters. The regulations § 501.3 Discrimination prohibited. inspect such places and vehicles pertaining to the issuance and denial of No person shall intimidate, threaten, (including housing) and such records labor certification for temporary alien restrain, coerce, blacklist, discharge, or (and make transcriptions thereof), workers by the Employment and in any manner discriminate against any question such persons and gather such Training Administration are found in person who has: information as deemed necessary by the title 20 CFR part 655. (a) Filed a complaint under or related Secretary to determine compliance with (c) Role of ESA, Wage and Hour to section 216 of the INA or these contractual obligations under section Division. Section 216(g)(2) of the INA regulations; 216 of the INA or these regulations. provides that— (b) Instituted or caused to be (b) Failure to permit investigation. [T]he Secretary of Labor is authorized to instituted any proceedings related to Where any person using the services of take such actions including imposing section 216 of the INA or these an H–2A worker does not permit an appropriate penalties and seeking regulations; investigation concerning the appropriate injunctive relief and specific (c) Testified or is about to testify in employment of his or her workers the performance of contractual obligations, as any proceeding under or related to Wage and Hour Division shall report may be necessary to assure employer section 216 of the INA or these such occurrence to ETA and may compliance with terms and conditions of regulations; recommend denial of future labor employment under this section. (d) Exercised or asserted on behalf of certifications to such person. In Certain investigation, inspection and himself or others any right or protection addition, Wage and Hour may take such law enforcement functions to carry out afforded by section 216 of the INA or action as may be appropriate, including the provisions of section 216 of the INA these regulations. the seeking of an injunction or assessing have been delegated by the Secretary of (e) Consulted with an employee of a civil money penalties, against any Labor to the Employment Standards legal assistance program or an attorney person who has failed to permit Wage Administration (ESA), Wage and Hour on matters related to section 216 of the and Hour to make an investigation.

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(c) Confidential investigation. The this part. In addition, the definitions in in either statutory definition shall be Secretary shall conduct investigations in paragraphs (e) through (v) are ‘‘agricultural labor or services’’, a manner which protects the promulgated at 20 CFR 655.100(b), are notwithstanding the exclusion of that confidentiality of any complainant or utilized herein, and are incorporated occupation from the other statutory other person who provides information and set forth for information purposes. definition. For informational purposes, to the Secretary in good faith. (a) Act and INA mean the Immigration the statutory provisions are quoted (d) Report of violations. Any person and Nationality Act, as amended (8 below. may report a violation of the work U.S.C. 1101 et seq. ), with reference (1) Agricultural labor. Section 3121(g) contract obligations of section 216 of the particularly to section 216. of the Internal Revenue Code of 1954 INA or these regulations to the Secretary (b) Administrative Law Judge (ALJ) (26 U.S.C. 3121(g)) quoted as follows, by advising any local office of the means a person within the Department defines the term ‘‘agricultural labor’’ to Employment Service of the various of Labor Office of Administrative Law include all service performed: States, any office of ETA, any office of Judges appointed pursuant to 5 U.S.C. (1) On a farm, in the employ of any person, the Wage and Hour Division, ESA, U.S. 3105. (c) Administrator means the in connection with cultivating the soil, or in Department of Labor, or any other connection with raising or harvesting any authorized representative of the Administrator of the Wage and Hour agricultural or horticultural commodity, Secretary. The office or person receiving Division, Employment Standards including the raising, shearing, feeding, such a report shall refer it to the Administration, U.S. Department of caring for, training, and management of appropriate office of the Wage and Hour Labor, and such authorized livestock, bees, poultry, and furbearing Division, ESA, for the area in which the representatives as may be designated to animals and wildlife; reported violation is alleged to have perform any of the functions of the (2) Services performed in the employ of the occurred. Administrator under this part. owner or tenant or other operator of a farm, (d) Work contract means all the in connection with the operation, or § 501.6 Prohibition on interference with material terms and conditions of maintenance of such farm and its tools and Department of Labor officials. employment relating to wages, hours, equipment, or in salvaging timber or clearing No person shall interfere with any working conditions, and other benefits, land of brush and other debris left by a hurricane, if the major part of such service official of the Department of Labor including those terms and conditions is performed on a farm; assigned to perform an investigation, required by the applicable regulations in (3) In connection with the production or inspection or law enforcement function subpart B of 20 CFR part 655, Labor harvesting of any commodity defined as an pursuant to the INA and these Certification Process for Temporary agricultural commodity in section 15(g) of regulations during the performance of Agricultural Employment in the United the Agricultural Marketing Act, as amended such duties. Wage and Hour will seek States, and those contained in the (12 U.S.C. 1141j), or in connection with the such action as it deems appropriate, Application for Alien Employment ginning of cotton, or in connection with the including an injunction to bar any such Certification and job offer under that operation or maintenance of ditches, canals, interference with an investigation and/ subpart, which contract between the reservoirs, or waterways, not owned or employer and the worker may be in the operated for profit, used exclusively for or assess a civil money penalty therefor. supplying and storing water for farming In addition Wage and Hour may refer a form of a separate written document. In purposes; report of the matter to ETA with a the absence of a separate written work (4)(A) In the employ of the operator of a recommendation that the person’s labor contract incorporating the required farm in handling, planting, drying, packing, certification be denied in the future. terms and conditions of employment, packaging, processing, freezing, grading, (Federal statutes which prohibit persons entered into between the employer and storing, or delivering to storage or to market from interfering with a Federal officer in the worker, the work contract at a or to a carrier for transportation to market, in the course of official duties are found at minimum shall be the terms of the job its unmanufactured state, any agricultural or 18 U.S.C. 111 and 18 U.S.C. 1114.) order included in the application for horticultural commodity; but only if such temporary labor certification, and shall operator produced more than one-half of the § 501.7 Accuracy of information, commodity with respect to which such be enforced in accordance with these service is performed; statements, data. regulations. Information, statements and data (B) In the employ of a group of operators (e) Adverse effect wage rate (AEWR) of farms (other than a cooperative submitted in compliance with means the wage rate which the Director organization) in the performance of service provisions of the Act or these has determined must be offered and described in subparagraph (A), but only if regulations are subject to title 18, paid, as a minimum, to every H–2A such operators produced all of the section 1001, of the U.S. Code, which worker and every U.S. worker for a commodity with respect to which such provides: particular occupation and/or area in service is performed. For purposes of this subparagraph, any unincorporated group of Section 1001. Statements or entries generally. which an employer employs or seeks to operators shall be deemed a cooperative Whoever, in any matter within the employ an H–2A worker so that the organization if the number of operators jurisdiction of any department or agency of wages of similarly employed U.S. comprising such group is more than 20 at any the United States knowingly and willfully workers will not be adversely affected. time during the calendar quarter in which falsifies, conceals or covers up by any trick, (f) Agricultural labor or services. such service is performed; scheme, or device a material fact, or makes Pursuant to section 101(a)(15)(ii)(a) of (C) The provisions of subparagraphs (A) any false, fictitious or fraudulent statements the INA (8 U.S.C. 1101(a)(15)(H)(ii)(a)), and (B) shall not be deemed to be applicable or representations, or makes or uses any false with respect to service performed in writing or document knowing the same to ‘‘agricultural labor or services’’ is connection with commercial canning or contain any false, fictitious or fraudulent defined for the purposes of this subpart commercial freezing or in connection with statement or entry, shall be fined not more as either ‘‘agricultural labor’’ as defined any agricultural or horticultural commodity than $10,000 or imprisoned not more than and applied in section 3121(g) of the after its delivery to a terminal market for five years, or both. Internal Revenue Code of 1954 (26 distribution for consumption; or U.S.C. 3121(g)) or ‘‘agriculture’’ as (5) On a farm operated for profit if such § 501.10 Definitions. defined and applied in section 3(f) of service is not in the course of the employer’s The definitions in paragraphs (a) the Fair Labor Standards Act of 1938 (29 trade or business or is domestic service in a through (d) are set forth for purposes of U.S.C. 203(f)). An occupation included private home of the employer.

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As used in this subsection, the term farm On a seasonal or other temporary basis it shares with the employer member one includes stock, dairy, poultry, fruit, fur- means: or more of the definitional indicia. bearing animal, and truck farms, plantations, Labor is performed on a seasonal basis, (j) Employment Service (ES) and ranches, nurseries, ranges, greenhouses or where, ordinarily, the employment pertains Employment Service (ES) System mean, other similar structures used primarily for to or is of the kind exclusively performed at the raising of agricultural or horticultural collectively, the USES, the State certain seasons or periods of the year and agencies, the local offices, and the ETA commodities, and orchards. which, from its nature, may not be continuous or carried on throughout the year. regional offices. (2) Agriculture. Section 203(f) of title (k) Employment Standards 29, United States Code, (section 3(f) of A worker who moves from one seasonal activity to another, while employed in Administration means the agency the Fair Labor Standards Act of 1938), agriculture or performing agricultural labor, within the Department of Labor (DOL), quoted as follows, defines agriculture to is employed on a seasonal basis even though which includes the Wage and Hour include: he may continue to be employed during a Division, and which is charged with the (f) * * * farming in all its branches and major portion of the year. carrying out certain functions of the among other things includes the cultivation A worker is employed on other temporary Secretary under the INA. and tillage of the soil, dairying, the basis where he is employed for a limited time (l) Employment and Training production, cultivation, growing, and only or the performance is contemplated for a particular piece of work, usually of short Administration (ETA) means the agency harvesting of any agricultural or horticultural within the Department of Labor (DOL) commodities (including commodities defined duration. Generally, employment, which is as agricultural commodities in section 15(g) contemplated to continue indefinitely, is not which includes the U.S. Employment of the Agricultural Marketing Act, as temporary. Service (USES). amended), the raising of livestock, bees, fur On a seasonal or other temporary basis (m) H–2A worker means any bearing animals, or poultry, and any does not include the employment of any nonimmigrant alien admitted to the practices (including any forestry or foreman or other supervisory employee who United States for agricultural labor or lumbering operations) performed by a farmer is employed by a specific agricultural services of a temporary or seasonal or on a farm as an incident to or in employer or agricultural association essentially on a year round basis. nature under section 101(a)(15)(H)(ii)(a) conjunction with such farming operations, of the INA (8 U.S.C. 1101(a)(15)(H)(ii)(a)). including preparation for market, delivery to On a seasonal or other temporary basis storage or to market or to carriers for does not include the employment of any (n) Immigration and Naturalization transportation to market. worker who is living at his permanent place Service (INS) means the component of of residence, when that worker is employed the U.S. Department of Justice which (3) Agricultural commodity. Section by a specific agricultural employer or makes the determination under the INA 1141j(g) of title 12, United States Code, agricultural association on essentially a year on whether or not to grant visa petitions (section 15(g) of the Agricultural round basis to perform a variety of tasks for to employers seeking H–2A workers to Marketing Act, as amended) quoted as his employer and is not primarily employed perform temporary agricultural work in to do field work. follows, defines agricultural commodity the United States. to include: (3) Temporary. For the purpose of this (o) Job offer means the offer made by (g) * * * in addition to other agricultural subpart, the definition of ‘‘temporary’’ an employer or potential employer of commodities, crude gum (oleoresin) from a in paragraph (c)(2)(ii) of this section H–2A workers to both U.S. and H–2A living tree, and the following products as refers to any job opportunity covered by workers describing all the material processed by the original producer of the this subpart where the employer needs terms and conditions of employment, crude gum (oleoresin) from which derived: a worker for a position, either temporary including those relating to wages, Gum spirits of turpentine, and gum rosin, as or permanent, for a limited period of defined in section 92 of title 7. working conditions, and other benefits. time, which shall be for less than one (p) Secretary means the Secretary of (iv) Gum rosin. Section 92 of title 7, year, unless the original temporary alien Labor or the Secretary’s designee. United States Code, quoted as follows, agricultural labor certification is (q) State agency means the State defines gum spirits of turpentine and extended based on unforeseen employment service agency designated gum rosin as— circumstances, pursuant to under section 4 of the Wagner-Peyser (c) Gum spirits of turpentine means spirits § 655.106(c)(3) of this title. Act to cooperate with the USES in the of turpentine made from gum (oleoresin) (h) DOL means the U.S. Department of operation of the ES System. from a living tree. Labor. (r) Solicitor of Labor means the (g) Gum rosin means rosin remaining after (i) Employer means a person, firm, Solicitor, U.S. Department of Labor, and the distillation of gum spirits of turpentine. corporation or other association or includes employees of the Office of the (g) Of a temporary or seasonal organization which suffers or permits a Solicitor of Labor designated by the nature—(1) On a seasonal or other person to work and (1) which has a Solicitor to perform functions of the temporary basis. For the purposes of location within the United States to Solicitor under this subpart. this subpart of a temporary or seasonal which U.S. workers may be referred for (s) Temporary alien agricultural labor nature means on a seasonal or other employment, and which proposes to certification means the certification temporary basis, as defined in the employ workers at a place within the made by the Secretary of Labor with Employment Standards United States and (2) which has an respect to an employer seeking to file Administration’s Wage and Hour employer relationship with respect to with INS a visa petition to import an Division’s regulation at 29 CFR 500.20 employees under this subpart as alien as an H–2A worker, pursuant to under the Migrant and Seasonal indicated by the fact that it may hire, sections 101(a)(15)(H)(ii)(a), 214 (a) and Agricultural Worker Protection Act pay, fire, supervise or otherwise control (c), and 216 of the INA that (1) there are (MSPA). For informational purposes the work of any such employee. An not sufficient workers who are able, § 500.20 as it pertains to seasonal or association of employers shall be willing, and qualified, and who will be temporary basis is quoted below. considered the sole employer if it alone available at the time and place needed, (2) MSPA definition. For information has the indicia of an employer set forth to perform the agricultural labor or purposes, the definition of on a seasonal in this definition. Such an association, services involved in the petition, and (2) or other temporary basis, as set forth at however, shall be considered as a joint the employment of the alien in such § 500.20 of this title, is provided below: employer with an employer member if agricultural labor or services will not

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adversely affect the wages and working violation of the H–2A work contract (7) The extent to which the violator conditions of workers in the United obligations of the Act or these achieved a financial gain due to the States similarly employed (8 U.S.C. regulations. violation, or the potential financial loss 1101(a)(15)(H)(ii)(a), 1184 (a) and (c), (c) Petition any appropriate District or potential injury to the workers. and 1186). Court of the United States for temporary (c) A civil money penalty for violation (t) United States Employment Service or permanent injunctive relief, of the work contract will not exceed (USES) means the agency of the U.S. including the withholding of unpaid $1,000 for each violation committed Department of Labor, established under wages, to restrain violation of the H–2A against each worker. A civil money the Wagner-Peyser Act, which is provisions the Act or these regulations penalty for discrimination or charged with administering the national by any person; interference with Wage and Hour system of public employment offices (d) Petition any appropriate District investigative authority will not exceed Court of the United States for specific and carrying out certain functions of the $1,000 for each such act of Secretary under the INA. performance of contractual obligations. discrimination or interference. (u) United States (U.S.) worker means § 501.17 Concurrent actions. any worker who, whether a U.S. § 501.20 Enforcement of Wage and Hour national, a U.S. citizen, or an alien, is The taking of any one of the actions investigative authority. legally permitted to work in the job referred to above shall not be a bar to opportunity within the United States (as the concurrent taking of any other Sections 501.5 through 501.7 of this defined at section 101(a)(38) of the INA action authorized by the H–2A part prescribe the investigation (8 U.S.C. 1101(a)(38)). provisions of the Act and these authority conferred upon the Wage and (v) Wages means all forms of cash regulations, or the regulations of 20 CFR Hour Division for the purpose of remuneration to a worker by an part 655. enforcing the contractual obligations. These sections indicate the actions employer in payment for personal § 501.18 Representation of the Secretary. services. which may be taken upon failure to (a) Except as provided in section permit or interference with an Subpart B—Enforcement of Work 518(a) of title 28, United States Code, investigation. No person shall interfere Contracts relating to litigation before the Supreme with any employee of the Secretary who Court, the Solicitor of Labor may appear is exercising or attempting to exercise § 501.15 Enforcement. for and represent the Secretary in any this investigative or enforcement The investigations, inspections and civil litigation brought under the Act. authority. As stated in §§ 501.5, 501.6 law enforcement functions to carry out (b) The Solicitor of Labor, through the and in 501.19 of this part, a civil money the provisions of section 216 of the INA, authorized representatives shall penalty may be assessed for each failure as provided in these regulations for represent the Administrator and the to permit an investigation or enforcement by the Wage and Hour Secretary in all administrative hearings interference therewith, and other Division, pertain to the employment of under the H–2A provisions of the Act appropriate relief may be sought. In any H–2A worker and any other worker and these regulations. addition Wage and Hour shall report employed in corresponding § 501.19 Civil money penalty assessment. each such occurrence to ETA and may employment by an H–2A employer. recommend to ETA denial of future (a) A civil money penalty may be Such enforcement includes those work labor certifications. The taking of any assessed by the Administrator for each contract provisions as defined in one action shall not bar the taking of violation of the work contract or these § 501.10(d). The work contract enforced any additional action. includes the employment benefits regulations. which must be stated in the job offer, as (b) In determining the amount of § 501.21 Referral of findings to ETA. prescribed in 20 CFR 655.102. penalty to be assessed for any violation of the work contract as provided in the Where Wage-Hour finds violations § 501.16 General. H–2A provisions of the Act or these Wage and Hour shall so notify the Whenever the Secretary believes that regulations the Administrator shall appropriate representative of ETA and the H–2A provisions of the INA or these consider the type of violation shall forward appropriate information, regulations have been violated such committed and other relevant factors. including investigative information to action shall be taken and such The matters which may be considered such representative for review and proceedings instituted as deemed include, but are not limited to, the consideration. appropriate, including (but not limited following: § 501.22 Civil money penalties—payment to) the following: (1) Previous history of violation, or and collection. (a) Impose denial of labor certification violations of the H–2A provisions of the against any person for a violation of the Act and these regulations; Where the assessment is directed in a H–2A obligations of the INA or the (2) The number of workers affected by final order by the Administrator, by an regulations. ETA shall make all the violation or violations; Administrative Law Judge, or by the determinations regarding the issuance (3) The gravity of the violation or Secretary, the amount of the penalty is or denial of labor certification. ESA violations; immediately due and payable to the shall make all determinations regarding (4) Efforts made in good faith to U.S. Department of Labor. The person the enforcement functions listed in comply with the H–2A provisions of the assessed such penalty shall remit paragraphs (b) through (d) of this Act and these regulations; promptly the amount thereof as finally section. (5) Explanation of person charged determined, to the Administrator by (b) Institute appropriate with the violation or violations; certified check or by money order, made administrative proceedings, including (6) Commitment to future compliance, payable to the order of ‘‘Wage and Hour the recovery of unpaid wages, the taking into account the public health, Division, Labor.’’ The remittance shall enforcement of any other contractual interest or safety, and whether the be delivered or mailed to the Wage and obligations and the assessment of a civil person has previously violated the H– Hour Division Regional Office for the money penalty against any person for a 2A provisions of the Act; area in which the violations occurred.

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Subpart C—Administrative (2) Specify the issue or issues stated duplicate copy of the request for hearing Proceedings in the notice of determination giving signed by the person requesting such rise to such request; hearing or by the authorized § 501.30 Applicability of procedures and (3) State the specific reason or reasons representative of such person, to the rules. why the person requesting the hearing Chief Administrative Law Judge, for a The procedures and rules contained believes such determination is in error; determination in an administrative herein prescribe the administrative (4) Be signed by the person making proceeding as provided herein. The process which will be applied with the request or by an authorized notice of administrative determination respect to a determination to impose an representative of such person; and and request for hearing shall be filed of assessment of civil money penalties and (5) Include the address at which such record in the Office of the Chief which may be applied to the person or authorized representative Administrative Law Judge and shall, enforcement of contractual obligations, desires to receive further respectively, be given the effect of a including the collection of unpaid communications relating thereto. complaint and answer thereto for wages due as a result of any violation of (c) The request for such hearing must purposes of the administrative the H–2A provisions of the Act or of be received by the official who issued proceeding, subject to any amendment these regulations. Except with respect to the determination, at the Wage and that may be permitted under these the imposition of civil money penalties, Hour Division address appearing on the regulations or 29 CFR part 18. the Secretary may, in his discretion, determination notice, within the time (b) A copy of the Order of Reference, seek enforcement action in Federal set forth in paragraph (a) of this section. together with a copy of these court without resort to any For the affected person’s protection, if regulations, shall be served by counsel administrative proceedings. the request is by mail, it should be by for the Administrator upon the person certified mail. requesting the hearing, in the manner Procedures Relating to Hearing provided in 29 CFR 18.3. Rules of Practice § 501.31 Written notice of determination § 501.38 Notice of docketing. required. § 501.34 General. Upon receipt of an Order of Whenever the Administrator Except as specifically provided in Reference, the Chief Administrative Law determines to assess a civil money these regulations, the ‘‘Rules of Practice Judge shall appoint an Administrative penalty or to proceed administratively and Procedure for Administrative Law Judge to hear the case. The to enforce contractual obligations, Hearings Before the Office of Administrative Law Judge shall including the recovery of unpaid wages, Administrative Law Judges’’ established promptly notify all interested parties of the person against whom such action is by the Secretary at 29 CFR part 18 shall the docketing of the matter and shall set taken shall be notified in writing of such apply to administrative proceedings the time and place of the hearing. The determination. described in this part. date of the hearing shall be not more § 501.32 Contents of notice. § 501.35 Commencement of proceeding. than 60 days from the date on which the The notice required by § 501.31 shall: Each administrative proceeding Order of Reference was filed. (a) Set forth the determination of the permitted under the Act and these § 501.39 Service upon attorneys for the Administrator including the amount of regulations shall be commenced upon Department of Labor—number of copies. any unpaid wages due or contractual receipt of a timely request for hearing Two copies of all pleadings and other obligations required and the amount of filed in accordance with § 501.33. documents required for any any civil money penalty assessment and § 501.36 Caption of proceeding. administrative proceeding provided the reason or reasons therefor. herein shall be served on the attorneys (b) Set forth the right to request a (a) Each administrative proceeding instituted under the Act and these for the Department of Labor. One copy hearing on such determination. shall be served on the Associate (c) Inform any affected person or regulations shall be captioned in the Solicitor, Division of Fair Labor persons that in the absence of a timely name of the person requesting such Standards, Office of the Solicitor, U.S. request for a hearing, the determination hearing, and shall be styled as follows: Department of Labor, 200 Constitution of the Administrator shall become final In the Matter of llll, Respondent. Avenue, NW., Washington, DC 20210, and unappealable. (b) For the purposes of such and one copy on the Attorney (d) Set forth the time and method for administrative proceedings the representing the Department in the requesting a hearing, and the procedures Administrator shall be identified as proceeding. relating thereto, as set forth in § 501.33. plaintiff and the person requesting such Procedures Before Administrative Law § 501.33 Request for hearing. hearing shall be named as respondent. Judge (a) Any person desiring to request an Referral for Hearing administrative hearing on a § 501.40 Consent findings and order. determination referred to in § 501.32 § 501.37 Referral to Administrative Law (a) General. At any time after the shall make such request in writing to Judge. commencement of a proceeding under the official who issued the (a) Upon receipt of a timely request this part, but prior to the reception of determination, at the Wage and Hour for a hearing filed pursuant to and in evidence in any such proceeding, a Division address appearing on the accordance with § 501.33 the party may move to defer the receipt of determination notice, no later than Administrator, by the Associate any evidence for a reasonable time to thirty (30) days after issuance of the Solicitor for the Division of Fair Labor permit negotiation of an agreement notice referred to in § 501.32. Standards or by the Regional Solicitor containing consent findings and an (b) No particular form is prescribed for the Region in which the action arose, order disposing of the whole or any part for any request for hearing permitted by shall, by Order of Reference, promptly of the proceeding. The allowance of this part. However, any such request refer a copy of the notice of such deferment and the duration thereof shall: administrative determination shall be at the discretion of the (1) Be typewritten or legibly written; complained of, and the original or a Administrative Law Judge, after

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consideration of the nature of the certified mail. The decision when these regulations shall be maintained proceeding, the requirements of the served by the Administrative Law Judge and filed under the custody and control public interest, the representations of shall constitute the final order of the of the Chief Administrative Law Judge. the parties, and the probability of an Administrator unless the Secretary, as agreement being reached which will provided for in § 501.42 below § 501.47 Certification. result in a just disposition of the issues determines to review the decision. Upon receipt of a complaint seeking involved. review of a decision issued pursuant to Review of Administrative Law Judge’s (b) Content. Any agreement this part filed in a U.S. District Court, Decision containing consent findings and an after the administrative remedies have order disposing of a proceeding or any § 501.42 Procedures for initiating and been exhausted, the Chief part thereof shall also provide: undertaking review. Administrative Law Judge shall (1) That the order shall have the same (a) A respondent, the Administrator or promptly index, certify and file with the force and effect as an order made after any other party wishing review of the appropriate U.S. District Court, a full, full hearing; decision of an Administrative Law true, and correct copy of the entire (2) That the entire record on which Judge shall, within 30 days of the record, including the transcript of any order may be based shall consist decision of the Administrative Law proceedings. solely of the notice of administrative Judge, petition the Secretary to review PART 780—EXEMPTIONS determination (or amended notice, if the decision. Copies of the petition shall APPLICABLE TO AGRICULTURE, one is filed), and the agreement; be served on all parties and on the PROCESSING OF AGRICULTURAL (3) A waiver of any further procedural Administrative Law Judge. If the COMMODITIES, AND RELATED steps before the Administrative Law Secretary does not issue a notice SUBJECTS UNDER THE FAIR LABOR Judge; and accepting a petition for review within STANDARDS ACT (4) A waiver of any right to challenge 30 days after receipt of a timely filing of or contest the validity of the findings the petition, or within 30 days of the 10. The authority citation for part 780 and order entered into in accordance date of the decision if no petition has is revised to read as follows: with the agreement. been received, the decision of the Authority: Secs. 1–19, 52 Stat. 1060, as (c) Submission. On or before the Administrative Law Judge shall be amended; 75 Stat. 65; 29 U.S.C. 201–219. expiration of the time granted for deemed the final agency action. negotiations, the parties or their (b) Whenever the Secretary either on 11. Redesignate § 780.115 as § 780.159 authorized representatives or their the Secretary’s own motion or by and suspend newly designated counsel may: acceptance of a party’s petition, § 780.159. (1) Submit the proposed agreement for determines to review the decision of an 12. Add § 780.115 to read as follows: consideration by the Administrative Administrative Law Judge, a notice of § 780.115 Forest products. Law Judge; or the same shall be served upon the Trees grown in forests and the lumber (2) Inform the Administrative Law Administrative Law Judge and upon all derived therefrom are not ‘‘agricultural Judge that agreement cannot be reached. parties to the proceeding in person or by or horticultural commodities.’’ (d) Disposition. In the event an certified mail. Christmas trees, whether wild or agreement containing consent findings planted, are also not so considered. It and an order is submitted within the § 501.43 Responsibility of the Office of Administrative Law Judges. follows that employment in the time allowed therefor, the production, cultivation, growing, and Administrative Law Judge, within thirty Upon receipt of the Secretary’s Notice harvesting of such trees or timber (30) days thereafter, shall, if satisfied pursuant to § 501.42 of these products is not sufficient to bring an with its form and substance, accept such regulations, the Office of Administrative employee within section 3(f) unless the agreement by issuing a decision based Law Judges shall promptly forward a operation is performed by a farmer or on upon the agreed findings. copy of the complete hearing record to the Secretary. a farm as an incident to or in Post-Hearing Procedures conjunction with his or its farming § 501.44 Additional information, if operations. On the latter point, see § 501.41 Decision and order of required. §§ 780.160 through 780.164 which Administrative Law Judge. Where the Secretary has determined discuss the question of when forestry or (a) The Administrative Law Judge to review such decision and order, the lumbering operations are incident to or shall prepare, within 60 days after Secretary shall notify each party of: in conjunction with farming operations completion of the hearing and closing of (a) The issue or issues raised; so as to constitute ‘‘agriculture.’’ For a the record, a decision on the issues (b) The form in which submission discussion of the exemption in section referred by the Administrator. shall be made (i.e., briefs, oral argument, 13(a)(13) of the Act for certain forestry (b) The decision of the Administrative etc.); and the time within which such and logging operations in which not Law Judge shall include a statement of presentation shall be submitted. more than eight employees are findings and conclusions, with reasons employed, see part 788 of this chapter. and basis therefor, upon each material § 501.45 Final decision of the Secretary. The Secretary’s final decision shall be 13. Redesignate § 780.201 as § 780.215 issue presented on the record. The and suspend newly designated decision shall also include an issued within 90 days from the notice granting the petition and served upon § 780.215. appropriate order which may affirm, 14. Add § 780.201 to read as follows: deny, reverse, or modify, in whole or in all parties and the administrative law part, the determination of the judge, in person or by certified mail. § 780.201 Meaning of ‘‘forestry or lumbering operations.’’ Administrator. The reason or reasons for Record such order shall be stated in the The term ‘‘forestry or lumbering decision. § 501.46 Retention of official record. operations’’ refers to the cultivation and (c) The decision shall be served on all The official record of every completed management of forests, the felling and parties and the Secretary in person or by administrative hearing provided by trimming of timber, the cutting, hauling,

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and transportation of timber, logs, Christmas trees), and shrubs, vines, and § 788.10 ‘‘Preparing * * * other forestry pulpwood, cordwood, lumber, and like flowers; products.’’ products, the sawing of logs into lumber (b) Handling such plants from As used in the exemption, ‘‘other or the conversion of logs into ties, posts, propagating frames to the field; forestry products’’ mean plants of the and similar products, and similar (c) Planting, cultivating, watering, forest and the natural properties or operations. It also includes the piling, spraying, fertilizing, pruning, bracing, substances of such plants and trees. stacking, and storing of all such and feeding the growing crop. Included among these are decorative products. The gathering of wild plants 17. Redesignate § 780.208 as § 780.217 greens such as holly, ferns and and of wild or planted Christmas trees and suspend newly designated Christmas trees, roots, stems, leaves, are included. (See the related discussion § 780.217. Spanish moss, wild fruit, and brush. in §§ 780.205 through 780.209 and in 18. Add § 780.208 to read as follows: Gathering and preparing such forestry part 788 of this chapter which considers products as well as transporting them to the section 13(a)(13) exemption for § 780.208 Forest and Christmas tree activities. the mill, processing plant, railroad, or forestry or logging operations in which other transportation terminal are among not more than eight employees are Operations in a forest tree nursery the described operations. Preparing employed.) ‘‘Wood working’’ as such is such as seeding new beds and growing such forestry products does not include not included in ‘‘forestry’’ or and transplanting forest seedlings are operations which change the natural ‘‘lumbering’’ operations. The not farming operations. The planting, physical or chemical condition of the manufacture of charcoal under modern tending, and cutting of Christmas trees products or which amount to extracting methods is neither a ‘‘forestry’’ nor do not constitute farming operations. If as distinguished from gathering, such as ‘‘lumbering’’ operation and cannot be such operations on forest products are shelling nuts, or mashing berries to regarded as ‘‘agriculture.’’ within section 3(f), they must qualify obtain juices. 15. Redesignate § 780.205 as § 780.216 under the second part of the definition and suspend newly designated dealing with incidental practices. (See Signed in Washington, DC, this 10th day of § 780.216. § 780.201.) March 2009. 16. Add § 780.205 to read as follows: Douglas F. Small, PART 788—FORESTRY OR LOGGING § 780.205 Nursery activities generally. Deputy Assistant Secretary, Employment and OPERATIONS IN WHICH NOT MORE Training Administration. The employees of a nursery who are THAN EIGHT EMPLOYEES ARE Shelby Hallmark, engaged in the following activities are EMPLOYED employed in ‘‘agriculture’’: Acting Assistant Secretary, Employment (a) Sowing seeds and otherwise 19. Redesignate § 788.10 as § 788.18 Standards Administration. propagating fruit, nut, shade, vegetable, and suspend newly designated § 788.18. [FR Doc. E9–5562 Filed 3–16–09; 8:45 am] and ornamental plants or trees (but not 20. Add § 788.10 to read as follows: BILLING CODE 4510–FP–P

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Part III

Department of Housing and Urban Development Notice of Regulatory Waiver Requests Granted for the Fourth Quarter of Calendar Year 2008; Notice

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DEPARTMENT OF HOUSING AND 3. Not less than quarterly, the example, a waiver of both § 58.73 and URBAN DEVELOPMENT Secretary must notify the public of all § 58.74 would appear sequentially in the waivers of regulations that HUD has listing under § 58.73. [Docket No. FR–5217–N–04] approved, by publishing a notice in the Waiver of regulations that involve the Notice of Regulatory Waiver Requests Federal Register. These notices (each same initial regulatory citation are in Granted for the Fourth Quarter of covering the period since the most time sequence beginning with the Calendar Year 2008 recent previous notification) shall: earliest-dated regulatory waiver. a. Identify the project, activity, or Should HUD receive additional AGENCY: Office of the General Counsel, undertaking involved; information about waivers granted HUD. b. Describe the nature of the provision during the period covered by this report ACTION: Notice. waived and the designation of the (the fourth quarter of calendar year provision; 2008) before the next report is published SUMMARY: Section 106 of the Department c. Indicate the name and title of the (the first quarter of calendar year 2009), of Housing and Urban Development person who granted the waiver request; HUD will include any additional Reform Act of 1989 (the HUD Reform d. Describe briefly the grounds for waivers granted for the fourth quarter in Act) requires HUD to publish quarterly approval of the request; and the next report. e. State how additional information Federal Register notices of all Accordingly, information about about a particular waiver may be regulatory waivers that HUD has approved waiver requests pertaining to approved. Each notice covers the obtained. Section 106 of the HUD Reform Act HUD regulations is provided in the quarterly period since the previous Appendix that follows this notice. Federal Register notice. The purpose of also contains requirements applicable to Dated: March 6, 2009. this notice is to comply with the waivers of HUD handbook provisions requirements of section 106 of the HUD that are not relevant to the purpose of Linda M. Cruciani, Reform Act. This notice contains a list this notice. Deputy General Counsel for Operations. This notice follows procedures of regulatory waivers granted by HUD Appendix during the period beginning on October provided in HUD’s Statement of Policy 1, 2008, and ending on December 31, on Waiver of Regulations and Directives Listing of Waivers of Regulatory Requirements Granted by Offices of the 2008. issued on April 22, 1991 (56 FR 16337), as reiterated and updated in the Department of Housing and Urban FOR FURTHER INFORMATION CONTACT: For Restatement of Policy on Waiver of Development October 1, 2008 Through general information about this notice, Regulations published on December 17, December 31, 2008 contact Aaron Santa Anna, Assistant 2008 (73 FR 76674). In accordance with Note to Reader: More information about General Counsel for Regulations, Office those procedures and with the the granting of these waivers, including a of General Counsel, Department of requirements of section 106 of the HUD copy of the waiver request and approval, may Housing and Urban Development, 451 Reform Act, waivers of regulations are be obtained by contacting the person whose name is listed as the contact person directly 7th Street, SW., Room 10276, granted by the Assistant Secretary with Washington, DC 20410–0500, telephone after each set of regulatory waivers granted. jurisdiction over the regulations for The regulatory waivers granted appear in number 202–708–3055 (this is not a toll- which a waiver was requested. In those the following order: free number). Persons with hearing-or cases in which a General Deputy I. Regulatory Waivers Granted by the Office speech-impairments may access this Assistant Secretary granted the waiver, of Community Planning and number through TTY by calling the toll- the General Deputy Assistant Secretary Development. free Federal Information Relay Service was serving in the absence of the II. Regulatory Waivers Granted by the Office at 800–877–8339. Assistant Secretary in accordance with of Housing. For information concerning a the office’s Order of Succession. III. Regulatory Waivers Granted by the Office particular waiver that was granted and This notice covers waivers of of Public and Indian Housing. for which public notice is provided in regulations granted by HUD from I. Regulatory Waivers Granted by the Office this document, contact the person October 1, 2008, through December 31, of Community Planning and Development whose name and address follow the 2008. For ease of reference, the waivers For further information about the following description of the waiver granted in the granted by HUD are listed by HUD regulatory waivers, please see the name of accompanying list of waivers that have program office (for example, the Office the contact person that immediately follows been granted in the fourth quarter of of Community Panning and the description of the waiver granted. calendar year 2008. Development, the Office of Fair Housing • Regulation: 24 CFR 58.22(a). SUPPLEMENTARY INFORMATION: and Equal Opportunity, the Office of Project/Activity: The King County Housing Section 106 of the HUD Reform Act Housing, and the Office of Public and Authority applied to the City of Federal Way added a new section 7(q) to the for Community Development Block Grant Indian Housing, etc.). Within each funds for the renovation and expansion of Department of Housing and Urban program office grouping, the waivers are Kings Court Community Building on May 14, Development Act (42 U.S.C. 3535(q)), listed sequentially by the regulatory 2007. The King County Housing Authority which provides that: section of title 24 of the Code of Federal also intended to utilize Capital funds for the 1. Any waiver of a regulation must be Regulations (CFR) that is being waived. project. The Community Center is located in in writing and must specify the grounds For example, a waiver of a provision in close proximity to public housing units and for approving the waiver; 24 CFR part 58 would be listed before is intended for services such as after-school 2. Authority to approve a waiver of a a waiver of a provision in 24 CFR part programs for youths and employment regulation may be delegated by the 570. services for nearby residents and Section 8 Secretary only to an individual of Where more than one regulatory recipients. King County Housing Authority committed nonfederal funds by issuing a Assistant Secretary or equivalent rank, provision is involved in the grant of a letter of award for constructing the and the person to whom authority to particular waiver request, the action is Community Center, an action that limits the waive is delegated must also have listed under the section number of the choice of reasonable alternatives, before authority to issue the particular first regulatory requirement that appears receiving an approved Request for Release of regulation to be waived; in 24 CFR and that is being waived. For Funds.

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Nature of Requirement: HUD’s regulation Department of Housing and Urban Programs, Office of Community Planning and at 24 CFR 58.22(a) requires that an Development, 451 7th Street, SW., Room Development, Department of Housing and environmental review be performed and a 7250, Washington, DC 20410–7000, Urban Development, 451 7th Street, SW., request for release of funds be completed and telephone number (202) 402–4442. Room 7158, Washington, DC 20410–7000, certified prior to the commitment of non- • Regulation: 24 CFR 91.115(c)(2). telephone number 202–708–2470. HUD funds to a project using HUD funds. Project/Activity: The Commonwealth of • Regulation: 24 CFR 92.252(e). Granted by: Susan D. Peppler, Assistant Puerto Rico’s Community Development Project/Activity: The State of Iowa Secretary for Community Planning and Block Grant Program. Department of Economic Development Development. Nature of Requirement: The provisions of (IDED) requested a waiver of the period of Date Granted: December 22, 2008. 24 CFR 91.115(c)(2) require that a minimum affordability for the Riverview Apartments in Reason Waived: The waiver was granted of 30 days be allowed for public comment Coralville, Iowa, due to severe flooding that based on the following findings: The project following an amendment to a state’s ended the useful life of the project. The will furthered the objective of providing Consolidated Plan. participating jurisdiction would have been community development; the errors made in Granted by: Susan D. Peppler, Assistant required to repay $141,893 in HOME funds the environmental process for the Secretary for Community Development and because the project failed to meet the commitment of non-HUD funds were made Planning. affordability period. in good faith and King County Housing Date Granted: October 8, 2008. Nature of Requirement: The HOME Authority did not willfully violate the Reason Waived: A reduced public regulations at § 92.252(e) require a 5 year applicable regulations; no HUD funds were comment period from 30 days to 7 days period of affordability for rehabilitation or committed; and, an environmental would allow the State to implement the acquisition for existing rental housing assessment and a site visit by HUD staff amendment to the 2008 method of receiving less than $15,000 of HOME subsidy concluded that the granting of the waiver distribution and annual action plan per unit. will not result in any unmitigated, adverse expeditiously and enable the Commonwealth Granted by: Susan D. Peppler, Assistant environmental impact. to provide assistance to affected UGLGs for Secretary for Community Planning and Contact: Danielle Schopp, Office of disaster recovery in a timely manner. The Development. Environment and Energy, Office of Commonwealth’s proposed amendment to Date Granted: December 16, 2008. Community Planning and Development, reallocate recaptured funds or uncommitted Reason Waived: On June 13, 2008, severe Department of Housing and Urban funds for their current program year would flooding caused significant damage to Development, 451 7th Street, SW., Room provide the State with additional flexibility Riverview Apartments, requiring all tenants 7250, Washington, DC 20410–7000, to address urgent needs quickly. to be relocated. At the time of the HOME telephone number (202) 402–4442. Contact: Diane Lobasso, Director, State and investment, the properties were not located • Regulation: 24 CFR 58.22(a). Small Cities Division, Office of Block Grant in a flood plan. Therefore flood insurance Project/Activity: On May 26, 2006, HUD Assistance, Office of Community Planning had not been secured. The bids to repair and received an application from Ponca Tribe of and Development, Department of Housing refurbish the apartments exceeded 75% of Nebraska for Indian Community and Urban Development, Room 7184, 451 7th the property value. Due to the severity of the Development Block Grant in the amount of Street, SW., Washington, DC 20410–7000, damage to the property, rehabilitation was $609,840 to acquire property and buildings to telephone number 202–402–2191. determined to be infeasible and the City of use for tribal program offices. Ponca Tribe’s • Regulation: 24 CFR 92.2 and Coralville has denied issuance of a building intended use is to acquire property and 92.254(b)(2). permit. HUD has determined that due to the buildings to develop a Ponca Family Project/Activity: Prince George’s County damage caused to the 16 HOME rental units Resource Center to provide a new ‘‘one-stop’’ requested a waiver of the regulatory by the June 13, 2008, flood, the project has no remaining useful life and that good cause service delivery system to provide definitions of ‘‘reconstruction’’ and existed to waive the affordability period comprehensive, quality programs and ‘‘principal residence’’ to allow the County to requirement. services that concentrate on strengthening assist an otherwise eligible homeowner Contact: Virginia Sardone, Deputy families through prevention modes spanning whose home was demolished as the result of an environmental hazard. Director, Office of Affordable Housing the entire human lifecycle in a culturally Programs, Office of Community Planning and appropriate manner. On January 25, 2007, Nature of Requirement: The HOME regulations define ‘‘reconstruction’’ in part, Development, Department of Housing and Ponca Tribe committed nonfederal funds to Urban Development, 451 7th Street, SW., acquire the property and buildings, an action as rebuilding on the same lot, of housing standing on a site at the time of project Room 7158, Washington, DC 20410–7000, that limits the choice of reasonable telephone number 202–708–2470. alternatives, before receiving an approved commitment. Additionally, under HUD’s regulations, housing owned by an income- • Regulation: 24 CFR 92.500(d)(1)(B). Request for Release of Funds. eligible individual qualifies as affordable Project/Activity: The Orange HOME Nature of Requirement: HUD’s regulation housing only if the housing is the principal Consortium—City of Orange, Texas, which is at 24 CFR 58.22(a) requires that an residence of the owner at time HOME funds located within a presidentially-declared environmental review be performed and a are committed to the project. major disaster area pursuant to Title IV of the request for release of funds be completed and Granted by: Susan D. Peppler, Assistant Robert T. Stafford Disaster Relief and certified prior to the commitment of non- Secretary for Community Planning and Emergency Assistance Act, requested a HUD funds to a project using HUD funds. Development. waiver of its HOME Program commitment Granted by: Susan D. Peppler, Assistant Date Granted: December 17, 2008. deadline requirement to facilitate its Secretary for Community Planning and Reason Waived: In early 2003, there was an continued recovery from Hurricane Rita. Development. oil spill at the homeowner’s residence. As a Nature of Requirement: The HOME Date Granted: December 22, 2008. result, the homeowner and the homeowner’s regulations at 24 CFR 92.500(d)(1)(B) require Reason Waived: The waiver was granted family were unable to continue to live in the that a participating jurisdiction (PJ) commit based on the following findings: The project house and due to the nature of the spill, the its annual allocation of HOME funds within furthered HUD’s program goal to develop home was condemned and demolished as an 24 months after HUD notifies the PJ that HUD viable Indian communities; the property was environmental hazard by the Maryland has executed the jurisdiction’s HOME purchased in good faith and Ponca Tribe did Department of Environment. The homeowner Investment Partnership Agreement. HUD not willfully violate the applicable successfully sued the oil company but was must deobligate any HOME funds that a PJ regulations; no HUD funds were committed; not awarded sufficient damages to both has not committed under a legally binding and, an environmental assessment and a site remediate the hazard and reconstruct her written agreement by the deadline. visit by HUD staff concluded that the home. The County wished to provide the Granted by: Susan D. Peppler, Assistant granting of the waiver will not result in any homeowner with HOME funds to enable her Secretary for Community Planning and unmitigated, adverse environmental impact. to complete the restoration of her home and Development. Contact: Danielle Schopp, Office of resume her residency there. Date Granted: October 15, 2008. Environment and Energy, Office of Contact: Virginia Sardone, Deputy Reason Waived: Hurricane Rita caused Community Planning and Development, Director, Office of Affordable Housing significant damage to structures throughout

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the Orange Consortium Area. In the City of further defined by HUD in supplementary Granted by: Brian D. Montgomery, Orange alone 97 homes were completely guidance, submitted electronically to HUD Assistant Secretary for Housing—Federal destroyed and 5,997 sustained damage. This through the Internet with reporting Housing Commissioner. unforeseen damage in the Consortium Area compliance dates. Date Granted: November 14, 2008. resulted in an increased workload for City Granted by: Brian D. Montgomery, Reason Waived: Waiving the regulations so staff. Subsequently, HOME program Assistant Secretary for Housing—Federal that new construction in the above timelines were missed. Because of the Housing Commissioner. referenced boroughs of Alaska can rely upon program delays caused by the Hurricane Rita Date Granted: November 10, 2008. alternative sources of water would allow the and the County’s need for funds to address Reason Waived: The regulation was waived properties to become eligible for FHA- storm-related damage, HUD determined that because a finding was made that failure to insured financing that are otherwise there was good cause to suspend the comply with the regulation were due to acceptable under state and local codes and County’s commitment deadline requirement reasons beyond the owner’s control. The where it is not feasible to procure water from pursuant to Section 290 of the Cranston- property sustained flood damage on June 13, conventional water systems. Gonzalez National Affordable Housing Act as 2008. This damage destroyed the financial Contact: Peter Gillispie, Home Valuation amended. and tenant records as well as the equipment Policy Division, Office of Single Family Contact: Virginia Sardone, Deputy on the first floor. This waiver is granted for Program Development, Office of Housing, Director, Office of Affordable Housing a period of one year for this project only. Department of Housing and Urban and Programs, Office of Community Planning and Providing waiver of this regulation allowed Development, 451 7th Street, SW., Room Development, 451 7th Street, SW., Room the much needed affordable housing to be 9270, Washington, DC 20410–8000, 7164, Washington, DC 20410–7000, preserved. telephone number 202–708–2121. • telephone number 202–708–2470. Contact: Beverly J. Miller, Director, Office Regulation: 24 CFR 2063. • Regulation: 24 CFR 574.320(a)(2). of Asset Management, Office of Housing, Project/Activity: Home Equity Conversion Project/Activity: The State of Florida and Department of Housing and Urban Mortgages (HECM) originated by EverBank its project sponsor AIDS Help, Inc. use Development, 451 7th Street, SW., Room Mortgage between March 5, 2007 and April HOPWA tenant-based rental assistance 6l60, Washington, DC 20410–8000, telephone 2, 2008. (TBRA) to provide support to eligible number 202–708–3730. Nature of Requirement: Under the HECM recipients in Monroe County and Key West. • program regulations, the expected average Nature of Requirement: The provisions of Regulation: 24 CFR 200.926d(f)(1)(i) and interest rate is used to calculate future 24 CFR 574.320(a) require that grant funds (2)(i). payments to the HECM borrower by the for rental assistance must be used in Project/Activity: Waiver applicable in the establishment of the principal limit (future accordance with a rent standard that is no following boroughs of Alaska: Juneau, payments to the HECM borrower) and must more than the published section 8 fair market Mantanuska-Susitna, Anchorage, Bethel, be the same as the note interest rate. rent or the HUD-approved community-wide North Slope (Barrow), Fairbanks (North Star Granted by: Brian D. Montgomery, exception rent for the unit size. On a unit by and Southeast) and the Kenai Peninsula. Assistant Secretary for Housing—Federal unit basis, the grantee may increase that Nature of Requirement: Existing Housing Commissioner. amount by up to 10% for up to 20% of the regulations require that new construction, to Date Granted: December 2, 2008. units assisted. be eligible for FHA insurance, must be Reason Waived: EverBank Mortgage relied Granted by: Susan D. Peppler, Assistant capable of delivering a flow of 5 gallons per on guidance issued by FHA in Mortgagee Secretary for Community Planning and minute (GPM) over a 4 hour period in order Letters 2003–16 and 2006–22 but Development. to provide a continuing and sufficient supply misinterpreted the requirement that the Date Granted: January 16, 2009. of water. expected average mortgage interest rate must Reason Waived: Current actual market Granted by: Brian D. Montgomery, be the same as the HECM note interest rate. rents far exceed fair market rents, so it is not Assistant Secretary for Housing—Federal This misinterpretation resulted in EverBank possible for the grantee to procure rental Housing Commissioner. originating 661 HECM loans where the units for eligible persons living with HIV/ Date Granted: November 14, 2008. expected average interest rate and the HECM AIDS. The grantee adequately documents Reason Waived: Waiving the regulations note interest rate were different. It was that the rents presently charged and received was granted so that new construction in the determined that EverBank Mortgage’s for comparable units in the private above-referenced boroughs of Alaska would interpretation that the mortgagee letters unassigned market are at 145% of those be able to rely upon alternative sources of permitted it to use a note rate that differed authorized under the HOPWA regulation. water. The alternative sources of water would from the expected average interest rate was Contact: David Vos, Office of HIV/AIDS allow the properties to become eligible for made in good faith, and it was determined Housing, Office of Community Planning and FHA-insured financing that are otherwise that it would have been inequitable to require Development, Department of Housing and acceptable under state and local codes and EverBank to receive a lower interest rate for Urban Development, 451 7th Street, SW., where it is not feasible to procure water from the loans originated between March 5, 2007 Room 7212, Washington, DC 20410–7000, conventional water systems. and April 2, 2008. telephone 202–708–1934. Contact: Peter Gillispie, Home Valuation Contact: Erica Jessup, Home Valuation Policy Division, Office of Single Family Policy Division, Office of Single Family II. Regulatory Waivers Granted by the Office Program Development, Office of Housing, Program Development, Office of Housing, of Housing—Federal Housing Department of Housing and Urban Department of Housing and Urban Administration (FHA) Development, 451 7th Street, SW., Room Development, 451 7th Street, SW., For further information about the following 9270, Washington, DC 20410–8000, Washington, DC 20410. regulatory waivers, please see the name of telephone number 202–708–2121. • Regulation: 24 CFR 206.32(a). the contact person that immediately follows • Regulation: 24 CFR 200.926d(f)(1)(i) and Project/Activity: Home Equity Conversion the description of the waiver granted. (2)(i). Mortgages (HECM) in Genesee County, • Regulation: 24 CFR 5.801. Project/Activity: The waiver was requested Michigan. Project/Activity: Geneva Tower—Contract for the following boroughs of Alaska: Juneau, Nature of Requirement: Under the HECM Numbers IA05–L000–001/IA05–M000–061, Mantanuska-Susitna, Anchorage, Bethel, program regulations, HECM borrowers may Cedar Rapids, Iowa. The owner submitted a North Slope (Barrow), Fairbanks (North Star not incur additional debt in conjunction with written request to waive submission of and Southeast) and the Kenai Peninsula. HECM. annual financial statements for fiscal year Nature of Requirement: HUD’s regulations Granted by: Brian D. Montgomery, ending July 31, 2008. at 24 CFR 200.926d(f)(1)(i) and (2)() require Assistant Secretary for Housing—Federal Nature of Requirement: HUD regulations at that new construction, to be eligible for FHA Housing Commissioner. 24 CFR 5.801 implement uniform financial insurance, must be capable of delivering a Date Granted: November 24, 2008. reporting standards for all HUD programs. flow of 5 gallons per minute (GPM) over a 4 Reason Waived: It was determined that the Reports must be prepared in accordance with hour period in order to provide a continuing waiver would provide Metro Housing Generally Accepted Accounting Principles as and sufficient supply of water. Partnership (MHP) of Genesee County,

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Michigan, with the authorization to provide Date Granted: November 4, 2008. Department of Housing and Urban secondary financing to eligible residents of Reason Waived: The waiver was granted to Development, 451 7th Street, SW., Room Genesee County whose HECM proceeds are permit much needed repairs at the property. 6130, Washington, DC 20410–8000, insufficient to satisfy existing property The owner planned to refinance the Section telephone number 202–708–3000. indebtedness or cover required expenses to 202 mortgage with a Section 223(f) insured • Regulation: 24 CFR 891.100(d). secure the MHP loan. loan; at initial closing of the new loan, the Project/Activity: Ivy Residence II, Contact: Erica Jessup, Home Valuation owner will pay all accrued interest and a Philadelphia, PA, Project Number: 034– Policy Division, Office of Single Family one-time principal payment, reducing the EE153/PA26–S071–001. Program Development, Office of Housing, balance and amortize the flexible subsidy Nature of Requirement: Section 891.100(d) Department of Housing and Urban debt with the newly refinanced mortgage. It prohibits amendment of the amount of the Development, 451 7th Street, SW., Room was determined that these measures would approved capital advance funds prior to 9278, Washington, DC 20410–8000, allow the project to be maintained as much closing. telephone number 202–708–2121. needed affordable housing. Granted by: Brian D. Montgomery, • Regulation: 24 CFR 219.220(b). Contact: Beverly J. Miller, Director, Office Assistant Secretary for Housing—Federal Project/Activity: St. Anthony Place, of Asset Management, Office of Housing, Housing Commissioner. Pocatello, Idaho—FHA Project Number 124– Department of Housing and Urban Date Granted: October 21, 2008. EH019. The property has 88 units and Development, 451 7th Street, SW., Room Reason Waived: The project is requires renovations to continue as a well- 6160, Washington, DC 20410–8000, economically designed and comparable in maintained source of affordable housing. telephone number 202–708–3730. cost to similar projects in the area, and the Refinancing will provide sufficient funds for • Regulation: 24 CFR 236.725. sponsor/owner exhausted all efforts to obtain needed capital improvements at the property. Project/Activity: Genesee Gateway Houses additional funding from other sources. Nature of Requirement: Section 219.220(b) (aka River Park Commons)—FHA Project Contact: Willie Spearmon, Director, Office of HUD’s regulations, which governs the Number 014–033NI, Rochester, New York. of Housing Assistance and Grant repayment of operating assistance provided The Buffalo Multifamily Hub has requested Administration, Office of Housing, under the Flexible Subsidy Program for waiver of the regulation to permit the Department of Housing and Urban Troubled Projects prior to May 1, 1996, continuation of Rental Assistance Payments Development, 451 7th Street, SW., Room states: ‘‘Assistance that has been paid to a after the payoff of the non-insured Section 6130, Washington, DC 20410–8000, project owner under this subpart must be 236 mortgage under a Section 236(e)(2) telephone number 202–708–3000. repaid at the earlier of the expiration of the Decoupling transaction. • Regulation: 24 CFR 891.100(d). term of the mortgage, termination of mortgage Nature of Requirement: HUD regulations at Project/Activity: Morning Star Housing, insurance, prepayment of the mortgage, or a 24 CFR 236.725 requires that the rental Moline, IL, Project Number: 071–HD156/ sale of the project * * *’’ Either of these assistance contract shall be limited to the IL06–Q061–007. actions would typically terminate FHA term of the mortgage or 40 years from the Nature of Requirement: Section 891.100(d) involvement with the property, and the date of the first payment made under the prohibits amendment of the amount of the Flexible Subsidy loan would be repaid, in contract, whichever is the lesser. whole, at that time. approved capital advance funds prior to Granted by: Brian D. Montgomery, closing. Granted by: Brian D. Montgomery, Assistant Secretary for Housing-Federal Assistant Secretary for Housing-Federal Granted by: Brian D. Montgomery, Housing Commissioner. Assistant Secretary for Housing—Federal Housing Commissioner. Date Granted: October 20, 2008. Date Granted: October 29, 2008. Housing Commissioner. Reason Waived: This waiver was granted Date Granted: October 24, 2008. Reason Waived: This waiver was granted to predicated on the continuation of the Rental allow the owner to amortize the flexible Reason Waived: The project is Assistance Payment assistance and required subsidy debt with the newly refinanced economically designed and comparable in the developer to record a Use Agreement mortgage and to continue to operate the cost to similar projects in the area, and the requiring the property to be maintained as a project after prepayment under a Use sponsor/owner exhausted all efforts to obtain Section 236 low-income housing resource for Agreement. There will be no monies leaving additional funding from other sources. 50 years from the closing of the Decoupling the project as a result of prepayment and Contact: Willie Spearmon, Director, Office transaction. The Decoupling proposal plans there will be long-term preservation of this of Housing Assistance and Grant for the demolition of the townhouse units, affordable housing. Administration, Office of Housing, the relocation of all remaining residents, and Contact: Beverly J. Miller, Director, Office Department of Housing and Urban of Asset Management, Office of Housing, the full renovation of the high-rise building. Development, 451 7th Street, SW., Room Department of Housing and Urban Contact: Beverly J. Miller, Director, Office 6130, Washington, DC 20410–8000, Development, 451 7th Street, SW., Room of Asset Management, Office of Housing, telephone number 202–708–3000. 6160, Washington, DC 20410–8000, Department of Housing and Urban • Regulation: 24 CFR 891.100(d). telephone number 202 708–3730. Development, 451 7th Street, SW., Room Project/Activity: Opportunity House, 6160, Washington, DC 20410–8000, • Regulation: 24 CFR 219.220(b). Ketcikan, Alaska, Project Number: 176– telephone number 202–708–3730. HD030/AK06–Q071–002. Project/Activity: The Russell House—FHA • Project Number 051–EH013, Virginia Beach, Regulation: 24 CFR 891.100(d). Nature of Requirement: Section 891.100(d) Virginia. The property is a 119-unit Section Project/Activity: WRC House, Incorporated, prohibits amendment of the amount of the 202 property and is in need of repairs. Dothan, AL, Project Number: 062–HD065/ approved capital advance funds prior to Nature of Requirement: Section 219.220(b), AL09–Q071–001. closing. which governs the repayment of operating Nature of Requirement: Section 891.100(d) Granted By: Brian D. Montgomery, assistance provided under the Flexible prohibits amendment of the amount of the Assistant Secretary for Housing—Federal Subsidy Program for Troubled Projects prior approved capital advance funds prior to Housing Commissioner. to May 1, 1996, states: ‘‘Assistance that has initial closing. Date Granted: October 24, 2008. been paid to a project owner under this Granted by: Brian D. Montgomery, Reason Waived: The project is subpart must be repaid at the earlier of the Assistant Secretary for Housing—Federal economically designed and comparable in expiration of the term of the mortgage, Housing Commissioner. cost to similar projects in the area, and the termination of mortgage insurance, Date Granted: October 10, 2008. sponsor/owner exhausted all efforts to obtain prepayment of the mortgage, or a sale of the Reason Waived: The project is additional funding from other sources. project * * *’’ Either of these actions would economically designed and comparable in Contact: Willie Spearmon, Director, Office typically terminate FHA involvement with cost to similar projects in the area, and the of Housing Assistance and Grant the property, and the Flexible Subsidy loan sponsor/owner exhausted all efforts to obtain Administration, Office of Housing, would be repaid, in whole, at that time. additional funding from other sources. Department of Housing and Urban Granted by: Brian D. Montgomery, Contact: Willie Spearmon, Director, Office Development, 451 7th Street, SW., Room Assistant Secretary for Housing-Federal of Housing Assistance and Grant 6130, Washington, DC 20410–8000, Housing Commissioner. Administration, Office of Housing, telephone number 202–708–3000.

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• Regulation: 24 CFR 891.100(d). Nature of Requirement: Section 891.100(d) Granted by: Brian D. Montgomery, Project/Activity: TRC Senior Village I, prohibits amendment of the amount of the Assistant Secretary for Housing—Federal Chicago, IL, Project Number: 071–EE212/ approved capital advance funds prior to Housing Commissioner. IL06–S051–006. closing. Date Granted: December 9, 2008. Nature of Requirement: Section 891.100(d) Granted by: Brian D. Montgomery, Reason Waived: The project is prohibits amendment of the amount of the Assistant Secretary for Housing—Federal economically designed and comparable in approved capital advance funds prior to Housing Commissioner. cost to similar projects in the area, and the closing. Date Granted: December 3, 2008 sponsor/owner exhausted all efforts to obtain Granted by: Brian D. Montgomery, Reason Waived: The project is additional funding from other sources. Assistant Secretary for Housing—Federal economically designed and comparable in Contact: Willie Spearmon, Director, Office Housing Commissioner. cost to similar projects in the area, and the of Housing Assistance and Grant Date Granted: November 4, 2008. sponsor/owner exhausted all efforts to obtain Administration, Office of Housing. Reason Waived: The project is additional funding from other sources. Department of Housing and Urban economically designed and comparable in Contact: Willie Spearmon, Director, Office Development, 451 7th Street, SW., Room cost to similar projects in the area, and the of Housing Assistance and Grant 6130, Washington, DC 20410–8000, sponsor/owner exhausted all efforts to obtain Administration, Office of Housing, telephone number 202–708–3000. additional funding from other sources. Department of Housing and Urban • Regulation: 24 CFR 891.100(d). Contact: Willie Spearmon, Director, Office Development, 451 7th Street, SW., Room Project/Activity: Llangollen Hope House, of Housing Assistance and Grant 6130, Washington, DC 20410–8000, New Castle, DE, Project Number: 032– Administration, Office of Housing, telephone number (202) 708–3000. HD035/DE26–Q061–001. Department of Housing and Urban • Regulation: 24 CFR 891.100(d). Nature of Requirement: Section 891.100(d) Development, 451 7th Street, SW., Room Project/Activity: Vista Gallinas, Las Vegas, prohibits amendment of the amount of the 6130, Washington, DC 20410–8000, NM, Project Number: 116–HD030/NM16– approved capital advance funds prior to telephone number 202–708–3000. Q061–002. closing. • Regulation: 24 CFR 891.100(d). Nature of Requirement: Section 891.100(d) Granted by: Brian D. Montgomery, Project/Activity: Breakthrough Phase I, prohibits amendment of the amount of the Assistant Secretary for Housing—Federal Knoxville, TN, Project Number: 087–HD051/ approved capital advance funds prior to Housing Commissioner. TN37–Q071–002. closing. Date Granted: December 10, 2008. Nature of Requirement: Section 891.100(d) Granted by: Brian D. Montgomery, Reason Waived: The project is prohibits amendment of the amount of the Assistant Secretary for Housing—Federal economically designed and comparable in approved capital advance funds prior to Housing Commissioner. cost to similar projects in the area, and the closing. Date Granted: December 5, 2008. sponsor/owner exhausted all efforts to obtain Granted by: Brian D. Montgomery, Reason Waived: The project is additional funding from other sources. Assistant Secretary for Housing—Federal economically designed and comparable in Contact: Willie Spearmon, Director, Office Housing Commissioner. cost to similar projects in the area, and the of Housing Assistance and Grant Date Granted: November 4, 2008. sponsor/owner exhausted all efforts to obtain Administration, Office of Housing, Reason Waived: The project is additional funding from other sources. Department of Housing and Urban economically designed and comparable in Contact: Willie Spearmon, Director, Office Development, 451 7th Street, SW., Room cost to similar projects in the area, and the of Housing Assistance and Grant 6130, Washington, DC 20410–8000, sponsor/owner exhausted all efforts to obtain Administration, Office of Housing, telephone number 202–708–3000. additional funding from other sources. Department of Housing and Urban • Regulation: 24 CFR 891.100(d). Contact: Willie Spearmon, Director, Office Development, 451 7th Street, SW., Room Project/Activity: Marian Heights, New of Housing Assistance and Grant 6130, Washington, DC 20410–8000, Britain, CT, Project Number: 017–EE097/ Administration, Office of Housing, telephone number 202–708–3000. CT26–S061–001. Department of Housing and Urban • Regulation: 24 CFR 891.100(d). Nature of Requirement: Section 891.100(d) Development, 451 7th Street, SW., Room Project/Activity: Burke Place Apartments, prohibits amendment of the amount of the 6130, Washington, DC 20410–8000, Forks, WA, Project Number: 127–HD040/ approved capital advance funds prior to telephone number 202–708–3000. WA19–Q071–004. closing. • Regulation: 24 CFR 891.100(d). Nature of Requirement: Section 891.100(d) Granted by: Brian D. Montgomery, Project/Activity: Options Supportive prohibits amendment of the amount of the Assistant Secretary for Housing—Federal Housing Project XIII, Shirley, NY, Project approved capital advance funds prior to Housing Commissioner. Number: 012–HD138/NY36–Q071–003. closing. Date Granted: December 10, 2008. Nature of Requirement: Section 891.100(d) Granted by: Brian D. Montgomery, Reason Waived: The project is prohibits amendment of the amount of the Assistant Secretary for Housing—Federal economically designed and comparable in approved capital advance funds prior to Housing Commissioner. cost to similar projects in the area, and the closing. Date Granted: December 8, 2008. sponsor/owner exhausted all efforts to obtain Granted by: Brian D. Montgomery, Reason Waived: The project is additional funding from other sources. Assistant Secretary for Housing—Federal economically designed and comparable in Contact: Willie Spearmon, Director, Office Housing Commissioner. cost to similar projects in the area, and the of Housing Assistance and Grant Date Granted: December 3, 2008 sponsor/owner exhausted all efforts to obtain Administration, Office of Housing, Reason Waived: The project is additional funding from other sources. Department of Housing and Urban economically designed and comparable in Contact: Willie Spearmon, Director, Office Development, 451 7th Street, SW., Room cost to similar projects in the area, and the of Housing Assistance and Grant 6130, Washington, DC 20410–8000, sponsor/owner exhausted all efforts to obtain Administration, Office of Housing, telephone number 202–708–3000. additional funding from other sources. Department of Housing and Urban • Regulation: 24 CFR 891.100(d). Contact: Willie Spearmon, Director, Office Development, 451 7th Street, SW., Room Project/Activity: Mosaic Housing XVII— of Housing Assistance and Grant 6130, Washington, DC 20410–8000, Beatrice, Omaha, NE, Project Number: 103– Administration, Office of Housing, telephone number 202–708–3000. HD036/ND99–Q071–001. Department of Housing and Urban • Regulation: 24 CFR 891.100(d). Nature of Requirement: Section 891.100(d) Development, 451 7th Street, SW., Room Project/Activity: Roberts Place Apartments, prohibits amendment of the amount of the 6130, Washington, DC 20410–8000, Monroe, LA, Project Number: 064–HD109/ approved capital advance funds prior to telephone number 202–708–3000. LA48–Q071–001. closing. • Regulation: 24 CFR 891.100(d). Nature of Requirement: Section 891.100(d) Granted by: Brian D. Montgomery, Project/Activity: ASI Owatonna, Owatonna, prohibits amendment of the amount of the Assistant Secretary for Housing—Federal MN, Project Number: 092–HD070/MN46– approved capital advance funds prior to Housing Commissioner. Q071–001. closing. Date Granted: December 24, 2008.

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Reason Waived: The project is Granted by: Brian D. Montgomery, Administration, Office of Housing, economically designed and comparable in Assistant Secretary for Housing—Federal Department of Housing and Urban cost to similar projects in the area, and the Housing Commissioner. Development, 451 7th Street, SW., Room sponsor/owner exhausted all efforts to obtain Date Granted: November 26, 2008. 6130, Washington, DC 20410–8000, additional funding from other sources. Reason Waived: The project is telephone number 202–708–3000. Contact: Willie Spearmon, Director, Office economically designed and comparable in • Regulation: 24 CFR 891.100(d) and 24 cost to similar projects in the area, and the of Housing Assistance and Grant CFR 891.320(b). sponsor/owner exhausted all efforts to obtain Administration, Office of Housing, Project/Activity: Center of Hope, Department of Housing and Urban additional funding from other sources. The sponsor/owner required additional time to Southbridge, MA, Project Number: Development, 451 7th Street, SW., Room 023HD221/MA06–Q051–002. 6130, Washington, DC 20410–8000, obtain additional funds. Contact: Willie Spearmon, Director, Office Nature of Requirement: Section 891.100(d) telephone number 202–708–3000. of Housing Assistance and Grant prohibits amendment of the amount of the • Regulation: 24 CFR 891.100(d). Administration, Office of Housing, approved capital advance funds prior to Project/Activity: Prairie View Villas, Pekin, Department of Housing and Urban initial closing. Section 891.320(b) provides IL, Project Number: 072–HD152/IL06–Q071– Development, 451 7th Street, SW., Room projects should not be located adjacent to the 001. 6130, Washington, DC 20410–8000, following facilities: schools or daycare Nature of Requirement: Section 891.100(d) telephone number 202–708–3000. centers for persons with disabilities, prohibits amendment of the amount of the • Regulation: 24 CFR 891.100(d) and 24 workshops, medical facilities, or other approved capital advance funds prior to CFR 891.165. housing primarily serving persons with closing. Project/Activity: Gabriel Place, Suffolk, VA, disabilities, or in areas where such facilities Granted by: Brian D. Montgomery, Project Number: 051–HD128/VA36–Q041– are concentrated. Assistant Secretary for Housing—Federal 005. Granted by: Brian D. Montgomery, Housing Commissioner. Nature of Requirement: Section 891.100(d) Assistant Secretary for Housing-Federal Date Granted: December 24, 2008. prohibits amendment of the amount of the Housing Commissioner. Reason Waived: The project is approved capital advance funds prior to Date Granted: December 5, 2008. economically designed and comparable in initial closing. Section 891.165 provides that Reason Waived: The project is cost to similar projects in the area, and the the duration of the fund reservation of the economically designed and comparable in sponsor/owner exhausted all efforts to obtain capital advance is 18 months from the date cost to similar projects in the area, and the additional funding from other sources. of issuance with limited exceptions up to 24 sponsor/owner exhausted all efforts to obtain Contact: Willie Spearmon, Director, Office months, as approved by HUD on a case-by- additional funding from other sources and of Housing Assistance and Grant case basis. the service plan is designed to promote the Administration, Office of Housing, Granted by: Brian D. Montgomery, integration of the residents into the Department of Housing and Urban Assistant Secretary for Housing-Federal community. Development, 451 7th Street, SW., Room Housing Commissioner. Contact: Willie Spearmon, Director, Office Date Granted: December 9, 2008. 6130, Washington, DC 20410–8000, of Housing Assistance and Grant Reason Waived: The project is telephone number 202–708–3000. Administration, Office of Housing, economically designed and comparable in • Department of Housing and Urban Regulation: 24 CFR 891.100(d). cost to similar projects in the area, and the Project/Activity: St. Francis Xavier sponsor/owner exhausted all efforts to obtain Development, 451 7th Street, SW., Room Apartments, McKean, PA, Project Number: additional funding from other sources. The 6130, Washington, DC 20410–8000, 033–EE127/PA28–S061–001. sponsor/owner required additional time to telephone number 202–708–3000. Nature of Requirement: Section 891.100(d) obtain additional funds. • Regulation: 24 CFR 891.165. prohibits amendment of the amount of the Contact: Willie Spearmon, Director, Office Project/Activity: Dauphin County VOA approved capital advance funds prior to of Housing Assistance and Grant Living Center, Harrisburg, PA Project closing. Administration, Office of Housing, Number: 034–HD087/PA266–Q051–004. Granted by: Brian D. Montgomery, Department of Housing and Urban Nature of Requirement: Section 891.165 Assistant Secretary for Housing—Federal Development, 451 7th Street, SW., Room provides that the duration of the fund Housing Commissioner. 6130, Washington, DC 20410–8000, reservation of the capital advance is 18 Date Granted: December 24, 2008. telephone number 202–708–3000. months from the date of issuance with Reason Waived: The project is • Regulation: 24 CFR 891.100(d) and 24 limited exceptions up to 24 months, as economically designed and comparable in CFR 891.165. approved by HUD on a case-by-case basis. cost to similar projects in the area, and the Project/Activity: Providence Manor Granted by: Brian D. Montgomery, sponsor/owner exhausted all efforts to obtain Apartments, Atlanta, GA, Project Number: Assistant Secretary for Housing-Federal additional funding from other sources. 061–EE159/GA06–S061–003. Housing Commissioner. Contact: Willie Spearmon, Director, Office Nature of Requirement: Section 891.100(d) Date Granted: October 1, 2008. of Housing Assistance and Grant prohibits amendment of the amount of the Reason Waived: Additional time was Administration, Office of Housing, approved capital advance funds prior to needed for contractor to obtain a Performance Department of Housing and Urban initial closing. Section 891.165 provides that Bond and for the project to be initially Development, 451 7th Street, SW., Room the duration of the fund reservation of the closed. 6130, Washington, DC 20410–8000, capital advance is 18 months from the date Contact: Willie Spearmon, Director, Office telephone number 202–708–3000. of issuance with limited exceptions up to 24 of Housing Assistance and Grant • months, as approved by HUD on a case-by- Administration, U.S. Department of Housing Regulation: 24 CFR 891.100(d) and 24 case basis. CFR 891.165. and Urban Development, 451 7th Street, SW., Granted by: Brian D. Montgomery, Washington, DC 20410, telephone number Project/Activity: Acres Homes Garden Assistant Secretary for Housing-Federal 202–708–3000. Apartments, Houston, TX, Project Number: Housing Commissioner. • 114–HD031/TX24–Q051–001. Date Granted: December 24, 2008. Regulation: 24 CFR 891.165. Nature of Requirement: Section 891.100(d) Reason Waived: The project is Project/Activity: Garrett House, prohibits amendment of the amount of the economically designed and comparable in Wilmington, DE, Project Number: 032– approved capital advance funds prior to cost to similar projects in the area, and the HD036/DE26–Q061–002. initial closing. Section 891.165 provides that sponsor/owner exhausted all efforts to obtain Nature of Requirement: Section 891.165 the duration of the fund reservation of the additional funding from other sources. The provides that the duration of the fund capital advance is 18 months from the date sponsor/owner required additional time to reservation of the capital advance is 18 of issuance with limited exceptions up to 24 achieve an initial closing. months from the date of issuance with months, as approved by HUD on a case-by- Contact: Willie Spearmon, Director, Office limited exceptions up to 24 months, as case basis. of Housing Assistance and Grant approved by HUD on a case-by-case basis.

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Granted by: Brian D. Montgomery, Granted by: Brian D. Montgomery, Reason Waived: The owner/sponsor Assistant Secretary for Housing-Federal Assistant Secretary for Housing-Federal needed additional time for the project to be Housing Commissioner. Housing Commissioner. initially closed. Date Granted: October 10, 2008. Date Granted: October 17, 2008. Contact: Willie Spearmon, Director, Office Reason Waived: The sponsor/owner Reason Waived: The sponsor/owner of Housing Assistance and Grant needed additional time for the initial closing needed additional time to complete the bond Administration, Office of Housing, to take place. sales and for the project to be initially closed. Department of Housing and Urban Contact: Willie Spearmon, Director, Office Contact: Willie Spearmon, Director, Office Development, 451 7th Street, SW., Room of Housing Assistance and Grant of Housing Assistance and Grant 6130, Washington, DC 20410–8000, Administration, Office of Housing, Administration, Office of Housing, telephone number 202–708–3000. Department of Housing and Urban Department of Housing and Urban • Regulation: 24 CFR 891.165. Development, 451 7th Street, SW., Room Development, 451 7th Street, SW., Room Project/Activity: Victory Cathedral VOA 6130, Washington, DC 20410–8000, 6130, Washington, DC 20410–8000, Elderly Housing, Hartford, CT, Project telephone number 202–708–3000. telephone number 202–708–3000. Number: 017–EE098/CT26–S061–002. • Regulation: 24 CFR 891.165. Nature of Requirement: Section 891.165 • Regulation: 24 CFR 891.165. Project/Activity: Transitional Services for provides that the duration of the fund Project/Activity: Hale Maaolu Ehiku, Kihei- New York, New York, NY, Project Number: reservation of the capital advance is 18 Maui, HI, Project Number:140–EE028/HI10– 012–HD128/NY36–Q051–002. months from the date of issuance with S021–001. Nature of Requirement: Section 891.165 limited exceptions up to 24 months, as Nature of Requirement: Section 891.165 provides that the duration of the fund approved by HUD on a case-by-case basis. provides that the duration of the fund reservation of the capital advance is 18 Granted by: Brian D. Montgomery, reservation of the capital advance is 18 months from the date of issuance with Assistant Secretary for Housing-Federal months from the date of issuance with limited exceptions up to 24 months, as Housing Commissioner. limited exceptions up to 24 months, as approved by HUD on a case-by-case basis. Date Granted: October 30, 2008. approved by HUD on a case-by-case basis. Granted by: Brian D. Montgomery, Reason Waived: The sponsor/owner Granted by: Brian D. Montgomery, Assistant Secretary for Housing-Federal needed additional time to resolve firm Assistant Secretary for Housing-Federal Housing Commissioner. commitment application issues and for the Housing Commissioner. Date Granted: October 24, 2008. project to reach initial closing. Date Granted: October 10, 2008. Reason Waived: Additional time was Contact: Willie Spearmon, Director, Office Reason Waived: The sponsor/owner needed for the project to reach initial closing. of Housing Assistance and Grant needed additional time for this mixed Contact: Willie Spearmon, Director, Office Administration, Office of Housing, finance project to secure the executed of Housing Assistance and Grant Department of Housing and Urban Recipient Agreements for HOME financing Administration, Office of Housing, Development, 451 7th Street, SW., Room from the County of Maui and for initial/final Department of Housing and Urban 6130, Washington, DC 20410–8000, closing to take place. Development, 451 7th Street, SW., Room telephone number 202–708–3000. Contact: Willie Spearmon, Director, Office 6130, Washington, DC 20410–8000, • Regulation: 24 CFR 891.165. of Housing Assistance and Grant telephone number 202–708–3000. Project/Activity: Living Solutions II, Mora, Administration, Office of Housing, • Regulation: 24 CFR 891.165. MN, Project Number: 092–HD123/MN46– Department of Housing and Urban Project/Activity: Octavia Court, San S061–009. Development, 451 7th Street, SW., Room Francisco, CA, Project Number:121–HD087/ Nature of Requirement: Section 891.165 6130, Washington, DC 20410–8000, CA39–Q061–002. provides that the duration of the fund telephone number 202–708–3000. Nature of Requirement: Section 891.165 reservation of the capital advance is 18 • Regulation: 24 CFR 891.165. provides that the duration of the fund months from the date of issuance with Project/Activity: Kaaterskill Manor, reservation of the capital advance is 18 limited exceptions up to 24 months, as Catskill, NY, Project Number: 014–EE252/ months from the date of issuance with approved by HUD on a case-by-case basis. NY06–S051–008. limited exceptions up to 24 months, as Granted by: Brian D. Montgomery, Nature of Requirement: Section 891.165 approved by HUD on a case-by-case basis. Assistant Secretary for Housing-Federal provides that the duration of the fund Granted By: Brian D. Montgomery, Housing Commissioner. reservation of the capital advance is 18 Assistant Secretary for Housing-Federal Date Granted: November 2, 2008. months from the date of issuance with Housing Commissioner. Reason Waived: The sponsor/owner Date Granted: October 27, 2008. needed additional time to complete the limited exceptions up to 24 months, as Reason Waived: Additional time was submission of initial closing documents and approved by HUD on a case-by-case basis. needed to clarify issues with the firm for the project to achieve an initial closing. Granted by: Brian D. Montgomery, commitment application and for the project Contact: Willie Spearmon, Director, Office Assistant Secretary for Housing-Federal to reach initial closing. of Housing Assistance and Grant Housing Commissioner. Contact: Willie Spearmon, Director, Office Administration, Office of Housing, Date Granted: October 14, 2008. of Housing Assistance and Grant Department of Housing and Urban Reason Waived: Additional time was Administration, Office of Housing, Development, 451 7th Street, SW., Room needed for the project to be initially closed. Department of Housing and Urban 6130, Washington, DC 20410–8000, Contact: Willie Spearmon, Director, Office Development, 451 7th Street, SW., Room telephone number 202–708–3000. of Housing Assistance and Grant 6130, Washington, DC 20410–8000, • Regulation: 24 CFR 891.165. Administration, Office of Housing, telephone number 202–708–3000. Project/Activity: Capps Villa, Spartanburg, Department of Housing and Urban • Regulation: 24 CFR 891.165. SC, Project Number: 054–HD115/SC16– Development, 451 7th Street, SW., Room Project/Activity: Clearlake Oaks Manor, Q061–002. 6130, Washington, DC 20410–8000, Clearlake Oaks, CA, Project Number: 121– Nature of Requirement: Section 891.165 telephone number 202–708–3000. EE174/CA39–S041–005. provides that the duration of the fund • Regulation: 24 CFR 891.165. Nature of Requirement: Section 891.165 reservation of the capital advance is 18 Project/Activity: Lyons Place, Dayton, OH, provides that the duration of the fund months from the date of issuance with Project Number: 046–EE078/OH10–S051– reservation of the capital advance is 18 limited exceptions up to 24 months, as 001. months from the date of issuance with approved by HUD on a case-by-case basis. Nature of Requirement: Section 891.165 limited exceptions up to 24 months, as Granted by: Brian D. Montgomery, provides that the duration of the fund approved by HUD on a case-by-case basis. Assistant Secretary for Housing-Federal reservation of the capital advance is 18 Granted by: Brian D. Montgomery, Housing Commissioner. months from the date of issuance with Assistant Secretary for Housing-Federal Date Granted: November 3, 2008. limited exceptions up to 24 months, as Housing Commissioner. Reason Waived: Additional time was approved by HUD on a case-by-case basis. Date Granted: October 29, 2008. needed for the owner/sponsor to resolve an

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identity of interest issue with the site, for the Reason Waived: The sponsor/owner commitment application to be reprocessed firm commitment to be issued and for the needed additional time to secure control of and for the project to be initially closed. project to be initially closed. a new site and for the project to be initially Contact: Willie Spearmon, Director, Office Contact: Willie Spearmon, Director, Office closed. of Housing Assistance and Grant of Housing Assistance and Grant Contact: Willie Spearmon, Director, Office Administration, Office of Housing, Administration, Office of Housing, of Housing Assistance and Grant Department of Housing and Urban Department of Housing and Urban Administration, Office of Housing, Development, 451 7th Street, SW., Room Development, 451 7th Street, SW., Room Department of Housing and Urban 6130 Washington, DC 20410–8000, telephone 6130, Washington, DC 20410–8000, Development, 451 7th Street, SW., Room number 202–708–3000. telephone number 202–708–3000. 6130, Washington, DC 20410–8000, • Regulation: 24 CFR 891.165. telephone number 202–708–3000. • Regulation: 24 CFR 891.165. Project/Activity: Llangollen Hope House, • Project/Activity: JSDD Supportive Living II, Regulation: 24 CFR 891.165. New Castle, DE, Project Number: 032– Whippany, NJ, Project Number: 031–HD149/ Project/Activity: Henderson Supportive HD035/DE26–Q061–001. NJ39–Q061–002. Housing, Henderson, NV, Project Number: Nature of Requirement: Section 891.165 Nature of Requirement: Section 891.165 125–HD074/NV25–Q061–001. provides that the duration of the fund provides that the duration of the fund Nature of Requirement: Section 891.165 reservation of the capital advance is 18 reservation of the capital advance is 18 provides that the duration of the fund months from the date of issuance with months from the date of issuance with reservation of the capital advance is 18 limited exceptions up to 24 months, as limited exceptions up to 24 months, as months from the date of issuance with approved by HUD on a case-by-case basis. approved by HUD on a case-by-case basis. limited exceptions up to 24 months, as Granted by: Brian D. Montgomery, Granted by: Brian D. Montgomery, approved by HUD on a case-by-case basis. Assistant Secretary for Housing-Federal Assistant Secretary for Housing-Federal Granted by: Brian D. Montgomery, Housing Commissioner. Housing Commissioner. Assistant Secretary for Housing-Federal Date Granted: November 4, 2008. Date Granted: November 3, 2008. Housing Commissioner. Reason Waived: The sponsor/owner Reason Waived: The sponsor/owner Date Granted: November 4, 2008. needed additional time to redesign the Reason Waived: The sponsor/owner needed additional time to secure secondary building, the firm commitment application to needed additional time for the project to be be processed, and for the project to be funding, for the firm commitment application initially closed. initially closed. to be processed, and for the project to be Contact: Willie Spearmon, Director, Office Contact: Willie Spearmon, Director, Office initially closed. of Housing Assistance and Grant of Housing Assistance and Grant Contact: Willie Spearmon, Director, Office Administration, Office of Housing, Administration, Office of Housing, of Housing Assistance and Grant Department of Housing and Urban Department of Housing and Urban Administration, Office of Housing, Development, 451 7th Street, SW., Room Development, 451 7th Street, SW., Room Department of Housing and Urban 6130, Washington, DC 20410–8000, 6130, Washington, DC 20410–8000, Development, 451 7th Street, SW., Room telephone 202–708–3000. telephone number 202–708–3000. 6130, Washington, DC 20410–8000, • Regulation: 24 CFR 891.165. • Regulation: 24 CFR 891.165. telephone number 202–708–3000. • • Project/Activity: Common Ground Senior Project/Activity: Casitas on East Broadway, Regulation: 24 CFR 891.165. Housing, Brooklyn, NY, Project Number: Tucson, AZ, Project Number: 123–EE104/ Project/Activity: Vista California 012–EE338/NY36–S051–004. AZ20–S061–010. Supportive Housing, Vista, CA, Project • Nature of Requirement: Section 891.165 Nature of Requirement: Section 891.165 Number: 129–HD030/CA33–Q041–001. provides that the duration of the fund provides that the duration of the fund Nature Requirement: Section 891.165 reservation of the capital advance is 18 reservation of the capital advance is 18 provides that the duration of the fund months from the date of issuance with months from the date of issuance with reservation of the capital advance is 18 limited exceptions up to 24 months, as limited exceptions up to 24 months, as months from the date of issuance with approved by HUD on a case-by-case basis. approved by HUD on a case-by-case basis. limited exceptions up to 24 months, as • Granted by: Brian D. Montgomery, Granted by: Brian D. Montgomery, approved by HUD on a case-by-case basis. Assistant Secretary for Housing-Federal Assistant Secretary for Housing-Federal Granted by: Brian D. Montgomery, Housing Commissioner. Housing Commissioner. Assistant Secretary for Housing-Federal • Date Granted: November 4, 2008. Date Granted: November 8, 2008. Housing Commissioner. Reason Waived: The sponsor/owner Reason Waived: The sponsor/owner Date Granted: November 3, 2008. needed additional time for the closing needed additional time to clarify issues of the Reason Waived: The sponsor/owner documents to be submitted and processed site plan review, secure secondary funding needed additional time secure secondary and for the project to be initially closed. and for the project to be initially closed. funding, and for the project to be initially Contact: Willie Spearmon, Director, Office Contact: Willie Spearmon, Director, Office closed. of Housing Assistance and Grant of Housing Assistance and Grant Contact: Willie Spearmon, Director, Office Administration, Office of Housing, Administration, Office of Housing, of Housing Assistance and Grant Department of Housing and Urban Department of Housing and Urban Administration, Office of Housing, Development, 451 7th Street, SW., Room Development, 451 7th Street, SW., Room Department of Housing and Urban 6130, Washington, DC 20410–8000, 6130, Washington, DC 20410–8000, Development, 451 7th Street, SW., Room telephone number 202–708–3000. telephone number 202–708–3000. 6130, Washington, DC 20410–8000, • Regulation: 24 CFR 891.165. • Regulation: 24 CFR 891.165. telephone number 202–708–3000. Project/Activity: Victory Crest, Chillum, Project/Activity: Oakridge Park • Regulation: 24 CFR 891.165. MD, Project Number: 000–EE066/MD39– Apartments, Lake Oswego, OR, Project Project/Activity: Corozal Hope for the S061–001. Number: 126–EE059/OR16–S061–002. Elderly, Corozal, PR, Project Number: 056– Nature of Requirement: Section 891.165 Nature of Requirement: Section 891.165 EE064/RQ46–S041–001. provides that the duration of the fund provides that the duration of the fund Nature of Requirement: Section 891.165 reservation of the capital advance is 18 reservation of the capital advance is 18 provides that the duration of the fund months from the date of issuance with months from the date of issuance with reservation of the capital advance is 18 limited exceptions up to 24 months, as limited exceptions up to 24 months, as months from the date of issuance with approved by HUD on a case-by-case basis. approved by HUD on a case-by-case basis. limited exceptions up to 24 months, as Granted by: Brian D. Montgomery, Granted by: Brian D. Montgomery, approved by HUD on a case-by-case basis. Assistant Secretary for Housing-Federal Assistant Secretary for Housing-Federal Granted by: Brian D. Montgomery, Housing Commissioner. Housing Commissioner. Assistant Secretary for Housing-Federal Date Granted: November 4, 2008. Date Granted: November 12, 2008. Housing Commissioner. Reason Waived: The sponsor/owner Reason Waived: The sponsor/owner Date Granted: November 4, 2008. needed additional time for the firm needed additional time to resolve litigation

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issues and for the project to be initially funding, and for the project to be initially commitment to be processed and for the closed. closed. project to be initially closed. Contact: Willie Spearmon, Director, Office Contact: Willie Spearmon, Director, Office Contact: Willie Spearmon, Director, Office of Housing Assistance and Grant of Housing Assistance and Grant of Housing Assistance and Grant Administration, Office of Housing, Administration, Office of Housing, Administration, Office of Housing, Department of Housing and Urban Department of Housing and Urban Department of Housing and Urban Development, 451 7th Street, SW., Room Development, 451 7th Street, SW., Room Development, 451 7th Street, SW., Room 6130, Washington, DC 20410–8000, 6130, Washington, DC 20410–8000, 6130, Washington, DC 20410–8000, telephone number 202–708–3000. telephone number 202–708–3000. telephone number 202–708–3000. • • Regulation: 24 CFR 891.165. Regulation: 24 CFR 891.165. • Regulation: 24 CFR 891.165. Project/Activity: Silvercrest Senior Project/Activity: Mary Rose Estates, Project/Activity: Arbor Court (fka Laurel Housing, Briarwood, NY, Project Number: Willoughby, OH, Project Number: 042– Homes), Fresno, CA, Project Number: 121– 012–EE349/NY36–S061–005. EE208/OH12–S061–006. HD083/CA39–Q041–003. Nature of Requirement: Section 891.165 Nature of Requirement: Section 891.165 Nature of Requirement: Section 891.165 provides that the duration of the fund provides that the duration of the fund provides that the duration of the fund reservation of the capital advance is 18 reservation of the capital advance is 18 reservation of the capital advance is 18 months from the date of issuance with months from the date of issuance with months from the date of issuance with limited exceptions up to 24 months, as limited exceptions up to 24 months, as limited exceptions up to 24 months, as approved by HUD on a case-by-case basis. approved by HUD on a case-by-case basis. approved by HUD on a case-by-case basis. Granted by: Brian D. Montgomery, Granted by: Brian D. Montgomery, Granted by: Brian D. Montgomery, Assistant Secretary for Housing-Federal Assistant Secretary for Housing—Federal Assistant Secretary for Housing—Federal Housing Commissioner. Housing Commissioner. Housing Commissioner. Date Granted: November 12, 2008. Date Granted: November 12, 2008. Date Granted: November 14, 2008. Reason Waived: The sponsor/owner Reason Waived: The sponsor/owner Reason Waived: The sponsor/owner needed additional time for the project to be needed additional time to submit the firm needed additional time to secure additional commitment application and for the project initially closed. funding, the firm commitment application to to be initially closed. Contact: Willie Spearmon, Director, Office be processed and for the project to be Contact: Willie Spearmon, Director, Office of Housing Assistance and Grant initially closed. of Housing Assistance and Grant Administration, Office of Housing, Contact: Willie Spearmon, Director, Office Administration, Office of Housing, Department of Housing and Urban of Housing Assistance and Grant Department of Housing and Urban Development, 451 7th Street, SW., Room Administration, Office of Housing, Development, 451 7th Street, SW., Room 6130, Washington, DC 20410–8000, Department of Housing and Urban 6130, Washington, DC 20410–8000, telephone number 202–708–3000. Development, 451 7th Street, SW., Room telephone number 202–708–3000. • Regulation: 24 CFR 891.165. 6130, Washington, DC 20410–8000, • Regulation: 24 CFR 891.165. Project/Activity: Kappa House II telephone number 202–708–3000. Project/Activity: Leonia Retirement • Apartments, Cleveland, OH, Project Number: Housing, Leonia, NJ, Project Number: 031– Regulation: 24 CFR 891.165. 042–EE206/OH12–S061–004. EE069/NJ39–S061–003. Project/Activity: Bernie’s Blessing, Nature of Requirement: Section 891.165 Nature of Requirement: Section 891.165 Roxboro, NC, Project Number: 053–EE173/ provides that the duration of the fund provides that the duration of the fund NC19–S061–005. reservation of the capital advance is 18 reservation of the capital advance is 18 Nature of Requirement: Section 891.165 months from the date of issuance with months from the date of issuance with provides that the duration of the fund limited exceptions up to 24 months, as limited exceptions up to 24 months, as reservation of the capital advance is 18 approved by HUD on a case-by-case basis. approved by HUD on a case-by-case basis. months from the date of issuance with Granted by: Brian D. Montgomery, Granted by: Brian D. Montgomery, limited exceptions up to 24 months, as Assistant Secretary for Housing-Federal Assistant Secretary for Housing—Federal approved by HUD on a case-by-case basis. Housing Commissioner. Housing Commissioner. Granted by: Brian D. Montgomery, Date Granted: November 12, 2008. Date Granted: November 12, 2008. Assistant Secretary for Housing—Federal Reason Waived: The sponsor/owner Reason Waived: The sponsor/owner Housing Commissioner. needed additional time to secure secondary needed additional time for the firm Date Granted: November 17, 2008. funding, submit the firm commitment commitment application to be processed and Reason Waived: The sponsor/owner application, and for the project to be initially issued and for the project to be initially needed additional time to resolve appraisal closed. closed. issues with the site, for the firm commitment Contact: Willie Spearmon, Director, Office Contact: Willie Spearmon, Director, Office to be issued, and for the project to be initially of Housing Assistance and Grant of Housing Assistance and Grant closed. Administration, Office of Housing, Administration, Office of Housing, Contact: Willie Spearmon, Director, Office Department of Housing and Urban Department of Housing and Urban of Housing Assistance and Grant Development, 451 7th Street, SW., Room Development, 451 7th Street, SW., Room Administration, Office of Housing, 6130, Washington, DC 20410–8000, 6130 Washington, DC 20410–8000, telephone Department of Housing and Urban telephone number 202–708–3000. number 202–708–3000. Development, 451 7th Street, SW., Room • Regulation: 24 CFR 891.165. • Regulation: 24 CFR 891.165. 6130, Washington, DC 20410–8000, Project/Activity: Emerald Rose I Project/Activity: St. Francis Xavier telephone number 202–708–3000. Apartments, Burton, OH, Project Number: Apartments, McKean, PA, Project Number: • Regulation: 24 CFR 891.165. 042–HD141/OH12–Q061–004. 033–EE127/PA26–S061–001. Project/Activity: Folsom Oaks, Folsom, CA, Nature of Requirement: Section 891.165 Nature of Requirement: Section 891.165 Project Number: 136–HD017/CA30–Q041– provides that the duration of the fund provides that the duration of the fund 001. reservation of the capital advance is 18 reservation of the capital advance is 18 Nature of Requirement: Section 891.165 months from the date of issuance with months from the date of issuance with provides that the duration of the fund limited exceptions up to 24 months, as limited exceptions up to 24 months, as reservation of the capital advance is 18 approved by HUD on a case-by-case basis. approved by HUD on a case-by-case basis. months from the date of issuance with Granted by: Brian D. Montgomery, Granted by: Brian D. Montgomery, limited exceptions up to 24 months, as Assistant Secretary for Housing—Federal Assistant Secretary for Housing—Federal approved by HUD on a case-by-case basis. Housing Commissioner. Housing Commissioner. Granted by: Brian D. Montgomery, Date Granted: November 12, 2008. Date Granted: November 14, 2008. Assistant Secretary for Housing—Federal Reason Waived: The sponsor/owner Reason Waived: The sponsor/owner Housing Commissioner. needed additional time to secure secondary needed additional time for the firm Date Granted: November 17, 2008.

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Reason Waived: The sponsor/owner Date Granted: November 18, 2008. Granted by: Brian D. Montgomery, needed additional time for the firm Reason Waived: The sponsor/owner Assistant Secretary for Housing—Federal commitment application to be processed and needed more time to secure additional Housing Commissioner. issued and for the project to be initially funding, submit the firm commitment Date Granted: November 19, 2008. closed. application, and for the project to be initially Reason Waived: The sponsor/owner Contact: Willie Spearmon, Director, Office closed. needed additional time to secure additional of Housing Assistance and Grant Contact: Willie Spearmon, Director, Office funding, for approval of the new site, and for Administration, Office of Housing, of Housing Assistance and Grant the project to be initially closed. Department of Housing and Urban Administration, Office of Housing, Contact: Willie Spearmon, Director, Office Development, 451 7th Street, SW., Room Department of Housing and Urban of Housing Assistance and Grant 6130, Washington, DC 20410–8000, Development, 451 7th Street, SW., Room Administration, Office of Housing, telephone number 202–708–3000. 6130, Washington, DC 20410–8000, Department of Housing and Urban • Development, 451 7th Street, SW., Room Regulation: 24 CFR 891.165. telephone number 202–708–3000. Project/Activity: Tartan Village II, 6130, Washington, DC 20410–8000, • Regulation: 24 CFR 891.165. Kilmarnock, VA, Project Number: 051– telephone number 202–708–3000. Project/Activity: Lovejoy Road, North EE111/VA36–S051–004. • Regulation: 24 CFR 891.165. Nature of Requirement: Section 891.165 Andover, MA, Project Number: 023–HD220/ Project/Activity: Eskaton Roseville Manor, provides that the duration of the fund MA06–Q051–001. Roseville, CA, Project Number: 136–EE081/ reservation of the capital advance is 18 Nature of Requirement: Section 891.165 CA30–S061–001. months from the date of issuance with provides that the duration of the fund Nature of Requirement: Section 891.165 limited exceptions up to 24 months, as reservation of the capital advance is 18 provides that the duration of the fund approved by HUD on a case-by-case basis. months from the date of issuance with reservation of the capital advance is 18 Granted by: Brian D. Montgomery, limited exceptions up to 24 months, as months from the date of issuance with Assistant Secretary for Housing—Federal approved by HUD on a case-by-case basis. limited exceptions up to 24 months, as Housing Commissioner. Granted by: Brian D. Montgomery, approved by HUD on a case-by-case basis. Date Granted: November 17, 2008. Assistant Secretary for Housing—Federal Granted by: Brian D. Montgomery, Reason Waived: The sponsor/owner Housing Commissioner. Assistant Secretary for Housing—Federal needed additional time to resolve site plan Date Granted: November 18, 2008. Housing Commissioner. issues required by the Virginia Department of Reason Waived: The sponsor/owner Date Granted: November 19, 2008. Transportation and for the project to be needed additional time to modify Reason Waived: The sponsor/owner initially closed. architectural designs to satisfy new state needed additional time to secure additional Contact: Willie Spearmon, Director, Office requirements and for the project to be funding, obtain approval of the parcel split, of Housing Assistance and Grant initially closed. submit the firm commitment application and Administration, Office of Housing, Contact: Willie Spearmon, Director, Office for the project to be initially closed. Department of Housing and Urban of Housing Assistance and Grant Contact: Willie Spearmon, Director, Office Development, 451 7th Street, SW., Room Administration, Office of Housing, of Housing Assistance and Grant 6130, Washington, DC 20410–8000, Department of Housing and Urban Administration, Office of Housing, telephone number 202–708–3000. Development, 451 7th Street, SW., Room Department of Housing and Urban • Regulation: 24 CFR 891.165. 6130, Washington, DC 20410–8000, Development, 451 7th Street, SW., Room Project/Activity: Saint Claire Court, telephone number 202–708–3000. 6130, Washington, DC 20410–8000, telephone number 202–708–3000. Redding, CA, Project Number: 136–HD020/ • Regulation: 24 CFR 891.165. • CA30–Q061–002. Project/Activity: Desert Sol, Phoenix, AZ, Regulation: 24 CFR 891.165. Nature of Requirement: Section 891.165 Project Number: 123–HD040/AZ20–Q061– Project/Activity: Shawnee Supportive provides that the duration of the fund 002. Housing, Shawnee, KS, Project Number: 084– reservation of the capital advance is 18 Nature of Requirement: Section 891.165 EE054/KS16–Q061–001. months from the date of issuance with provides that the duration of the fund Nature of Requirement: Section 891.165 limited exceptions up to 24 months, as reservation of the capital advance is 18 provides that the duration of the fund approved by HUD on a case-by-case basis. months from the date of issuance with reservation of the capital advance is 18 Granted by: Brian D. Montgomery, limited exceptions up to 24 months, as months from the date of issuance with Assistant Secretary for Housing—Federal approved by HUD on a case-by-case basis. limited exceptions up to 24 months, as Housing Commissioner. approved by HUD on a case-by-case basis. Granted by: Brian D. Montgomery, Date Granted: November 17, 2008. Granted by: Brian D. Montgomery, Assistant Secretary for Housing—Federal Reason Waived: The sponsor/owner Assistant Secretary for Housing—Federal Housing Commissioner. needed additional time for the site to be Housing Commissioner. Date Granted: November 19, 2008. approved and for the project to be initially Date Granted: November 19, 2008. The sponsor/owner closed. Reason Waived: Reason Waived: The sponsor/owner Contact: Willie Spearmon, Director, Office needed additional time to secure additional needed additional time to resolve of Housing Assistance and Grant funding and for the project to be initially development cost issues and for the project Administration, Office of Housing, closed. to be initially closed. Department of Housing and Urban Contact: Willie Spearmon, Director, Office Contact: Willie Spearmon, Director, Office Development, 451 7th Street, SW., Room of Housing Assistance and Grant of Housing Assistance and Grant 6130, Washington, DC 20410–8000, Administration, Office of Housing, Administration, Office of Housing, telephone number 202–708–3000. Department of Housing and Urban Department of Housing and Urban Development, 451 7th Street, SW., Room • Regulation: 24 CFR 891.165. Development, 451 7th Street, SW., Room 6130, Washington, DC 20410–8000, Project/Activity: North Highlands VOA 6130, Washington, DC 20410–8000, telephone number 202–708–3000. Living Center, North Highlands, CA, Project telephone number 202–708–3000. Number: 136–HD019/CA30–Q061–001. • Regulation: 24 CFR 891.165. • Regulation: 24 CFR 891.165. Nature of Requirement: Section 891.165 Project/Activity: Sierra Manor II, Reno, NV, Project/Activity: Accessible Space, provides that the duration of the fund Project Number: 125–EE129/NV25–S061– Incorporated, Mesa, AZ, Project Number: reservation of the capital advance is 18 003. 123–HD041/AZ20–Q061–003. months from the date of issuance with Nature of Requirement: Section 891.165 Nature of Requirement: Section 891.165 limited exceptions up to 24 months, as provides that the duration of the fund provides that the duration of the fund approved by HUD on a case-by-case basis. reservation of the capital advance is 18 reservation of the capital advance is 18 Granted by: Brian D. Montgomery, months from the date of issuance with months from the date of issuance with Assistant Secretary for Housing—Federal limited exceptions up to 24 months, as limited exceptions up to 24 months, as Housing Commissioner. approved by HUD on a case-by-case basis. approved by HUD on a case-by-case basis.

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Granted by: Brian D. Montgomery, Granted by: Brian D. Montgomery, Granted by: Brian D. Montgomery, Assistant Secretary for Housing—Federal Assistant Secretary for Housing—Federal Assistant Secretary for Housing—Federal Housing Commissioner. Housing Commissioner. Housing Commissioner. Date Granted: November 21, 2008. Date Granted: December 16, 2008. Date Granted: December 19, 2008. Reason Waived: The sponsor/owner Reason Waived: The sponsor/owner Reason Waived: The sponsor/owner needed additional time to secure additional needed additional time to submit the firm needed additional time for the firm funding and for the project to be initially commitment application and for the project commitment application to be processed and closed. to be initially closed. issued and for the project to be initially Contact: Willie Spearmon, Director, Office Contact: Willie Spearmon, Director, Office closed. of Housing Assistance and Grant of Housing Assistance and Grant Contact: Willie Spearmon, Director, Office Administration, Office of Housing, Administration, Office of Housing, of Housing Assistance and Grant Department of Housing and Urban Department of Housing and Urban Administration, Office of Housing, Development, 451 7th Street, SW., Room Development, 451 7th Street, SW., Room Department of Housing and Urban 6130, Washington, DC 20410–8000, 6130, Washington, DC 20410–8000, Development, 451 7th Street, SW., Room telephone number 202–708–3000. telephone number 202–708–3000. 6130, Washington, DC 20410–8000, • Regulation: 24 CFR 891.165. • Regulation: 24 CFR 891.165. telephone number 202–708–3000. Project/Activity: Casa Del Pueblo II, Project/Activity: Parham House, Vista, CA, • Regulation: 24 CFR 891.310(b)(1). Tucson, AZ, Project Number: 123–EE103/ Project Number: 129–HD031/CA33–Q061– Project/Activity: Nassau AHRC AZ20–S061–009. 001. Development 2005, North Baldwin, NY, Nature of Requirement: Section 891.165 Nature of Requirement: Section 891.165 Project Number: 012–HD129/NY36–Q051– provides that the duration of the fund provides that the duration of the fund 003. reservation of the capital advance is 18 reservation of the capital advance is 18 Nature of Requirement: Section months from the date of issuance with months from the date of issuance with 891.310(b)(1) requires that all entrances, limited exceptions up to 24 months, as limited exceptions up to 24 months, as common areas, units to be occupied by approved by HUD on a case-by-case basis. approved by HUD on a case-by-case basis. resident staff, and amenities must be readily Granted By: Brian D. Montgomery, Granted by: Brian D. Montgomery, accessible to and usable by persons with Assistant Secretary for Housing—Federal Assistant Secretary for Housing—Federal disabilities. Housing Commissioner. Housing Commissioner. Granted by: Brian D. Montgomery, Date Granted: November 21, 2008. Date Granted: December 16, 2008. Assistant Secretary for Housing—Federal Reason Waived: The sponsor/owner Reason Waived: The sponsor/owner Housing Commissioner. needed additional time for the city of Tucson needed additional time to secure additional Date Granted: November 25, 2008. to approve a lot split and for the project to funds, resolve site issues, and for the project Reason Waived: The cost to achieve full be initially closed. to reach initial closing. accessibility in both houses was determined Contact: Willie Spearmon, Director, Office Contact: Willie Spearmon, Director, Office not to be economical. The high acquisition of Housing Assistance and Grant of Housing Assistance and Grant cost of the houses coupled with costly Administration, Office of Housing, Administration, Office of Housing, renovations that would be necessary to make Department of Housing and Urban Department of Housing and Urban both houses accessible would be financially Development, 451 7th Street, SW., Room Development, 451 7th Street, SW., Room prohibitive. 6130, Washington, DC 20410–8000, 6130, Washington, DC 20410–8000, Contact: Willie Spearmon, Director, Office telephone number 202–708–3000. telephone number 202–708–3000. of Housing Assistance and Grant • Regulation: 24 CFR 891.165. • Regulation: 24 CFR 891.165. Administration, Office of Housing, Project/Activity: NCR of East Dublin Project/Activity: Independence Manor III, Department of Housing and Urban Granville Road, Columbus, OH, Project Braintree, MA, Project Number: 023–EE169/ Development, 451 7th Street, SW., Room Number: 043–EE119/OH16–S061–002. MA06–S031–004. 6130, Washington, DC 20410–8000, Nature of Requirement: Section 891.165 Nature of Requirement: Section 891.165 telephone number 202–708–3000. provides that the duration of the fund provides that the duration of the fund • Regulation: 24 CFR 891.165, 24 CFR reservation of the capital advance is 18 reservation of the capital advance is 18 891.805, 24 CFR 891.830(b) and months from the date of issuance with months from the date of issuance with 891.830(c)(4). limited exceptions up to 24 months, as limited exceptions up to 24 months, as Project/Activity: Armstrong Place, San approved by HUD on a case-by-case basis. approved by HUD on a case-by-case basis. Francisco, CA, Project Number: 121–EE194/ Granted By: Brian D. Montgomery, Granted by: Brian D. Montgomery, CA39–S061–006. Assistant Secretary for Housing—Federal Assistant Secretary for Housing—Federal Nature of Requirement: Section 891.165 Housing Commissioner. Housing Commissioner. provides that the duration of the fund Date Granted: December 10, 2008. Date Granted: December 17, 2008. reservation of the capital advance is 18 Reason Waived: The sponsor/owner Reason Waived: The sponsor/owner months from the date of issuance with needed additional time to resolve judgment needed additional time for Mass Housing limited exceptions up to 24 months, as liens and delinquent tax issues against the Board to approve partial releases of two land approved by HUD on a case-by-case basis. land seller and for the project to be initially parcels and for the project to be initially Section 891.805 requires that the general closed. closed. partner in the for-profit limitied partnership Contact: Willie Spearmon, Director, Office Contact: Willie Spearmon, Director, Office be a Private Nonprofit Organization. Section of Housing Assistance and Grant of Housing Assistance and Grant 891.830(b) requires that capital advance Administration, Office of Housing, Administration, Office of Housing, funds be drawn down only in an approved Department of Housing and Urban Department of Housing and Urban ratio to other funds in accordance with a Development, 451 7th Street, SW., Room Development, 451 7th Street, SW., Room drawndown schedule approved by HUD. 6130, Washington, DC 20410–8000, 6130, Washington, DC 20410–8000, Section 891.830(c)(4) prohibits the capital telephone number 202–708–3000. telephone number 202–708–3000. advance funds from paying off bridge or • Regulation: 24 CFR 891.165. • Regulation: 24 CFR 891.165. construction financing, or repaying or Project/Activity: Maranatha Housing, Project/Activity: Johnnie B. Moore Towers collateralizing bonds. Amsterdam, NY, Project Number: 014– II, Atlanta, GA, Project Number: 061–EE160/ Granted by: Brian D. Montgomery, EE264/NY06–S061–009. GA06–S061–004. Assistant Secretary for Housing—Federal Nature of Requirement: Section 891.165 Nature of Requirement: Section 891.165 Housing Commissioner. provides that the duration of the fund provides that the duration of the fund Date Granted: November 20, 2008. reservation of the capital advance is 18 reservation of the capital advance is 18 Reason Waived: Additional time was months from the date of issuance with months from the date of issuance with needed for the firm commitment to be issued limited exceptions up to 24 months, as limited exceptions up to 24 months, as and for the project to be initially/finally approved by HUD on a case-by-case basis. approved by HUD on a case-by-case basis. closed in order to not delay the construction

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of this mixed finance project and to allow Project/Activity: Leonia Retirement to very low-income elderly persons. To other funds to pay for the construction of the Housing II, Leonia, NJ, Project Number: 031– qualify, households must include a minimum project prior to release of the capital advance EE063/NJ39–S061–003. of one person who is at least 62 years of age funds. Nature of Requirement: Section 891.805 at the time of initial occupancy. Contact: Willie Spearmon, Director, Office requires that the general partner in the for- Granted by: Brian D. Montgomery, of Housing Assistance and Grant profit limitied partnership be a Private Assistant Secretary for Housing—Federal Administration, Office of Housing, Nonprofit Organization. Section 891.830(b) Housing Commissioner. Department of Housing and Urban requires that capital advance funds be drawn Date Granted: November 24, 2008. Development, 451 7th Street, SW., Room down only in an approved ratio to other Reason Waived: This waiver was granted to 6130, Washington, DC 20410–8000, funds in accordance with a draw down allow the managing agent to lease units to telephone number 202–708–3000. schedule approved by HUD. Section very low-income, near elderly applicants • Regulation: 24 CFR 891.530 and 24 CFR 891.830(c)(4) prohibits the capital advance when there are no very low-income elderly 891.205. funds from paying off bridge or construction applicants on the waiting list. Despite Project/Activity: Rohlffs Memorial Manor— financing, or repaying or collateralizing aggressive marketing the property continues FHA Project Number 121–SH049, Napa bonds. to experience vacancies. It was determined California. The San Francisco Multifamily Granted by: Brian D. Montgomery, that the waiver would allow stabilization of Hub has requested waiver of the requirement Assistant Secretary for Housing—Federal the project’s current financial status and for nonprofit ownership of a Section 202 Housing Commissioner. prevent foreclosure of the property. Property and waiver of the transfer of Date Granted: November 19, 2008. Contact: Beverly J. Miller, Director, Office physical assets requirement. Reason Waived: The waiver of § 891.805 of Asset Management, Office of Housing, Nature of Requirement: Under § 891.530, complies with statutory requirements that the Department of Housing and Urban prepayment priviliges or the assignment or entity be a nonprofit organization. The Development, 451 7th Street, SW., Room transfer of physical and financial assets of waiver was granted in order to not delay the 6160, Washington, DC 20410–8000, any Section 202 project is prohibited, unless construction of this mixed finance project telephone number 202–708–3730. HUD gives prior written approval. HUD may and to allow other funds to pay for the • Regulation: 24 CFR 891.410(c). not grant approval unless it is determined construction of the project prior to draw Project/Activity: John Fischer Manor—FHA that the loan is part of a transaction that will down of the capital advance funds and to pay Project Number 075–EH388, Appleton, ensure the continued operation of the project off that portion of bridge or construction Wisconsin. The property is located in a very until the original maturity date of the loan financing that relate to capital advance rural area and has been experiencing and at least as advantageous to existing and eligible costs. difficulty in leasing units to the very-low future tenants as the terms required by the Contact: Willie Spearmon, Director, Office income elderly. original Section 202 loan agreement. of Housing Assistance and Grant Nature of Requirement: Section 891.410 Requirements set forth in § 891.205 apply to Administration, Office of Housing, relates to admission of families to projects for Section 202 Supportive Housing for the Department of Housing and Urban elderly or handicapped families that receive Elderly only and to applicants, sponsors and Development, 451 7th Street, SW., Room reservations under Section 202 of the owners under that program. Section 891.205 6130, Washington, DC 20410–8000, Housing Act of 1959, as amended by Section relates to the definition of nonprofit telephone number 202–708–3000. 801 of the National Affordable Housing Act organization, eligible applicants, and • Regulation: 24 CFR 891.310(b)(1). of 1990. Section 891.410(c) limits occupancy requirements for the acquisition of existing Project/Activity: Options Supportive to very low-income elderly persons. To housing and related facilities to be used as Housing Project XIII, Shirley, NY, Project qualify, households must include a minimum supportive housing for the elderly. Number: 012–HD138/NY36–Q071–003. of one person who is at least 62 years of age Granted by: Brian D. Montgomery, Nature of Requirement: Section at the time of initial occupancy. Assistant Secretary for Housing—Federal 891.310(b)(1) requires Section 811 project Granted by: Brian D. Montgomery, Housing Commissioner. entrances, common areas, units to be Assistant Secretary for Housing—Federal Date Granted: October 16, 2008. occupied by resident staff, and amenities Housing Commissioner. Reason Waived: This waiver was granted to must be readily accessible to and usable by Date Granted: October 7, 2008. allow the property to transfer ownership of persons with disabilities. Reason Waived: This regulatory waiver the property to a Low Income Housing Tax Granted by: Brian D. Montgomery, was granted to allow the owner to stabilize credit limited partnership and subordinate Assistant Secretary for Housing—Federal the project’s current financial status and the existing Section 202 loan at the time of sale to make way for a new first lien mortgage Housing Commissioner. prevent foreclosure. It was determined that tied to the issuance of the tax-exempt bonds. Date Granted: December 25, 2008. waiver of this regulation would permit Subordination of the Section 202 loan will Reason Waived: The waiver was granted admission of applicants who meet the allow the new ownership entity to make because it was determined that one bedroom definition of low-income, near elderly, needed capital improvements to the property. and all common areas would be fully enabling them to rent up the 13 vacant units The property is not eligible to prepay under accessible in one of the homes resulting in currently existing at the property, and Notice H 2002–16, instead, the existing loan 8 percent accessibility in the total property. develop a waiting list. The commitment was will continue to amortize and will be Contact: Willie Spearmon, Director, Office made that first priority would be given to all subordinate to new tax credit financing. of Housing Assistance and Grant qualified eligible applicants who meet the Payments on the existing Section 202 loan Administration, Office of Housing, Section 202 very low-income guidelines. will continue until the maturity date of Department of Housing and Urban Contact: Beverly J. Miller, Director, Office February 1, 2016. The benefits to the Development, 451 7th Street, SW., Room of Asset Management, Office of Housing, residents upon completion of the sale 6130, Washington, DC 20410–8000, Department of Housing and Urban include continued affordability of the telephone number 202–708–3000. Development, 451 7th Street, SW., Room property to the tenants until 2063, a new 20- • Regulation: 24 CFR 891.410(c). 6160, Washington, DC 20410–8000, year Section 8 contract for 16 units currently Project/Activity: Corinthian Arbors, telephone number 202–708–3730. under the contract; and expansion of the Corinth, Mississippi—FHA Project Number • Regulation: 24 CFR 891.410(c). Service Coordinator program to work with 065–EE001. The project is experiencing Project/Activity: Howard Wynne Villa— the residents and family members. difficulty leasing units to the very low- FHA Project Number 075–EE070, Reedsburg, Contact: Beverly J. Miller, Director, Office income elderly. Wisconsin. This project is located in a very of Asset Management, Office of Housing, Nature of Requirement: Section 891.410 rural area with few conveniences for senior Department of Housing and Urban relates to admission of families to projects for citizens. The owner/managing agent has Development, 451 7th Street, SW., Room elderly or handicapped families that receive requested waiver of the very low-income and 6160, Washington, DC 20410–8000, reservations under Section 202 of the elderly restriction to permit admission of telephone number 202–708–3730. Housing Act of 1959, as amended by Section lower-income, near-elderly applicants to • Regulation: 24 CFR 891.805 and 24 CFR 801 of the National Affordable Housing Act alleviate current vacancy problems at the 891.830(b) and 891.830(c)(4). of 1990. Section 891.410(c) limits occupancy property.

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Nature of Requirement: Section 891.410 EH268, Carlisle, Kentucky. The owner has project to operate successfully and achieve relates to admission of families to projects for requested waiver of the age and income full occupancy. elderly or handicapped families that receive requirement for this Supportive Housing for Contact: Beverly J. Miller, Director, Office reservations under Section 202 of the the Elderly project to assist with the vacancy of Asset Management, Office of Housing, Housing Act of 1959, as amended by Section problems they are experiencing. Department of Housing and Urban 801 of the National Affordable Housing Act Nature of Requirement: Section 891.410 Development, 451 7th Street, SW., Room of 1990. Section 891.410(c) limits occupancy relates to admission of families to projects for 6160, Washington, DC 20410–8000, to very low-income elderly persons. To elderly or handicapped families that receive telephone 202–708–3730. qualify, households must include a minimum reservations under Section 202 of the • Regulation: 24 CFR 891.410(c). of one person who is at least 62 years of age Housing Act of 1959, as amended by Section Project/Activity: Southwood Village—FHA at the time of initial occupancy. 801 of the National Affordable Housing Act Project Number 061–EE136, Cuthbert, Granted by: Brian D. Montgomery, of 1990. Section 891.410(c) limits occupancy Georgia. The project is experiencing Assistant Secretary for Housing—Federal to very low-income elderly persons. To difficulty in leasing units to the very low- Housing Commissioner. qualify, households must include a minimum income elderly. The project is located in a Date Granted: October 7, 2008. of one person who is at least 62 years of age rural area with a countrywide population of Reason Waived: This regulatory waiver at the time of initial occupancy. approximately 7,791 residents. was granted to assist the property with its Granted by: Brian D. Montgomery, Nature of Requirement: Section 891.410 current vacancy problems. There is Assistant Secretary for Housing—Federal relates to admission of families to projects for insufficient demand to fill the units with Housing Commissioner. elderly or handicapped families that receive very low-income elderly applicants. It was Date Granted: December 3, 2008. reservations under Section 202 of the determined that the owner/managing agent Reason Waived: Waiver of this regulation Housing Act of 1959, as amended by Section would have the flexibility to lease to was granted to allow the owner/managing 801 of the National Affordable Housing Act qualified low-income near elderly applicants agent to rent vacant units to applicants who of 1990. Section 891.410(c) limits occupancy only when there are no very low-income are low-income and near-elderly. The owner/ to very low-income elderly persons. To elderly applicants on the waiting list. The managing agent has aggressively marketed qualify, households must include a minimum waiver was granted to allow the project to the property with local housing authorities, of one person who is at least 62 years of age operate successfully and achieve full news media, churches and various civic at the time of initial occupancy. occupancy so that the project will not fail. organizations. At the time the waiver was Granted by: Brian D. Montgomery, Contact: Beverly J. Miller, Director, Office requested, the property had 3 vacant units Assistant Secretary for Housing—Federal of Asset Management, Office of Housing, and no waiting list. It was determined that Housing Commissioner. Department of Housing and Urban providing for a waiver of this requirement Date Granted: December 3, 2008. Development, 451 7th Street, SW., Room would allow the project to stabilize its Reason Waived: Waiver of the regulations 6160, Washington, DC 20410–8000, current financial status and prevent governing age and income requirements was telephone number 202–708–3730. foreclosure. granted to permit admission of low-income, • Regulation: 24 CFR 891.410(c). Contact: Beverly J. Miller, Director, Office near elderly applicants. The owner/managing Project/Activity: Maple Leaf Housing— of Asset Management, Office of Housing, agent was unable to attract very low-income FHA Project Number 103–EE006, Plymouth, Department of Housing and Urban elderly persons despite aggressive marketing Nebraska. This project is located in a very Development, 451 7th Street, SW., Room efforts through the local authorities, media rural area with few conveniences for senior 6160, Washington, DC 20410–8000, and community organizations. At the time citizens. The owner/managing agent is telephone number 202–708–3730. the waiver was requested, the property had having difficulty in maintaining full • Regulation: 24 CFR 891.410(c). 50 percent occupancy and was unable to occupancy at the project. Project/Activity: Douglas/Elkhorn maintain proper functioning of the project. It Nature of Requirement: Section 891.410 Apartments, FHA Project Number 083– was determined that providing a waiver relates to admission of families to projects for EE092, Phelps, Kentucky. Douglas/Elkhorn is would allow the owner to rent up vacant elderly or handicapped families that receive a Supportive Housing for the Elderly project units, thereby stabilizing the project’s current reservations under Section 202 of the which is located in the rural Appalachian financial status and prevent foreclosure. Housing Act of 1959, as amended by Section Mountain region with few amenities such as Contact: Beverly J. Miller, Director, Office 801 of the National Affordable Housing Act shopping, medical facilities and pharmacies, of Asset Management, Office of Housing, of 1990. Section 891.410(c) limits occupancy to attract qualified applicants. Department of Housing and Urban to very low-income elderly persons. To Nature of Requirement: Section 891.410 Development, 451 7th Street, SW., Room qualify, households must include a minimum relates to admission of families to projects for 6160, Washington, DC 20410–8000, of one person who is at least 62 years of age elderly or handicapped families that receive telephone number 202–708–3730. at the time of initial occupancy. reservations under Section 202 of the • Regulation: 24 CFR 891.410(c). Granted by: Brian D. Montgomery, Housing Act of 1959, as amended by Section Project/Activity: Biimaadiiziiwiin—FHA Assistant Secretary for Housing—Federal 801 of the National Affordable Housing Act Project Number 092–EE086, White Earth, Housing Commissioner. of 1990. Section 891.410(c) limits occupancy Minnesota. This project is experiencing Date Granted: October 9, 2008. to very low-income elderly persons. To difficulty in maintaining sustaining Reason Waived: Waiver of this requirement qualify, households must include a minimum occupancy. was granted to allow the owner/managing of one person who is at least 62 years of age Nature of Requirement: Section 891.410 agent flexibility in renting up vacant units. at the time of initial occupancy. relates to admission of families to projects for At the time the waiver was requested, the Granted by: Brian D. Montgomery, elderly or handicapped families that receive property had 6 vacant units with no one on Assistant Secretary for Housing—Federal reservations under Section 202 of the the waiting list. It was determined that Housing Commissioner. Housing Act of 1959, as amended by Section providing a waiver of the very low-income Date Granted: December 3, 2008. 801 of the National Affordable Housing Act elderly restricting would assist in stabilizing Reason Waived: Waiver of the regulations of 1990. Section 891.410(c) limits occupancy the project’s current financial status and governing age and income requirements was to very low-income elderly persons. To prevent foreclosure. granted to permit admission of low-income, qualify, households must include a minimum Contact: Beverly J. Miller, Director, Office near elderly applicants. The owner/managing of one person who is at least 62 years of age of Asset Management, Office of Housing, agent was unable to attract very low-income at the time of initial occupancy. Department of Housing and Urban elderly persons despite aggressive marketing Granted by: Brian D. Montgomery, Development, 451 7th Street, SW., Room efforts with the local Central Wisconsin Assistant Secretary for Housing—Federal 6160, Washington, DC 20410–8000, Action Council and news media. At the time Housing Commissioner. telephone number 202–708–3730. the waiver was requested, the property had Date Granted: December 24, 2008. • Regulation: 24 CFR 891.410(c). 6 vacant units and no waiting list. It was Reason Waived: Waiver of the regulations Project/Activity: Shepherd Place determined that the waiver would allow governing age and income requirements was Apartments—FHA Project Number 083– flexibility in renting units and allow the granted to assist the project in reaching full

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occupancy. The property is located on an • Regulation: 24 CFR 891.830(c)(4). • Regulation: 24 CFR 5.801. Indian Reservation and there was insufficient Project/Activity: Girard Manor Apartments, Project/Activity: Housing Authority of the demand to fill vacancies with very low- Warren, OH, Project Number: 042–EE216/ City of Rockwall, Rockwall, TX. income elderly applicants. The owner/ OH12–S071–002. Nature of Requirement: HUD’s regulation managing agent continued to market the Nature of Requirement: Section at 24 CFR 5.801 establishes certain reporting property to all ethnic groups and with the 891.830(c)(4) prohibits the capital advance compliance dates. The audited financial local housing authorities and news media. It funds from paying off bridge or construction statements are required to be submitted to the was determined that providing for this financing, or repaying or collateralizing Real Estate Assessment Center (REAC) no waiver would allow the owner/managing bonds. later than 9 months after the housing agent to expand their leasing options, and Granted by: Brian D. Montgomery, authority’s (HA) fiscal year end (FYE) in stabilize the project’s current financial status Assistant Secretary for Housing—Federal accordance with the Single Audit Act, and and prevent foreclosure. Housing Commissioner. OMB Circular A–133. Contact: Beverly J. Miller, Director, Office Date Granted: December 29, 2008. Granted by: Paula O. Blunt, General of Asset Management, Office of Housing, Reason Waived: In order to not delay the Deputy Assistant Secretary for Public and Department of Housing and Urban construction and to reduce the financing cost Indian Housing. Development, 451 7th Street, SW., Room of the tax-exempt bonds, the waiver was Date Granted: October 16, 2008. 6160, Washington, DC 20410–8000, granted to permit the capital advance funds Reason Waived: The HA’s audited telephone number 202–708–3730. to be drawn down using a different financial submission for FYE September 30, • Regulation: 24 CFR 891.830(b). mechanism than a pro-rata share in order to 2007, was rejected by the Financial Project/Activity: Common Ground Senior collateralize the bonds. Assessment Subsystem (FASS) staff and the HA was given 15 days to correct and Housing, Brooklyn NY, Project Number: 012– Contact: Willie Spearmon, Director, Office resubmit the financial data. The HA made the EE338/NY36–S051–004. of Housing Assistance and Grant corrections but failed to ‘‘click’’ the submit Nature of Requirement: Section 891.830(b) Administration, Office of Housing, button. As a result, the submission was not requires that capital advance funds be drawn Department of Housing and Urban electronically submitted to the REAC by the down only in an approved ratio to other Development, 451 7th Street, SW., Room resubmission due date causing the HA to funds in accordance with a drawndown 6134, Washington, DC 20410–8000, receive a Late Presumptive Failure (LPF) schedule approved by HUD. telephone number (202) 798–3000. score of zero. The waiver granted Granted by: Brian D. Montgomery, invalidation of the LPF and resubmission of Assistant Secretary for Housing—Federal III. Regulatory Waivers Granted by the Office of Public and Indian Housing the audited financial data. Housing Commissioner. Contact: Myra E. Newbill, Program For further information about the following Date Granted: November 25, 2008. Manager, NASS, Real Estate Assessment regulatory waivers, please see the name of Reason Waived: In order to limit the out- Center, Office of Public and Indian Housing, the contact person that immediately follows of-pocket interest costs of the mixed-financed Department of Housing and Urban owner, the waiver was granted to permit the the description of the waiver granted. • Development, 550 12th Street, SW., Suite capital advance funds to be drawn down Regulation: 24 CFR 5.801. 100, Washington, DC 20410–5000, telephone using a different mechanism, than a pro rata Project/Activity: New York City number 202–475–8988. basis. With this approval, the mixed-finance Department of Housing Preservation and • owner was able to keep the undisbursed Development, (NY110), New York, NY. Regulation: 24 CFR 5.801. bond proceeds invested, and the interest Nature of Requirement: HUD’s regulation Project/Activity: Housing Authority of the earned on the investment will be used to at 24 CFR 5.801 establishes certain reporting City of Stanton, Stanton, TX. Nature of Requirement: HUD’s regulation offset the interest that is accruing on the tax- compliance dates. The audited financial at 24 CFR 5.801 establishes certain reporting exempt bonds, thereby reducing the cost to statements are required to be submitted to the compliance dates. The audited financial develop the project. Real Estate Assessment Center (REAC) no statements are required to be submitted to the Contact: Willie Spearmon, Director, Office later than 9 months after the housing Real Estate Assessment Center (REAC) no of Housing Assistance and Grant authority’s (HA) fiscal year end (FYE), in later than nine months after the housing Administration, Office of Housing, accordance with the Single Audit Act and authority’s (HA) fiscal year end (FYE) in Department of Housing and Urban OMB Circular A–133. accordance with the Single Audit Act and Development, 451 7th Street, SW., Room Granted by: Paula O. Blunt, General OMB Circular A–133. 6134, Washington, DC 20410–8000, Deputy Assistant Secretary for Public and Granted by: Paula O. Blunt, General telephone number 202–798–3000. Indian Housing. Deputy Assistant Secretary for Public and • Regulation: 24 CFR 891.830(c)(4). Date Granted: October 15, 2008. Indian Housing. Project/Activity: Senior City, Federal Way, Reason Waived: The HA requested a Date Granted: November 14, 2008. WA, Project Number: 127–EE061/WA19– waiver of the Uniform Financial Reporting Reason Waived: The HA’s audited S071–002. Standards (UFRS) audited electronic financial data for FYE December 31, 2007, Nature of Requirement: Section submission requirements for the Financial was completed and inputted into the on-line 891.830(c)(4) prohibits the capital advance Assessment Subsystem (FASS) for FYE system and ready for auditor review. The funds from paying off bridge or construction December 31, 2007, and December 31, 2008, auditor was unable to complete the agreed financing, or repaying or collateralizing since the City of New York has a June 30 upon procedure portion of the financial bonds. FYE. The HA was approved for a FYE change submission due to system access problems Granted by: Brian D. Montgomery, to June 30 to correspond with the City of that could not be corrected in time because Assistant Secretary for Housing—Federal New York FYE. Because, the HA is a Section the HA’s Executive Director broke her leg just Housing Commissioner. 8 only entity and is part of the City of New two weeks prior to the audited financial Date Granted: October 30, 2008. York, the waiver grants the HA additional submission due date resulting in the HA Reason Waived: The waiver was granted in time to submit its FYE December 31, 2007, receiving a Late Presumptive Failure (LPF) order to not delay the construction of this audited financial data by not later than score of zero for its financial submission. The mixed finance project and to allow other March 31, 2009, and it’s audited financial waiver was granted because the funds to pay for the construction of the data for the period of January 1, 2008 through circumstances that prevented the HA from project prior to release of the capital advance June 30, 2009, by no later than March 31, submitting the audited financial data by the funds. 2010. due date were beyond the control of the HA. Contact: Willie Spearmon, Director, Office Contact: Myra E. Newbill, Program Contact: Myra E. Newbill, Program of Housing Assistance and Grant Manager, Real Estate Assessment Center, Manager, NASS, Real Estate Assessment Administration, Office of Housing, Office of Public and Indian Housing, Center, Office of Public and Indian Housing, Department of Housing and Urban Department of Housing and Urban Department of Housing and Urban Development, 451 7th Street, SW., Room Development, 550 12th Street, SW., Suite Development, 550 12th Street, SW., Suite 6134, Washington, DC 20410–8000, 100, Washington, DC 20410–5000, telephone 100, Washington, DC 20410–5000, telephone telephone number 202–798–3000. number 202–475–8988. number 202–475–8988.

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• Regulation: 24 CFR 5.801. later than 9 months after the housing Granted by: Paula O. Blunt, General Project/Activity: Englewood Housing authority’s (HA) fiscal year end (FYE), in Deputy Assistant Secretary for Public and Authority, Englewood, NJ. accordance with the Single Audit Act and Indian Housing. Nature of Requirement: HUD’s regulation OMB Circular A–133. Date Granted: December 24, 2008. at 24 CFR 5.801 establishes certain reporting Granted by: Paula O. Blunt, General Reason Waived: The due date of the compliance dates. The audited financial Deputy Assistant Secretary for Public and financial audit was extended and the zero statements are required to be submitted to the Indian Housing. score for Late Presumptive Failure was Real Estate Assessment Center (REAC) no Date Granted: November 26, 2008. removed due to temporary incapacitation of later than 9 months after the housing Reason Waived: The HA was unaware that the auditor. authority’s (HA) fiscal year end (FYE) in their auditor was under a suspension order Contact: Myra E. Newbill, Program accordance with the Single Audit Act and from the New York State Board of Public Manager, Real Estate Assessment Center, OMB Circular A–133. Accountants. The suspension prohibits Office of Public and Indian Housing, Granted by: Paula O. Blunt, General auditors from providing audits or attesting Department of Housing and Urban Deputy Assistant Secretary for Public and under Government Accounting Standards. Development, 550 12th Street, SW., Suite Indian Housing. Subsequently, the HA retained a new auditor. 100, Washington, DC 20410–5000, telephone Date Granted: November 20, 2008. The waiver was granted because the number 202–475–8988. Reason Waived: The HA’s audited circumstances preventing resubmission by • Regulation: 24 CFR 5.801. financial submission for FYE December 31, the due date were beyond the control of the Project/Activity: Housing Authority of St. 2007, was rejected by the Financial HA. Louis County, St. Louis, MO. Assessment Subsystem (FASS) staff and the Contact: Myra E. Newbill, Program Nature of Requirement: HUD’s regulation HA was given 15 days to correct and Manager, Real Estate Assessment Center, at 24 CFR 5.801 establishes certain reporting resubmit the financial data. Due to medical Office of Public and Indian Housing, compliance dates. The audited financial issues and communication error with their Department of Housing and Urban statements are to be submitted to the Real auditor, the submission was not Development, 550 12th Street, SW., Suite Estate Assessment Center (REAC) no later electronically submitted to the REAC by the 100, Washington, DC 20410–5000, telephone than 9 months after the housing authority’s resubmission due date resulting in a Late (HA) fiscal year end (FYE), in accordance Presumptive Failure (LPF) score of zero. The number 202–475–8988. • with the Single Audit Act and OMB Circular waiver was granted because the Regulation: 24 CFR 5.801. A–133. circumstances that prevented the HA from Project/Activity: Fort Worth Housing Granted by: Paula O. Blunt, General resubmitting the audited financial data by the Authority, Fort Worth, TX. Deputy Assistant Secretary for Public and due date were beyond the control of the HA. Nature of Requirement: HUD’s regulation Indian Housing. Contact: Myra E. Newbill, Program at 24 CFR 5.801 establishes certain reporting Date Granted: December 30, 2008. Manager, Real Estate Assessment Center, compliance dates. The audited financial Reason Waived: The due date of the Office of Public and Indian Housing, statements are required to be submitted to the financial audit was extended due to a Department of Housing and Urban Real Estate Assessment Center (REAC) no communications error between the HA and Development, 550 12th Street, SW., Suite later than 9 months after the housing auditor. 100, Washington, DC 20410–5000, telephone authority’s (HA) fiscal year end (FYE), in Contact: Myra E. Newbill, Program number 202–475–8988. accordance with the Single Audit Act and Manager, NASS, Real Estate Assessment • Regulation: 24 CFR 5.801. OMB Circular A–133. Center, Office of Public and Indian Housing, Project/Activity: Town of Brookhaven Granted by: Paula O. Blunt, General Department of Housing and Urban Housing Authority, Farmingdale, NY. Deputy Assistant Secretary for Public and Development, 550 12th Street, SW., Suite Nature of Requirement: The regulation Indian Housing. 100, Washington, DC 20410–5000, telephone establishes certain reporting compliance Date Granted: December 4, 2008. number 202–475–8988. dates. The audited financial statements are Reason Waived: The HA audited financial • Regulation: 24 CFR 902.20. required to be submitted to the Real Estate submission for FYE December 31, 2007, was Project/Activity: Housing Authority of the Assessment Center (REAC) no later than nine rejected by the Financial Assessment City of Opelousas, Opelousas, LA. months after the housing authority’s (HA) Subsystem (FASS) staff and the HA was Nature of Requirement: The objective of fiscal year end (FYE), in accordance with the given 15 days to correct and resubmit the this regulation is to determine whether a Single Audit Act and OMB Circular A–133. financial data. However, as result of a housing authority (HA) is meeting the Granted by: Paula O. Blunt, General technical computer problem, corrections and standard of decent, safe, sanitary, and in Deputy Assistant Secretary for Public and the resubmission were not submitted to the good repair for its developments. The Real Indian Housing. REAC by the due date causing the HA to Estate Assessment Center (REAC) provides Date Granted: November 20, 2008. receive a Late Presumptive Failure (LPF) for an independent physical inspection of a Reason Waived: The HA, a Section 8-only score of zero. The waiver was granted HA’s property of properties that includes a entity, requested additional time to submit because the circumstances that prevented the statistically valid sample of the units. their FYE December 31, 2007, audit financial HA from resubmitting were beyond the Granted by: Paula O. Blunt, General submission because the town’s fixed asset control of the HA. Deputy Assistant Secretary for Public and records were not finalized. Accordingly, the Contact: Myra E. Newbill, Program Indian Housing. Town of Brookhaven requested and received Manager, Real Estate Assessment Center, Date Granted: October 27, 2008. a Single Audit extension to December 10, Office of Public and Indian Housing, Reason Waived: The HA requested a 2008, to submit the audited financial data. Department of Housing and Urban waiver from physical inspections for the Contact: Myra E. Newbill, Program Development, 550 12th Street, SW., Suite fiscal year ending June 30, 2008, due to Manager, Real Estate Assessment Center, 100, Washington, DC 20410–5000, telephone severe damage to multiple units/buildings at Office of Public and Indian Housing, number 202–475–8988. all of the HA’s sites incurred during Department of Housing and Urban • Regulation: 24 CFR 5.801. Hurricanes Gustav and Ike. The waiver was Development, 550 12th Street, SW., Suite Project/Activity: Viroqua Housing granted based on confirmation provided by 100, Washington, DC 20410–5000, telephone Authority, Viroqua, WI. the New Orleans Field Office’s on-site visit. number 202–475–8988. Nature of Requirement: HUD’s regulation The circumstances surrounding the waiver • Regulation: 24 CFR 5.801. at 24 CFR 5.801 establishes certain reporting were beyond the HA’s control. Project/Activity: Amsterdam Housing compliance dates. The audited financial Contact: Myra E. Newbill, Program Authority, Amsterdam, NY. statements are to be submitted to the Real Manager, NASS, Real Estate Assessment Nature of Requirement: HUD’s regulation Estate Assessment Center (REAC) no later Center, Office of Public and Indian Housing, at 24 CFR 5.801 establishes certain reporting than 9 months after the housing authority’s Department of Housing and Urban compliance dates. The audited financial (HA) fiscal year end (FYE), in accordance Development, 550 12th Street, SW., Suite statements are required to be submitted to the with the Single Audit Act and OMB Circular 100, Washington, DC 20410–5000, telephone Real Estate Assessment Center (REAC) no A–133. number 202–475–8988.

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• Regulation: 24 CFR 902.20. Housing Investments, Office of Public and Contact: Dominique Blom, Deputy Project/Activity: Housing Authority of the Indian Housing, Department of Housing and Assistant Secretary for the Office of Public City of Beaumont, Beaumont, TX Urban Development, 451 7th Street, SW., Housing Investments, Office of Public and Nature of Requirement: The objective of Room 4130, Washington, DC 20140–5000, Indian Housing, Department of Housing and this regulation is to determine whether a telephone number 202-402–4181. Urban Development, 451 7th Street, SW., housing authority (HA) is meeting the • Regulation: 24 CFR 941.606(n)(l)(ii)(B). Room 4130, Washington, DC 20410–5000, standard of decent, safe, sanitary, and in Project/Activity: San Antonio Housing telephone number 202–402–4181. good repair. The Real Estate Assessment Authority (SAHA), San Antonio, TX • Regulation: 24 CFR 941.610(a)(1)–(a)(7). Center (REAC) provides for an independent Nature of Requirement: The regulation Project/Activity: San Antonio Housing physical inspection of all HA’s property of requires that if the owner entity wants to Authority(SAHA), San Antonio, TX. properties that includes a statistically valid serve as a general contractor, it may award Nature of Requirement: This regulation sample of the units. requires HUD review and approval of certain Granted by: Paula O. Blunt, General itself the construction contract only if it can demonstrate to HUD’s satisfaction that its bid legal documents relating to mixed-finance Deputy Assistant Secretary for Public and development prior to closing and release of Indian Housing. is the lowest, competitive bid. Granted by: Paula O. Blunt, General funds. Date Granted: November 20, 2008. Granted by: Paula Blunt, General Deputy Reason Waived: The HA requested a Assistant Deputy Secretary for Public and Indian Housing. Assistant Secretary for Public and Indian waiver from physical inspections for fiscal Housing. year ending (FYE) September 30, 2008, due Date Granted: December 16, 2008. Reason Waived: The waiver was granted Date Granted: December 16, 2008. to severe damage to all the development sites Reason Waived: The waiver was granted to during Hurricane Ike. The waiver was because SAHA submitted an independent cost estimate verifying that the contractor’s streamline the review and expedite closing. granted based on confirmation of the Justification included the findings that SAHA damages by the Houston Field Office. The square foot cost was less than construction estimates. has extensive mixed-finance experience and circumstances surrounding the waiver are that the development partners have beyond the HA’s control. Contact: Dominique Blom, Deputy Assistant Secretary for the Office of Public experience in both HOPE VI and mixed- Contact: Myra E. Newbill, Program finance. Manager, Real Estate Assessment Center, Housing Investments, Office of Public and Contact: Dominique Blom, Deputy Office of Public and Indian Housing, Indian Housing, 451 7th Street, SW., Room Assistant Secretary for the Office of Public Department of Housing and Urban 4130, Washington, DC 20140–5000, Housing Investments, Office of Public and Development, 550 12th Street, SW., Suite telephone number 202–402–4181. Indian Housing, Department of Housing and 100, Washington, DC 20410–5000, telephone • Regulation: 24 CFR 941.606(n)(l)(ii)(B). Urban Development, 451 7th Street, SW., number 202–475–8988. Project/Activity: Housing Authority of the Room 4130, Washington, DC 20410–5000, • Regulation: 24 CFR 941.606(n)(1)(ii)(B). City of Texarkana (HATT), Texarkana, TX. telephone number 202–402–4181. Project/Activity: Muncie Housing Nature of Requirement: The regulation • Regulation: 24 CFR 941.610(a)(1)–(a)(7). Authority (MHA), Muncie, IN requires that if the owner entity wants to Project/Activity: Housing Authority of the Nature of Requirement: The regulation serve as a general contractor, it may award states that if the partner and/or owner entity City of Milwaukee (HACM), Milwaukee, WI. itself the construction contract only if it can Nature of Requirement: This regulation wants to serve as the general contractor, it demonstrate to HUD’s satisfaction that its bid may award itself the construction contract requires HUD review and approval of certain is the lowest, competitive bid. legal documents relating to mixed-finance only if it can demonstrate to HUD’s Granted by: Paula O. Blunt, General satisfaction that its bid is the lowest, development prior to closing and release of Assistant Deputy Secretary for Public and funds. competitive bid. Indian Housing. Granted by: Paula O. Blunt, General Granted by: Paula Blunt, General Deputy Date Granted: December 24, 2008. Assistant Secretary for Public and Indian Deputy Assistant Secretary for Public and Reason Waived: The waiver was granted Indian Housing. Housing. because HATT submitted an independent Date Granted: December 19, 2008. Date Granted: October 28, 2008. cost estimate for Covington Townhomes Reason Waived: The waiver was granted Reason Waived: The waiver was granted to Phase II. The estimate provided by the streamline the review and expedite closing. because MHA’s third party cost estimate had affiliate of the developer illustrated that the construction and infrastructure costs less Justification included the findings that residential construction costs were below the HACM has extensive experience through four than the construction analysis. independent cost review prepared. As cost Contact: Dominique Blom, Deputy existing HOPE VI projects with mixed was below that of the independent cost Assistant Secretary for the Office of Public financing. estimates, HUD’s condition is satisfied. Housing Investments, Office of Public and Contact: Dominique Blom, Deputy Contact: Dominique Blom, Deputy Indian Housing, Department of Housing and Assistant Secretary for the Office of Public Assistant Secretary for the Office of Public Urban Development, 451 7th Street, SW., Housing Investments, Office of Public and Housing Investments, Office of Public and Room 4130, Washington, DC 20140–5000, Indian Housing, Department of Housing and telephone number 202–402–4181. Indian Housing, 451 7th Street, SW., Room Urban Development, 451 7th Street, SW., 4130, Washington, DC 20140–5000, • Regulation: 24 CFR 941.606(n)(l)(ii)(B). Room 4130, Washington, DC 20410–5000, telephone number 202–402–4181. telephone number 202–402–4181. Project/Activity: Charleston Kanawha • Housing Authority (CKHA) Charleston, WV Regulation: 24 CFR 941.610(a)(1)–(a)(7). • Regulation: 24 CFR 982.505(c)(3). Nature of Requirement: This regulation Project/Activity: Charleston Kanawha Project/Activity: Columbus Housing requires that if the owner entity wants to Housing Authority, Charleston, WV. Authority (CHA), Columbus, Georgia. serve as a general contractor, it may award Nature of Requirement: This regulation Nature of Requirement: HUD’s regulation itself the construction contract only if it can requires HUD review and approval of certain at 24 CFR 982.505(c)(3) states that if the demonstrate to HUD’s satisfaction that its bid legal documents relating to mixed-finance amount on the payment standard (PS) is the lowest, competitive bid. development prior to closing and release of schedule is decreased during the term of the Granted by: Paula O. Blunt, General funds. HAP contract, the lower PS amount generally Deputy Assistant Secretary for Public and Granted by: Paula Blunt, General Deputy must be used to calculate the monthly HAP Indian Housing. Assistant Secretary for Public and Indian for the family beginning at the effective date Date Granted: October 31, 2008. Housing. of the family’s second regular reexamination Reason Waived: The waiver was granted Date Granted: October 29, 2008. following the effective date of the decrease. because CKHA submitted a certification by Reason Waived: The waiver was granted to Granted by: Paula O. Blunt, General an independent estimator that the plans, streamline the review and expedite closing. Deputy Assistant Secretary for Public and specifications and construction costs were Justification included the fact that CRH Phase Indian Housing. reasonable for the market area. 3 has the same unit mix, partners, financing Date Granted: October 2, 2008. Contact: Dominique Blom, Deputy and legal documents as approved by HUD in Reason Waived: The CHA requested a Assistant Secretary for the Office of Public 2006 for CRH Phase 1. waiver of PS requirements to permit it to

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implement reduced PSs earlier than required Granted by: Paula O. Blunt, General 110 percent of the fair market rent (FMR) for to avoid termination of housing assistance Deputy Assistant Secretary for Public and the unit size. payments (HAP) contracts during calendar Indian Housing. Granted by: Paula O. Blunt, General year 2008 due to insufficient funding. The Date Granted: October 24, 2008. Deputy Assistant Secretary for Public and waiver was granted because this cost-saving Reason Waived: The SFHRC requested a Indian Housing. measure would enable the CHA to both waiver regarding exception payment Date Granted: November 12, 2008. manage its Housing Choice Voucher program standards so that it could provide a Reason Waived: The GDCA requested a within allocated budget authority and avoid reasonable accommodation to persons with waiver regarding exception payment the termination of HAP contracts due to disabilities. The applicant, a single person standards so that it could provide a insufficient funding. with disabilities, required an accessible, two- reasonable accommodation to a person with Contact: Laure Rawson, Acting Director, bedroom ground floor unit in close proximity disabilities. The participant, who is a person Housing Voucher Management and to the medical facility where care is received. with disabilities that required a single-family Operations Division, Office of Public To provide a reasonable accommodation so home, was required to move to a unit that Housing and Voucher Programs, Office of that this applicant would pay no more than had limited carpeting and was free of Public and Indian Housing, Department of 40 percent of her adjusted income toward the mildew, mold, mice droppings and Housing and Urban Development, 451 7th family share, the SFHC was allowed to inadequate heating. To provide a reasonable Street, SW., Room 4210, Washington, DC approve an exception payment standard that accommodation so that this participant 20410–5000, telephone number 202–708– exceeded the basic range of 90 to 110 percent would pay no more than 40 percent of her 0477. of the FMR. adjusted income toward the family share, the • Regulation: 24 CFR 982.505(d). Contact: Laure Rawson, Acting Director, GDCA was allowed to approve an exception Project/Activity: Housing Authority of the Housing Voucher Management and payment standard that exceeded the basic City of Los Angeles (HACLA), Los Angeles, Operations Division, Office of Public range of 90 to 110 percent of the FMR. CA. Housing and Voucher Programs, Office of Contact: Laure Rawson, Acting Director, Nature of Requirement: HUD’s regulation Public and Indian Housing, Department of Housing Voucher Management and at 24 CFR 982.505(d) states that a public Housing and Urban Development, 451 7th Operations Division, Office of Public housing agency may only approve a higher Street, SW., Room 4210, Washington, DC Housing and Voucher Programs, Office of payment standard for a family as a reasonable 20410–5000, telephone number 202–708– Public and Indian Housing, Department of accommodation if the higher payment 0477. Housing and Urban Development, 451 7th standard is within the basic range of 90 to • Regulation: 24 CFR 982.505(d). Street, SW., Room 4210, Washington, DC 110 percent of the fair market rent (FMR) for Project/Activity: Housing Authority of 20410–5000, telephone number 202–708– the unit size. Asotin County (HAAC), Clarkston, WA. 0477. Granted by: Paula O. Blunt, General Nature of Requirement: HUD’s regulation • Regulation: 24 CFR 982.505(d). Deputy Assistant Secretary for Public and at 24 CFR 982.505(d) states that a public Project/Activity: Housing Authority of the Indian Housing. housing agency may only approve a higher City of Los Angeles (HACLA), Los Angeles, Date Granted: October 17, 2008. payment standard for a family as a reasonable CA. Reason Waived: The HACLA requested a accommodation if the higher payment Nature of Requirement: HUD’s regulation waiver regarding exception payment standard is within the basic range of 90 to at 24 CFR 982.505(d) states that a public standards so that it could provide a 110 percent of the fair market rent (FMR) for housing agency may only approve a higher reasonable accommodation to persons with the unit size. payment standard for a family as a reasonable disabilities. The participant is a 19-year-old Granted by: Paula O. Blunt, General accommodation if the higher payment woman that is the legal guardian of her five Deputy Assistant Secretary for Public and standard is within the basic range of 90 to siblings including one, a nine-year-old Indian Housing. 110 percent of the fair market rent (FMR) for disabled child with Downs Syndrome who Date Granted: November 24, 2008. the unit size. needs to remain in his current unit as it is Reason Waived: The HAAC requested a Granted by: Paula O. Blunt, General well suited to accommodating his disability. waiver regarding exception payment Deputy Assistant Secretary for Public and She was also paying approximately 65 standards so that it could provide a Indian Housing. percent of the family’s adjusted income reasonable accommodation to a person with Date Granted: November 6, 2008. toward her share of the rent as a result of a disabilities. The applicant, who is unable to Reason Waived: The HACLA requested a large rent increase. To provide a reasonable walk, needed to remain in her current waiver regarding exception payment accommodation so that this participant wheelchair accessible three-bedroom mobile standards so that it could provide a would pay no more than 40 percent of her home as documented by her physician. To reasonable accommodation to a person with adjusted income toward the family share, the provide a reasonable accommodation so that disabilities. The participant, who is a HACLA was allowed to approve an exception this applicant would pay no more than 40 paraplegic, was required to move to a ground payment standard that exceeded the basic percent of her adjusted income toward the level wheelchair-accessible unit as verified range of 90 to 110 percent of the FMR. family share, the HAAC was allowed to by her physician. To provide a reasonable Contact: Laure Rawson, Acting Director, approve an exception payment standard that accommodation so that participant payment Housing Voucher Management and exceeded the basic range of 90 to 110 percent was no more than 40 percent of her adjusted Operations Division, Office of Public of the FMR. income, the HACLA was allowed to approve Housing and Voucher Programs, Office of Contact: Laure Rawson, Acting Director, an exception payment standard that Public and Indian Housing, Department of Housing Voucher Management and exceeded the basic range of 90 to 110 percent Housing and Urban Development, 451 7th Operations Division, Office of Public of the FMR. Street, SW., Room 4210, Washington, DC Housing and Voucher Programs, Office of Contact: Laure Rawson, Acting Director, 20410–5000, telephone number 202–708– Public and Indian Housing, Department of Housing Voucher Management and 0477. Housing and Urban Development, 451 7th Operations Division, Office of Public • Regulation: 24 CFR 982.505(d). Street, SW., Room 4210, Washington, DC Housing and Voucher Programs, Office of Project/Activity: Sioux Falls Housing and 20410–5000, telephone number 202–708– Public and Indian Housing, Department of Redevelopment Commission (SFHRC), Sioux 0477. Housing and Urban Development, 451 7th Falls, South Dakota. • Regulation: 24 CFR 982.505(d). Street, SW., Room 4210, Washington, DC Nature of Requirement: HUD’s regulation Project/Activity: Georgia Department of 20410–5000, telephone number 202–708– at 24 CFR 982.505(d) states that a public Community Affairs (GDCA), Carrollton, GA. 0477. housing agency may only approve a higher Nature of Requirement: HUD’s regulation • Regulation: 24 CFR 982.505(d). payment standard for a family as a reasonable at 24 CFR 982.505(d) states that a public Project/Activity: Alaska Housing Finance accommodation if the higher payment housing agency may only approve a higher Corporation (AHFC), Anchorage, AK standard is within the basic range of 90 to payment standard for a family as a reasonable Nature of Requirement: HUD’s regulation 110 percent of the fair market rent (FMR) for accommodation if the higher payment at 24 CFR 982.505(d) states that a public the unit size. standard is within the basic range of 90 to housing agency may only approve a higher

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payment standard for a family as a reasonable housing agency may only approve a higher Nature of Requirement: HUD’s Family Self- accommodation if the higher payment payment standard for a family as a reasonable Sufficiency (FSS) program regulation at 24 standard is within the basic range of 90 to accommodation if the higher payment CFR 984.303(b)(2) requires each FSS family 110 percent of the fair market rent (FMR) for standard is within the basic range of 90 to that is receiving welfare assistance have an the unit size. 110 percent of the fair market rent (FMR) for interim goal of being welfare-free for at least Granted by: Paula O. Blunt, General the unit size. one year before the expiration of the term of Deputy Assistant Secretary for Public and Granted by: Paula O. Blunt, General their FSS Contract of Participation. Indian Housing. Deputy Assistant Secretary for Public and Granted by: Paula O. Blunt, General Date Granted: November 6, 2008. Indian Housing. Deputy Assistant Secretary for Public and Reason Waived: The AHFC requested a Date Granted: December 23, 2008. Indian Housing. waiver regarding exception payment Reason Waived: The HATC requested a Date Granted: December 30, 2008. standards so that it could provide a waiver regarding exception payment Reason Waived: Although the FSS program reasonable accommodation to persons with standards so that it could provide a participant was welfare-free and had disabilities. The applicant, a disabled single- reasonable accommodation to a person with complied with all other aspects of her FSS member family with significant respiratory disabilities. The participant, who is unable to Contract of Participation, serious health issues and very limited mobility, was unable walk, was unable to search for a new unit as problems prevented her from completing the to locate an accessible unit within the documented by her health care provider. interim goal within the term of her FSS AHFC’s maximum payment standard. To Consequently, the participant was paying contract. The waiver allowed the participant provide a reasonable accommodation so that over 75 percent of her monthly adjusted to receive the FSS escrow funds that were this applicant would pay no more than 40 income toward her family share. To provide calculated based on the increases in her percent of his adjusted income toward the a reasonable accommodation so participant earned income during the term of her FSS family share, the AHFC was allowed to payment was no more than 40 percent of her contract. approve an exception payment standard that adjusted income, the HALC was allowed to Contact: Laure Rawson, Acting Director, exceeded the basic range of 90 to 110 percent approve an exception payment standard that Housing Voucher Management and of the FMR for an accessible unit. exceeded the basic range of 90 to 110 percent Operations Division, Office of Public Contact: Laure Rawson, Acting Director, of the FMR. Housing and Voucher Programs, Office of Housing Voucher Management and Contact: Laure Rawson, Acting Director, Public and Indian Housing, Department of Operations Division, Office of Public Housing Voucher Management and Housing and Urban Development, 451 7th Housing and Voucher Programs, Office of Operations Division, Office of Public Street, SW., Room 4210, Washington, DC Public and Indian Housing, Department of Housing and Voucher Programs, Office of 20410–5000, telephone 202–708–0477. Housing and Urban Development, 451 7th Public and Indian Housing, Department of • Regulation: 24 CFR 990.185(a). Street, SW., Room 4210, Washington, DC Housing and Urban Development, 451 7th Project/Activity: Housing Authority of the 20410–5000, telephone number 202–708– Street, SW., Room 4210, Washington, DC County of Chester (HACC), West Chester, PA. 0477. 20410–5000, telephone number 202–708– Nature of Requirement: The Energy Policy • Regulation: 24 CFR 982.505(c)(3). 0477. Act of 2005 amended Section 9(e)(2)(C) of the Project/Activity: Boone County Housing • Regulation: 24 CFR 982.505(d). Housing Act of 1937 by changing the contract Authority (BCHA), Boone County, IL. Project/Activity: Housing Authority of period from 12 to 20 years, yet HUD’s Nature of Requirement: HUD’s regulation Lincoln County (HALC), Newport, OR. regulation at 24 CFR 990.185(a) had not yet at 24 CFR 982.505(c)(3) states that if the Nature of Requirement: HUD’s regulation conformed to the amended statutory period amount on the PS schedule is decreased at 24 CFR 982.505(d) states that a public and continued to present a maximum period during the term of the HAP contract, the housing agency may only approve a higher of 12 years. lower PS amount generally must be used to payment standard for a family as a reasonable Granted by: Paula O. Blunt, General calculate the monthly HAP for the family accommodation if the higher payment Deputy Assistant Secretary for Public and beginning at the effective date of the family’s standard is within the basic range of 90 to Indian Housing. second regular reexamination following the 110 percent of the fair market rent (FMR) for Date Granted: November 21, 2008. effective date of the decrease. the unit size. Reason Waived: HACC was undertaking an Granted by: Paula O. Blunt, General Granted by: Paula O. Blunt, General energy project and anticipated energy Deputy Assistant Secretary for Public and Deputy Assistant Secretary for Public and conservation measures whose life cycle Indian Housing. Indian Housing. expectations and costs were expected to Date Granted: December 10, 2008. Date Granted: October 2, 2008. exceed the 12-year regulatory limitation in 24 Reason Waived: The BCHA requested a Reason Waived: The HAS requested a CFR 990.185(a). Based upon anticipated waiver of payment standard (PS) waiver of requirements regarding the savings and benefits to HACC and its requirements to permit it to implement Agreement to Enter Into a Housing residents, the waiver was granted to allow a reduced PSs earlier than required to avoid Assistance Payments (HAP) Contract longer payback period, contingent on HUD’s termination of housing assistance payments (Agreement) to permit it to continue rental provisions. (HAP) contracts during calendar year 2009 assistance under a HAP contract for Contact: Nicole Faison, Director, Office of due to insufficient funding. The waiver was Verandah Apartments. The waiver was Public Housing Programs, Office of Public granted because this cost-saving measure granted since the project was financed with and Indian Housing, Department of Housing would enable the BCHA to both manage its a FHA 221(d)(4) insured mortgage and the and Urban Development, 451 7th Street, SW., Housing Choice Voucher program within financing source was subject to the same Room 4226, Washington, DC 20410–5000, allocated budget authority and avoid the requirements as the Agreement. The Georgia telephone number 202–708–0744. termination of HAP contracts due to Office of Multifamily Housing verified that • Regulation: 24 CFR 990.315. insufficient funding. the property complied with the requirements Project/Activity: San Francisco Housing Contact: Laure Rawson, Acting Director, of the Agreement. Authority (SFHA), San Francisco, CA. Housing Voucher Management and Contact: Laure Rawson, Acting Director, Nature of Requirement: The regulation Operations Division, Office of Public Housing Voucher Management and requires timely submission of operating Housing and Voucher Programs, Office of Operations Division, Office of Public budgets for HUD approval. Public and Indian Housing, Department of Housing and Voucher Programs, Office of Granted by: Paula O. Blunt, General Housing and Urban Development, 451 7th Public and Indian Housing, Department of Deputy Assistant Secretary for Public and Street, SW., Room 4210, Washington, DC Housing and Urban Development, 451 7th Indian Housing. 20410–5000, telephone number 202–708– Street, SW., Room 4210, Washington, DC Date Granted: November 24, 2008. 0477. 20410–5000, telephone number 202–708– Reason Waived: The deadline requirement • Regulation: 24 CFR 982.505(d). 0477. was waived and extended because HUD Project/Activity: Housing Authority of • Regulation: 24 CFR 984.303(b)(2). requested revised alignments of asset Thurston County (HATC), Olympia, WA. Project/Activity: State of California management projects, causing re-negotiation Nature of Requirement: HUD’s regulation Department of Housing and Community of labor agreements simultaneously with the at 24 CFR 982.505(d) states that a public Development; Sacramento, CA. appointment of a new Executive Director.

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Contact: Gregory A. Byrne, Director, requirements when there are circumstances lack of a legal quorum of SRTC for the past Financial Management Division, Real Estate beyond the control of the Tribe. 9 months. Tribal certification was waived so Assessment Center, Office of Public and Granted by: Paula O. Blunt, General to reserve $73,786 for the Village of Stony Indian Housing, Department of Housing and Deputy Assistant Secretary for Public and River. Urban Development, 550 12th Street, SW., Indian Housing. Contact: Rodger J. Boyd, Deputy Assistant Suite 100, Washington, DC 20410–5000, Date Granted: November 21, 2008. Secretary, Office of Native American telephone number 202–475–8632. Reason Waived: The Alaska Village Programs, Office of Public and Indian Council of Presidents Regional Housing • Regulation: 24 CFR 1000.224. Housing, Department of Housing and Urban Authority (AVCPRHA) is the Tribally Development, 451 7th Street, SW., Room Project/Activity: Village of Stony River, designated housing entity (TDHE) for 48 4126, Washington, DC 20410; (202) 401– Alaska. Tribes, including the Stony River Traditional 7914. Nature of Requirement: HUD’s regulation Council (SRTC). AVCPRHA attempted to at 24 CFR 1000.224 provides authority to obtain tribal certification from SRTC for the [FR Doc. E9–5653 Filed 3–16–09; 8:45 am] waive Indian Housing Plan (IHP) FY 2008 IHP, but was unsuccessful due to BILLING CODE 4210–67–P

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Reader Aids Federal Register Vol. 74, No. 50 Tuesday, March 17, 2009

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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 3 CFR 436...... 10830 Executive orders and proclamations 741–6000 Proclamations: Proposed Rules: The United States Government Manual 741–6000 8346...... 9735 72...... 9178 170...... 9130 Other Services 8347...... 9737 171...... 9130 Electronic and on-line services (voice) 741–6020 8348...... 9739 Privacy Act Compilation 741–6064 8349...... 9741 11 CFR 8350...... 9745 Public Laws Update Service (numbers, dates, etc.) 741–6043 100...... 9565, 10676 TTY for the deaf-and-hard-of-hearing 741–6086 8351...... 9747 Executive Orders: 104...... 9565, 10676 13435 (revoked by 110...... 9565, 10676 ELECTRONIC RESEARCH 13505) ...... 10667 12 CFR World Wide Web 13505...... 10667 13506...... 11271 327...... 9338, 9525 Full text of the daily Federal Register, CFR and other publications Administrative Orders: 370...... 9522 is located at: http://www.gpoaccess.gov/nara/index.html Memorandums: 740...... 9347 Federal Register information and research tools, including Public Memorandum of March 747...... 9349 Inspection List, indexes, and links to GPO Access are located at: 3, 2009 ...... 9753 Proposed Rules: http://www.archives.gov/federallregister Memorandum of March 4...... 10136 E-mail 4, 2009 ...... 9755 21...... 10130 Memorandum of March 510...... 10145 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 9, 2009 ...... 10664 563...... 10139 an open e-mail service that provides subscribers with a digital Memorandum of March 701...... 9573 form of the Federal Register Table of Contents. The digital form 9, 2009 ...... 10671 of the Federal Register Table of Contents includes HTML and Notices: 14 CFR PDF links to the full text of each document. Notice of March 3, 39 ...... 9565, 10166, 10168, To join or leave, go to http://listserv.access.gpo.gov and select 2009 ...... 9751 10455, 10457, 10469, 11001, Online mailing list archives, FEDREGTOC-L, Join or leave the list Notice of March 11, 11003, 11004, 11006, 11009, (or change settings); then follow the instructions. 2009 ...... 10999 11011, 11013, 11014 71...... 10676 PENS (Public Law Electronic Notification Service) is an e-mail 5 CFR service that notifies subscribers of recently enacted laws. 73...... 10171 300...... 9951 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 97 ...... 10471, 10473, 11278 532...... 9951 and select Join or leave the list (or change settings); then follow Proposed Rules: 630...... 10165 the instructions. 39 ...... 9050, 9774, 9776, 9971, 1201...... 9343 10195, 10197, 10199, 10202, FEDREGTOC-L and PENS are mailing lists only. We cannot 1210...... 9343 11043 respond to specific inquiries. Proposed Rules: 65...... 10689 Reference questions. Send questions and comments about the 532...... 9967, 9968 71 .....9053, 9973, 9974, 10690, Federal Register system to: [email protected] 7 CFR 10691 The Federal Register staff cannot interpret specific documents or 119...... 10689 regulations. 636...... 10673 121...... 10689 925...... 11275 Reminders. Effective January 1, 2009, the Reminders, including 135...... 10689 944...... 11275 142...... 10689 Rules Going Into Effect and Comments Due Next Week, no longer 984...... 9045, 9344 appear in the Reader Aids section of the Federal Register. This 989...... 9951 15 CFR information can be found online at http://www.regulations.gov. 1220...... 9047 950...... 11017 CFR Checklist. Effective January 1, 2009, the CFR Checklist no 1465...... 10674 longer appears in the Federal Register. This information can be 1466...... 10674 Proposed Rules: found online at http://bookstore.gpo.gov/. 1779...... 9759 922...... 9378, 9574 3575...... 9759 16 CFR FEDERAL REGISTER PAGES AND DATE, MARCH 4279...... 9759 4280...... 9759 1500...... 10475 9045–9158...... 2 5001...... 9759 Proposed Rules: 9159–9342...... 3 Proposed Rules: 305...... 11045 9343–9564...... 4 340...... 10517 306...... 9054 9565–9752...... 5 980...... 9969 320...... 10843 4753–9950...... 6 1005...... 10842 17 CFR 9951–10164...... 9 1007...... 10842 10165–10454...... 10 4...... 9568 10455–10672...... 11 8 CFR 201...... 9159 10673–10810...... 12 274a...... 10455 232...... 10836 10811–11000...... 13 239...... 10836 11001–11274...... 16 10 CFR 249...... 10836 11275–11460...... 17 63...... 10811 269...... 10836

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